James Chamisa v City of Harare

### Preamble
1
HH 571 - 25
HCH 11463/18
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JAMES CHAMISA

versus

CITY OF HARARE

HIGH COURT OF ZIMBABWE

DUBE - BANDA J

HARARE; 27 January 2025, 3 February 2025, 14 March 2025, 26 March 2025 & 26 September 2025

Civil Trial

K.E. Kadzere for the plaintiff

C. Kwaramba for the defendant

DUBE - BANDA J:

The plaintiff sued out a summons against the defendant claiming an order declaring the conduct of the municipal police unlawful; payment of USD$31, 830.00 being damages for medical expenses, assault, pain, shock, suffering and contumelia he allegedly suffered because of the assault by municipal police acting within the scope of their employment.

In the declaration, the plaintiff contends that on 4 October 2018, at approximately 14:00 hours and at First Street, Harare, he was wrongfully and unlawfully assaulted by municipal police all over his body, using inter alia, baton sticks; clenched fists; booted feet; and open hands. It is contended that the municipal police insulted the plaintiff by calling him a prostitute in full view of members of the public. This assault is alleged to have occurred during an operation to rid Harare of vendors and touts. It is further contended that at all material times, the municipal policemen were acting within the course and scope of their employment with the defendant.

It is averred that because of the assaults, the plaintiff suffered the following bodily injuries:

Physical bodily injury – multiple abraded and bruised parts of the body that include the posterior and front torso, front thighs, areas above the ankles, the face, as well as upper extremities, associated tenderness of soft tissue over all mentioned parts of the body.

A fractured right hand (forearm).

Two fractured ribs on the right side of the rib cage.

Laceration of the lower lip.

Abrasions and bruising of tissues of the torso and limb.

Split laceration in the vertical pattern on both legs.

A non-therapeutic extra corporeal material.

In addition, it is averred that the plaintiff suffered psychological injury, i.e., shock; failure to sleep; experiencing fatigue and loss of energy and difficulty in concentration and hallucination; poor orientation and difficulty in walking; and depression.  It is further averred that because of the assault, the plaintiff experienced extreme pain, was hospitalized and incurred medical expenses for ointments, and X-ray as well as medication.

It is contended that in the result, the plaintiff suffered damages in the amount of USD$31, 830.00 made up as follows: USD1, 830.00 for medical expenses; USD20, 000.00 for shock and suffering; and USD10, 000.00 for contumelia.

In its plea, the defendant denies that the plaintiff was assaulted as alleged, and that if he was assaulted, it is disputed that the persons who assaulted him are employees of the defendant. Further it is averred that even if they were, it is denied that they were acting within the course and scope of employment with the defendant. In essence, it is denied that the defendant is vicariously liable for the injuries suffered by the plaintiff. It is disputed that the plaintiff suffered physical and psychological injuries. In addition, it is denied that he suffered any humiliation. In fact, the defendant denies liability for the damages claimed by the plaintiff, and sought that the claim be dismissed with costs.

At a pretrial conference held before a judge, the issues for trial were identified and delineated as the following:

Whether or not the plaintiff was assaulted by defendant’s employees and, if so, whether the defendant is vicariously liable for the assault.

Whether or not the defendant is liable to pay damages and, if so, the quantum thereof.

The onus is on the plaintiff on all the issues. I now turn to the three issues for trial as delineated in the pre-trial conference order.

Whether the plaintiff was assaulted by defendant’s employees

The plaintiff bears the onus to prove that he was assaulted, and is so, whether the assault was perpetrated by the defendant’s employees. The plaintiff testified that he was assaulted with baton sticks, clenched fists on the head, on his hands and he was kicked on his ribs. The assault caused him to suffer a fracture on his right hand, and two fractures on the ribs. Suffered further injuries to his mouth and legs. The plaintiff testified that at the hospital tubes were inserted to drain blood from his body. He was admitted at the Parirenyatwa Hospital from 4 October to 10 October 2018, and at Westgate Medical Centre from 10 October to 14 October 2018. While at the hospital he was unable to sit or walk.

The plaintiff called the evidence from Dr. Phillip D. Manema, a medical doctor. He is a qualified medical doctor with 15 years’ experience. His evidence was that at the relevant period on 4 October 2018 he was attached to Parirenyatwa Group of Hospitals, where he examined the plaintiff and observed the following injuries: blunt chest trauma; fracture rib distal ulna; laceration inside the lip; and bruises on both legs and arms.

In its evidence, the defendant did not dispute that the plaintiff was assaulted.  The thrust of its evidence was directed at disputing that it was its employees who assaulted him. In the circumstances, I find that the plaintiff established as required by the law that he was assaulted and suffered certain injuries.  It then remains to be determined whether he was assaulted by the municipal police, the employees of the defendant.

To prove that he was assaulted by the municipal police, the plaintiff testified that on 4 October 2018 and along First Street in Harare he was accosted by members of the Municipal police and Zimbabwe Republic Police (“Z.R.P.”). The officers were many in three lorries, and one was driven by a Municipal policeman answering to the name Bhuru, and he also identified one municipal police called Magaya. He testified that the municipal officers were wearing municipal police uniform, i.e., black trousers, blue shirts and white caps, while some were wearing blue overalls, and some were in civilian clothes.  He testified that the officers apprehended and assaulted him on the allegations that he was part of the vendors and other people who were causing problems in the streets of Harare.  The plaintiff testified further that he denied that he was part of the vendors causing problems, however municipal officers threw him in their truck and started assaulting him as described above.  He said that Magaya was one of those who assaulted him, and he was taken to where some vendors were gathered. In evidence in chief the plaintiff was asked as to how he was able to identify that the people who assaulted him were municipal police, he answered that he used to see them at the Harare Municipal offices.

In disputing that the plaintiff was assaulted by the municipal police, the defendant called the evidence of Chief Inspector in its police.  The Chief Inspector works in the operations department and is responsible for the deployment of the municipal police. The witness testified that at the material time, i.e., in 2018 she was an Inspector responsible for deployment and reporting to a Chief Inspector. She testified that at the material time there was an operation to rid the city of vendors. She disputed that on 4 October 2018 the City of Harare deployed it police to patrol First Street in Harare. She further testified that this incident is alleged to have happened after the general elections of 2018, and municipal police were not at that period working around the area mentioned by the plaintiff. The witness testified further that during that period there was political violence, and municipal police were not involved in that violence. On 4 October 2018 the defendant did not receive a report of the incident testified to by the plaintiff. This witness disputed that there was an officer answering the name Bhuru, and said there were many officers answering to the name Magaya. This witness testified that if requested, municipal police would collaborate with the Zimbabwe Republic Police. However, on 4 October 2018 there was no such collaborative operation.

Under cross examination this witness testified that during the material period the defendant was not deploying officers in the area where the plaintiff was assaulted. The decision not to deploy in that area was made by the seniors and could have been communicated in writing. Asked whether she had a copy of a written document, her answer was that now she did not think she could locate the document. On being further questioned, she said because of the lapse of time she could not recall whether there was anything written. The witness confirmed that municipal police put on black trousers and blue shirts, and they normally carry batons.  She testified that on 4 October the defendant did not deploy its police along First Street, Angwa Street, Fourth Street, Inez Street, Rober Mugabe Street, Jason Moyo Street, Nkwame Nkuruma Street and Samora Machel Street. However, there were deployments in other areas such as Julius Nyerere Street going to the West and the outskirts of the Central Business District. She agreed that in some instances municipal police conducted joint operations with the Zimbabwe Republic Police, but not the Support Unit, a Unit that specializes in public order and quelling disturbances. In re-examination she disputed that any of the Magayas was on duty on 4 October 2018.

In determining the issue of whether the plaintiff was assaulted by the municipal police, first it is important to carefully look at the pleadings. The jurisprudence is that the purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed. See Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Private) Limited SC 24/18; Durbach v Fairway Hotel, Ltd 1949 (3) SA 1081 (SR).

A party has a duty to allege in the pleadings the material facts upon which it relies. See Minister of safety and Security v Slabbert (2010 2 All SA 474 (SCA) 478 par 11). This common law position is codified in r 36(1)(d) of the High Court Rules, 2021 which provides that:

“Every pleading shall – contain a clear and concise statement of the material facts upon which the party pleading relies for his or her claim or defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto, but not the evidence by which they are to be proved.” (My emphasis).

In his declaration the plaintiff averred that on 4 October 2018, at around 14:00 hours and at First Street, Harare he was assaulted by municipal police. He provided the year, month, date, time and the place of the assault. In its plea the defendant chose to be general and merely denied that the plaintiff was assaulted as alleged and further denied that he was assaulted by the municipal police. At the trial the core of the defendant’s defence is that on 4 October 2018 there was no municipal police deployment along First Street, Harare where the plaintiff was assaulted, and that such non-deployment was due to political violence in the Streets of Harare. These are the material facts upon which the defendant relies in its defence and ought to have been pleaded. The plea did not inform the plaintiff of the exact case he had to meet at the trial. See Nieuwoudt v Joubert 1988 2 All SA 189 (SE) 194. This gives credence to the plaintiff’s contention that the defendant’s defence predicated on the contention that on 4 October 2018 there was no municipal police deployment along First Street, Harare is an afterthought.

In addition, on 25 February 2020 the defendant filed a summary of evidence. In the summary it stated that at the trial it shall call the evidence of one Mr Charles Kandemiri, the Chamber Secretary. It is stated that he who would testify that the plaintiff was not assaulted by Council officials or employees. There was no mention of the fact that on 4 October 2018 there was no deployment of Municipal police along First Street, Harare where the plaintiff was assaulted. It was only on 27 January 2025 that the defendant filed an amended summary of evidence wherein it stated that Thabani Shiripinda will testify that at the material time, the place where the plaintiff was allegedly assaulted was a no-go area for municipal police because of the political tensions which existed in the country soon after the 2018 elections. This amendment must be located in its proper context, in that the trial was first set down for 20 January 2025 and this summary was filed after the postponement and on the date of the commencement of the trial.  This further buttress the plaintiff contention that the defence premised on the non-deployment on 4 October 2018 along the area the plaintiff was assaulted is an afterthought.

The credible and acceptable evidence shows that the plaintiff was assaulted on 4 October 2018. The defendant’s sole witness testified on 3 February 2025, i.e., more than six years after the assault.  It is conspicuous that this witness, relying on memory, provided details of municipal police deployment on 4 October 2018, mentioning streets where there were deployment and no deployment.  She did not refresh her memory from a deployment record or some other official document. This strains credulity beyond accepted limits. This is so because she deals with deployments every day, for her to have such a vivid recollection of deployment details that occurred on a particular day more than six years ago is beyond human capacity.  See S v Mutasa 1976 (1) PH (H) 24 (R).

In addition, this witness under cross examination was evasive when asked about who made the decision not to deploy along First Street, Harare. First, she said the decision was made by the seniors and could have been communicated in writing. Pressed on whether she had a copy of a written document, her answer was that she did not think she could locate the document. On being further questioned, she said because of the lapse of time she could not recall whether there was anything written.  In re-examination, without reference to any official document, the witness said none of the municipal police officers answering to the name Magaya was on duty on 4 October 2018. How she could from memory give such a detail of an event that happened six years ago is beyond credulity. This gives further credence to the submission that the evidence of non-deployment on 4 October 2018 along First Street, Harare is an afterthought and a recent fabrication.

In cross examination, Mr Kwaramba, the defendant sought to attack the credibility of the plaintiff. This attack was followed up in defendant’s written submissions. The plaintiff was subjected to prepared and tactical cross-examination on the discrepancies between his version in court and the letter of demand and what he allegedly informed Dr. Matara when he was first admitted into hospital. In the letter of demand and the affidavit deposed to by Dr. Matara it is stated that he was employed as a security officer by a political formation called Movement for Democratic Change (“MDC”). However, according to his evidence at the trial, the plaintiff testified that he was employed by a company called Exodus. It was submitted that his evidence was a complete departure from the letter of demand and what he told Dr. Matara

It is trite that findings of credibility cannot be judged in isolation but require to be considered in the light of proven facts and the probabilities of the matter under consideration. The plaintiff explained the discrepancy; he testified that the letter of demand and the version given to Dr. Matara was done by his relatives when he was unconscious in hospital. The explanation sits well with the probabilities of this case. I accept it. The high watermark of the evidence of the plaintiff shows that he was employed at Exodus and would perform, on a part time basis, security duties at MDC when he was called upon to do so. I take the view the discrepancies are not a debit to the plaintiff’s credibility.

In concluding this aspect of the case, I take it that the plaintiff identified two municipal police officers who participated in the assault. The defendant conceded that the municipal police wear the uniforms and use motor vehicles as described by the plaintiff. In assessing the probabilities, phase by phase as events unfolded, the conclusion seems to me to be inescapable that of the two versions before court that of the plaintiff is the more probable.   The defence of non-deployment on 4 October 2018, along First Street, Harare is an afterthought and a recent fabrication. The evidence given by the plaintiff was credible, and his version carries a reasonable degree of probability. I am more than satisfied that the plaintiff was violently assaulted by municipal police on 4 October 2018, at approximately 14:00 hours and at First Street, Harare. Therefore, the issue whether the assault was perpetrated by the defendant’s employees is answered in favour of the plaintiff.

Is the defendant vicariously liable for the assault?

The plaintiff bears the onus of proving that the defendant is vicariously liable for actions of its police officers, and once found liable, the onus shifts to the defendant, to prove that the conduct of its police conduct was lawful.

The question that arises is whether the municipality police who assaulted the plaintiff were acting in the course and scope of their employment. It is established law that an employer is vicariously liable for delicts committed by its employee where the employee is acting within the course and scope of his or her duties as an employee. In K v Minister of Safety and Security 2005 (6) SA 419 at 43 para. 21 the court explained that the rationale for this legal principle is the desirability of affording claimants’ efficacious remedies for harm suffered. The other reason is the need to use legal remedies to incite employers to take positive steps to prevent employees from harming members of the broader community.  The court cautioned that ‘damages should not be borne by employers in all circumstances, but only in those circumstances in which it is fair to require them to do so’. See HK Manufacturing Co (Pty) Ltd v Sadowitz 1965 (3) SA 328 (C) at 332C-E; Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1990 (2) ZLR 108 (H), Rose NO v Fawcett Security Operations (Pvt) Ltd 1998 (2) ZLR 114 (H), and Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H); Witham v Minister of Home Affairs 1987 (2) ZLR 143 (H); Munengami v Minister of Defence 2006 (1) ZLR 409 (H).

In casu, the acceptable evidence is that the plaintiff was accused of being an illegal vendor. The fact that in reality he was not an illegal vendor is inconsequential, what is important is that it was the accusation levelled against him.  It is the duty of municipal police in terms of s 142 of the Urban Councils Act [Chapter ……] as read with Harare (Vendors) By-laws,  SI 159 of 2014, to enforce city by-laws and manage vendors. These by-laws specify illegal actions, like selling goods without a permit or in undesignated areas and allow for the confiscation of goods. The by-laws grant municipal police and other authorized council officials the power to seize goods from vendors who are trading illegally, such as without a license or outside designated areas. It establishes penalties for various offenses, which include trading outside specified areas, selling prohibited goods, and failing to comply with a lawful order from an authorized official. The by-laws provide for the disposal of confiscated or unclaimed goods. Further the fact that there is no provision in the law that specifically grants municipal police powers of arrest is inconsequential.  I take the view that the municipality police by accosting plaintiff and putting him in their vehicle, were doing the defendant’s duties of managing illegal vendors.

The municipal police were using a council vehicle, some putting on municipality police uniform, and carrying batons issued by the municipality. I accept that in assaulting the plaintiff all over the body with batons; clenched fists; booted feet; and open hands was not authorised by the defendant. However, it was conduct so connected with authorised acts of managing illegal vendors that it can be regarded as an improper or wrongful mode of doing them. In other words, this conduct amounted to abuses and excesses in the execution of the business defendant. See Munengami v Minister of Defence 2006 (1) ZLR 409 (H). The conduct did not constitute a complete abdication of their prescribed task to dissociate their wrongful conduct from the business of the employer. The acts of the municipal police had some connection with defendant’s work of managing illegal vendors. It was not a departure from the path of duty to constitute such an abandonment or deviation as to dissociate this assault the risk created by the employment and to exonerate the defendant from liability.  See Macala v Maokeng Town Council 1993 (1) SA 434 (A) at 440-1. It is the defendant which deployed the municipal police to manage vendors in the City of Harare. Damages should not be borne by employers in all circumstances, but only in those circumstances in which it is fair to require them to do so. My view is that this is one of them. It is therefore my finding that the defendant is vicariously liable for the assault perpetrated by its police on the plaintiff on 4 October 2018. See Gweshe v Minister of Defence HH-28-06.

I now turn to address the question of wrongfulness. The defendant has not argued that the assault on the plaintiff was lawful. My view is that the assault on the plaintiff was unlawful.

Whether the defendant is liable to pay damages and, if so, the quantum thereof

As stated above, the plaintiff was violently assaulted by municipal police, who were acting within the course and scope of their employment with the defendant. The assault was unlawful. He is entitled to damages. See Mapuranga v Mungate 1997 (1) ZLR 64 (H) at 77D-E.

Shock, Pain and Suffering

In Trevor Simbanegavi v Officer Jachi HH-40-13 at p 4 of the cyclostyled judgment the court observed:

“Assessment of damages in personal injury cases is one of the most daunting tasks that can

confront a judicial officer. Gubbay JA (as he then was) summed it up in Minister of Defence and Anor v Jackson 1990(2) ZLR 708 (SC) when he stated:

It must be recognized that translating personal injuries into money is equating the incommensurable, money cannot replace a physical frame that has been permanently injured. The task therefore of assessing damages for personal injury is one of the most perplexing a court has to decide”.

G. Feltoe in A Guide to the Zimbabwean Law of Delict p 93 says the following on assessment of damages for pain and suffering:

“The plaintiff can claim for all pain, suffering and discomfort suffered, or to be suffered, by him as a result of the defendant’s wrongful act. Account must be taken not only of the pain and suffering occurring as a direct consequence of the infliction of the injuries, but also of pain and suffering associated with surgical operations and other curative treatment reasonably undergone by the plaintiff in respect of such injuries.

The quantum of damages in this regard is extremely difficult to assess and here particular regard should be had to comparable past cases as a guide to assessment. In making an assessment, the prime considerations are the duration and intensity of the pain. These factors will turn upon the nature of the injuries, the medical evidence and the general circumstances of the case. The test is a subjective one. The thin skull rule would apply here. If the plaintiff is abnormally sensitive to pain he is entitled to greater damages than the normal person. Conversely, if the plaintiff is abnormally insensitive to pain, he cannot enhance his claim by advancing evidence that the normal person would have suffered extreme pain”.

[30] In Minister of Defence and Another v Jackson 1990(2) ZLR 1 (SC) the court highlight eight broad principles that should guide a court in assessing general damages. These are:

“. General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrong-doer.

Compensation must be so assessed as to place the injured party, as far as

possible in the position he would have occupied if the wrongful act causing him

the injury had not been committed. See Union Gvt v Warnecke 1911 AD 651 at 665.

Since no scales exist by which pain and suffering can be measured, the

quantum of compensation to be awarded, can only be determined by the

broadest general considerations (See Sandler v Wholesale Coal Suppliers

Ltd1941 AD 194 at 199).

The court is entitled, and it has the duty, to heed the effect its decision may have

upon the course of awards in future. (See Sigournay v Gill Bank 1960(2) SA

552(A) at 555H.

The fall in the value of money is a factor which should be considered in

terms of purchasing power, but not with such an adherence to mathematics as

may lead to an unreasonable result, per Schreiner Ja in Sigournay’s case,

supra, at 556C See also Southern Insurance Association Ltd v Bailey N.O

1984(1) SA 98(A) at 116 B-D, Ngwenya v Mafuka S18/89 not reported at page of the cyclostyled copy.

No regard is to be had to the subjective value of money to the injured person,

for the award of damages for pain and suffering cannot depend upon or vary 	according to whether he be a millionaire or a pauper (See Radebe v Hough

1949(1) SA 380(A) at 386.

Awards must reflect the state of economic development and current economic

conditions of the country. See Mairs case supra at 29H; Sadomba v Unity Insurance Co. Ltd & Another 1978 RLR 262(G) at 270F; 1978(3) SA 1094® at 1097C Minister of Home Affairs v Allan S 76/86… at p 12 of the cyclostyled copy. They should tend towards conservatism lest some injustice be done to the defendant See Bay Passenger Transport Ltd v Franzem 1975(1) SA 269(A) at 274H.

For that reason, reference to awards made by the English and South African

courts may be an inappropriate guide since conditions in those jurisdictions, both political and economic are so different”.

In Nyandoro v Minister of Home Affairs & Anor HH-196-10, Patel J awarded the sum of $1500-00 to an activist who was attacked by members of the Zimbabwe Police with button sticks. The plaintiff suffered excruciating pain and underwent a surgical operation to correct the effects of a leg injury. He was hospitalised for a prolonged period. He is periodically prescribed pain killers to assuage the pain.

In casu, the assault was unprovoked, vicious and inhuman. The plaintiff suffered two fractured ribs on the right side of the rib cage; fractured right hand (forearm); had a laceration of the lower lip; abrasions and bruising of tissues of the torso and limb; and split laceration in the vertical pattern on both legs. In addition, he suffered multiple abraded and bruised parts of the body that include the posterior and front torso, front thighs, areas above the ankles, the face, as well as upper extremities, associated tenderness of soft tissue over all mentioned parts of the body. No doubt the plaintiff experienced extreme pain and was hospitalized for long periods.

The plaintiff was brutally assaulted using batons, booted feet etc. he suffered psychological injury, i.e., shock; failure to sleep; experiencing fatigue and loss of energy and difficulty in concentration and hallucination; poor orientation and difficulty in walking; and depression.

The plaintiff was, on the evidence, peaceful and law-abiding, minding his business.  It was improper, undesirable and unlawful for municipal police to violate him in such a violent manner. Punitive and exemplary damages will go some way towards underscoring the repugnance, outrageous, frightening and despicable nature of the assault. Damages for pain and suffering in the sum of US$15,000.00 will meet the justice of this case.

Contumelia

The authors Visser & Potgieter in Law of Damages 3rd ed at p 551 say the following about what the court must consider in assessing damages for contumelia:

“Allowance should be made for the nature and seriousness of the assault, the fear created in the plaintiff, the extent to which he or she was humiliated by the aggression to his or her personality, the motive of the attacker, the publicity accorded to the event, the status of the plaintiff, possible provocation by the plaintiff, an apology on the part of the defendant, previous awards in comparable cases (allowing for inflation) and any other relevant facts”.

In casu, the violence that accompanied the assault, the seriousness of the assault, the fear created in the plaintiff, the extent to which he was humiliated by the aggression perpetrated by the attackers. The plaintiff had not provoked the attackers. No apology. This also calls for exemplary damages under this head. My view is that damages for contumelia in the sum of US$5,000.00 will meet the justice of this case.

On the facts and evidence of this case, I accept that the plaintiff has made a case for damages for medical expenses in the sum of UD$1, 830, 00.

The question of costs remains to be considered. No good grounds exist for a departure from the general rule that costs follow the cause. The plaintiff is clearly entitled to his costs. Accordingly, I hereby order as follows:

The defendant be and are hereby ordered to pay the plaintiff damages in the sum of US$15,000.00 for shock and suffering

The defendant be and are hereby ordered to pay the plaintiff damages in the sum of US$5,000.00 for contumelia.

The defendant be and is hereby ordered to pay the plaintiff damages for medical expenses in the sum of US$1,830.00.

Interest on the total amount of US$21,830.00 at the prescribed rate calculated from the date of judgment to the date of final payment.

The defendant to pay the costs of suit.

Dube Banda J: ………………………………………………..

Kadzere Hungwe & Mandevere, plaintiff’s legal practitioners

Mbidzo Muchadehama & Makoni, defendant’s legal practitioners