Vicarious Liability of an Employer for the Delictual Acts of his Servant under Zimbabwean Law

Abstract

The doctrine of vicarious liability is easy to define but difficult to apply. In the recent Zimbabwean case of Fawcett Security Operations (Pot) Lid. v. Omar Enterprises (Pvt) Ltd., the Supreme Court held that a security company (the employer) who provided a security guard (the servant) to detect and prevent theft from the respondent's supermarket was not vicariously liable for the servant's subsequent theft of the very goods he was meant to guard. It is difficult to support this decision and its indirect effect is to call for a re-examination of this part of the law. Accordingly this article seeks to revisit the doctrine of vicarious liability under the Zimbabwean law of delict and to argue that (i) the decision in Fawcett Security was based on a wrong reading of the authorities; (ii) that the decision is inconsistent with the classical Roman-Dutch Law (as distinct from South African authorities); and (iii) that the decision fails to give effect to the real basis of vicarious liability under Zimbabwean law.