Company truck head-on crash with a private vehicle.
When can you sue an employer for the wrongful acts of his/her staff?
The law holds employers to be liable for the wrongs done by their employees in the course of their employment. This is called vicarious liability. Think of any company that comes to your mind. If any of its employees injures you during the course of that employee’s job, you can sue the company and the employee so that they compensate you in money for the injury or damage caused to yourself or your property.
The reasoning is that by employing a person to do certain things, the employer has created a risk that the employer will cause harm or injury to others therefore, he/she should be made to share the blame and pay compensation.
The other reason for this legal principle is that; the employer is usually in a better financial position than its employee to pay damages.
For wrongs done by Civil Servants in the course of their employment, you can sue the Government through the relevant ministry.
When can an employer refuse to pay damages for the actions of his/her staff?
Every rule in law has exceptions. An employer will not be liable if the employee does something completely out of the scope of his employment duties.
For example, if someone employed as a driver is expressly told not to carry passengers and they carry a passenger and gets involved in an accident. The employer will not be liable for the injuries sustained by the passenger. The passenger can only sue the driver in his personal capacity.
Another example is when an employee does something completely unrelated to what they are employed to do. An employer can then sue the employee for any loss caused by their conduct.
The author of this snippet is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share basic legal information with non-lawyers. For more information contact 0783475020 or email simonflemming1@gmail.com.
Renting out property means that you get to use something that doesn’t belong to you. The landlord (the person who owns the property) and the tenant (the person who is using it) have to make a special agreement called a lease.
In the lease, they decide how long the tenant can stay on the property, if the tenant has to pay money or do something else to use the property, and what rules they both have to follow. They also decide who pays for things like water, electricity and taxes. The tenant needs to pay the rent on time and take care of the property. The landlord needs to give the tenant access to the property and make sure it is safe. If either of them don’t do what they agreed on in the lease, they can be in trouble. Before the tenant moves in, the landlord and tenant might check the property together to make sure nothing is broken or damaged. The tenant might have to give the landlord a rental deposit too. This is money that the landlord can use to cover any damages done to the property while the tenant is living there. If everything is in good shape when the tenant moves out, then the tenant will get their deposit back.
Q: What is a lease?
It is an agreement between an owner of immovable property (called the “Lessor”) and a tenant (also called a “lessee”). These two must agree that a named property is to be let out to the tenant for occupation in return for value. The value can either be money or a stake in a business being run at the premises. Other matters you should also seek agreement on when you enter into a lease agreement are:
Duration of the lease
Whether the number of people who stay on the property will be limited.
When and how periodic inspections will be done.
Date for rental payments and,
Payment of city council taxes, electricity, and water,
And whether a rental deposit will be paid.
or whether the premises can be altered or modified.
A lease can be verbal, that is, not reduced down to paper and signed. However, most problems between landlords and tenants emanate from failing to reduce rent agreements into writing.
Both the landlord and tenant walk away from the negotiation table with a different version of what the agreement was. These differences later become the source of disputes and a sour relationship.
Q: Renting out property that is not yours?
If you are not the landlord you can only rent out someone else’s property if you have a prior agreement with the actual owner to do so. For example where you have a lease agreement that allows you to sub-lease. Another example is the case of estate agents. Executors of estates may also rent out a property and remit the money to the estate. In any other situation it is unlawful to rent out property that does not belong to you.
Q: So what are the landlord’s duties toward the tenant and property?
A: Most landlords make the mistake of assuming that because the property is theirs, they can behave however way they want. They will easily justify unacceptable behaviour by saying the property is mine if the tenant is not happy he/she must move. It is in the context of such problems that the law intervenes and places some obligations upon the landlord. The landlords’ obligations are to:
To give the tenant full access to the property rented and guarantee that the tenant will not be bothered by anyone about his/her occupation of the property.
The landlord must also guarantee that the premises are safe for residence or commercial use, depending on what the lease is for (residential and commercial).
So what should happen before occupation is handed over, is for the landlord and tenant to take an inventory of the state of the property. So that when the lease comes to an end, it is easy to tell what was damaged before or during the occupation.
Q: What are the tenant’s duties toward the landlord and property?
A tenant’s first and foremost duty is to pay rentals on time, if not within 7 days of the agreed date. To fail to do so is to breach the agreement to its very core.
To use the property strictly per the agreed purpose. If parties agree that the property is rented out for a residential/ commercial purpose, the purpose must be observed.
To keep the property in a state of good repair, maintain it in the state you got it.
Breaching any of these duties entitles the landlord to cancel the agreement and seek eviction from the Courts.
Q: How do you terminate a lease agreement legally?
The law looks with disgust at landlords who take the law into their own hands. It is not legal for a landlord to employ tactics to drive a tenant out. Tactics such as changing the locks on entrances or taking household property or stock out of the premises.
These behaviors are properly described as instances of “taking the law into your own hands”.
When this happens the landlord must be reported to the police first, so that they are made aware of the illegality they are committing. The other remedy is to make an application to Court for a spoliation order. This is a remedy specifically designed for situations like that.
So what should happen when you know that the tenant is likely to refuse to leave amicably, you serve them with reasonable notice to vacate the premises. In residential leases reasonable notice is 3 months. Then seek eviction from a Court. It is the Messenger of Court who will apply the force if necessary. The Messenger is allowed to break down doors, and take out the property if a tenant refuses to cooperate.
Q: Why do we pay rental deposits before using the property?
The purpose of a rental deposit is to cover the cost of any damages done to the property during the lease. If there is no damage, the tenant is entitled to be reimbursed their money at the end of the lease.
Rental deposits are usually set at the same fee as the actual rental. So if the rental is set at US$ 300 you may be required to pay US$600, and the other US$ 300 becomes a rental deposit. This is a common practice amongst estate agents.
The author of this snippet is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share insights into the law. The language and content is simplified to give the reader a digest of complex legal issues that apply in different factual situations. For more information contact 0783475020 or email simonflemming1@gmail.com.
Custody and guardianship are legal roles taken on by one or both parents in cases of divorce or separation. The custodian has the right to stay with the child and control their day-to-day life, education, church or religion, and the people they associate with. The guardian is responsible for administering the child’s business affairs, such as their finances and property. Generally, the custodian is the mother, and the guardian is the father, but the roles can be reversed if the situation calls for it. In cases of death, custody is transferred to the surviving parent. If both parents die, relatives may apply to the court for guardianship. Both parents have the right to reasonable access to their children. The custodian may take the child out of the country with the guardian’s permission, or if they have sole guardianship. In the event of death, the guardian may designate a new guardian in their will.
Q: So what do custody and guardianship entail?
A: When parents separate, one walks away with “Custody” and the other one walks away with “Guardianship”.
The mother takes on the role of custodian and this role involves the right to stay with the child, control the child’s day-to-day life, the right to decide the child’s education or training, and the right to decide which church or religion the child is exposed to. The right to determine who the child can associate with. However, the mother must exercise her custody rights in consultation with the father. For example in situations where the mother intends to relocate with the child to another country or in situations of surgeries.
What about guardianship?
Guardianship is the primary role of the Father. The “Pater” in Latin. This role is limited to administering the business affairs of the child if any. To invest the child’s money. To govern the child’s property. To enter into contracts on behalf of the child. To represent and assist the child in legal or court proceedings.
Q: Who has the right to stay with the kids after divorce?
A: Whenever parents separate or if they were never married, the custodian of first preference is the mother. Custody can only be taken away from the mother if the child reaches the age of 18 and decides to stay with the father. Or, where the High Court has directed that custody be taken away from the mother.
Q: Can I as the father stay with my kids after the divorce?
A: The presumption at law is that mothers are better placed to nurture children who are under 18 years. Therefore, the father has no right to deprive the mother of the custody of the children as long as he has not been granted “sole guardianship over the child”
The law is not blind to the fact that certain mothers are not “fit and proper” for the role of custodian. To this end the law allows fathers to make applications at the High Court to declare the mother a person who is not fit and proper to be in the custody of the children.
For example, the Court will find that the mother is not fit for the role of custodian if it is shown to the Court that the mother has abandoned her duty of providing care and affection to the children. Such scenarios are usually present, where the mother remarries and relegates care of the children to someone else and spends unusual amounts of time without the children.
If the Court is satisfied that the mother is failing in her duty as the custodian it will then order that the father be given sole custody of the children.
Q: Who stays with my kids after I die?
A: Where one of the parents dies, the surviving parent becomes the custodian. So if the mother of a child passes on, custody passes on to the father. This is the situation not considering that the parents were not married or never stayed with each other as a family. Some Zimbabweans exercise a cultural practice that if the father did not pay Lobola he has no right to stay with the children even if the mother passes on. This is not lawful nor does it serve the best interests of the child.
If the mother had “sole guardianship” over the child, she may write in her will that she intends a particular person to take her role of guardianship over the child if she dies. Sole guardianship is a situation where one parent is empowered by a court order to act without consulting the other parent.
Or if it’s the father who is staying with the child (on the basis that he has sole guardianship over the child), he may also write in his will the name of the person whom he wishes to be the guardian of the child after he dies.
Q: When one of the parents dies?
In situations where the mother was the custodian and passes on the custody does not pass to the relatives of the mother, it reverts to the father if he is still alive. Where both the father and the mother are deceased any of the close relatives from the Father’s or Mother’s side can apply for guardianship at the High Court. They then take on the role of the parents.
Q: If I separate from my kids’ mum will I still be able to see my kids?
A: Without any doubt, you will be able to see your kids. However, you only have a right to reasonable access. Reasonable access is different from the kind of access you would have if you were living as a unitary family.
If the mother is denying reasonable access you can make an application to the Children’s Court for the right to have access to the children.
Examples of situations where reasonable access is having the kids stay with you on alternating holidays with the mother.
Q: What happens when my ex-spouse wants to take the child outside the country?
A: As mentioned before, the custodian parent is the one who has the right to be with the child wherever he/she will be at that time.
However, when it comes to removing the child from Zimbabwe the mother must seek the consent of the father (in the form of an affidavit that specifies that he is not opposed to the removal)
The father can only oppose the relocation if he is of the considered view that it does not serve the child’s best interests to relocate. To prevent the removal of the child from Zimbabwe the Father can make an urgent chamber application to block the removal.
If the mother is of the view that it is in the best interests of the child to relocate but the father is refusing to issue consent, the mother can also make an urgent chamber application to the High Court which will then direct the parties to do what it deems to serve the child’s best interests in the circumstances.
A parent can only make the relocation without seeking the consent of the other parent only if they have been granted “sole guardianship” over the child. Sole guardianship is acquired after an application has been made to the High Court. Sole Guardianship is when one parent is allowed to make decisions about the child without consulting the other parent because it is in the best interests of the child to do so. An example of such a situation is when the other parent neglects or is uninterested in the child’s life.
Once sole guardianship is granted to one parent it will not revert to the other parent even upon the death of the sole guardian. The parent who has sole guardianship may state in his/her will that he/she intends a certain person to take care of the minor in the event of their death.
The author of this piece is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share basic legal information with non-lawyers. To book a consultation or to seek clarity contact the writer on 0783475020 or at simonflemming1@gmail.com
Can l sue my doctor or hospital for negligent treatment?
A doctor must take all reasonable care in the treatment of a patient. If he fails to do so, and the patient suffers harm as a result, the patient can sue the doctor for negligence.
The standard of care required from a doctor – working privately or for the Government- is that which is accepted as competent medical practice.
Therefore, to establish that a doctor has been negligent the patient’s lawyer must obtain the opinion of other doctors who treat the same type of complaint to see what they would have done.
If a doctor makes a mistake in the treatment of a patient, it does not automatically follow that he has been negligent. A mere error of judgment may not be negligence.
He will be liable only if the mistake should not, in all the circumstances, have been made. The law does not forgive accidents that happen because of a doctor’s inexperience. It is only in an emergency where a doctor can get away with making a mistake. A doctor should not undertake treatment unless he is qualified and competent to do so.
If you find yourself in a medical emergency, and a more experienced doctor is not available and it being clear that a patient would suffer if treatment were delayed, it is justified that a doctor gives whatever treatment he feels is required. But he must exercise all reasonable care despite the emergency.
The author of this snippet is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share insights into the law. The language and content are simplified to give the reader a digest of complex legal issues. For more information contact 0783475020 or email simonflemming1@gmail.com.
What is a guarantor? and should you agree to accept liability for someone else’s debt.
Someone who agrees to stand as guarantor for another person’s debt becomes personally liable if the money is not repaid. If you sign such a guarantee you are promising that if he/she does not pay, you will.
Only written guarantees are enforceable. If you are asked to sign a document in connection with credit which is being given to someone else, read it carefully. Never sign a guarantee or surety agreement unless you are willing and able to pay up if the worst comes to the worst.
Guarantor/ surety agreements are usually used by banks, when people take loans. People who seek loans are usually asked by the bank to provide another person who is willing to sign a guarantor/ surety agreement. Also real estate agents have a tendency to make use of surety agreements when they rent out flats in town.
Keep in mind that any failure by the actual debtor to pay the debt whether because they have lost their job or fallen sick, will still be required to pay up their debt.
If the debt is being paid in instalments by the actual debtor, one missed payment may result in you as the guarantor/surety to be required to pay up the whole amount as a lump sum.
If you are made to pay up someone’s debt under a guarantor/surety agreement you can claim your money from the actual debtor for covering his/ her debt.
The author of this snippet is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share insights into the law. The language and content is simplified to give the reader a digest of complex legal issues that apply in different factual situations. For more information contact 0783475020 or email simonflemming1@gmail.com.
What to do when someone misrepresents facts to induce you into an agreement or contract?
When you enter into a contract you have bound yourself to perform the terms of that contract. The law expects you to do what you agreed to. However, there are situations where you can back out of a contract and refuse to be bound by it even if you signed it. One such situation is when the other party has not been honest with you on a very important aspect of the contract. The law calls this type of dishonesty, misrepresentation.
A misrepresentation is a false statement of fact made to induce someone to enter into a contract. Some misrepresentations made by traders about goods or services are criminal offences and they can be reported as Fraud.
Besides pressing criminal charges, you may also be able to sue the other person for making a false statement. For example, if a car salesman says that a car he is selling has a certain mileage (say less than 10000 kilometres) and the vehicle, after the sale, turns out to be more than 120000 kilometres in mileage. This example qualifies as a misrepresentation and as a buyer you have a right to back out of the sale, return the vehicle and get a refund of whatever you have paid.
Alternatively, you can sue the seller for a reduction in the price of the motor vehicle. If the price you paid was say US$ 10000 and the actual value of the vehicle with its 120000 mileage is US$ 7500, you can get a refund of US $ 2500 and keep the vehicle.
These remedies apply in any situation where there has been a misrepresentation of a fact. It does not only apply to the sale of vehicles.
For you to succeed in suing the seller for misrepresentation you must prove to the Court that;
1. The seller made a statement that he knew was false or he never bothered to verify whether it was true or not,
2. Furthermore, you have to prove that you relied on that misrepresentation to enter into the contract. The Court must be convinced that if you had known the truth you would not have entered into the contract.
3. The misrepresentation must be material, in the sense that it must be about a fact that can be verified. For example, a car salesman may say “German cars are the best in the world” This would not be a material misrepresentation because it is more of his opinion than fact. It is a different matter than when the salesman says this car has not traveled more than 10000 kilometers.
The author of this snippet is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share an understanding of the law. The language and content are simplified to give the reader a digest of complex legal issues. For more information contact 0783475020 or email simonflemming1@gmail.com.
Can you claim a share if you are left out of your parent’s or spouse’s will?
Anyone can write in their will, who they want to give their property to after they pass on. However, the Courts have the power to override a person’s wishes as stated in a will. The power of the Courts in this regard is necessitated by the need to protect the interests of dependants who have been excluded from the will.
The Court has the power to override a person’s wishes in will if they see that the interests of the deceased’s dependants are not adequately catered for.
The dependants that the law has in mind are children of the deceased who are under the age of 18 years. It is unreasonable for a deceased to bequeath his/her property to other persons and leave his/her dependant with nothing or inadequate property. The reasoning is, if the deceased was still alive he or she would have been expected to take care of his/her under age dependants.
As for Spouses, the law allows that a person can exclude their spouse from their inheritance. The reasoning is that in Zimbabwe marriages are out of community of property. What it means is that parties to a marriage are entitled to own, and dispose of property in their individual capacities. Therefore a person who is married has a right to dispose his property to whomever they want regardless of marriage.
Just as you can sell your property whilst in a marriage, you can give your property to someone else who is not your spouse in your will.
So a wife will not claim property bequeathed to other people via will simply because she is the wife. If a spouse claims that he/she contributed to the acquisition of property that has been bequeathed to another person, they can claim as a creditor during the 21 days within which an estate is advertised.
The author of this snippet is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share insights into the law. The language and content is simplified to give the reader a digest of complex legal issues. For more information contact 0783475020 or email simonflemming1@gmail.com.
How does the law protect all people against death, injury, or loss of property in traffic accidents?
Every person who has a motor vehicle is required by the Road Traffic Act to have Third-party motor vehicle insurance. It is compulsory insurance. Normally a person has discretion on whether to buy insurance or not. Failure to do this is an offence for which a person can be punished with a fine of up to US$ 300 or imprisonment of up to 12 months.
When we say “third party”, we are referring to you. Since an insurance policy is a contract between two people, you become the third party in the whole arrangement. The purpose of Third-party vehicle insurance is so that people who get involved in traffic accidents can be compensated for their losses.
Compensation can be claimed for death, injury, or destruction of property caused by the motor vehicle insured. Any person who has been injured, or dies as a result of a car accident can claim compensation directly from the negligent driver’s insurance company. In the case of death, the dependants can claim.
Most policies specify that they will only pay compensation if the motor vehicle was being driven by the insured person or any authorized person* The amount of compensation is also limited. At present, each person who is injured or killed is entitled to a maximum of US$ 1000. Where a series of other accidents have been caused by the insured person’s vehicle, the maximum limit is US$ 5000. The act provides limits to the amounts. The Minister responsible periodically reviews these figures through statutory instruments.
So if the extent of the damages incurred exceeds the statutory limits stated above, You may have to sue the negligent driver in his capacity for the remainder after the insurance company has paid up to its full limit. A person who wants to claim against the insurance company must do so before the lapse of two years from the date of the accident.
The author of this snippet is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share insights into the law. The language and content are simplified to give the reader a digest of complex legal issues. For more information contact 0783475020 or email simonflemming1@gmail.com.
How do you stop another person from doing something you dont like? (legally)
Anyone who is affected negatively by the actions of another person can seek an interdict. Perhaps you have a neighbour who is building a structure that invades a portion of your land or, a landlord has evicted you from rented premises without a court order.
An interdict is a type of court order that directs another person to stop the actions that affect your rights. It can also be used to make another person do something instead of just stopping.
With an interdict, you do not have to wait for many days to see results. It is swift. A neighbour who is building a structure that invades a portion of your land can be stopped before a full court hearing is held, on some other day, to decide whether it is justified for him to continue building that structure. And if, after the full hearing, the Court decides that the building of that structure is wrongful after all, the neighbour will be made to pay your legal costs.
Both the Magistrates Court and High Court have the power to make such an order. Common situations in which you can use an interdict are;
1. Where a landlord evicts you without a court order.
2. Where a person is about to do an act that harms you or your property.
3. Where a neighbour tends to make excessive noise, say holding amplified religious activities at his house.
4. Where a person builds a structure that invades a portion of your land.
5. Any situation in which the behaviour of another is a nuisance, an interdict can be used to control it.
The purpose of an interdict is to enforce individual or group rights. In the landlord example above, it is a fundamental principle of the law that no man can take the law into their own hands. Your landlord, by evicting you without a court order, will have taken the law into his/her hands. It is therefore necessary that his/her actions be undone by giving you back access to the premises.
A person who disobeys an interdict commits a crime called contempt of Court and can be arrested. The process of applying for an interdict is complex therefore a lawyer should always be engaged.
The author of this snippet is Simon Flemming Mutandi, a lawyer who writes in his personal capacity. The purpose of these pieces is to share insights into the law. The language and content is simplified to give the reader a digest of complex legal issues. For more information contact 0783475020 or email simonflemming1@gmail.com.
The Legal Digest 