TORTURE IN ZIMBABWE, PAST AND PRESENT under the common law, seeking monetary compensation for the harm suffered. Another remedy is to seek an interdict 151 to protect one’s rights. There are two main causes of action in delict: the actio iniuriarum which is a general remedy where there has been a wilful infringement of a person’s bodily integrity, reputation or dignity, and the actio legis aquiliae (the ‘Aquilian action’) which applies to claims for actual patrimonial or pecuniary loss. Where there has been an intentional, wrongful and unlawful assault (such as torture or rape) causing physical and/or psychological harm, a claim lies under the actio iniuriarum. Here a plaintiff can claim ‘sentimental damages’ without having to prove actual financial (patrimonial or pecuniary) loss, that is, money is claimed as compensatory damages for the pain and suffering as well as mental trauma inflicted. A claim can also be made for the contumelia or insult to the person’s dignity. The amount of compensation sought must be specifically claimed, and the sum awarded lies in the court’s discretion broadly following sums awarded in previous similar cases. Punitive damages may also be awarded in order to deter would-be-offenders. 152 Where a plaintiff has suffered actual pecuniary damages such as a loss of earnings or medical expenses then the claim are under the Aquilian action, whether the harm was caused intentionally or negligently. 153 The court can award these damages for the past financial loss as well as future prospective amounts. If the plaintiff is seeking both sentimental and pecuniary damages arising from the same incident then although these are claimed separately, they are brought in the same proceedings. In the case of an assault or torture this would be the usual position: a claim under both delictual actions. The principle of vicarious liability is well established in Zimbabwe law, in terms of which an employer is jointly and severally liable for the delictual acts of his employees. Under the State Liabilities Act [Chapter 8:14] the State is liable for the Dutch) law was brought to the country. It is for this reason that there are many similarities between the modern common law of Zimbabwe and South Africa, although there are isolated but important differences. The influence of South African decisions on Zimbabwe law has always been much stronger than vice versa. There are a great many statutory differences between the two systems, but even here there is much overlap. Finally of course their Constitutions are very different, including the provisions relating to fundamental rights. 150 This bears the same meaning as ‘tort’ in other jurisdictions, and is a wrongful act of commission or omission causing harm to another person. 151 This bears the same meaning as an ‘injunction’ in other jurisdictions, and is a court order (often obtained urgently) compelling somebody to do something or to refrain from doing something. The usual procedure is to apply for an urgent provisional order, restraining the respondent from doing whatever it is alleged constitutes an infringement of the applicant’s rights. As the victim is unlikely to be able to make the application himself it can be done by a relative, friend or lawyer who can aver to a well-founded apprehension that the person is suffering or is about to suffer a serious breach of his rights, and that there is no other reasonable remedy available. If the court (or judge in chambers, as this is the common procedure) is satisfied that a prima facie case has been made, a provisional order will be issued, granting the relief sought and calling on the respondent to show cause within a specified time why the order should not be made final; in the meanwhile the provisional order stands, prohibiting the alleged unlawful conduct. If the respondent doesn’t file any papers in reply then in due course the order will be made final. If opposing papers are filed the matter is argued before the court which will then make a decision either to grant a final interdict or to discharge the provisional order when the applicant has not proved his case on a balance of probabilities. At that stage the costs too will be determined, and as usual will almost invariably follow the cause. The detailed procedure for interdicts and provisional orders is laid down in the Rules of the High Court, and by well-established judicial precedent. 152 See Minister of Home Affairs & Anor v Bangajena S-13-2000 (this refers to the Supreme Court printed judgement), a case of unlawful arrest and imprisonment, where it was held that even where there has been no pecuniary loss the court will not award a contemptuous figure for the infringement of fundamental rights. 153 A unique remedy where the delict has been caused by a domestic animal is the actio de pauperie under which the owner is liable whether or not there was intention or negligence, that is, there is absolute liability. 32