Z im b a b w e L aw R e v ie w

V o lu m e 9 - 1 0 1991 -1992
 T H E Z I M B A B W E L A W - R E V IE W

1991-1992 VOLUMES 9 &10

CONTENTS
Page

Articles:; -
The Zimbawe Law Review is no Longer Editorial Board ......... 1
a thing of the past
Comrade Shephard ............................3

Judicial Activism and Development: B Hlatshwayo .........4

Warning Signals from Zimbabwe
The United States Bill of Rights and L Henkin ..........14
Its International Significance
The Legal Regulations of Compulsory L Tshuma ......... 31
Motor Vehicle Insurance in Zimbabwe
\

The Philosophy of Public Reason DT Mandudzo ..........45

International Humanitarian Law and JN Moyo ........ 61

Human Rights in Southern Africa:
The Problem of Political Culture

The Propriety of Administration of Oaths E Sekhonyana ........ 72

and Affirmations by Prosecutors in the
Magistrates Courts in Zimbabwe

Socio-Legal Aspects of Contract-Farming: Okechi- Owiti ..........82

An Overview of Kenyan Case Studies
Expropriation Under Roman-Dutch Law B Hlatshwayo ......... 96
Theory and Practice of Liberal Democracy M Gwisai ......110
in the Post - Colonial State in Africa :
The Zimbabwe Experience
 © if ©©Mi?wiyi©iEi?-
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by
Lawrerice Tshiima*
Introduction
Insurance is the commonest and most important method of risk management. Risk
is the uncertainty contingent upon the happening of an unwelcome event. The
happening of the event may result in economic loss of one form or another to a person
or organisation exposed to risk.
Central to the concept of insurance is the idea of risk-distribution and risk-transfer.
While there are a number of,other methods for the management of risk, such as risk
avoidance and risk retention, insurance, i.e. risk-distribution and risk- transfer, is
the most popular risk management technique. What is distributed and transferred
is not the physical risk, but the economic consequences of that risk.
Persons exposed to the same or siniilar types of risk distribute it by paying an
actuarially pre-determined amount, the premium, to an insurer which administers
a common fund to which premiums are paid. The insurer undertakes to make good
the losses of those persons who staffer economic loss of a specified type as a result
of the happening of a specified event. Risk is distributed in the sense that
compensation for the unfortunate few who suffer loss is borne by all who contribute
to the common fund out of which the insurer makes payment.
By assuming liability to compensate persons exposed, to risk who, suffer economic
loss of a specified type, the insurer ensures that the economic consequences of an
adverse event are transferred to itself. A person exposed to risk transfers the
economic consequences of such risk to an insurer by paying a small sum in return
for a promise by the latter that it will make good any losses consequent upon the
happening of a specified adverse event. The person exposed to risk protects himself
or herself from suffering an uncertain large loss should it materialise by accepting
to suffer a small certain one in the form of a premium.
While persons exposed to risk individually transfer the economic consequences of
risk to an insurer who undertakes to compensate them should they suffer loss, the

Lecturer, Private Law Department, University of Zimbabwe.

The section of this paper on third party cover on government vehicles was conceived
and researched by a colleague, Mrs Pat Lewin. However, because of other pressing
commitments she has been unable to write it up. While Pat meant it to be an article
on its own, I have subsumed it in a longer article. All credit for the conception of
and research for this section should go to Pat. However, like every midwife who has
participated in and facilitated the painful process of childbirth, I hope I am not be­
ing immodest in claiming credit for the write up. I hope Pat will forgive any possible
deformities and mutilations which may result from my inexperience as a midwife.
 32

insurer for its part distributes the risk among many persons exposed to the same or
similar risk. Thus the insurer facilitates risk-transfer and risk- distribution. The insurer
assesses the risk it assumes and fixes the premium payable for such assumption.
The transfer and distribution of risk is regulated and facilitated by law through the
mechanism of the contract of insurance. The terms and conditions of the contract
of insurance and the conduct of the business of insurance are generally subject to
common law and/or statutory regulation. The nature of legal regulation may be
determined by the nature of the risk sought to be regulated. Most risks, though
important, are usually left to individual initiative to insure against while others are
“sufficiently important to justify the state instituting a coercive system to ensure that
compensation is paid to the victim by some other person.”1
This article analyses and assesses the legal regulation of the insurance of one type
of risk which is considered sufficiently important to justify the use of a coercive
system to ensure that compensation is paid to the victim by some other person; the
risk of delictual liability to third parties arising out of the use of motor vehicles. The
paper is divided into two parts: Part I discusses the theoretical aspects of compulsory
motor vehicle insurance. Part II discusses legislative regulation of compulsory motor
vehicle insurance in Zimbabwe.
T heoretical issues in com pulsory M otor Vehicle Insurance
As pointed out above, some risks are of sufficient importance to justify the state in
instituting a coercive system to ensure that they are insured against. Instead of
leaving it to legal subjects to decide how to regulate their rights and obligations and
how to protect their interests through private law, the state intervenes by introducing
laws which regulate such rights and obligations. Legal regulation through state
intervention may reflect the dominant class interests, for example, in the area of
labour relations, or it may reflect the interests of all, for example regulating
compulsory motor vehicle insurance. This is a result of the fact that while the state
is a class institution, it has an element of autonomy and must generally appear as
a representative of society as a whole.
Compulsory motor vehicle insurance is one example of the state’s use of law as an
instrument to regulate the rights and obligations of legal subjects2. Under compul­
sory motor insurance schemes, the taking out of insurance against risk of delictual
liability to third parties is made compulsory by requiring all those exposed to
potential delictual liability to insure against the risk. The invention of the the motor
car, introduced new risks to pedestrians and occupants of these contraptions; the
risks of bodily injury or death arising out of the negligent use of motor vehicles.
Under the common law, a negligent driver or owner of a motor vehicle is liable for any
damages sustained by a third party as a result of the negligent use of the vehicle.

P Cane, Atiyah’s Accidents, Compensation and the Law (4th Ed, Wiedenfield and
Nicholson, London, 1987) at p 5.
In the main, the terms and conditions of the contract of insurance in Zimbabwe
have remained unregulated by statute although the Insurance Act No 27 of 1987
does regulate some terms of life policies.
 33

Through the concept of negligence in .the law of delict, common law rules shift
economic losses sustained by an injured third party to the party whose negligence
resulted in the losses. As a result, certain groups of individuals are, by the very
nature of their activities, exposed to the risk of liability to third parties. Drivers and
owners of motor vehicles are one such group. Through insurance, individuals
exposed to risk of liability to third parties have a mechanism for shifting loss to
another person more capable of paying than them;: the insurer. Such loss shifting
takes the form of contract.
Left to the individuals exposed to potential liability and in keeping with the doctrine
of freedom of contract, the insurance against the risk is a private affair. If the
individual decides to insure, the resultant contract embodies the terms and
conditions agreed upon by the individual and the insurer. If he decides not to insure
and causes loss to a third party, such party has a right of recourse to the common
law rules of delict for the vindication of his/her rights.
However, by its very nature, the use of motor vehicles poses grave dangers to third
parties. The gravity of the danger is such that the state, representing society in
general, has been compelled to intervene and regulate the rights and obligations of
individuals by making the consumption, of third party liability insurance compul­
sory. The state has notstopped there- it has also intervened and regulated the terms
and conditions of the contract of third party liability insurance. State intervention
represents an inroad into the doctrine offreedom of contract. The individual is denied
the freedom to choose how to manage the risk to which he is exposed contrary to the
doctrine of freedom of contract. Another instance of interference with the doctrine
of freedom of contract is the rendering unenforceable of certain terms and conditions
which are usually found in insurance contracts and which, if not complied with, have
the effect of defeating the insured’s claim. Looked at from another angle, this is an
implied admission that equality of legal subjects is a fiction which may be departed
from in the interest of society.
Compulsory Motor Vehicle Insurance in Zimbabwe
1. Who is Obliged To Insure?
Compulsory motor vehicle insurance is governed by Part III of the Road Traffic Act.3
Section 22 (1) thereof provides that it is an offence to use a motor vehicle or trailer
on a road unless there is in force in relation to the use of the motor vehicle or trailer,
a policy of insurance or security in respect of third party risks which complies with
the requirements of the Act. Failure to comply with the above provision is an offence
punishable by a fine not exceeding one thousand dollars or imprisonment for a
period not exceeding twelve months or both such fine and imprisonment.4

3
No 48 of 1976.
Section 22 (5).
 34

The operative word in Section 22 (1) is the word “use”. The word is defined in section
2 (1) to include “cause or permit to be used.” The word has not received judicial
interpretation in Zimbabwe. However, the word has been interpreted by English
courts to involve a sufficient element of controlling or operating the vehicle.5Having
regard to the fact that English decisions are of persuasive authority in Zimbabwe,
it is likely that our courts would adopt the same approach. The word “use” is wider
than the word “drive”. There may well be situations where it may be said a person
is not driving a car but where it may be said he is using it.6Obvious examples of using
but not driving a car are carelessly opening the driver’s door after stopping and
leaving an unlighted vehicle on the roadway at night. The above examples involve an
element of controlling and operating the vehicle without necessarily driving it.
Like the word “use”, the words “cause or permit to use” have not been interpreted by
Zimbabwean courts. In England, the word “cause” has been held to involve an
express or positive mandate to use a car in a particular way while “permit” is looser
and merely denotes express or implied allowance to use a vehicle.7What has been
said about the persuasive weight of English decisions in respect of the word “use”
applies equally to the words in question.
The wording of Section 22 (1) illustrates the intention of the Legislature to ensure that
the user of a motor vehicle or trailer on a road is insured. The intention is illustrated
by the word “use” which has been given a wider meaning than drive and the
imposition of a criminal sanction for non-compliance with the provisions of the Act.
Thus every person who controls or operates a motor vehicle or who permits another,
whether expressly or impliedly, to control or operate a motor vehicle is obliged to
insure against third party liability.
2, Which Liabilities Must Be Insured?
Section 23 (1) (a) (ii) provides that a statutory policy shall cover liability which may
be incurred in respect of the death of or bodily injury to any person caused by or
arising out of the use of the motor vehicle or trailer concerned on a road. It is clear
from the wording of the section that liability for damage to property is not required
to be compulsorily insured against. A third party whose property is damaged as a
result of a motor vehicle accident caused by the negligence of the driver cannot
recover the loss under a statutory policy. He can have recourse to his common law
rights.

Brown v Roberts [19631 2 All ER 263.

For example, See RH Christie, Business Law in Zimbabwe (Juta & Co. Ltd, Cape
Town 1985) at pp 225-256.
McLeod v Buchanan [19401 2 All ER 179 at 187. See also J Birds, Modem Insurance
Law (2nd ed, Sweet and Maxwell, London, 1988) at pp 295-296 for English cases.
 35

A statutory policy is not required to cover:

a) claims in respect of employees of the insured killed or injured in the course
of their employment;
b) claims based on contract: and
c) claims in respect of passengers in the vehicle concerned.8
However, a statutory policy is required to provide cover for passengers who are
carried pursuant to a contract of employment or for hire or reward. As regards
passengers who are carried in a vehicle as a result of a contract of employment or
for hire or reward, the Act provides a statutory maximum cover of up to $20 000 for
each passenger injured or killed but not more than $200 000 for any one accident.9
Owners and operators of vehicles which carry passengers for reward or for hire and
employers are therefore under a statutory obligation to insure their liability against
third party risks up to the prescribed maximum. For passengers to be covered by the
statutory policy, they have to be lawfully carried, f they are carried pursuant to an
unlawful agreement, they cannot be covered under the statutory policy.10
Employees who are injured or who are killed while they are being carried in motor
vehicles in the course of their employment are covered by the National Social Security
Authority (Accident Prevention and Workers’.Compensation Scheme) Notice 1990.11
3. Indem nity For Other People Besides the Insured Person
Section 23 (1) (a) (ii) requires a statutory policy to “insure such persons or classes
of persons as may be specified in the statutory policy ...” It is clear from the above
wording that the statutory policy is not confined to covering the insured person only
but extends to other people who may be named or specified in the policy. As Christie
argues,
If insurers confined their policies to covering the insured named in the policy and no
other person, in respect of the vehicle described in the policy and no other vehicle, their
policies would technically comply with s 23 (1) (a) (ii) but the system would soonbecome
unworkable because every time anyone wanted to lend his car to a friend or borrow a
friend’s car, he or his friend would have to obtain another policy in order to avoid
committing an offence under s 22.12
Thus section 23(1) (a) (ii) makes provision for extension clauses covering other people
other than the person named in the policy. The usual extension clauses cover:
i) drivers who drive the vehicle described in the policy with the consent of
the insured person, and
ii) the insured person while driving another person’s car with the consent of
that other person.*S

See section 23 (1) (b) (i) (ii) and (iii).

See section 23 (1) (ii).
Royal Exchange Assurance v Petzer 1967 RLR 239 (A).
S I No. 68 of 1990.
12
RH Christie op cit 255.
 36

These extension clauses obviate the problems discussed by Christie in the passage
quoted above. In addition to section 23 (1) (a) (ii), section 23 (2) (a) provides that a
person issuing a statutory policy shall, notwichstanding anything contained in any
law, be liable to indemnify the persons or classes of persons specified in the policy
in respect of any liability which the statutory policy purports to cover in the case of
such person. This section gives a statutory right of indemnification to the authorised
driver who, under the general principles of contract law, would be met with the
argument of privity of contract. The statutory right is intended to protect third parties
who are injured in accidents involving motor vehicles from the impecuniosity of
authorised drivers. This, of course, is not at the expense of insurers as discussed
below.
4. S ta tu to ry P rotection For The V ictim
Section 25 (1) provides the third party with a right to proceed against the insurer. The
third party is permitted to recover from the insurer in his own name any amount not.
exceeding the amount covered by the statutory policy.13
If the third party’s claim exceeds the amount insured, he has a right to recover the
excess from the insured or any person indemnified.14The right to recover direct from
the insured prescribes upon the expiry of a period of two years from the date on which
such claim arose.15The two year period may be interrupted if the insurer indicates
an acknowledgement of liability either expressly or by implication.16 It has been
decided that the two year prescription period applies to the third party’s right to claim
directly from the insurer and does not apply to the driver’s right to be indemnified
by the insurer. Thus a third party who wishes to claim outside the two year period
but within the general three year prescription period laid down by the Prescription
Act,17 can proceed against the driver who will, in turn, seek an indemnity from his
insurer.18This of course, assumes that the driver will have satisfied the usual terms
and conditions relating to the claims process e.g. notification of any event which may
result in a claim.
The third party’s right is another example of legislative interference with the general
principles of contract. Under the general principles of contract, the third party would
be met with the argument that he is not a party to the contract and therefore cannot
claim under it. To expedite the claims process and to ensure that third parties are
not prejudiced in their rights by insureds, the Legislature saw it fit to give third
parties rights enforceable against insurers. This again underlines the importance
attached to compensation for injury or dea th arising out of motor vehicle accidents.

13 Section 25 (1) (a).

14 Section 25 (1) (b).
15 See Proviso (ii) to section 25 and Sadomba v Uzumba 1982 (3) SA 558 ( ZH).
16 See Parry v Santam Insurance & Anor 1979 RLR 389 ( GD) .
17 No 31 of 1975.
18 Guardian Royal Exchange v Commercial Union 1976 (1) RLR 381 (GD) .
 37

Dependants of a deceased person whose death resulted from an accident involving

a motor vehicle have a statutory right to claim damages arising out of the death of
a person on whom they were dependant. To prevent a multiplicity of claims, the Act
provides that only one action must be instituted against the insurer in the name
agreed upon by all dependants or, failing such agreement, in the name of a person
appointed by the court.19It has been recently decided that an African woman who
was married to,the deceased in an unregistered customary law union is a dependant
for purposes of third party insurance.20 This is an important and far-reaching
decision which looks at the substance rather than the form of the marriage. The
amount recovered from the insurer must be divided between the dependants.21The
third party has no better rights against the insurer than the insured.22
In addition to the right to recover direct from the insurer, the third party is further
protected in that the Act provides that if he proceeds against the insurer directly, no
condition in a statutory policy purporting to restrict the insurance of the persons
insured or the indemnification of the persons indemnified thereunder23 shall be of
any force or effect. The provisions of Section 26 appear to be similar to those of section
25 (2). Beck J ’s comments in Guardian Royal Exchange v Commercial Union
Assurance Company of Rhodesia24 suggest that there is some tautology in the two
sections due to the history of the Act. With due respect, it appears that section 25
(2) applies to a situation where the third party is claiming direct from the insurer,
whilst section 26 applies to a situation where the insured is claiming an indemnity
from the insurer. For example, an insured who is sued by a third party who cannot
sue the insurer because of the two year period of prescription can join the insurer
as a defendant. The effect of the above provisions is to nullify terms of the statutory
policy which if breached, would deny the third party a right to recover from the
insurer.
In interpreting the above provisions, it has been held that an insurer who is sued by
a third party cannot have recourse to a warranty that the insured’s answer to
questions in the proposal form are correct and form the basis of the contract.25It has
also been held that a condition in the policy which excludes indemnity where the
insured is covered by another policy is ofno force or effect.26An insurer cannot escape
liability on the basis that the vehicle was being used by an unlicensed driver at the
time of the accident and that there is an express provision in the policy excluding
liability under such circumstances.27

19 See Section 25 (5).

20 Zimnat Insurance Company Lid v Chawanda 1990 (2) ZLR 143 (S); 1991 (2) SA 825
(ZS).
21 See section 25 (6).
22 Proviso (i) to section 25 (1).
23 Section 25 (2) (a) and (b).
24 1976 (1) RLR381 at 384.
25 Felton & Anor v Lewis & Ors, 1960 R & N 97 (), Stumbles u New Zealand Insurance
Co. Ltd 1963 R & N 77 ( G) .
26 Lawn u Rhodesian Eagle Insurance Company Ltd 1977 (1) RLR 201 (GD) at 206 —
207.
27 R v Graham 1965 R L R 41 (GDI.
Sections 25 (2) and 26 do not affect the insurer’s common law rights to avoid the
contract ab initio on the basis that there was a misrepresentation or a non-disclosure
of a material fact.28 When sued by a third party, the insurer can thus avoid liability
by relying on his common law rights rather than on a condition contained in the
policy. As suggested in the judgement in Stumbles u New Zealand Insurance
Company (supra), the Legislature, either by omission or design, left a loophole in the
Act. This loophole can be relied upon to the prejudice of the third party.
Sections 25 (2) and 26 are yet another instance of legislative intervention in
contractual relations in the interests of third parties. The risk of loss arising out of
an injury or death caused by the negligent use of a motor vehiclejustifies a departure
from the generally accepted doctrines of freedom and sanctity of contract. Through
statutory regulation, those conditions in a policy which would defeat a third party’s
claim are rendered invalid in circumstances where the third party is claiming direct
from the insurer. They are however, valid as against the insured who seeks an
indemnity.
5. The Insurer's Right To Recover
Section 25 (4) provides that any sum paid by an insurer in or towards the discharge
of any liability to a person which is covered by the statutory policy by virtue only of
the provisions of section 25 shall be recoverable by the insurer from the person. If
the insurer is compelled to satisfy a third party’s claim which has been brought by
the third party direct against him and which he would have repudiated on the
grounds of breach of condition but for sections 25 (2), the insurer can claim the
amount paid in satisfaction of the claim from the insured or the authorised driver.
The authorised driver cannot raise the argument that he is not a party to the contract
and therefore has no obligation to reimburse the insurer. The insurer has a statutory
right to seek reimbursement.
In addition to section 25 (4), the proviso to section 26 provides that a provision in a
statutory policy which requires the insured or the indemnified person to reimburse
the insurer for disbursements made to third parties in terms of statutory policy shall
not be void. This provision permits insurers to introduce terms in their policies which
entitle them to recover moneys which they would not have paid to the third party but
for the requirements of the statutory policy. The above provisions are meant to
protect the interests of insurers. Third parties are granted a right which is not subject
to any restrictive conditions to claim direct from insurers because insurers are better
placed to satisfy the claim than the users of motor vehicles. Insurers in turn are given
a right to claim reimbursement from insureds or persons indemnified.
6. Compulsory Insurance on Government Owned Motor Vehicles
Section 22 (2) provides that the Government itself may undertake to insure against
third party risks in relation to motor vehicles or trailers owned by it as if it were an
insurer. The use of the word “may” indicates that the provision is directoiy rather

Stumbles v New Zealand, supra and Van Biljon v Guardian Royal Exchange 1979
RLR 385 (GD) .
 39

than peremptory. Thus, the Government has an option either to insure with an
insurer as required by Section 22 (I) or to undertake the insurance itself. If the
Government chooses the latter option, the relevant Minister is required to publish
in the Gazette the terms and conditions of, and any amendments to or revocation of
the undertaking made under section 22 (2).29 The Minister published such an
undertaking in Government Notice No. 876 of 1972 which was repealed and replaced
by Statutory Instrument 607 of 1983. Thus the Government undertook insurance
in respect of third party risks in relation to motor vehicles owned by it in all respects
as if it were an insurer for purposes of Part III of the Act. Since the Government chose
to insure its own motor vehicles against third party risks, the provisions of section
22 (1) do not apply to any motor vehicle or trailer owned by the Government.30
The operative provision of SI 607 of 1983 is section 3 which provides that subject to
the provisions of the Act and the undertaking, the state will indemnify an officer in
respect of any liability which may be incurred by him in respect of the death or bodily
injury to any person caused by or arising out of the private or official use by him of
a vehicle on any road, in all respects as if the state were an insurer for the purposes
of Part III of the Act. The remaining previsions of Section 3 are similar to the provision
of Section 23 (1) (b).
The issue whether the undertaking provides the third party with the same rights as
those provided under the Act has come before the High Court in two cases. In
Badenhorst v Minister of Home Affairs.31 the plaintiff sued the Minister for damages
resulting from injuries sustained when a police vehicle in which he was a passenger
was involved in an accident which, the plaintiff alleged, was caused by the negligence
of the police driver. The plaintiff stated that he was suing the Minister of Home Affairs
as an insurer of the Police Government vehicle by virtue of Section 22 of the Road
Traffic Act. The High Court held that section 25 of the Act, which gives an injured
party the right to proceed direct against the insurer, did not apply to the Government
and that liability had to be established against the driver first before the Government
became liable. With due respect, liability against the driver has to be established in
all cases under compulsory motor vehicle insurance. The third party can only
proceed against the insurer where the insured is liable.
In the case of Webster & Anor v The Government of Zimbabwe & Anor32 Court
reaffirmed that the Government’s liability is limited by the terms and conditions of
the undertaking and that accordingly, an injured party could not sue the Govern­
ment direct. He must first establish the legal liability on the part of the driver of the
vehicle. It was further held that the words of the undertaking do not provide an
undertaking to indemnify any other person. It does not create an enforceable right
of payment against the Government by the injured party. Thus if the Government
employee does not seek an indemnity from the Government, the injured party has
no enforceable right against the Government.

29 Section 22 (3) .
30 Section 22 (4).
1984 (1) ZLR221 (H).
32
1987 (1) ZLR 376 (H).
 40

It appears therefore, that third parties who suffer loss from accidents involving
Government owned vehicles have lesser rights than those injured in accidents
involving other classes of vehicles. The only sound explanation for this anomaly is
that the interpretation of SI 607 of 1983 does not reflect the intention of the
Legislature for the following reasons: firstly, it is anomalous that a statutory
instrument should provide less rights than those provided by the enabling Act to the
same class ofpeople: secondly, ifSection 22 (2) gives the Government an option either
to insure its vehicles under section 22 (1) or to give an undertaking under section 22
(2) as stated by Mfalila J in Badenhorst v Minister of Home Affairs (supra), it is
anomalous that by choosing the second option, the Government automatically
denies third parties the right to proceed direct against the insurer, a right which they
would have enjoyed had the Government chosen to insure. It is suggested that the
Government is given the option for reasons of expediency and convenience. The
Government owns a large number of motor vehicles and has adequate resources to
compensate third parties for losses sustained in accidents involving motor vehicles
it owns. It is for these reasons that the Legislature gave the Government an option
to insure its own vehicles “as if it were an insurer.” The Government is given the
option to be its own insurer for the same reason that a party with adequate resources
can give security rather than insure with an insurer.
Further to the above arguments, the position taken by the High Court in the two
cases discussed above defeats the rationale behind compulsory insurance cover
which is the protection of third parties against the impecuniosity of the driver. Cases
such as Wester&Anor v The Government ofZimbabwe &Anor (supra) make bad law.
By the time judgment was granted in favour of the Appellants, the second Respond­
ent had disappeared and therefore could not claim indemnity from the first
Respondent. The judgement turned out to be a brutumfulmen since the Appellants
could not sue the Government directly. Reform is not only necessaiy but overdue in
this regard.
7. The Motor Insurers Bureau Agreement
There may well be situations where the third party suffers loss in an accident
involving an uninsured driver. In such situations, the criminal sanctions provided
for in Section 22 will not be of any assistance to the third party. The knowledge that
the uninsured driver has been fined one thousand dollars or has been imprisoned
for a period of 12 months or both will not help the third party to pay his hospital bills
or to recover lost earnings. If there is another party who has “caused or permitted”
the uninsured driver to use a motor vehicle or trailer without a policy of insurance
covering it in respect of third party risks, the third party can sue that other party for
damages for breach of a statutory duty. This is not likely to be of much help to most
third parties.
To protect those who may suffer loss as a result of accidents involving the use of
motor vehicles which are not covered against third party risks, the Motor Insurers’
Bureau, a company composed of all insurers who transact motor insurance business
and who are approved under Section 23 (1), entered into the Motor Insurers Bureau
(MIB) agreement with the then Minister of Roads and Road Traffic in 1962. The
agreement provides that if damages are awarded by a court in respect of death or
personal injury arising out of the use of a motor vehicle on a road in circumstances
where liability is required to be covered by the insurance under the Road Traffic Act,
and such damages or any part of them, remain unpaid twenty eight days after the
 41

judgement became enforceable, the Bureau will pay the unrecovered amount to the
person in whose favour the judgment has been given against a cession of the
judgment debt. The Bureau’s liability only arises when the plaintiff has successfully
established his case against the wrongdoer and judgment has been given in his
favour.
Where there is a policy of insurance at the time of the accident covering the use of
the motor vehicle against third party risks, the third party should notify the insurer
who issued it. The insurer will satisfy the third party s claim even though he may be
in a position to repudiate liability on the grounds ofbreach of conditions. The insurer
retains his rights against the wrongdoer. The wrongdoer is not released from his
contractual obligations to the insurer. The third party is required to:
a) give written notice of proceedings by registered post before the commencement of
proceedings.
b) supply the insurer with a copy of any summons or any statement of claim which
may be issued: and
c) undertake that he shall not seek to obtain judgment before the expiry of thirty
days from the date of the sending of the copy of the summons.
Where there is no policy or where the existence of a policy is in doubt, the third party
is required to notify the Bureau of his claim and should follow the same steps as if
there was a policy.
Finally, where a person has sustained serious and permanent disablement or has
died as a result of injury in circumstances where it is reasonably certain that the
disablement or death was caused by the negligent driving of a mechanically propelled
vehicle, the owner or driver of which cannot be traced, the Bureau will, at their
discretion, give sympathetic consideration to making an ex gratiapayment. Payment
will only be made where, if the driver had been traced, he would have been found by
a court to be under a liability to the third party.
The MIB agreement is yet another illustration of the importance that the state
attaches to the compensation for injuiy or death arising out of the use of motor
vehicles. It seeks to provide relief to third parties who are injured in accidents caused
by the negligence of uninsured drivers. It resulted from realisations that criminal
sanctions did not deter drivers from using motor vehicles without insurance against
third party risk. The agreement was concluded by the then Minister on behalf of
accident victims. In law, the victims are not parties to the agreement. Their right to
claim under the contract may therefore be doubted. However, it may be argued that
the contract was made for their benefit which is possible under the stipulation alteri
in Roman-Dutch Law. In any event, the MIB is not likely to dispute their right to claim
under the agreement.
8c The Yellow Card Third Party Insurance Scheme
The Road Traffic Act prohibits the use of a motor vehicle or a trailer on a road unless
there is in force in relation to that use, a policy of insurance or security in respect
of third party risks. Visitors to Zimbabwe are therefore under an obligation to take
out insurance in respect of third party risks for the duration of their stay in
Zimbabwe. Since most countries have laws which require compulsory insurance
against third party risks, Zimbabwean visitors to neighbouring countries are also
 required to take out insurance in respect of third party risks for the duration of their
stay in those countries.
Where there is a lot of cross-border travel and trade within a region, taking out
compulsory insurance at the border may be inconvenient for travellers and visitors.
It becomes necessary for governments within the region to enter into reciprocal
agreements which facilitate the taking out of insurance in respect of third party risks
within the region. In December 1986 member states of the Preferential Trade Area
(PTA) signed a Protocol on Third Party Insurance. The Protocol makes provision for
the issue of a yellow card third party insurance policy in Member States.
The Road Traffic Amendment Act No 18 of 1990 gives effect to the Protocol. It amends
the Road Traffic Act by inserting Part III A after the existing Part III of the Act which
deals with compulsory third party insurance. The new Part IIIA is headed “Yellow
Card Party Insurance.” Section 29 ID (1) permits the use of a motor vehicle on a road
without a policy of insurance or security in respect of that use as required by section
22 if there is a yellow card in force in Zimbabwe in relation to the use. The certificate
issued in connection with the yellow card insurance has to be carried in the vehicle
or trailer at the time of use.
The essence of the new provisions is that a yellow card third party insurance policy
issued in another PTA member state will be recognised in Zimbabwe and a third party
with a claim against the holder of such a policy arising in Zimbabwe will be able to
claim compensation due to him direct from the National Insurance Council of
Zimbabwe in much the same way as a third party with a claim against the holder of
an ordinary third party insurance policy is able to claim compensation direct from
the Zimbabwean insurance company that issued the policy.33 The yellow card
scheme is not a substitute for a statutory policy or security if it is issued in Zimbabwe
as it provides third party cover for the use of a motor vehicle outside Zimbabwe.
A person normally resident in Zimbabwe may take out a yellow card insurance policy
from a Zimbabwean insurer. Such policy will cover the use of his motor vehicle in
other PTA member states. In terms of the Protocol, the policy will be recognised and
claims arising from the use of the motor vehicle will be met by the national bureaux
of those states.34 Yellow card insurance policies issued in other member countries
are only recognised in Zimbabwe if that country has been designated for by notice
in the Gazette. Amember state will be designated only if the President is satisfied that
the member state concerned has made satisfactory arrangements for the enforce­
ment of the yellow card scheme in its territory.35
In terms of section 29E the scheme covers bodily injury or death arising out of the
negligence or other unlawful act of the person using the motor vehicle or trailer.
Thus, properly claims are not covered. All other provisions applying to compulsory

33 1990 No 3 Bulletin of Zimbabwean Law 67.

34 Section 29 I of Act 18 of 1990.
35 Section 29C and Bulletin of Zimbabwean Law, ibid.
 43

motor vehicle insurance discussed above apply to the yellow card scheme. Of
importance to note is that conditions relating to or applying to a yellow card scheme,
or any provision of any law, including the common law, which purports to restrict
the liability of the National Insurance Council of Zimbabwe shall not be of any force
or effect. This is wider than a similar provision with respect to a statutory policy as
it includes common law restrictions.
The yellow card scheme thus provides protection to Zimbabweans who suffer injuries
or die in accidents caused by the negligent use of motor vehicles from neighbouring
countries in Zimbabwe. Once the scheme is fully operational, such Zimbabweans
will have the same protection as that which is provided in Part III of the Road Traffic
Act.
Conclusion and Suggestions For Reform
This paper has attempted to show that compulsory motor vehicle insurance is a form
of insurance regulation whereunder the consumption of insurance in respect of
liability to third parties arising out of injury or death is made compulsory. The state
has been compelled to interfere with the doctrines of freedom and sanctity of contract
to ensure that third parties are compensated for loss sustained in motor vehicle
accidents. It is suggested that a number of reforms are necessary to ensure the
efficacy and the efficient operation of the scheme.
Firstly, section 23 (1) (a) (ii) should be amended to include liability for damage
to property. Third parties whose property is damaged as a result of the
negligence of the user of a motor vehicle on a road have either to look up to their
own insurers, if they have any, or to the wrongdoer. It makes sense to suggest
that the scope of compulsory insurance should be extended to cover liabilities
for damages to property. It may be argued, against this suggestion, that if it is
adopted, it would result in an increase in premiums. In reply, it may be argued
that a minimum and a maximum amount insured could be stipulated in the Act;
the minimum to ensure that a reasonable amount is available to the third party
in the event of an accident, and the maximum to ensure that premiums are
affordable. Since insurance not only transfers risk, but also distributes it
amongst the insureds, it is suggested that compulsory insurance against
liability for damage to a third party’s property will distribute risk amongst a
large number of insureds thereby reducing the premium payable by each of
them.
Secondly, compulsory insurance should also extend to cover passengers who
are carried in the motor vehicle concerned even if they are not carried pursuant
to a contract of employment or for hire or reward. Motor vehicles are not readily
available in Zimbabwe. The public transport system cannot cope with demand.
Under these circumstances, people are forced to travel in motor vehicles which
are not authorised to carry passengers for hire or reward. It is therefore
necessary to provide compulsory insurance for such passengers in the event of
injury or death.
Thirdly, the Government’s undertaking given in terms of section 2212} should
provide the third party with a right to proceed direct against the Government,
in view of the large number ©Smotor vehicles owned by the Government, it is
essential that third parties be granted a right to proceed direct against the
Government. As the law presently stands, it is difficult to justify the prejudice
to which third parties who suffer losses in accidents involving Government
owned vehicles are exposed to in comparison to those injured in accidents
involving other classes of motor vehicles.
Fourthly, the statutory maximum cover which is provided under Section 23 (1)
(ii) for any one accident should be increased from the present $200 000.
Experience has shown that $200 000 is not enough to compensate victims and
dependants of victims of bus disasters for losses sustained in one accident.
Further to this suggestion, procedures that would ensure immediate compen­
sation should be adopted. More often than not, victims of m otor vehicle
accidents do not receive compensation when they need it most.
Fifthly, the insurer should not be permitted to rely on his common law rights
to avoid the third party's claim. The position should be the same as where there
is a condition in the statutory policy which restricts the liability of the insurer.
The insurer can always recover what he has been compelled to pay out to the
third party from the insured or the authorised driver.
If adopted, the above suggested reforms would go a long way towards improving
compulsory motor vehicle insurance in respect of third party risks. Additional
regulatory measures would certainly benefit victims of motor vehicle accidents
without adversely affecting the rights and commercial viability of insurance compa­
nies.
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