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2014
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[2014] ZAGPJHC 181
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Mashudu v Unitrans Limited t/a Greyhound and Another (18952/10) [2014] ZAGPJHC 181 (15 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 18952/10
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MASHUDU
FHEDZISANI
..........................................................................................................
Plaintiff
and
UNITRANS
LIMITED T/A
GREYHOUND
..................................................................
First
Defendant
PETER
WHITE
............................................................................................................
S
econd
Defendant
Coram:
WEPENER J
Heard:
8 August 2014
Delivered:
15 August 2014
Summary:
Employer - Vicarious liability – whilst performing his duties
employee assaulting member of the public – acts
so closely
connected to duties that it was within the course and scope of his
employment
JUDGMENT
WEPENER
J:
[1]
The parties requested and I ordered a separation of issues pursuant
to the provisions of Rule 33(4) of the Uniform Rules of
Court in that
I was called upon only to determine whether the defendant is
vicariously liable for the acts of an employee.
[2]
The plaintiff is claiming damages from the defendant due to an insult
and assault perpetrated upon him by an employee of the
defendant.
[3]
The second defendant took no part in the proceeding nor was the
summons served upon him.
[4]
The brief evidence that was led shows that on 5 July 2009 the
plaintiff and his brother approached a bus driven by an employee
of
the defendant in order for the plaintiff’s brother to embark on
the bus. Plaintiff and his brother were late and although
the bus was
idling, the driver (the defendant’s employee), was standing
outside the bus, dressed in his uniform. It is common
cause that the
bus driver was on duty and that the insults and assault was
perpetrated upon the plaintiff by the bus driver whilst
so on duty
when the plaintiff and his brother arrived at the bus.
[5]
It is the defendant’s case that it is not vicariously liable
for the actions of the bus driver by virtue of the applicable
rules
of employment which forbids conduct of this nature. To this end, the
rules of conduct and terms of employment of the bus
driver, forbids
conduct of the nature complained of by the plaintiff and as such
would not be in the scope of his authority
[6]
In order to show how serious the defendant regarded the transgression
of its rules in matters such as this, the defendant held
a
disciplinary enquiry into the conduct of this bus driver and
dismissed him thereafter. But, can the prohibition of certain conduct
be sufficient for an employer to claim that it is not vicariously
liable for the actions on an employee? It is common cause that
the
bus driver was on duty and about the business of the defendant. Cases
referred to where the employee was on a frolic of his
own when he
deviated from the business of his employer does therefore not assist
in the determination of liability on the part
of the defendant in
this matter. The bus driver, whilst performing his duties, did not
depart on a frolic of his own. He was at
all times about the business
of his employer, albeit that he committed acts expressly forbidden by
his employer.
[7]
A discussion of the law regarding vicarious liability of employers is
found in
Squire
v SASOL Mynbou (Edms) Bpk en Andere
[1]
,
which
passage I freely translate as follows:
‘
A
detailed discussion of the law regarding cases of vicarious liability
of employers is found in the case in the Appellate Division
case of
Feldman (Pty) Ltd v Mall
1945 (AD) 733. Watermeyer CJ, who found that the principles of the
English Law are the same as our law, clearly distinguished between
the concepts “within the scope of his work” and “within
the scope of his authority” in the case of an employee
who
causes damage. The two concepts must not be regarded as the same. I
quote from page 36:
“
But
the expression “scope of employment” is apt to be
misleading, unless one is alive to the fact that the words “scope
of employment” are not equivalent to “scope of
authority”. One is apt, when using the expression “scope
of employment” in relation to the work of a servant, to picture
to oneself a particular task or understanding or piece of
work
assigned to the servant, which is limited in scope by the express
instructions of the master, and to think that all acts done
by the
servant outside of or contrary to his master’s instructions are
outside the scope of his employment; but such a conception
of the
meaning of “scope of employment” is too narrow.
Instructions vary in character, some may define the work to
be done
by the servant, others may prescribe the manner in which it is to be
accomplished; some may indicate the end to be attained
and others the
means by which it is to be attained. Provided the servant is doing
his master’s work or pursuing his master’s
ends he is
acting within the course and scope of his employment even if he
disobeys his master’s instruction as to manner
of doing the
work or as to the means by which the end is to be attained. A servant
may even omit to do his master’s work,
and if such omission
constitutes a negligent or improper performance of his master’s
work and causes damage, the master will
be legally responsible for
such damage. Consequently a servant can act in disobedience of his
master’s instructions and yet
render his master liable for his
acts.”
At
741 the learned Chief Justice said with reference to the reasons for
vicarious liability:
“
It
appears from them that a master who does his work by the hand of a
servant creates a risk of harm to others if the servant should
prove
to be negligent or inefficient or untrustworthy; that, because he has
created this risk for his own ends he is under a duty
to ensure that
no one is injured by the servant’s improper conduct or
negligence in carrying on his work and that the mere
giving by him of
directions or orders to his servant is not a sufficient performance
of that duty. It follows that if the servant’s
acts in doing
his master’s work or his activities incidental to or connected
with it are carried out in a negligent or improper
manner so as to
cause harm to a third party the master is responsible for that harm.”
The
Chief Justice also referred with approval at p 743 to a passage in
Salmond on Torts.
It reads:
“
A
master as opposed to the employer of an independent contractor, is
liable even for the acts which he has not authorised provided
they
are so connected with the acts which he has authorised that they may
rightly be regarded as modes – though improper
modes – of
doing them… On the other hand, if the unauthorised and
wrongful act of the servant is not so connected
with the authorised
act as to be a mode of doing it but is an independent act, a master
is not responsible.”
In
African Guarantee and Indemnity Co Ltd v Minister of Justice
1959 (2) SA 437
(A) the State was held liable on this basis for
damage flowing from a collision of a police vehicle which was driven
by a constable
who was specifically forbidden to drive the vehicle
(see also
Minister of Police v Rabie
1986 (1) SA 117
(A) at
134).’
[8]
Counsel for the defendant relied on
Bezuidenhout
N.O. v Eskom
[2]
for support that an employee who acts outside the scope of his duties
does not render the employer liable
[3]
.
[9]
The passage specifically foresees that a pedestrian would not fall
into the category of the person who voluntarily a lift against
payment. The plaintiff in this matter, in my view, was in no other
position than the pedestrian in the example given in
Bezuidenhout
.
In any event, the plaintiff was not doing anything that was
unauthorised.
[10]
In
Minister
van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK
[4]
it was decided
[5]
on the basis,
inter alia, that the policeman was not on duty at the time of the
conduct complained of, that the employer was absolved
from liability.
In this matter it is common cause and readily apparent from the
disciplinary enquiry that was held that the bus
driver was on duty
when the incident occurred, distinguishing this matter from the
Phoebus
Apollo
matter.
[11]
The bus driver, in my view, by furthering the employer’s
business and while dealing with passengers (and persons in their
company) is very much exercising his duties when he apparently lost
his temper and the incident ensued. He was objectively speaking,
continuing with his duties and his employer’s affairs.
[12]
In this matter, although not authorised, the actions of the bus
driver were so closely connected with the acts which he was
authorised to do that they can be regarded as an improper manner of
executing his duties.
[13]
I am consequently of the view and hold that the defendant is
vicariously liable for the actions of the bus driver when he
assaulted and insulted the plaintiff. The defendant is consequently
liable for any damages suffered by the plaintiff.
[14]
The defendant is ordered to pay the costs of this part of the
hearing.
__________
Wepener
J
Counsel
for Plaintiff: J. Campbell SC
Attorneys
for Plaintiff: Paul T. Leisher & Associates
Counsel
First Defendant: J.A. Kitching
Attorneys
for First Defendant: Denga Incorporated
[1]
1993
(3) SA 298
(T) at 303F-304F
[2]
2003
(3) SA 83 (SCA)
[3]
But
Bezuidenhout
dealt with a passenger who travelled with an employee of the
employer against the express instruction of the employer that
members of the public should not be offered lifts. The court held at
para 22
‘
The
dual capacity postulated by Lord Greene is, notwithstanding the
scorn heaped on the idea by fine intellects, a true description
of
the employee's position in the circumstances. Take the following
example raised in the course of argument in this Court: The
driver
of a tanker is prohibited by his conditions of employment from
carrying passengers. He nevertheless stops his vehicle
when he sees
a friend hitchhiking. He says to the friend, “Despite my
employer's ban on passengers I successfully operate
this vehicle as
a taxi when the opportunity arises. I am on my way to
discharge my load at X. I will take you
there for R10.”
The friend accepts the invitation. The driver's negligence causes an
accident in which the friend and a
pedestrian are injured. Can the
passenger possibly be heard to say that he was injured by the
conduct of the employee driving
in the course and scope of the
employer's business? The pedestrian, of course, has no such problem.
Yet there was one act of
negligent driving. That the same conduct
may be lawful towards one person but unlawful towards another is
accepted in our law:
Government of the
Republic of South Africa v Basdeo and Another
1996
(1) SA 355
(A) at 367.’
[4]
2002
(5) SA 475 (SCA)
[5]
At
para 10