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[2021] ZAGPJHC 845
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Afrisix (Pty) Ltd v Economic Freedom Fighters (21/23502) [2021] ZAGPJHC 845 (25 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBRG
CASE
NO: 21/23502
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
25
June 2021
In
the matter between:
AFRISIX
(PTY) LTD
Applicant
And
ECONOMIC
FREEDOM FIGHTERS
Respondent
Delivery:
Transmitted by email to the parties’
legal representatives. The judgment is deemed to have been delivered
on 25 June 2021
Summary:
An application interdicting the
respondent from harassing, intimidating and interfering with a
contractual relationship with its
customers. Issue- whether the
respondent was vicariously for the wrongful conduct of its member.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]This
matter served before this court as an urgent application in terms of
which the applicant, Afrisix (Pty) Ltd t/a Afri Services,
sought to
interdict the respondent, the Economic Freedom Fighters (“the
EFF”), from harassing, intimidating and interfering
with its
contractual relationship with the Highland Mew, Shopping Mall in
Emalahleni.
[2]The
fundamental issue raised in the matter was whether the EFF could be
held liable for the alleged wrongs committed by Mr Sello
Hlopu, a
member of the EFF.
[3]On
10 June 2012, I made the following order:
“
1.
The matter is treated as one of urgency and thus the forms and
services provided for in the Uniform Rules of the High Court is
dispensed with in terms of Uniform Rule 6(12) and any non-compliance
with the Rules is condoned.
2. Pending the
finalisation of the application under case number: 205058/2021 ("the
main application"), the following
interim relief is granted
pendente lite
:
2.1
The respondent is interdicted and restraint from intimidating and
threatening any of the applicant's
employees;
2.2 The
respondent is interdicted and restraint from intimidating and
threatening any of the applicant's customers'
employees, where the
applicant renders security- and/or cleaning services;
2.3 The
respondent is interdicted and restraint from interfering with the
contractual relationship between the applicant
and its employees;
2.4
The respondent is interdicted and restraint from interfering with the
contractual relationship between
the applicant and its customers;
2.5
The respondent is interdicted and restraint from uttering and/or
publishing any statement that says
or implies that that the Applicant
acted criminally and/or stole any money of the applicant's employees.
3.
Respondent is ordered to pay the costs of the application on the
party and party scale.
4.
The reasons shall be furnished in due course."
[4]The
reasons for the above order are set out below.
The
Parties
[5]The
applicant is a registered company in terms of the company laws of
South Africa and is involved in the business of providing
cleaning
and security services.
[6]The
respondent, the EFF, is a registered political party represented at
national, provincial and local governments in the Republic
of South
Africa.
Background
Facts
[7]The
applicant sought an interim interdict pending the outcome of another
application (the main application) brought by the same
applicant
against the EFF in the ordinary course. The main application was
launched on 26 April 2021. It is, in essence, based
on a similar
cause of action as that in the present application. The final
interdict sought in the main application relates to
the following
allegations made by the applicant against the EFF.
[8]The
applicant asserts that in November 2020, the EFF defamed the
applicant, interfered with the contractual relationship between
the
applicant and its customers, interfered with the employment contract
between the applicant and its employees, and intimidated
the
applicant's customers. In this respect, the applicant alleges that
the EFF contacted the applicant and informed it that it
would contact
its customers and advise them to terminate their contracts.
[9]During
January 2021, members of the EFF approached several of the
applicant's customers, intimidated and made threads questioning
their
relationship with the applicant. On 6 January 2021 the EFF published
on its Labour Desk on the internet information alleging
that the
applicant stole money from both its employees and its customers.
[10]The
EFF has opposed the main application. In the present application, the
above order was consequent to the alleged threats
and intimidation
made by Mr Hlopu, a member of the EFF, to the applicant and its
employees.
[11]The
alleged threat and intimidation are set out in the applicant's
founding affidavit, where the background facts are set out
and can be
summarised as follows. On 1 May 2021, Mr Hlopu telephonically
contacted Mr Horn, an employee of the applicant, and accused
the
applicant of failing to comply with the regulatory requirements of
registering as an employer with the security services regulatory
body
– the Private Security Industry Regulatory Authority. He then
demanded a meeting with the applicant, at which point
he was advised
to contact the head office in that regard. He did not like what he
was told and accordingly threatened and intimidated
the applicant's
employees.
[12]On
the same day, 1 May 2021, Mr Hlopu send Mr Horn two WhatsApp voice
messages. The two voice messages have been transcribed
and attached
to the applicant's papers. The first message reads as follows:
"Man just go to
Checkers and Pick 'n Pay and find out what I did to those malls after
they shown me an arrogance. I'll come
there and instruct the mall to
fire your company with immediate effect because you don't want to
organise a meeting so we can engage
fairly so. We will come with the
members of EFF so we can stop that. I am a member of EFF and I am an
activist actually. So then
we dealing with this malls all the malls
(to) find out how many malls think they are paying the guards even
the Checkers itself
and Pick 'n Pay the guys that are paid. You will
have to refund because you are stealing the money from our community
you are stealing
the money from the disadvantage."
[13]The
second message reads as follows:
"If you guys don't
listen I will cause an anarchy because I am only trying to engage to
find the common ground with you guys.
If you do not understand we
will cause anarchy there I will come. . . I am close by very close I
can even now. I will make the
nightshift doesn't even come in. If you
have. . ."
[14]On
4 May 2021, Mr Hlopu arrived with another person at the mall and
accused Ms Casamiro, an employee of the applicant, of being
a thief
and a liar. He aggressively pushed her chair and pointed her with a
finger. He continued with his conduct despite attempts
by other
employees to calm him down. He told Ms Casimiro that she would not be
able to walk freely in the mall. He also pushed
the food he was
eating into her face.
[15]On
the 4 May 2021, the applicant addressed a letter to the respondent's
attorneys demanding a written undertaking from the EFF
to instruct
its members to stop:
(a)
Intimidating and harassing the applicant and its employees.
(b)
Interfering with the applicant's contractual relationship with its
clients and employees.
(c)
Spreading false allegations about the applicant.
[16]The
EFF failed to take any step or make any undertaking, but instead,
what happened subsequently was that Mr Hlopu arrived on
the same day
with another man and as stated above threatened a female employee of
the applicant, Ms Casimiro.
The
case of the respondent
[17]The
EFF disputes that Mr Hlopu is its member and further states that even
if he was, it could not be held liable for his conduct.
It argued
that the wrongs he committed did not occur in the context of a
gathering as envisaged in section 11(1) of the Regulation
of
Gatherings Act 205 of 1993.
[18]The
EFF further contends in the answering affidavit that it has no
knowledge of the conduct complained of by the applicant and
thus
there is no basis upon which it had to make any undertaking to the
applicant.
[19]The
EFF argues that only its President and Commander in Chief can in
terms of clause 13 (6) of its constitution, make pronouncement
for
and on behalf of the EFF. The decision of the party and
pronouncements are communicated by the Secretary-General and the
Commander
in Chief.
[20]It
was further argued that the membership of a political party, such as
EFF, does not automatically attract liability for the
conduct of its
members as they are not its agents. It is in this respect argued in
the heads of argument that:
"4.1. Mr Hlupo is
not a representative of the respondent and has not been authorised to
represent the respondent;
4.2. Neither
the Respondent nor the local Labour Desk has internal record of
registering the dispute against the applicant
at the Highlands Mews
Mall;
4.3 The
Labour Desk is a sub-structure of the EFF and falls under the
leadership of its National Chairperson and
Provincial leadership. The
Labour Desk is not empowered to embark on unauthorised activities.
When the Labour Desk receives a complaint
from any employee, and
before any action may be taken on behalf of that employee, the
relevant Desk must submit various reports
and a request to intervene
on behalf of the employee, to the upper leadership structures of the
respondent and only when authority
to intervene has been granted by
the upper leadership structures, is the dispute registered and may
the relevant Labour Desk."
[21]In
contending that Mr Hlupo did not have authority to represent the
party, the EFF relied on the decision in the in
Makate
v Vodacom (Pty) Ltd,
[1]
where the Constitutional Court held that:
"45
Actual authority and ostensible or apparent authority are the
opposite sides of the same coin. If an
agent wishes to perform a
juristic act on behalf of a principal, the agent requires authority
to do so, for the act to bind the
principal. If the principal had
conferred the necessary authority either expressly or impliedly, the
agent is taken to have actual
authority. But if the principal were to
deny that she had conferred the authority, the third party who
concluded the juristic act
with the agent may plead estoppel in
replication. In this context, estoppel is not a form of authority but
a rule to the effect
that if the principal had conducted herself in a
manner that misled the third party into believing that the agent had
authority,
the principal is precluded from denying that the agent had
authority.
46
The same
misrepresentation may also lead to an appearance that the agent has
the power to act on behalf of the principal. This is
known as
ostensible or apparent authority in our law. While this kind of
authority may not have been conferred by the principal,
it is still
taken to be the authority of the agent as it appears to others. It is
distinguishable from estoppel which is not authority
at all.
Moreover, estoppel and apparent authority have different elements,
barring one that is common to both. The common element
is the
representation which may take the form of words or conduct
."
The
legal principles
[22]The
application, as alluded to earlier, was launched on an urgent basis,
and thus the applicant had to satisfy the requirements
of an urgent
interim interdict which entails having to show the following:
(a)
A right that is clear, or if not clear, it is
prima
facie
established, though open to
some;
(b) A
well-grounded apprehension of irreparable harm if the interim relief
is not granted and he or she succeeds
in establishing the right;
(c)
The balance of convenience favours the granting of the interim
relief; and
(d)
There is no other satisfactory remedy.
[23]The
EFF did not dispute the urgency of the relief sought by the
applicant. It also conceded that the applicant had a
prima
facie
right not to be intimidated
and regarded the conduct of Mr Hlopu as being unacceptable,
particularly in that it involved violence
directed at a woman, Ms
Casimiro.
[24]As
alluded to earlier, it was argued on behalf of the EFF that Mr Hlupo
was not a member. On the other hand, the applicant argued
that that
information of membership fell within the exclusive knowledge of the
EFF and that all other facts point to the fact that
he is a member.
[25]In
Strydom
v Engen Petroleum Ltd
,
[2]
the court held that:
"Where matters are
within the exclusive knowledge of one party, less evidence is
required to be adduced by the other party
to discharge the onus of
proof on a point. And sometimes, the silence of a witness on a vital
point within that person's knowledge
is as telling as anything that
may be said from the other side.”
[26]Similarly,
in
Attorneys
Fidelity Fund Board of Control v Intibane Mediates and Others
[3]
,
the court held that:
"The commission fell
within the exclusive knowledge of the seller and the buyer would be
entitled to the frank disclosure thereof
in accordance with the legal
convictions of the community. . ."
[27]In
my view, the denial of Mr Hlopu's membership of the EFF is
unconvincing on the facts and the circumstances of this matter.
The
EFF needed, in the context of the it being a registered political
party to have done more than simply deny that Mr Hlopu was
a member.
The facts as they stand support the conclusion that he is a member.
On arrival at the premises, he was wearing EFF regalia,
he informed
the applicant that he is a member of the EFF. He repeated that same
position in his WhatsApp message.
The
principles of vicarious liability.
[28]The
common law principles of vicarious liability are well established in
our law. Their historical development is rooted mainly
in the
employment relationship where an employer is often held liable for
the delicts of its employees though the employer may
not be at fault.
In
NK
v Minister of Safety and Security
,
[4]
the court held that the principles of vicarious liability find
meaning in the statement, “that there is a deep-seated sense
of
justice that is served by the notion that in certain circumstances a
person in authority will be held liable to a third party
for injuries
caused by a person falling under his or her authority." It has
also been recognised that the principles are founded
in various
policy considerations.
[5]
It is
for this reason that the doctrine of vicarious liability is flexible
in its nature which has resulted in the courts developing
various
tests for determining whether:
".
. . a particular act, or course of conduct, on the part of the
servant falls within or without the course of his employment.
Some of
these tests are of broad, general application, others are more suited
to the particular situations for which they were
devised."
[6]
[29]The
tests that have been applied in determining an employer's vicarious
liability for the misconduct of an employee are the
standard and risk
tests. The standards test was formulated in the context of the
employment relationship which, in my view, would
find application in
the context of a political party and its members, and was formulated
as follows in
Absa
Bank Ltd v Bond Equipment (Pretoria) Pty Ltd
:
[7]
"The standard test
for vicarious liability of a master for the delict of a servant is
whether the delict was committed by the
employee while acting in the
course and scope of his employment. The inquiry is frequently said to
be whether at the relevant time
the employee was about the affairs,
or business, or doing the work of, the employer… It should not
be overlooked, however,
that the affairs of the employer must relate
to what the employee was generally employed or specifically
instructed to do."
[30]I
pause to indicate that the relationship between the political party
and its members is akin to that of an employment relationship.
In
Ramakatsa
v Magashule
,
[8]
the court held that:
"At common law, a
voluntary association like the ANC is taken to have been created by
agreement as it is not a body established
by statute. The ANC's
constitution, together with the audit guidelines and any other rules
collectively constitute the terms of
the agreement entered into by
its members. Thus the relationship between the party and its members
is contractual. It is taken
to be a unique contract."
[31]Reverting
to the broad principles of vicarious liability, the court in
Minister
of Police v Rabie
,
[9]
the court held that: "a master… is liable even for acts
which he has not authorised provided that they are connected
with
with
acts which he has authorized that they may rightly be regarded as
modes– although improper modes – of doing them…"
[32]In
NK v Minister of Safety and Security
(supra) in the Constitutional Court in dealing with the test for
vicarious per O’Regan J observed:
"45
The common-law test for vicarious liability in deviation cases as
developed in
Rabie's
case and further developed
earlier in this judgment needs to be applied to new sets of facts in
each case in the light of the spirit,
purport and objects of our
Constitution. As courts determine whether employers are liable in
each set of factual circumstances,
the rule will be developed. The
test is one which contains both a factual assessment (the question of
the subjective intention
of the perpetrators of the delict) as well
as a consideration which raises a question of mixed fact and law, the
objective question
of whether the delict committed is ‘sufficiently
connected to the business of the employer’ to render the
employer
liable."
[33]In
an article on the liability risk test, author Whitcher Benita,
[10]
states that the issue is whether, "in fairness, the [master] …
could be said to have assumed the specific risk that
materialised."
[34]In
National
Party v Jamie N.O. and Another
,
[11]
an Electoral Appeal Tribunal, per Ackermann J, held that a political
party could be held vicariously liable for its members' acts
supporters in terms of the common law. The court further stated
that:
"A member or
supporter of a political party is by virtue of the provisions of s
69(1)(b) of the Electoral Act 202 of 1993 bound
by the Electoral Code
of Conduct contained in Schedule 2 to the Act and, if he or she had
infringed the Code of Conduct, is liable
to have proceedings
instituted against him or her personally in terms of s 70 of the
Electoral Act read with the Electoral Regulations.
(At 494B-C). There
is no provision in the Code of Conduct or the Electoral Act for
holding a political party vicariously liable
for acts committed by
persons merely because such persons happen to be members or
supporters of the political party in question.
It would be
necessary to allege and prove facts which, at common law, would give
rise to vicarious liability on the part of the
political party if it
were sought to hold the political party liable for acts committed by
its members or supporters.
" (my emphasis).
[35]In
summary, a political party, similar to an employer, can be held
liable for the wrongs committed by its members and supporters
on
innocent third parties. The underlying consideration for this is that
a political party recruits members and supporters to promote
and
advance its political goals and put them out to interact with
communities at large. In doing this it puts community members
and
other entities at the risk of harm or wrong doing by such members.
The recruitment of membership is put in motion by the political
party
and thus there is no reason why in fairness the political party
should not be held vicariously liable for wrongs committed
by its
members on third parties. Of course a political party should be held
liable for the conduct of its members when it is fair
in the
circumstances to do so. This underlying principle is to ensure that
the public is not put at the risk by lack of discipline
on members
who fail to uphold the ideals and values of the Republic’s
Constitution.
[36]Based
on the above analysis, I concluded that the applicant had firstly
made out a
prima
facie
case
for granting the interim relief prayed for in the notice of motion. I
further found that the EFF in recruiting Mr Hlopu
as a member
provided the opportunity to him to abuse the membership power. In the
circumstances, Mr Hlopu's membership has created
a sufficient link
between the harm caused by him as a member of the EFF, justifying
vicarious liability on his part.
[12]
[37]It
was accordingly on the basis of the above reasons that I made the
order quoted above.
E
Molahlehi
Judge
of the High Court
Gauteng
Local Division,
Johannesburg.
Appearances
For
the Applicant: Adv WF Wannenburg
Instructed
by: Esthe Muller Incorporated Attorneys
For
the respondent: Adv. Tshidiso Ramogale
Instructed
by: Ian Levitt Attorneys
Hearing
: 01 June 2021
Order:
6 June 2021
Reasons:
25 June 2021
[1]
2016
(4) SA 121
(CC)
at
paras 42 —49.
[2]
2013
(2) SA 187 (SCA).
[3]
2016
(6) SA 415 (GP).
[4]
(2005
) 26 ILJ 1205 (CC)
at
para
[24].
[5]
See
Loots, Barbara E. Sexual Harassment and Vicarious Liability: A
Warning to Political Parties –
Stellenbosch
LR
2008 19(1) page 146.
[6]
Ngubetole
v Administrator, Cape and Another
1975
(3) SA 1
(A)at page 9.
[7]
2001
[1] SA 372 (SCA) at paragraph [5].
[8]
2012
JDR 2203 (CC).
[9]
1986
[1] SA 117 [A].
[10]
Whitcher,
B. Two Roads to an employer’s Vicarious Liability for Sexual
Harassment: S Grobler v Naspers Bpk en’n Ander
and Ntsabo v
Real Security CC
Indus.
LJ
1924 25
.
[11]
1994
3 SA 483
(EWC) at 485 D-E.
[12]
See
Stallion
Security v van Staden
(2019)
40 ILJ 2695 (SCA)..