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[2010] ZAGPPHC 270
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Jiyane v Msiza [2010] ZAGPPHC 270; 54703/2008 (4 June 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA /ES
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 54703/2008
DATE:
04 JUNE 2010
IN
THE MATTER BETWEEN:
SIBONGILE
BRENDA
JIYANE
..................................................................................
PLAINTIFF
AND
MR
MONYASWA JONAS
MSIZA
.............................................................................
DEFENDANT
JUDGMENT
KOLLAPEN.
AJ
Introduction
1.
This is an action for damages brought by the plaintiff in her
capacity as mother and natural guardian of Sizakele Charlord Mahlangu
for injuries sustained by the said Charlord Mahlangu in a collision
which occurred on 1 May 2004 at Thabane. The plaintiff and
her minor
daughter were at the time of the collision passengers in motor
vehicle registration number NBZ060 GP owned by the defendant
and
driven at the time by one Lucky Mahlangu.
2.
The basis of the plaintiffs claim against the defendant is that
Mahlangu was at the time of the collision acting in the course
and
scope of his employment with the defendant and that the defendant was
accordingly vicariously liable for the loss sustained
by the
plaintiff.
3.
The plaintiff submitted a claim in terms of the Road Accident Fund
Act which was a limited claim and settled in the amount of
R25
000,00.
The
issues
4.
At the commencement of the trial the parties requested that the
merits and the
quantum be separated and the court granted a
separation in terms of rule 33(4) of
the Rules of the High Court.
Issues
in dispute were: 5.
(a)
whether Mahlangu was acting in the course and scope of his employment
with the defendant at the time of the collision; and
(b)
whether the plaintiff and her minor child were passengers for reward
at the relevant time.
Issues
not in dispute
6.
(i)
It was not disputed that Mahlangu was the driver of motor vehicle
NBZ060 GP at the time of the collision.
(ii)
It was common cause that the sole cause of the collision was the
negligent driving of Mahlangu.
(iii)
It was common cause that at the time of the collision Lucky Mahlangu
was in the formal employ of the defendant.
The
facts
7.
Lucky Mahlangu was employed by the defendant as a taxi driver since
or about 2002. He worked on the basis of a commission earned
on
passengers conveyed for reward. During the week-end of 1 May 2004 he
sought permission from the defendant to attend a private
funeral in
Siyabuswa. He was given permission by the defendant to use the
vehicle for the duration of the week-end.
8.
While the permission that was sought and granted was expressly for
the purpose of attending a funeral the defendant did contemplate
that
Mahlangu would transport persons attending the funeral. In addition
the defendant contemplated the further private use of
the vehicle
that week-end by Mahlangu. While there were no express prohibitions
placed on Mahlangu the defendant did not expect
that the vehicle
would be used for the conveyance of passengers for gain.
9.
On the morning of 1 May Lucky Mahlangu attended a funeral and later
that afternoon drove to the home of Elizabeth Mthimonyune
at which
home a wedding was taking place. Shortly after his arrival at the
bridal home he was asked to convey approximately fifteen
passengers
to a photo shoot following the conclusion of the wedding. On the way
to the photo shoot the vehicle he was driving was
involved in a
collision in which collision the plaintiffs daughter was injured and
other passengers fatally injured.
10.
The wedding in question commenced at approximately 10:00 and Mahlangu
arrived there some time after 15:00. While he was not
invited to the
wedding he claimed to have travelled there in order to meet with the
brother of the bride, one Alpheus, who was
a co-worker in the
business of the defendant It was clear from his evidence that he did
not attend any of the matrimonial proceedings
as shortly after his
arrival there he undertook the task of transporting the fifteen
passengers on their eventful journey.
11.
The plaintiff as well as other members of the village attended the
same wedding and their testimony was that after the conclusion
of the
formal proceedings they were advised by the bride's mother that if
they wished to attend the photo shoot there was a taxi
outside that
was paid for and that could be used.
12.
Plaintiff, her minor daughter and some thirteen other persons who
attended the wedding then made their way into the vehicle.
It was
their belief at the time that the taxi that was transporting them and
driven by the defendant was paid for and that they
were entitled to
use it.
13.
The bride's mother was not called as a witness and the parties were
in agreement that the evidence of the plaintiffs discussion
with the
mother of the bride relative to the issue of whether the taxi was
paid for was hearsay to the extent that it was tendered
to prove that
the taxi had been hired, alternatively paid for.
14.
The plaintiff argued that such evidence be admitted in terms of
Section 3
of the
Law of Evidence Amendment Act 45 of 1988
on the
basis that it would be in the interest of justice to do so. After
hearing argument the court declined to admit the evidence
and
indicated then that reasons for such decision would be furnished
later. Those reasons follow hereunder.
15.
The
Law of Evidence Amendment Act gives
the court a general
discretion to admit hearsay evidence after having regard to a number
of factors including-
(i)
the nature of the proceedings:
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence.
16.
In this regard it was clear that the hearsay evidence was of a very
general nature.
If admitted it would hardly have contributed to
the determination of the issue as to whether the vehicle was hired or
not. In this
regard there was no suggestion that
the person making
the statement was indeed responsible for the hiring arrangements of
the vehicle and at best the evidence would
only suggest that the
bride's mother believed the vehicle to have been hired. It could not
from that be deduced that she had personal
knowledge of or was
involved in the negotiations for the hire of the vehicle.
17.
Accordingly the probative value of such evidence would be very
limited and it was hardly likely to assist the court in any
substantial way in making a determination as to whether or not the
vehicle had in fact been hired. Weighed against the prejudice
that
would be suffered by the defendant upon the admission of such
evidence and in particular the defendant not having the opportunity
to test this evidence (as insubstantial as it was), it would not have
been in the interests of justice to admit such evidence and
application for its admission was accordingly refused.
Discussion
on the merits
18.
The testimony of the defendant was that he had given the vehicle to
Mahlangu for private use, that he was not aware of any money
paid to
Mahlangu and that he had
no interest in the activities Mahlangu
would be involved in during that week-end.
There was not much by
way of difference in the nature of the evidence that was offered by
the parties and the core issue that had
to be determined on the facts
available was whether Mahlangu could be said to be acting in the
course and scope of his employment
with the defendant at the time of
the collision.
19.
The principles of vicarious liability attaches liability to an
employer for the delicts committed by an employee provided of
course
that they are committed during the course and scope of the
employment. While ordinarily speaking many situations are reasonably
straight-forward difficulties do arise, however, in determining
whether a particular action that falls within the course and scope
of
an employee's duty.
20.
These difficulties present themselves more acutely in what is being
described as the deviation cases ie, when the employee deviates
from
his or her duties. In K v Minister of Safety & Security
[2005] ZACC 8
;
2005 6 SA
419
(CC) O'REAGAN, J citing with approval the dicta of JANSEN, JA in
Minister of Police v Rabie
1986 1 SA 117
(AD) as follows:
"It
seems clear that an act done by a servant solely for his own interest
and purposes, although occasioned by his employment,
may fall outside
the course and scope of his employment, and that in deciding whether
an act by a servant does so fall some reference
is made to the
servant's intention. The test in this regard is subjective. On the
other hand if there is nevertheless a sufficiently
close link between
the servant's acts for his own interest and purposes and the business
of his master the master may yet be liable.
This is an objective
test."
21.
O'REAGAN, J goes on to deal with the issue of what is a sufficiently
close connection which would give rise to vicarious liability
and in
this regard points out that the court should consider the need to
give effect to the spirit, purport and objects of the
Bill of Rights.
O'REAGAN, J, however, pointed out that such an approach did not
necessarily mean that an employer will be saddled
with damages simply
because injuries might be horrendous. Rather, she said, it implies
that the courts bearing in mind the values
the Constitution seeks to
promote will decide whether the case before it is of the kind which
in principle should render the employer
liable.
22.
After considering the development of the principles of vicarious
liability , it was suggested that the enquiry revolved around
two
questions . The first was whether the wrongful acts were done solely
for the purposes of the employee. This is a subjective
enquiry and is
purely a factual question. However, even if that question was
answered in the affirmative the employer may nevertheless
be
vicariously liable if the second question which is an objective one
is answered in the affirmative. The second question is whether
even
though the acts done have been solely for the purpose of the employee
there is nevertheless a sufficiently close link between
the
employee's acts for his own interest and the purposes and the
business of the employer.
23.
Thus following the reasoning of the court even if it proven that the
employee acted solely for his own purposes an employer
may still be
liable if there was sufficiently close connection between the acts
which gave rise to the delict and the purposes
and the business of
the employer.
The
application to the facts of this case
24.
The evidence before the court was that Mahlangu was given a taxi by
the defendant for his private use over the weekend of the
1 May 2004.
While the activities he would be involved over that weekend , namely
the conveyance of passengers closely resembled
the work of his
employer it was distinguishable in that it would not be for reward
and it was in a geographical area not covered
by the Road
Transportation License issued in respect of the vehicle.
25.
It was clearly in the contemplation of the defendant that beyond the
funeral that Mahlangu would attend at which funeral he
was expected
to assist the people by conveying them in the taxi , Mahlangu would
also attend other events during the course of
that week-end and may
well have been involved in the conveyance of passengers (even though
not for reward).
26.
Clearly on the face of it there appears to be a very close connection
between what Mahlangu did during that week-end and the
ordinary
business of the defendant . Whether the connection is close enough to
attach liability to the defendant is another matter.
27.
The evidence of Mahlangu in regard to the circumstances that led to
the transportation of the plaintiff, her minor daughter
and the other
passengers strongly suggest that the sole and exclusive purpose of
him attending this wedding was to transport passengers.
He was not
invited to the wedding but on his own evidence indicated that he had
gone there to meet his friend who was the bride's
brother.
28.
Notwithstanding this there was no attempt on his part upon his
arrival at the bridal home to seek out his friend or indeed to
enter
the bridal home to announce his arrival and his presence. On the
contrary what he does immediately upon his arrival there
is to
facilitate the transportation of fifteen people to a bridal shoot at
which he, Mahlangu, would seemingly have no role or
no business. It
is indeed difficult to avoid the conclusion that Mahlangu had
attended this wedding for the purpose of conveying
passengers for
reward. The only outward manifestation of his attendance at the
wedding is his conveyance of people he did not know
to a photo shoot.
29.
Even though there was no direct evidence that Mahlangu was paid for
his services the inference that he was acting for reward
is indeed
difficult to resist. For reasons that will follow it does not matter
whether such a finding is made and even if such
a finding were made
it would not in any decisive way affect the question of liability of
the defendant.
30.
If it was proved that Mahlangu was paid this would not automatically
render the defendant liable and conversely if there was
no evidence
that Mahlangu was paid it would not automatically absolve the
defendant from liability on the basis of the
principles
of vicarious liability set out in K vs Minister of Safety and
Security (supra).
31.
I now proceed to deal with whether on the basis of the sufficiently
close connection between the activities of Mahlangu during
the
weekend of the 1st May 2004 and the ordinary business of the
defendant, vicarious liability should attach to the defendant.
32.
Even though objectively speaking there is a close link, it is
distinguishable in material respects and in particular that the
use
of the vehicle would be for private purposes and that no reward would
be paid by those using it. While Mahlangu may well have
acted outside
the scope of this authority during his conveyance of the Plaintiff
and her daughter, to visit the defendant with
the liability for these
actions would constitute and unnecessary and unreasonable extension
of the principles of vicarious liability.
It would in effect render
the defendant the insurer of the vehicle in the absence of the
statutory insurer.
33.
While one must obviously have considerable sympathy for the
Plaintiff and her minor child, those considerations cannot have
the
consequence of attaching liability to the defendant. Accordingly it
could not be said that Mahlangu was acting in the course
and scope of
his employment with the Defendant at the time of the collision.
For
these reasons the Plaintiffs claim must fail.
34.
On the question of costs, the parties requested notwithstanding the
judgment on the merits in this matter that each party should
be
responsible for it's own costs. I am of the view that such stance is
both responsible and equitable.
I
accordingly make the following order: -
1.
The Plaintiffs claim is dismissed.
2.
Each party is to bear it's own costs.