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2022
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[2022] ZAFSHC 91
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Pope and Another v Hattingh and Another (2548/2016) [2022] ZAFSHC 91 (5 May 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 2548/2016
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
WARREN
POPE
1
st
Applicant
MARLENE
POPE
2
nd
Applicant
and
JOHANNES
FRANCIOS HATTINGH
1
st
Respondent
ROZELLE
SALLY HATTINGH
2
nd
Respondent
CORAM:
MHLAMBI J,
HEARD
ON:
Matter disposed of
without oral hearing in terms of section 19(a) of the Superior Court
Act 10 of 2013.
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
the hand-down is deemed to have been on 05 May 2022 at 09h00.
MHLAMBI, J
[1] This is an
application for leave to appeal against my judgment and order granted
on 31 August 2021 in terms of which it was
declared that both
defendants were liable to the plaintiffs for the damages suffered by
the plaintiffs as a result of the wrongful
conduct of Mr Pharaoh
Mhone (Mhone) in the early hours of 20 April 2014. Both first and
second defendants were ordered to pay the
plaintiffs’ costs
jointly and severally, the one paying, the other to be absolved.
[2] Leave to appeal is
sought on the following three main grounds:
2.1 The
court erred in finding that the defendants’ evidence that Mhone
was solely in the employ of the second
defendant was false and in
finding that Mhone was indeed in the employ of both the defendants.
The court did not, in making such
findings, give due regard:
2.1.1 to the objective
evidence, particularly the evidence of Dlamini, which supported the
evidence of the defendants;
2.1.2 to the contents of
paragraph 2 of the first defendant’s affidavit deposed to on 21
April 2014, a day after the incident
occurred, in which he stated
that the guesthouse was conducted by the second defendant who
employed Mhone as caretaker of the guesthouse;
2.1.3 to the evidence and
explanation by the defendants regarding the allegations contained in
the affidavits submitted to the South
African Police shortly after
the event, and the explanation given in respect of their initial plea
on the advice of their attorney,
one Mr Rossouw.
2.2 The court erred in
finding that there were serious contradictions in the evidence of
both the defendants and that they wanted
to evade liability by
denying that Mhone was in both their employment;
2.3 The court erred in
finding that the defendants were vicariously liable for Mhone’s
wrongful acts.
[3] The crux of the
applicants’ argument is that there was a reasonable prospect of
success that another court would find
that Mhone was in the
employment of the second defendant and that a sufficiently close link
did not exist between the wrongful
acts of Mhone and the first
defendant, or between the defendants and the business of the
guesthouse. It was submitted that neither
the second nor both the
defendants were vicariously liable for the wrongful acts committed by
Mhone. The plaintiffs had therefore
failed to prove the merits of
their case and their claim should have been dismissed with costs.
[4]
This application is predicated upon
section 17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
which provides that leave to appeal
may only be given where the judge or judges concerned are of the
opinion that the appeal would
have a reasonable prospect of success.
This section has not only raised the bar for such applications but
fettered the judge’s
discretion when considering such
applications.
[1]
Considerations
that the applicant may have an arguable case or that there is a
possibility of success on appeal are irrelevant.
[2]
In
Notshokovu
v S,
[3]
it
was held that an appellant faces a higher and more stringent
threshold in terms of the current Act compared to the provisions
of
the repealed Supreme Court Act 59 of 1959.
[5]
The first and second grounds of the application for leave to appeal
will be considered together as they impact the credibility
and
factual findings made. The defendants’ case is based on the
second defendant being the proprietor of the guest house
and Mhone
being her employee as a general labourer from 2011 until 2014
[4]
.
The defendants denied the contents of paragraphs 22, 25, 28 and 29 of
the judgment.
[6]
The defendants contended that the evidence and explanation contained
in the defendants’ respective affidavits submitted
to the South
African Police shortly after the incident, as well as the explanation
given in respect of the advice received from
Rossouw in respect of
the initial plea, should be conceded and evaluated against the
aforesaid objective facts and that, based
on such facts, another
court would find that the defendants’ version is not false.
[5]
[7]
Both the first and second defendants do not deny, and their evidence
is clear, that Mhone was a caretaker of the guest house
and the
farm
[6]
and that he was left to
manage the guest house and the farm on that weekend as the first
defendant had given leave of absence to
the rest of his workers for
that period.
[8] The defendants
contended that their evidence was supported by Dlamini’s
evidence which was objective. It is indeed so
that Dlamini’s
evidence confirmed that Mhone was left all by himself over the
weekend in question and that he, Mhone, occasionally
worked with
goats but not the horses and the cattle. The second defendant
testified that Mhone’s duties were, amongst others,
to feed the
animals and the horses. She testified that the horses belonged to the
defendants’ trust. The first defendant
never paid a salary to
Mhone. She knew this because she worked with the salaries of the
farm, Bagshot, as it was previously known.
On a consideration of this
testimony, it was therefore strange that she testified that the first
defendant paid the amount of R
15 000.00 (fifteen thousand
rands) which she transmitted onwards to Mhone.
[9]
The contents of paragraph 2 of the first defendant’s affidavit
deposed to on 21 April 2014 confirm that Mhone was a caretaker
of the
guest house. The allegation that due regard was not given to the
defendants’ evidence and explanations to the South
African
Police and the pleadings is incorrect. This aspect is covered in
paragraphs 20, 21 and 22 of the judgment. It is clear
from the
judgment that a credibility finding was made as the defendants’
testimony was fraught with inconsistencies and contradictions.
[7]
[10]
As regards the third ground of application for leave to appeal, it is
evident that the defendants entrusted both the farm and
the guest
house to Mhone with the responsibility to care for the Pope
family.
[8]
It is common cause
that Mhone was left all alone with his family on the farm when all
the other workers were granted leave of absence
that weekend. He was
to care for the Pope family that had booked the guest house for the
weekend. He conveyed their requests to
the defendants whenever the
need arose. He also watched over the animals on the farm during that
weekend.
[11] In their replying
heads of argument, the applicants contended that it was undisputed
that Mhone, in addition to his responsibilities
in respect of the
guest house, had to attend to the horses and the ducks during that
weekend. However, it was submitted, such facts
and the fact that he
and his wife and child were the only people on the farm during the
weekend, did not prove that he was in the
employment of the first
defendant.
[12]
Relying on
Midway
2 Engineering and Construction Services v Transnet Bpk,
[9]
the applicants contended that the so-called control test is not the
only consideration but that in addition to such test, all relevant
factors which can play a role to determine whether the person to be
held vicariously liable, was involved, or connected to the
act of the
business that leads to the wrongful act, should be considered.
[13]
It was submitted further that the question of whether the first
defendant, being the owner of the farm, is also vicariously
liable
for the wrongful acts of Mhone, must be evaluated and determined in
the context of the pleaded case which was premised on
the booking
reservation for the utilisation of the guest house facilities on the
farm for the particular weekend.
[10]
[14] The grounds
contained in 2.1 and 2.2 are aimed at the credibility findings of the
court whereas those in 2.3 are a consequence
of the findings in 2.1
and 2.2.
[15] The applicants
submitted that their insurance claim was rejected on 21 September
2016 because they did not give timeous notice
as provided for in the
insurance policy. The claim was repudiated by the insurer before the
initial plea was filed and that did
not mean that the explanations
given by the defendants were untrue or unreliable. Consequently, a
reasonable prospect existed that
the court’s factual findings
regarding the employment of Mhone by both the defendants would be
disturbed on appeal.
[16]
In the initial plea, the defendants pleaded that Mr Mhone was
employed by the first defendant as a general farm worker and
labourer. This plea was filed and served on 7 October 2016 whereas
the insurance claim was repudiated in September 2016 as confirmed
by
the first defendant in his joinder application. Despite disputing
that Mhone was in his employ, the first defendant stated in
his
affidavit on 3 March 2017 that both defendants conducted farming
activities on Tweevlei as well as a guest house and that Mhone
was in
his employment at the time of the incident.
[11]
Both defendants in oral testimony failed to explain the
inconsistencies and contradictions in their evidence.
[17]
The
court's powers to interfere on appeal with the findings of fact of a
trial court are limited. In the absence of demonstrable
and material
misdirection by the trial court, its findings of fact are presumed to
be correct and will only be disregarded if the
recorded evidence
shows them to be clearly wrong.
[12]
(
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645
e
- f
).
Bearing in mind the advantage that a trial court has of seeing,
hearing and appraising a witness, it is only in exceptional cases
that this court will be entitled to interfere with a trial court's
evaluation of oral testimony.
[13]
In
S
vs. Pistorius
[14]
the
following was stated:
“
[30]
It is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential
and slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong.”
[18] I am of the opinion
that the applicants did not make out a proper case in their papers
for the relief sought and leave to appeal
should be refused.
[19] Consequently, I make
the following order:
ORDER:
The application for leave
to appeal is dismissed with costs.
________________
MHLAMBI,
J
On
behalf of the Plaintiff:
Adv. A P Bruwer
Instructed
by:
Strauss Daly Incorporated
104 Kellner Street
Westdene
BLOEMFONTEIN
On
behalf of the respondent:
Adv. CD Pienaar
Instructed
by:
Phatshoane Henny INC.
35 Markgraaf Street
Westdene
BLOEMFONTEIN
[1]
School
Governing Body
Grey
College, Bloemfontein v Scheepers and Others (South African Teachers
Union Intervening) (2612/2018)
[2019] ZAFSHC 25
(17 January
2019);
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others LCC
14R/2014.
[2]
S v Smith 2012 (1) SACR 567 (SCA).
[3]
(157/15)
[2016) ZASCA 112 (7 September 2016) para 2.
[4]
Para 9: The defendants’ heads of argument.
[5]
Para 13.9: Defendants’ heads of argument.
[6]
Exhibit “B”, on page 66.
[7]
Paragraph 26 of the judgment.
[8]
Paragraph 28 of the judgment.
[9]
1988 (3) SA 17
(A) at P 23 H.
[10]
Paragraph 7 and 8 of the head of argument in reply.
[11]
See Paragraph 19 of the judgment.
[12]
S
v Hadebe and Others 1997(2) SACR 641 (SCA) at 645e-f;
[13]
S v Monyane
2008(1)
SACR 543 SCA;
S
v Francis
1991
(1) SACR 198
(A) at 204e).
[14]
2014 (2) SACR 315
(SCA)