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[2014] ZAGPPHC 177
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ABC Fitment Centre (Pty) Ltd v Matshego and Another (30821/11) [2014] ZAGPPHC 177 (3 April 2014)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 30821/11
DATE: 3 APRIL 2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
ABC FITMENT CENTRE (PTY)
LTD
...........................................................................
Plaintiff
and
JOSEPH
MATSHEGO
.......................................................................................
First
Defendant
JACOB RAMODIBE
NYATHI
.....................................................................
Second
Defendant
JUDGMENT
MAKGOKA, J:
[1]
The plaintiff
instituted action against both the first and second defendants for
damages arising out of a motor vehicle collision
which occurred on 13
June 2009. The collision was between the plaintiff’s vehicle
and a Volkswagen Beetle (the Beetle). The
plaintiff alleges that the
collision was as a result of the first defendant’s vehicle
colliding with the Beetle from behind,
which caused the Beetle to
veer onto the path of the plaintiff’s vehicle. The first
defendant’s vehicle was driven
by the second defendant, who was
an employee of the first defendant. The plaintiff alleges that the
second defendant was driving
the first defendant’s vehicle
during the course and scope of his employment with the first
defendant.
[2]
Only the first defendant defended the matter and filed
a plea. Summons could not be served on the second defendant - the
sheriff
returned non-service in respect of the second defendant. As a
result, only the first defendant is before court. From the pleadings
and admissions made in the minutes of three pre- trial conferences
held between the parties, the following issues are common cause:
(a)
that
the first defendant’s vehicle was one of the three vehicles
involved in the accident
(b)
that
the second defendant was an employee of the first defendant at the
time of the collision;
(c)
that
the second defendant was driving the first defendant’s vehicle
with the permission of the first defendant’s vehicle;
[3]
Accordingly,
there are only three issues in dispute and for determination. First,
whether the second defendant was negligent, and
if so, whether such
negligence caused the plaintiff damage. Second, whether the second
defendant was acting within the course and
scope of his employment
with the first defendant. Lastly, the amount of the plaintiff’s
damage.
[4]
Only
two witnesses testified during the trial - both in the plaintiff s
case. The first defendant closed his case without testifying
or
calling any witnesses, after his application for absolution from the
instance at the close of the plaintiff’s case was
refused. Mr
Michael Stratford, who was the driver of the plaintiff’s
vehicle, testified that he was driving in the northerly
direction
along Station Avenue in Brits. He was approaching an intersection,
where the Beetle and the first defendant’s vehicles
were part
of a stationary convoy of vehicles, preparing to turn right in to
Flow Avenue. In the circumstances, Mr Stratford had
the right of way
as he was proceeding on a straight line.
[5]
According
to him, suddenly, and without any warning, the Beetle moved out of
the convoy and came onto his path of travel. He tried
to swerve left,
but was unsuccessful in the split seconds available to do so. He
collided with the Beetle, almost head-on. After
the accident, he
observed that the Beetle had a damage mark on the back bumper. He
also observed the Hyundai on the verge of the
road, facing south. On
inspection of the Hyundai, he observed collision damage on the front
lower bumper. From those observations,
he made a deduction that the
Hyundai had collided with the Beetle from behind, which caused the
Beetle to shoot out of the convoy
and onto his path.
[6]
He
had not met driver of the Beetle before the collision, nor had he
seen the vehicle before the collision. He also did not know
what made
the Beetle to shoot out. He spoke to several people at the scene,
including the driver of the
Beetle
and the second defendant. The latter admitted to him that he was the
driver of the Hyundai and that he had bumped into the
Beetle from
behind.
[7]
Mr
Schalk Strydom testified as an expert witness on behalf of the
plaintiff. He is a qualified assessor of damages to motor vehicles,
with 18 years’ experience. As such, he bears knowledge of the
costs involved in repairing such damages, be they labour or
parts
costs, as well as the market values of all motor vehicles before and
after the damage. The upshot of his evidence is that
in his expert
opinion, the plaintiff’s vehicle was uneconomic to repair. Upon
his assessment of the vehicle and after pruning
the quotation by the
panel beaters, and after factoring in the retail and salvage values
of the vehicle, and towing costs, he concluded
that the plaintiff’s
damage amounts to R167 315.40.
[8]
It
is on the evidence before me that I have to determine the three
issues in dispute, referred to in para [3] above. I consider
them, in
turn. With regard to the issue of negligence, there is no direct
evidence that the Hyundai caused the beetle to shoot
out of the
convoy. Therefore, conscious of this fact, Mr Theron, attorney for
the plaintiff, invited me draw certain inferences
from the
surrounding circumstances to conclude that the Hyundai collided with
the Beetle from behind, which conduct jolted the
Beetle to shoot out
of the convoy and collide with the plaintiffs vehicle.
[9]
On
the other hand, Ms Van Zyl, counsel for the first defendant,
contended that the proven facts do not lend themselves to that
inference. In the course of her argument, counsel sought support in
the two ‘cardinal principles of logic’ enunciated
in R
v Blom
1939 AD 188
at 202 - 3, and
invited me to apply them, in particular the second one, namely that
‘the proved facts should be such that
they exclude every
reasonable inference from them, save the one sought to be drawn’.
In Govan
v
Skidmore
1952
(1) SA 732
(N), Selke J, faced with a similar proposition, concluded
that the principle is not applicable in civil cases. The learned
Judge
said:
‘
Rex
v Blom ... was a criminal
case, and in my opinion, it is a fallacy to suppose that the second
principle in Blom
7
s case represents the
minimum degree of proof required in a civil case, for, in finding
facts or making inferences in a civil case,
it seems to me that one
may, as Wigmore conveys in his work on Evidence (3
rd
ed., para.32), by balancing probabilities select a conclusion which
seems to be more natural, or plausible, conclusion from amongst
several conceivable ones, even though that conclusion may be not the
only reasonable one... I do not regard myself as bound, in
the
present case, to apply the second of the principles set out in Blom's
case in the way in which I should be bound to apply it
were the case
a criminal one.’
[10]
Subsequent
to Govan
v
Skidmore
(above)
the second principle in Blom has been modified for civil cases as
follows: the inference to be preferred must be the most
plausible and
appropriate one to be drawn from all the proved facts. See Ocean
Accident and Guarantee Corporation Ltd
v Kock
1963 (4) SA 147
(A) at
159C-D; AA
v
De Beer
1982
(2) SA 603
(A) at 614G - 615A; Parents’ Committee of Namibia
and Others
v
Nujoma and Others
1990
(1) SA 873
(SWA) at 887 C-D; Santam
v Potgieter
1997 (3) SA 415
(O) at
423A—D; Mcleod
v
Rens
1997
(3) 1039 (E) at 1049A-C ; Cooper and Another NNO
v Merchant Trade Finance
Ltd
2000
(3) SA 1009
(SCA) at 1027E - 1028A; Triptomania Twee (Pty) Ltd and
Another
v
Connolly and Another
2003
(3) SA 558
(C) at 570C-E.
[11]
In
the present matter, the following facts are either proven, admitted
or cannot be disputed:
(a)
the
collision involved three vehicles - the plaintiffs vehicle, the
Beetle and the first defendant’s vehicle, Hyundai;
(b)
The
collision occurred between the plaintiff’s vehicle and the
Beetle when the latter vehicle shot out of the convoy and came
onto
the path of the plaintiffs vehicle;
(c)
Immediately
after the collision, there was damage to the back of the Beetle and
the front of the Hyundai;
(d)
The
second defendant admitted to the driver of the plaintiff’s
vehicle that he was the driver of the Hyundai and that he collided
with Hyundai from behind.
[12]
In
my view, the only plausible inference from the above facts, is that
the Hyundai collided with the Beetle from behind. As stated
in the
authorities referred to above, this inference need not be the only
one. I find it to be the most natural and probable, from
all the
surrounding facts. It is irrelevant that the driver of the Beetle
might have over-reacted. I say this because that driver
is not before
court, and therefore no finding of apportionment can be made in
respect
of him. The
first defendant elected not to file a third party notice against the
driver of the Beetle, in which possible contributory
negligence on
the part of the driver of the Beetle is alleged. Under the
circumstances, all the plaintiff had to establish is any
degree of
negligence on the part of the second defendant to succeed against the
first defendant, depending of course, that vicarious
liability is
established, to which I now turn to consider.
[13]
The
other two requirements of the doctrine of vicarious liability
(employer-employee relationship and delict) have been established-
the former by admission, and the latter by a finding I have just made
in the preceding paragraph. It is the third requirement that
I must
determine: whether or not the second defendant was acting in the
course and scope of employment of his employment with the
first
defendant. Various tests have been established by our courts to
establish this. See for example Feldman (Pty) Ltd
v Mall
1945 AD 733
at 742, 743,
744; Fawcett Security Operations (Pvt) Ltd
v Omar Enterprises (Pvt)
Ltd
1991
(2) SA 441
(ZH) at 448G-I; Hirsch Appliance Specialists
v Shield Security Natal
(Pty) Ltd
1992
(3) SA 643
(D) at 651H- 652J.
[14]
In
the present case, I take into account the fact that the second
defendant was employed by the first defendant; the first defendant
was driving the vehicle with the permission of the first defendant.
When asked in one of the pre - trial conferences what the purpose
for
the second defendant driving the vehicle with the first defendant’s
permission was, the first defendant’s reply
was that he did
not know for which purpose the second defendant was driving his
vehicle. In my view, these facts establish
a
prima
facie
presumption that the second defendant was acting within the course
and scope of his employment with the first defendant.
[15]
It
is not an untenable proposition to assume that where an employee
drives a vehicle of his employer with the latter’s permission,
it is within the course and scope of his or her employment. This
presumption can be displaced by evidence pointing to the contrary.
The first defendant elected not to give evidence. He is the only
person who can explain the circumstances in which he gave permission
to the second defendant to drive his vehicle. He elected not to give
evidence. It is therefore very clear that if he had a plausible
explanation, he would simply have testified. His silence is
inexplicable in the light of his own admission of having given the
second defendant the permission to drive his vehicle.
[16]
There
is direct authority for the proposition that where a party fails to
testify about facts peculiar to him or her, a negative
inference may
be drawn in suitable circumstances. See for example Galante
v Dickinson
1950 (2) SA 460
(A) at 465;
Potchefstroom se Staadsraad
v
Kotze
1960
(3) SA 616
(A) at 637A-C; New Zealand Construction (Pty) v Carpet
Craft
1971
(1) SA 345
(N) at 350G-H;
[17]
The
first defendant’s silence, in the circumstances,
‘
casts
very grave suspicion upon his bona fides in resisting the plaintiff’s
action’, as observed in the Potchefstroom
case (above) at 631C.
In the absence of contrary
evidence or explanation, the assumption that the permission was given
in the course and scope of the
employment, is an irresistible one,
and must be accepted to be correct. I therefore conclude that on the
probabilities, the second
defendant was driving the first defendant’s
vehicle in the course and scope of his employment with the first
defendant.
[18]
Lastly,
with regard to the plaintiff’s damage, the evidence of Mr
Strydom as to the amount of the plaintiff’s damage
was not
seriously challenged. I have no reason not to accept it.
[19]
To
sum up, the plaintiff has proved negligence on the part of the second
defendant, which caused the Beetle to collide with the
plaintiff’s
vehicle. The plaintiff has also established, on a balance of
probabilities that the second defendant was acting
in the course and
scope of his employment with the first defendant at the time of the
collision. The plaintiff has also proved
its damage. It is entitled
to judgment. Costs should follow the event.
[20]
In
the result the following order is made:
1.
The first defendant is
ordered to pay the plaintiff a sum of R167 315.40;
2.
Interest
on the above sum at the rate of 15.5% per annum, calculated from the
date of issue of summons until date of final payment
3. The first defendant is ordered
to pay the costs of the action.
TM MAKGOKA
JUDGE OF THE HIGH COURT
DATE OF HEARING : 26 MARCH
2014
JUDGMENT
DELIVERED : 3 APRIL 2014
FOR THE PLAINTIFF : MR HW
THERON (ATTORNEY)
FIRM : HW THERON INC.,
MONUMENT
PARK, PRETORIA
FOR THE FIRST DEFENDANT :
ADVMVANZYL
INSTRUCTED BY : MODUKA MORE,
PRETORIA