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[2014] ZAGPPHC 382
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Wolfaardt v Mandre Beleggings CC T/A Zenex Jean Avenue and Another (1944/12) [2014] ZAGPPHC 382 (19 June 2014)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 1944/12
DATE: 19 JUNE 2014
In the matter between
JOHAN
WOLFAARDT
.......................................................................................................
PLAINTIFF
And
MANDRE BELEGGINGS CC t/a
ZENEX JEAN AVENUE
..........................
FIRST
DEFENDANT
BETHUEL FOLEGANG
MAKGATI
.........................................................
SECOND
DEFENDANT
JUDGMENT
Masipa J
INTRODUCTION
[1] The plaintiff instituted
action against the defendants for damages suffered as a result of
injuries sustained when he was assaulted
by an employee (cited as
the second defendant), of the first defendant, in the early hours of
the morning of 8 April 2011.
[2] The parties proceeded by
way of a stated case. At the outset, the parties agreed that the
question of vicarious liability be
disposed of separately from the
merits and the quantum. This court, therefore, ordered a separation
of issues in terms of Rule
33(4) of the Uniform Rules of Court. As
a result the only issue to be determined was the issue of vicarious
liability while the
remaining issues were postponed sine die.
STATEMENT OF CASE
[3] FACTS THAT ARE COMMON
CAUSE BETWEEN THE PLAINTIFF AND THE FIRST DEFENDANT
3.1 The plaintiff was born on
10 December 1982 and resides at Flat 117 La Comres, Bernini Crescent,
Centurion, Gauteng.
3.2 The first respondent is a
close corporation which conducts business as a filling station at the
corner of Gerhard and Jean Avenue,
Centurion, Gauteng ("the
premises"). The premises consists, inter alia, of a pumping
area with fuel pumps and a convenience
store which is open 24 hours a
day.
3.3 The first defendant
commenced business on 1 November 2000. From that day until 8 April
2011 there has never been any incident
where an employee, whether on
duty or off duty, was involved in a physical altercation with a
customer.
The second defendant's
employment with the first defendant
3.4 The second defendant was
employed by the first defendant primarily as a cashier in the
convenience store and secondary as a
forecourt attendant on a
permanent basis from 12 October 2006. The employment was subject to
the first defendant's "SERVICE
STATION RULES" (Annexure
"C2") and "DISCIPLINARY CODE" (Annexure "C3")
("the code")
until 1 August 2012, when the second defendant
absconded. The first defendant does not have any details regarding
the current
whereabouts of the second defendant.
3.5 The second defendant did
not have an implied or express authority to use force of whatsoever
nature against any customer nor
was the second defendant, as a
consequence of his employment with the first defendant, entitled to
use force of whatsoever nature
against any customer.
3.6 In terms of Item 7
"STANDARD Establishing and maintaining working relationships
with fellow employees" of the code:
3.6.1 It is an offence if an
employee assaults, fights, abuses, insults or uses obscene language
towards another employee;
3.6.2 If the offence is
serious, a summary dismissal follows on the first offence.
3.6.3 If it is a minor
offence, a written warning is given on the first offence, a final
written warning is given on the second
offence and summary dismissal
follows the third offence.
3.6.4 Item 10 "STANDARD
Employees shall treat customers patiently, diligently and
courteously" of the code provides
for summary dismissal when an
employee assaults or fights with a customer.
3.6.5 Since the employment
of the second defendant by the first defendant and until 8 April
2011, the second defendant has never
been involved in any physical
altercation with a customer.
The second defendant's
assault on a fellow employee:
3.7 The second defendant
paid an Acknowledgement of Guilt fine of R500.00 (SAPS 69c Criminal
Record - Annexure "D1")
in respect of an alleged assault on
a female employee, Mavis Tsima on 10 February 2011.
3.8 No disciplinary hearing
was held by the first defendant following the alleged assault by the
second defendant on Tsima, firstly
due to the lack of evidence,
secondly because the first defendant received conflicting evidence
from the parties and a third party,
all of whom were involved in a
love triangle and thirdly on the advice of the first defendant's
labour representative, which representatives
at all material times
was Rueben Opperman Consult, who had fifteen years’ experience
as a labour consultant and which firm
employs qualified attorneys who
specialize in labour related matters.
3.9 The first defendant was
not aware of the Acknowledgement of Guilt fine and only became aware
thereof after the institution
of this action.
THE INCIDENT WHICH GAVE
RISE TO THE PLAINTIFF’S CLAIM:
[4] On 8 April 2011 at
approximately 02:30 the plaintiff arrived at the premises and entered
the convenient store. In the convenient
store two verbal
altercations took place between the plaintiff and the second
defendant. Pursuant to the altercations the second
defendant took a
pair of scissors, which was lying on his left hand on the counter and
followed the plaintiff outside the convenient
store. Outside the
convenient store a further altercation took place between the
plaintiff and the second defendant during which
the second defendant
stabbed the plaintiff twice with a pair of scissors on his chest.
THE ISSUE
[5] As stated earlier the
only issue that had to be determined in this action was whether the
first defendant was vicariously liable
for the actions of the second
defendant.
THE CONTENTIONS OF THE
PARTIES
[6]The plaintiff contends
that the actions and conduct of the second defendant when he
assaulted the plaintiff were done in the
course and scope of the
second defendant's employment or that such actions and conduct were
sufficiently closely connected with
his duties as an employee of the
first defendant to render the first defendant vicariously liable.
In support of this contention
counsel for the plaintiff submitted the following:
6.1 The incident occurred
whilst the second defendant was employed by the first defendant and
was on duty; the second defendant
was required and expected to serve
the plaintiff; the second defendant was obliged to comply with his
duties and the provisions
of the code referred to above.
6.2 The plaintiff and the
second defendant were on the premises of the first defendant when the
incident happened.
6.3 The incident followed
within a short space of time after the first altercation in the
convenient store and immediately after
the second altercation in the
convenience store.
6.4 The incident arose
because the second defendant felt provoked by the plaintiff whilst
the second defendant was in the process
of exercising his functions
and executing his duties.
6.5 The second defendant
failed to comply with the provisions of the code. The first
defendant had to know that the second defendant,
after having
assaulted a fellow employee was capricious and easily provoked and
could endanger members of the public frequenting
the premises and the
convenience store.
6.6 The first defendant's
failure to hold a disciplinary inquiry after the second defendant's
assault of another employee, was contra
the provisions of the code
and could have created an impression with the second defendant that
the first defendant did not strictly
enforce the code, did not comply
with the provisions of the code itself and that the first defendant
condoned the second defendant's
actions and conduct during the
assault on the other employee.
6.7 In time, space and
nexus, the second defendant's actions and conduct were sufficiently
closely connected with his duties as
an employee of the first
defendant to render the first defendant liable.
6.8 It would be artificial
to break the events into separate compartments in terms of cause and
effect, in circumstances where
the incident followed shortly after
the first altercation in the convenient store and immediately after
the second altercation
in the convenient store, whilst the second
defendant was in the process of serving customers, and culminated
shortly just after
the first altercation and immediately after the
second altercation and as a direct result of the first and the second
altercations,
on the premises.
[7]On the other hand, the
first defendant contends that it is not vicariously liable for the
actions and conduct of the second defendant
during the incident.
This contention is based on the following:
7.1 The fact that the first
defendant failed to take any steps against the second defendant after
the incident is irrelevant and
immaterial to the question whether or
not the first defendant is vicariously liable for the incident.
There was at no time any
reason for the first defendant to believe
that any of its employees, including the second defendant, would
assault any customer.
7.2 The incident occurred in
a heated argument between the second defendant and the plaintiff in
the early hours of the morning.
The second defendant's actions
during the incident were a spontaneous act of retributive justice.
It was an act out of aggression
and personal vindictiveness, after
the plaintiff clearly provoked the second defendant. The second
defendant's actions and conduct
during the incident was solely for
his own interests and purposes; fell outside his authority i.e. he
was not expressly or tacitly
authorized to use any force of
whatsoever nature against a customer or entitled, as a consequence of
his employment, to use force
of whatsoever nature; the second
defendant's action during the incident can be described as a "frolic
of his own". By
walking outside the convenient store, the
second defendant abandoned his duties as employee of the first
defendant.
7.3 The mere fact that the
incident occurred as a result of an altercation which started while
the second defendant was acting
as an employee is, for purposes of
determining vicarious liability, irrelevant. The personality or
background of an employee
cannot influence the question whether or
not an employer should be held vicariously liable.
7.4 A contravention of the
code is rather indicative of the fact that the first defendant is not
vicariously liable. In any even
the assault by the second defendant
of an employee is irrelevant as the plaintiff's case is not that the
first defendant breached
a duty of care or acted negligently in any
manner.
7.5 What occurred after the
incident, with specific reference to the disciplinary hearing, cannot
influence the question whether
or not the first defendant is
vicariously liable.
DISCUSSION
[8] Vicarious liability in
general terms may be defined as "the strict liability of one
person for the delict of another".
It is a well-established
principle that vicarious liability can be imposed on an employer
either firstly when an employee commits
the delict while engaged in
the employer's business (i.e. when he is acting in the course and
scope of his employment) or secondly
in so-called "deviation
cases" (i.e. where the delict was committed whilst the employee
was deviating from the business
of the employer). (See F v Minister
of Safety and Security
2012 (1) SA 536
, par [41] (CC) on 547).
Accordingly the first
question to be considered is whether the second defendant was going
about the employer's business; i.e. whether
the "standard test"
is applicable.
STANDARD TEST
[9] Counsel for the plaintiff
submitted that at the time the second defendant stabbed the plaintiff
he was acting in the course
and scope of his employment. He
substantiated his argument as follows: when the second defendant had
the two verbal altercations
with the plaintiff the interaction was
related to the work of the second defendant as a cashier. He was at
work behind the counter
when the altercations occurred. The
stabbing of the plaintiff outside the convenient store was a
consequence of the altercations
that took place inside the
convenience store. It was not possible to separate the events that
led to the stabbing by placing them
into different compartments. The
standard test would, therefore, apply to the facts of the present
case, it was argued.
[10] Counsel for the first
defendant, on the other hand, submitted that the second defendant
was, when he stabbed the plaintiff,
acting outside the scope of his
employment. The second defendant was clearly motivated by anger.
He was upset, following the
altercation he had had with the
plaintiff. At the time he stabbed the plaintiff he was clearly
settling a score and this had nothing
to do with his employment with
the first defendant as a cashier, it was argued.
[11] A master is not
responsible for the private and personal acts of his servant,
unconnected with the latter's employment, even
if done during the
time of his employment. The act causing damage must have been done
by the servant in his capacity qua servant
and not as an independent
individual. (See, for example, Feldman (Pty) Ltd v Mall
1945 AD 733
at 742 and HK Manufacturing Co (Pty) Ltd v Sadowitz
1965 (3) SA 328
(C) at 336A).
[12] In Mkize v Martins
1914
AD 382
at 390 Inness JA (as he then was) formulated the basic
principle underlying vicarious liability as follows:
"However that may be, we
may, for practical purposes, adopt the principle that a master is
answerable for the torts of his
servant committed in the course of
his employment, bearing in mind that an act done by a servant solely
for his own interests and
purposes, and outside his authority, is not
done in the course of his employment even though it may have been
done in his employment.
Such an act cannot be said to have taken
place 'in the exercise of the functions to which he (the servant) is
appointed'."
[13] Counsel for the
plaintiff submitted that even though it cannot be argued that the
second defendant was employed to stab the
plaintiff it was clear from
the facts that at the time of the incident the second defendant was
engaged in the affairs or business
of his employer, the first
defendant. The argument went thus:
The second defendant was, at
the time of both altercations with the plaintiff, engaged in the
affairs of the business of the first
defendant. The plaintiff had
specifically stopped at the first defendant's premises as a customer
to buy a cigarette lighter or
matches. He had to interact with the
second defendant, employed at the time as a cashier, by the first
defendant. The interaction
between the two was not about private
matters unrelated to the business of the first defendant. The
incident commenced in the
convenience store after the plaintiff had
requested credit for the purchase of a cigarette lighter or matches.
During both verbal
altercations the second defendant was at all times
behind the counter in the convenience store engaged in the affairs of
the first
defendant. The second defendant left his post only briefly
to follow the plaintiff during which period he stabbed him, returned
to his post behind the counter, activated the armed response panic
button and continued serving a customer. The stabbing took
place on
the premises of the first defendant.
[14] Counsel for the
plaintiff submitted that it was not possible to compartmentalize the
different stages of the incident and to
hold that the act of the
second defendant to leave his post behind the counter for
approximately 30 seconds was completely unrelated
to the rest of the
incident. Counsel for the plaintiff further submitted that it could
not be said that, when the defendant stabbed
the plaintiff, he acted
'on a frolic of his own' as the altercation both verbal and physical,
was conduct incidental to the business
of the first defendant and the
second defendant was throughout the incident, engaged in the business
of his employer.
[15] In Minister of Police v
Rabie 1986(1) SA 117 (A) at 134 C-D the court explained the standard
test for vicarious liability thus:
"It seems clear that an
act done by a servant solely for his own interests and purposes,
although occasioned by his employment,
may fall outside the course or
scope of his employment. . ." The test in this regard is
subjective.
[16] What is clear from the
cases is that the concept of vicarious liability implies that there
must be some kind of a link between
the relationship of master and
servant and the wrongful act committed by the servant. Where this
link is missing there cannot
be vicarious liability.
[17] In the present case I
cannot see that there is any link in assaulting the plaintiff, and
the duties of the second defendant
as a cashier serving the interests
of the first defendant. In my view the second defendant was not
acting within the course and
scope of his employment at the time of
the incident. He stabbed the plaintiff not to advance any interest
of the first defendant
but to settle a score with the plaintiff who
had upset him. That is what was on his mind at the time. The
assault on the plaintiff
by the second defendant was clearly an act
done solely for his own interests and purposes and had nothing to do
with his employment
as a cashier.
DEVIATION CASES
[18] In the alternative
counsel for the plaintiff submitted that in the event of it being
held that the second defendant was not
engaged in the affairs or
business of his employer during the stabbing, the first defendant my
still be held vicariously liable
in terms of the test for "deviation
cases". In support of this submission plaintiff's counsel
relied on the case of
F v Minister of Safety and Security supra at
547H-550B where Mogoeng J, in the majority judgment, stated:
“[41] Two tests apply
to the determination of vicarious liability. One applies when an
employee commits the delict while
going about the employer's
business. This is generally regarded as the 'standard test'. The
other test finds application where
wrong doing takes place outside
the course and scope of employment. These are known as 'deviation
cases'. The matter before us
is a typical deviation case.
[42] Feldman (Pty) Ltd v Mall
is a pivotal common-law authority on deviation cases. In that case
an employee drove his employer's
vehicle to deliver parcels as
instructed by his employer. Thereafter, he attended to his personal
matters. He then consumed alcohol,
which significantly impaired his
capacity to drive. On his way back to his employer's premises, he
negligently collided with,
and killed, a man who had two minor
dependants. By majority, the Appellate Division held the employer
liable for the minor children's
claim."
[19] The above is an
illustration that even where an act was done outside the course and
scope of the servant's employment if there
is nevertheless a
sufficiently close link between the servant's acts for his own
interests and purposes and the business of his
master, the master may
yet be liable. This is an objective test.
[20] Counsel for the
plaintiff submitted that the facts in the matter showed that the
present matter fell squarely within the deviation
category. He
argued that the subjective state of the second defendant's mind at
the time of the first and second verbal altercations
is just as
relevant as his state of mind at the time of the stabbing. He
reiterated that it was not possible to compartmentalize
the different
stages of the incident.
[21] Counsel for the
plaintiff submitted that even if it were to be found that the
wrongful act comprising the uncompartmentalised
altercations was not
committed solely for the purpose of the second defendant, then the
first defendant should be held vicariously
liable for the acts of the
second defendant in accordance with the findings in Minister of
Safety and Security v Luiters
[2006] ZASCA 11
;
2006 (4) SA 160
(SCA). If, however, it
was found that the incident can be compartmentalized and the wrongful
act was committed solely for the
purpose of the second defendant, the
first defendant may still be held liable vicariously if there was a
sufficiently close connection
between the employee's act in his or
her own interest and the employer's business. Counsel for the
plaintiff submitted that in
casu there was such a sufficiently close
connection. He argued that the close connection between the second
defendant's act of
stabbing the plaintiff in the context of the
nature of his employment and the first defendant's business appear
from the same facts
and that the deviation was not great in respect
of space and time.
[22] A further submission was
that the first defendant's failure to act against the second
defendant in terms of its disciplinary
code after the second
defendant had assaulted a fellow employee two months prior to the
incident is relevant. It may have left
the second defendant with
the impression that the first defendant condones such conduct as
physical aggression. This would have
led to uncertainty regarding
the normative value of his employment.
[23] Counsel for the first
defendant submitted that, in determining the issue at hand, it was
important to remember that the second
defendant did not have implied
or express authority to use force of whatsoever nature against any
customer. On the contrary, in
terms of the code, the second
defendant was obliged to treat customers "patiently, diligently
and courteously". In stabbing
the plaintiff the second
defendant was acting against instructions of his employer. The
physical altercation with the plaintiff
was in fact motivated by
vindictiveness and had nothing to do with the business of the first
defendant.
[24] For his submission
counsel for the first defendant relied on the matter of Costa da Oura
Restaurant (Pty) Ltd t/a Umdloti Bush
Tavern v Reddy
2003 (4) SA 34
(SCA). In that matter the court had to decide whether a barman
(Goldie), employed by the restaurant, acted inside or outside
his
scope of employment when he assaulted a patron (Reddy) outside the
bar. Before the assault Reddy, who was in the company
of his
girlfriend in the bar, had made snide remarks about Goldie's
efficiency as a barman when Goldie had ignored him and served
other
patrons. The remarks provoked Goldie and shortly before Reddy left
the bar Goldie had gone out to wait for him outside the
bar. There
he waylaid him and attacked him. Reddy claimed damages from the
restaurant on the ground of vicarious liability. The
court a quo
applied the degree of deviation test and held that Goldie’s
wrongful act was committed within the scope of employment
and stated
the following:
"It was not a grudge
which Goldie harboured against the plaintiff independently of his
work situation. It was a grudge which
arose directly out of his work
situation. The digression or deviation, if any, from what Goldie was
employed to do, and what he
in fact did was so close in terms of
space and time that it can reasonably be held that he was still
acting within the course and
scope of his employment."
[25] This decision was,
however, overturned on appeal. The Supreme Court of Appeal held that
the restaurant was not vicariously
liable for the Goldie's conduct as
the assault had occurred after Goldie had abandoned his duties as a
barman. The Court expressed
itself thus:
"It was a personal act
of aggression done, neither in furtherance of his employer's
interest, nor as an incident to or in consequence
of anything Goldie
was employed to do. The reasons for and the circumstances leading up
to the assault may have arisen from the
fact that Goldie was employed
by the restaurant as a barman, but personal vindictiveness leading
to the assaults on patrons does
not render the employer liable."
[26] Counsel for the first
defendant argued that the first respondent could not be held
vicariously responsible for the conduct
of the second defendant for
similar reasons set out in the matter above.
[27] However, counsel for the
plaintiff sought to distinguish the facts of the Umdloti Bush Tavern
matter from those of the present
matter on several grounds, namely,
That the assault in the Umdloti Bush Tavern occurred outside the
employer's business premises
while the assault in the present matter
occurred on the first defendant's business premises; Goldie did not
return to his post
after the assault, but was found by his manager,
downstairs, where he was summarily dismissed. The second defendant
in the present
case returned to his post behind the counter and
immediately continued to serve customers; Goldie was at all times,
during his
interaction with Reddy on the evening of the assault (in
any event as far as Reddy was concerned) not engaged in the business
of
his employer, but was following an agenda of his own; At no time
did he serve Reddy but was aggressive towards him and as Reddy
prepared to leave with his companion he left the bar to wait for them
outside the premises where he assaulted him; In the present
case
the second defendant did not abandon his post or duties but was
attending customers immediately prior to the incident, remained
on
the premises during the incident and returned to his post behind the
counter in the convenience store immediately after the
incident;
Goldie did absolutely nothing incidental to or in furtherance of the
business of his employer in his interaction with
Reddy. On the
contrary, in the present case, the second defendant was consistently
engaged in the affairs of the first defendant.
[28] It is so that the facts
in the Umdloti Bush Tavern matter are distinguishable from the facts
in the present matter. Notwithstanding
the distinctions, in my
view, the close connection as described above is only one of the
considerations. There are other equally
important considerations
such as the nature of the interests and purposes of the employee and
the nature of deviation from the
business of the employer. This is
significant especially in cases where the employer has set out
guidelines for the employees
such as a Code of Conduct. In the
present case an important consideration is that in terms of Item 10
of the Disciplinary Code
it was expected from the second defendant
that he should treat customers patiently, diligently an courteously.
[29] When the second
defendant assaulted the plaintiff he deviated badly from the duties
of a cashier when he contravened the Code.
It is therefore not the
degree of the deviation that is important, as argued by counsel for
the plaintiff, but the nature of the
wrongful conduct. It is so that
the first defendant failed to discipline the second defendant
accordingly when clearly such a
step was warranted. In my view,
however, such failure should have no bearing on the determination of
whether the first defendant
is vicariously liable.
[30] The intention of the
second defendant, when he armed himself with a pair of scissors and
followed the plaintiff outside, certainly
had nothing to do with his
position as a cashier. It also had nothing to do with the business
of the first defendant as owner
of the convenient store. It did,
however, have to do with his personal feelings. The verbal
altercations obviously hurt his feelings
and in his mind the best
manner of dealing with the issue was to physically attack the person
responsible. An important consideration
is that the wrongful
conduct was specifically prohibited in the Code. In my view this
should be strong argument against vicarious
liability. (See SAR &
H v Albers and Another 1977(2) SA 341 (D)).
[31] It is so that in certain
instances the employer will be liable " . . . Even for acts
which he has not authorized provided
that they are so connected with
the acts which he has authorized that they may rightly be regarded as
modes - although in proper
modes - of doing them . . . On the other
hand if the unauthorized and wrongful act is not so connected with
the authorized act
as to be a mode of doing it, but an independent
act, the master is not responsible; for in such a case the servant is
not acting
in the course of his employment, but has gone outside of
it." (See Feldman (Pty) Ltd v Mall supra 747).
[32] In the present case it
cannot be said that assaulting a customer is a mode of serving a
customer. Rather it is an independent
act, which is not only a
criminal act, but was also expressly forbidden by the first defendant
in its Disciplinary Code for its
employees.
[33] For the reasons above
the deviation argument must also fail.
[34] In the premises the
first defendant cannot be held vicariously liable for the conduct of
the second defendant.
[35] In the result I grant
the following order:
1. The plaintiff's claim is
dismissed
2. The plaintiff is ordered
to pay costs including costs of senior counsel.
TM MASIPA
JUDGE OF THE HIGH COURT
Counsel for the plaintiff:
JFK Grobbler
Instructed by FJ Jordaan
Counsel for the first
defendant: D Price SC
Instructed by J Steyn
Date of hearing: 2
June 2014
Date of Judgment: 19
June 2014