About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 384
|
|
Wolfaardt v Mandre Beleggings CC t/a Zenex Jean Avenue (1944/2012) [2014] ZAGPPHC 384 (19 June 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 1944/12
DATE:
19 JUNE 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
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 […] and resides at Flat […],
B[…], C[…], 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