Nel and Other v New Reclamation Group (Pty) Ltd t/a Reclam (6843/07) [2009] ZAFSHC 96 (25 September 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2009
>>
[2009] ZAFSHC 96
|

|

Nel and Other v New Reclamation Group (Pty) Ltd t/a Reclam (6843/07) [2009] ZAFSHC 96 (25 September 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : 6834/07
In the
matter between:-
J
S NEL
First
Plaintiff
J
F L NEL
Second
Plaintiff
W
CILLIERS
Third
Plaintiff
J
M BREDENKAMP
Fourth
Plaintiff
E
J J VAN RENSBURG
Fifth
Plaintiff
and
THE
NEW RECLAMATION GROUP (PTY) LTD
Defendant
t/a RECLAM
_____________________________________________________
HEARD
ON:
25
AUGUST 2009
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
25
SEPTEMBER 2009
_____________________________________________________
[1] The
five
plaintiffs
sue the defendant for the damages they allege they suffered as a
result of the veldfire which they allege was caused
by an employee of
the defendant acting within the course and scope of his employment
with the defendant during the execution of
his duties as such. The
action is defended.
[2] The
parties held a pre-trial conference in Bloemfontein on 8 July 2009
and agreed on the separate adjudication of the merits
first and the
quantum later –
vide
par. 5 of the minutes, p. 54 of the record.
[3] The
matter served before me on Tuesday 25 August 2009. Before the
hearing started the parties reached another agreement which
concerned
the merits dimension only. As regards the merits the parties have
identified four issues during the pre-trial conference
–
vide
par. 12 of the minutes, p. 56 of the record. The agreement entailed
that three of the issues be shelved for the time being and
that only
one issue be determined first.
[4]
The
issue I was asked to decide first of all was phrased as follows:
“Vraagpunt
vir Beslissing:
Of Verweerder middellik aanspreeklik
is indien dit later bevind sou word dat die werker die skade van
Eisers deur sy nalatigheid
veroorsaak het.
Whether Defendant is vicariously
liable should it be found later that the worker caused the damages of
the Plaintiffs by his negligence.”
At
the request of the parties I made
the
desired orders to give effect to the two agreements.
[5] The
version of the plaintiffs was narrated by two witnesses. The first
witness was Mr. Jacobus Frederick Lombard Nel. He testified
that he
was a farmer of Verblyden farm, district Bultfontein in the Free
State Province. He confirmed that he was the second plaintiff.
He
had an office in town at Bultfontein. On or about 21 March 2007 a
certain Mr. Johan Coetzee approached him. The gentleman
was a
stranger to him. He did not say what company he represented. He
assumed that the stranger worked for the defendant, because
the
stranger said Welkom Scrap Metals would pay him for the scrap. They
met in his office. Coetzee was interested in his disused
harvester.
He agreed to sell the harvester to him. No specific price was agreed
upon. The harvester was on a farm called Boschrand,
district
Bulftontein.
[6] The
next day he received a radio report while he was in town. He rushed
to Boschrand and found the veldfire raging. He was
not on the farm
when the fire broke out. He had no idea of what caused the fire.
He met a certain Mr. Mokeki who told him what
happened. On his
arrival Mr. Coetzee was not present. He never saw him again. The
harvester was cut to pieces. However, it
was never removed from the
farm. He never received any compensation from the defendant, as Mr.
Coetzee had promised.
[
7] The
second witness for the plaintiffs was Mr. Johannes Mokeki. He
testified that he was an employee of Welkom Scrap Metals.
His job
description was a cutter. He used a cutting torch and a gas flame to
cut scrap metals into smaller sizes. He worked
14 years for the
defendant. He lost his job in May 2009 as a result of an industrial
action. On 22 March 2007 he was on duty.
His foreman, Paul,
instructed him to accompany Mr. Coetzee to a certain place. The
tools were already loaded onto the van. The
van belonged to Mr.
Coetzee. The latter did not work for Reclam. Mr. Coetzee frequented
Reclam to sell scrap metals. He often
saw him there. It was for the
first time that he went out with Mr. Coetzee. Mr. Coetzee picked him
up from his workplace at Reclam.
From there they travelled together
to a certain farm.
[8] They
found the farm gate locked. Mr. Coetzee dropped him there. He
offloaded the gasbottle and cutting torch from the van.
From there
Mr. Coetzee pointed out to him the harvester which he had to
dismantle by cutting. Mr. Coetzee then drove away. Shortly

thereafter a farm-worker arrived by a tractor and unlocked the gate.
He, the witness, loaded his tools onto the tractor. From
the gate to
the harvester he proceeded by the tractor as a passenger. The
farm-worker dropped him at the harvester and drove away.
[9] Mr.
Coetzee rejoined him on the farm. The witness suggested to Mr.
Coetzee that he needed water in order to put out the flames
should
the sparks set the grass alight. However, Mr. Coetzee did not deem
it necessary to supply water for the purpose. He then
started
cutting the harvester from the top. As the sparks started flying
around, the grass caught fire and Mr. Coetzee started
putting the
small flames out by trampling on them. He carried on cutting the
harvester unaware that Mr. Coetzee was no longer
there. He was
working on the bottom part of the harvester. At a later stage he was
under the harvester when he saw a black cloud
coming from the
harvester. He reckoned that the sparks flew around from the cutting
activity; that they landed on the small bush
and caused the tiny
flames which quickly developed into the veldfire.
[10] The
driver of the tractor was the first person on the scene after the
veldfire had started. The defendant’s truck arrived
later to
collect the scrapped harvester from the farm to Reclam. However, it
ended up at the farm gate. He was later taken away
from the farm to
the police station where he made a statement. He testified that
Reclam and not Mr. Coetzee was his employer contrary
to what is
stated in par. 2 of his police statement.
This completed the
evidence of the plaintiffs on the reserved question.
[11] The
version of the defendant was narrated by one witness only, namely Mr.
Henry William Laney. He testified that he was the
branch manager of
the defendant in Welkom. The defendant was also known as Welkom
Scrap Metals. He knew Mr. Johannes Mokeki as
an employee of the
defendant. He was a cutter. He received training as a cutter in
Welkom. He further testified that he also
knew Mr. Johan Coetzee as
a customer of the defendant. Mr. Coetzee frequently sold scrap
metals to the defendant. Besides the
defendant he also sold scrap
metals to a rival business enterprise called Mico Trading.
Originally Coetzee traded in his personal
name, but later formed a
close corporation. He used his own motor vehicle to deliver scarp
metals to the defendant. He did not
have employees of his own.
[12] Mr.
Coetzee informed him about the big scrap he had on a farm out at
Bultfontein. The discussion took place on the premises
of the
defendant in Welkom on or about 21 or 22 March 2007. He needed a
cutter, equipment and a truck. The load was too large
for the light
delivery van he had. He confirmed that he did not have any dealings
with the owner of the harvester. He provided
all the logistical
support as requested by the customer on the understanding that the
client would sell the scrap to the defendant
and also bear the
transport and labour costs.
[13] He
learned that the veldfire originated from the spot on the farm where
Mr. Coetzee was working. There was no arrangement
that the defendant
would directly pay the second plaintiff for the supply of the scrap
to Mr. Coetzee. The latter and not the
defendant was liable to the
owner of the harvester and responsible for the payment of the
purchase price. Although Mr. Mokeki
was an employee of the
defendant, he was not under the control and supervision of the
defendant at the time he was cutting on the
farm. At all times while
he was on the farm, he was working for Mr. Coetzee. He denied the
claim that the defendant was liable
for the actions of Mr. Coetzee.
[14] The
case of the plaintiffs, as pleaded, was that at the time the worker
was cutting the harvester into pieces on the farm,
he was an employee
of the defendant acting within the course of his employment as such.
The defendant denied in its plea that
the worker was an employee of
the defendant out on the business of the defendant at the time he was
dismantling the harvester.
The defendant pleaded that the worker at
the relevant time was an employee of the vendor, a customer of the
defendant and that
he was acting within the course and scope of his
employment by the vendor and not the defendant.
[15] The
issue in the case is whether the worker had acted within the course
and scope of his employment with the defendant at the
time he was
cutting the harvester into pieces on the farm far away from the
defendant’s industrial site.
[16] The
plaintiff bears the onus of proving, on a balance of probabilities,
inter
alia,
that the worker, who committed a delict, which aspect still has to be
determined in the instant case, was a servant of the
defendant and
that at the time the worker performed the negligent act, he was
acting in his capacity as an employee of the defendant
within the
course and scope of his employment with the defendant -
MASUKU
AND ANOTHER v MDLALOSE AND OTHERS
1998 (1) SA 1
(SCA).
[
17] Mr.
Zietsman, on behalf of the plaintiffs, relied on the following
authorities, among others:
MIDWAY
TWO ENGINEERING & CONSTRUCTION SERVICES v TRANSNET BPK
1998
(3) SA 17
(SCA);
STEIN
v RISING TIDE PRODUCTIONS CC
2002 (5) SA 199
(CPD);
K
v MINISTER OF SAFETY AND SECURITY
[2005] ZACC 8
;
2005 (6) SA 419
(CC).
[
18] Mr.
Loubser, on behalf of the defendant, relied on the following
authorities:
STADSRAAD
VAN PRETORIA v PRETORIA POOLS
1990 (1) SA 1005
(T);
GIBBINS
v WILLIAMS, MULLER, WRIGHT & MOSTERT INGELYF EN ANDERE
1987 (2) SA 82
(T);
MASUKU
AND ANOTHER v MDLALOSE AND OTHERS
1998 (1) SA 1
(SCA);
NOCK
v ROAD ACCIDENT FUND
[2000] 2 ALL SA 436
(W);
MIDWAY
TWO ENGINEERING & CONSTRUCTION SERVICES v TRANSNET BPK
1998
(3) SA 17
(SCA).
[
19] It
is not necessary to review the authorities. In the instant case the
defendant did not know the farm, the farmer or the harvester.
The
defendant was not involved in the negotiations which led to the
dismantling of the disused harvester. The deal was exclusively
a
matter between the second plaintiff and the vendor. The farmer
agreed to sell the harvester to the latter believing that the
latter
was a representative or agent of the defendant. In reality, however,
the vendor was neither a representative nor an employee
of the
defendant. The vendor’s difficulty was that he had no skill and
resources to cut and transport the huge scrap away from
the farm.
[20] It
was at this juncture that the defendant came into the picture. The
vendor approached the defendant for help. The defendant
had among
its workers those who were trained as metal cutters. Mr. Mokeki was
one of them. The defendant put the particular worker
at the disposal
of the vendor. The defendant also provided the vendor with some
industrial equipment for use by the worker on
the farm. The
equipment was loaded onto the vendor’s light delivery van. The
vendor picked the cutter up from the defendant’s
industrial site or
yard. The worker was instructed by the defendant via Paul, the
foreman, to accompany the vendor. The witness
did not recall the
foreman’s surname.
[21] It
is important to stress that the worker travelled to Boschrand farm
not only with the defendant’s knowledge, but on the
defendant’s
express order. He was dispatched to the farm on a specific business
errand. The defendant knew as much as the vendor
did precisely what
the worker needed to do out there. He was well-equipped for the job.
On their arrival on the farm the vendor
pointed the harvester out to
the worker. He then started cutting the harvester with the equipment
of the defendant. The activity
of cutting metals was his daily
routine. That he was sent out alone was indicative of his ability to
work without supervision.
He never went away from the harvester for
purposes of his own. He remained on the site of the harvester for
approximately an
hour. During that period sparks caused by the
cutting equipment were flying around. Initially he saw the vendor
extinguishing
the flames of the burning grass. Later on he was
working on the harvester from underneath. He carried on cutting the
harvester.
The sparks continued to fly. He was not concerned,
because he thought the vendor was still putting the flames out. It
was not
until he emerged that he saw a big black cloud of smoke.
Only then did he realise that the vendor was nowhere to be seen.
[22] There
is no suggestion that the worker had disobeyed the defendant’s
instructions. Therefore, this is not the case of an
unfaithful
employee who instead of devoting his time to his employer’s
business followed a pursuit of his own. He did not abandon
partially
or entirely the business he set out to do. The work he performed on
the farm was identical to the work for which he
was employed and
trained by the defendant. I have to stress that he went over there
on the specific instructions of his immediate
supervisor, the
foreman, himself an employee of the defendant. The work for which he
was sent out to do, embraced the control
of the cutting equipment
owned by the defendant. There was no delinquent digression to pursue
his own private interest. He did
on the farm precisely what he would
have done at his workplace had the defendant not instructed him to
accompany the vendor to
work outside instead of inside as usual.
[23] In
my view, he was continuously on duty throughout the journey from the
plant to the farm. He was also continuously under
the authoritative
control of the defendant during the entire process of cutting the
harvester. While he was cutting the harvester
his mind was occupied
primarily by the business interests of his real employer, the
defendant and not those of the vendor, the
defendant’s customer.
He received no instructions, let alone radical instructions from the
vendor, at any moment during the
course of the cutting process, to
dismantle the harvester in a manner that could have been objectively
seen as a drastic departure
from the standard manner which the
defendant had expected from him as a trained cutter. There is
nothing to suggest that during
the entire operation he ever
temporarily abandoned the defendant and embraced the vendor as his
temporary employer.
[24]
It is so that in the ordinary course of the defendant’s operations,
the worker used to cut scrap metals on the defendant’s
industrial
yard. On this occasion the worker was sent out to cut the scrap
metal off the industrial yard. Usually it was the
vendor’s
business’ obligation to deliver scrap metals to the defendant. In
this case, however, the vendor was unable to do
so, but the defendant
was able to do so. The defendant and the vendor agreed to have the
harvester dismantled, loaded, transported,
off-loaded by the
defendant. According to the defendant the provision of the cutter,
equipment and transport to the vendor was
only service to a customer.
[25] Mr.
Laney admitted during cross-examination that it was in the interest
of the defendant to provide the cutter to a customer,
because it
ensured that the scrap would come to the defendant. He also agreed
that it was precisely for the same reason that the
defendant had also
provided its truck and equipment. The provision of the logistical
support was service to a customer. It was
intended to ease the
burden. He also admitted that Mr. Coetzee did not instruct the
employee as to how he should do the cutting,
since the employee was a
trained cutter able to do so on his own. He also conceded that the
use of a flame cutting torch created
a dangerous situation and that
it was the duty of the defendant to guard against such dangers.
[26] The
worker had undergone the necessary training as a cutter. The
training skilled him to perform the cutting work in a systematic
and
a specific manner. He was able to cut metals in such a way as to
facilitate the processing thereof by the defendant.
[2
7] The
cutting of the harvester by the worker was to the vendor’s
advantage in the sense that, first, the vendor had no employees
to do
the job, second, the worker was a trained metal cutter, third, the
harvester was an unusually huge scrap and fourth, the
cutting
facilitated the transporting of the heavy scrap. All these promoted
the vendor’s business interest. Similarly, the
worker’s cutting
activities on the farm were to the defendant’s advantage seeing
that he was a trained metal cutter who knew
and understood the
defendant’s industrial operations. Therefore, he was able to cut
the harvester in a manner that would not
only facilitate its
transportation, but also expedite its processing later on.
[28] The
defendant’s chief industrial operations dependent on vendors such
as Mr. Coetzee who supply it with scrap metals. It
is not the
defendant’s standard practice to send a cutter out to do some field
work by cutting scraps off the defendant’s industrial
yard. The
metal cutting by means of a gas flame torch in the veld creates an
inherently hazardous situation in that the universal
safety measures
usually in place at the defendant’s industrial plant are
compromised. The defendant did not take any steps to
guard against
the possible occurrence of such danger. The defendant merely
supposed that the vendor would do so.
[29] It
seems to me that such logistical support was more than just service
to a customer. The defendant gave such logistical support
in return
for the scrap metal. This then was the quick pro quo of the deal.
The defendant would probably not have given the vendor
such
logistical support if the vendor had wanted the scrap metal delivered
to the defendant’s rival business enterprise such
as Mico Trading.
It appears, on the facts as a whole, that the entire operation was
more of the defendant’s business than the
vendor’s. When an
employee is sent out on his employer’s dominant business, which is
closely linked to the collateral business
of someone else, his
simultaneous promotion of the third party’s comparatively minor
business interest, with the approval of
the real employer, does not
necessarily entail a temporary termination of his employment or an
abandonment of his employer’s
primary business.
[30] It
may be true, as was argued by Mr. Loubser, that from the defendant’s
plant to the farm where the scrap was cut into pieces,
the worker was
under the control of the vendor. But even if that was indeed the
position, he certainly did not exercise such control
as his new
employer. But even if it is assumed that the vendor had taken over
control as the worker’s employer for the duration
of the trip and
the cutting activity, the control test is no longer the decisive
determinant of vicarious liability. It has been
held as a general
and broader criterion that what was required in order to determine
vicarious liability, was a multifaceted test
and not simply the
traditional criterion of control, that took into account all relevant
factors in order to determine who, as
a matter of policy and
fairness, had been more closely associated with the act which created
the risk -
MIDWAY
TWO ENGINEERING & CONSTRUCTION SERVICES v TRANSNET BPK
1998 (3) SA 17
(SCA).
[3
1] Now
the risk-creating act in this case was the dismantling of the
harvester by means of the cutting torch and a gas-flame. The

equipment used belonged to the defendant. The cutter was a permanent
employee of the defendant. He was a trained and certified
cutter.
Apparently the defendant was responsible for the employee’s
training. Before he was sent out, the worker was never
informed that
he ceased to be an employee of the defendant and that by accompanying
the vendor he thereby became the vendor’s
temporary employee. The
worker was remunerated for the particular day by the defendant as
usual. There was nothing deducted from
his wages. The fact that the
defendant charged or would have charged the vendor for the services
rendered by the worker does not
assist the defendant. On the
contrary, it fortifies the conclusion that, notwithstanding his brief
temporary absence from the
yard, the worker remained an employee of
the defendant. The fact that the defendant never called upon the
vendor to pay for the
labour costs of the cutting activity in
question bolsters my conclusion.
The
scrapped harvester was destined for sale to the defendant. Besides
driving the worker to the farm and pointing the harvester
out to the
worker, the vendor did not really supervise the worker’s cutting
activity
in any significant manner. Although the worker travelled with the
defendant’s customer in the latter’s motor vehicle, the
defendant
did not surrender control over him.
“
Control is a
wide concept. It includes
inter
alia
the right of an employer to decide what work is to be done by the
employee, the manner in which it is to be done by him, the means
to
be employed by him in doing it, the time when and the place where it
is to be done by him.”
SMIT
v WORKMEN'S COMPENSATION COMMISSIONER
1979 (1) SA 51
(AD) at 60 H per Joubert JA.
[3
2] In
STEIN
v RISING TIDE PRODUCTIONS CC
2002 (5) SA 199
(CPD) at p. 206 D Van Heerden J, as she then was,
observed that although the question of control was an important
factor in the
enquiry as to the existence or non-existence of an
employment relationship, the crucial test, particularly in marginal
cases, was
whether or not the dominant impression of the relationship
was that of a contract of employment.
[33] The
aforegoing principle of dominant impression was accepted in the case
of
SMIT
,
supra
,
at p. 63 A – B where it was held that the employer’s right of
control was not the sole determinative factor of the employment

relationship and that regard must also be had to the other important
indicia. In a later decision of
STEIN
,
supra
,
at 206 I – 207 B a number of indicia, the cumulative impact of
which may be decisive, were enumerated.
[34] The
following factors are pertinent to the instant case: first, the
employer’s right of control. On the day in question
the worker
reported for duty, as the defendant’s employee at his usual
workplace. The defendant, as an employer, decided that
the worker
had to go to Boschrand farm on that day with the vendor to cut a
harvester, as the worker had previously been trained
to do. All
those instructions, in my view, underscored the defendant’s control
over the worker.
[3
5] Second,
the nature of the work as an important factor: The basic duty of the
worker was to cut scrap metals. On the farm the
worker did just that
– cutting the metal. It was his daily routine at his workplace.
[36] Third,
the existence of the right of supervision by the employer: The
defendant did not go to the farm to inspect and direct
the work being
done by the worker. But that, in itself, did not preclude the
defendant from exercising such a right. The fact
of the matter is
that the defendant had such a right. The question is not whether the
defendant exercised it or not, but rather
whether the defendant had
it or not. Had the defendant later sent its foreman to the farm to
inspect and to direct the worker,
neither the worker nor the vendor
would have objected. This is so because the work he did on the farm
was merely a continuation
of the work he would have done on the plant
as the defendant’s employee. This everybody knew. The defendant
as the employer
had interests in the training of the worker to ensure
that the worker could perform his duties with minimal degree of
supervision
or none at all. Therefore, lack of actual supervision in
this instant does not indicate that the employment relationship
between
the worker and the defendant had ceased to exist.
[3
7] Fourth,
the tools of trade or working facilities: The defendant was the owner
of the cutting equipment. The worker was equipped
by the defendant
and not the vendor. The cutting torch and the gas-bottle were not
were not provided by the vendor. The vendor
merely provided the
transport by means of which the worker was conveyed to the farm. If
that van was involved in an accident on
the way, the defendant would
probably be held liable if the accident was occasioned by the
vendor’s negligence. Later on the
defendant provided its own truck
to go to the farm in order to carry the cargo from the farm to the
industrial plant, owned by
the defendant. This demonstrates the
defendant’s dominant business interests in the cutting activity.
The fact that the cargo
was never removed from the farm, is of no
consequence. Again the defendant never demanded payment of the
transport costs from
the vendor.
[38] Five,
the payment of remuneration: The worker was remunerated for the work
he performed on the farm. He was on the defendant’s
payroll. At
the end of the relevant pay-cycle the defendant deducted nothing from
his wages. The worker was treated as if he
had worked on the
harvester on the defendant’s industrial workplace.
[39] Six,
the length of service: The worker was in the employ of the defendant
for a period of 13 years. At the time of the fire
incident on the
farm, he had been the defendant’s employee for over a decade. The
dismantling of the harvester took about an
hour, that is from 10:00
to 11:00. The vendor did not even spent that one hour with him on
the farm. In
MIDWAY
-case,
supra
,
Midway supplied Spoornet with about 40 qualified drivers to drive
cargo trucks as replacements for the latter’s drivers who
were on a
prolonged strike action. Simon was one of such drivers. It would
appear that he had been driving for the respondent
Transnet for
approximately seven months when the accident, occasioned by his
negligent driving, occurred. During that long period
of service the
appellant, in other words Midway, was not meaningfully involved in
the manner in which Simon performed the task
of driving. In the
instant case the situation is entirely different. The extremely and
comparatively short duration of service
was characterised by the
close involvement of the defendant.
[40] The
aforegoing multiple factors collectively create, as a matter of
policy and fairness, a dominant impression that the defendant
was
indeed more closely associated with the critical act – to wit: the
cutting of the harvester by the vendor. The defendant
had done a
whole lot more in this case. I am not convinced that all the
defendant had done, was only to supply the customer with
the services
of a qualified cutter and that furthermore the defendant had had
nothing to do with the manner in which the cutter
performed the task
for the customer. The defendant did not detach itself from the
cutter and the activity which created the risk.
I am not at all
persuaded, on the facts, that the vendor ever became a temporary
employer of the worker, whose actions are alleged
to have
precipitated the event complained of. The converse also holds true.
The worker never became a temporary employee of the
vendor, in my
opinion.
[41] I
find that the worker performed the services in question under the
overall control of the defendant. This is corroborated
by a variety
of factors, among others, the worker performed at the instance of and
to the primary advantage of the defendant.
I would, therefore, hold
the defendant vicariously liable for any delict proven to have been
committed by the said employee while
performing his services in
connection with the harvester. The reserved question must
accordingly be answered in favour of the
plaintiff.
[42] In
the circumstances, the following order:
42.
1 The
reserved question is affirmatively answered in favour of the
plaintiffs.
42.2
The
defendant pays the costs relating to the reserved issue.
________
______
M.H.
RAMPAI, J
On
behalf of plaintiffs:
Adv.
P. Zietsman
Instructed by:
Naudes
BLOEMFONTEIN
On
behalf of defendant: Adv. P.J. Loubser
Instructed by:
Webbers
BLOEMFONTEIN
/sp