Jacobs v Dikhoele (5483/2005) [2007] ZAFSHC 15 (15 February 2007)

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[2007] ZAFSHC 15
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Jacobs v Dikhoele (5483/2005) [2007] ZAFSHC 15 (15 February 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 5483/2005
In
matter between:
BEN ROJER
JACOBS
Applicant
and
MAHLOMOLA ABRAHAM
DIKHOELE
Defendant
HEARD ON:
13
FEBRUARY 2007
JUDGMENT BY:
C.J.
MUSI, J
_____________________________________________________
DELIVERED ON:
16
FEBRUARY 2007
[1] On 2 December 2003 in
the crossing of the N8 and the Albert Moroka High School at Thaba
Nchu a collision occurred between the
defendant’s motor vehicle
with registration number BKR 494 FS driven by Mr M Z Lebusa and a
vehicle with registration number NU
6673 driven by Mr R Zulu. The
plaintiff was seriously injured during the collision.
[2] The plaintiff’s
claim against the Road Accident Fund (RAF) is limited to R25 000.00
in terms of section 18 of the Road Accident
Fund Act 56 of 1996 (the
Act). He successfully claimed the R25 000.00 from the RAF. His
damages however exceeds the ceiling set
by the Act and he instituted
action against the defendant in order to recover the rest of his
damages. It was agreed that the adjudication
of the merits should be
separated from the quantum.
[3] The parties agreed
that the following facts are not in dispute.
3.1 That the defendant
was the owner of the taxi motor vehicle that was driven by Mr MZ
Lebuza.
3.2 That
the plaintiff was a paying passenger in the said taxi.
3.3 That
the plaintiff was injured in the collision.
3.4 That
the defendant admits that there was negligence on the part of Lebuza.
[4] The defendant denied
that Lebuza was in his employ or that he acted in the cause and scope
of his employment. The only issue
that has to be decided is whether
the defendant was vicariously liable for Lebuza’s acts.
[5] The plaintiff called
only one witness, Mr Bizo Erice Mbotho an inspector in the South
African Police Service. He attended the
scene on 2 December 2002 and
completed the Officer’s Accident Report – which was handed in as
Exhibit A. At the scene he spoke
to Lebuza who gave him two
addresses. One being his residential address and the other being his
business address. He stated that
the latter is his employer’s
address.
[6] Mr Mahlomola Abraham
Dikhoele, the defendant, of 139 Zone 1 Selosesha, Thaba Nchu,
testified that his son Buti Thomas Dikhoele
(Buti) drove the taxi on
his behalf. He employed Buti to drive the taxi for seven days a
week. On Mondays – the 2
nd
December 2002 was a Monday –
Buti does not give him any takings and keeps whatever money he has
generated for the day as his remuneration
for the week. He did not
give Lebuza permission to drive his vehicle neither did he authorise
Buti to give the car to Lebuza or
any other person to drive. Lebuza
used to work for him during 2000 to 2001 as a taxi driver but was
dismissed because he was negligent
with money. When he was
confronted with the contents of exhibit A, specifically the fact that
Lebuza indicated that his business
address is 139 Zone 1, Thaba Nchu.
Dikhoele stated that he can only speculate that Lebuza gave his
(Dikhoele’s) particulars because
he knew it from his stint as an
employee of Dikhoele. He denied emphatically that Lebuza was in his
employ.
[7] Buti Thomas Dikhoele
confirmed employ by his father as well as the remuneration
arrangement. His testimony is that Lebuza used
to work for his
father until 2001. Lebuza was a freelance taxi driver on 2 December
2002. He used to sit at the taxi rank and when
someone needed a
driver he would be used. On 2 December 2002 whilst his taxi was in
front of the queue he received a call from his
girlfriend. He asked
Lebuza to taxi his passagers to Bloemfontein contrary to the
defendant’s instructions. Lebuza would have
given him the money
for the load of passengers and he would have paid Lebuza in return.
The defendant knew nothing about this arrangement.
He (Buti) later
heard about the collision. He has not spoken to his father about the
collision but has spoken to his sister and
his mother about it. His
father is cross with him they were not on speaking terms.
[8] Mr
Grobler, on behalf of the plaintiff, argued that Lebuza was employed
by the defendant at the relevant time and that the defendant
is
therefore vicariously liable for Lebuza’s acts. In the alternative
he argued that the defendant as the owner of the vehicle
was liable
for the acts of the driver thereof. Mr Fischer, on behalf of the
defendant, argued that Buti was working for himself
on Mondays and
was furthering his own interest and not that of the defendant.
[9] It is admitted by the
defendant that Lebuza committed a delict. In order to succeed with a
claim based on vicarious liability
based on an employee – employer
relationship the plaintiff in addition to that bears the onus to
prove that Lebuza was an employee
of the defendant. That Lebuza
committed the delict in the cause and scope of his employment and
what Lebuza’a duties were at the
relevant time.
Masuku v
Mdlalose
1998 (1) SA 1
(SCA);
Van der Berg v Coopers &
Lybrand Trust (Pty) Ltd
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA);
Gibbins
v Williams, Miller, Wright & Mostert Ingelyf
1987 (2) SA
82
(T).
[10] Mr Grobler argued on
the strength of the principle enunciated in
Voortrekker Apteek
(Edms) Bpk v Serfontein
1979 (3) SA 906
(O) at 912 that the
ownership of the vehicle justifies the inference that the driver of
the vehicle was at a specific time in the
employ of the owner thereof
and that he acted in the cause and scope of his duties. This
inference can however be rebutted by the
owner because the relevant
facts are patent to him. In
Venter v Bophuthatswana Transport
Holdings (Edms) Bpk
[1997] ZASCA 16
;
1997 (3) SA 374
(SCA) at 388 D – E the
following was said in qualification of the principle:
“
Die
feit dat die genoemde beginsel slegs ‘n afleiding is moet steeds
voor oë gehou word. Die afleiding verander nie die bewyslas
nie.
Waar ‘n verhoor sy volle verloop verneem het, bly die eindvraag
steeds of die bewysdraar hom van die bewyslas gekwyt het,
alle
relevante faktore in ag genome…”
[11] In my view the
inference must of necessity dissipate in the face of plausible and
credible direct evidence to the contrary.
The direct evidence of
both the defendant and his son is that Lebuzo was not in the employ
of the defendant. There is no other evidence
to gainsay this. Mr
Grobler wanted to make a meal of the fact that Lebuzo intimated to
Inspector Mbotho that his business address
is his employer’s
address. It must be remembered that Lebuzo did not testify. Even if
I accept that is what he said to Mbotho
that does not make him an
employee. The defendant testified in no uncertain terms, and his son
corroborated him, that Lebuzo was
not in his employ at the relevant
time. Obviously Mbotho does not know what the correct state of
affairs is because he only recorded
what was told to him. The
explanation tended by the defendant that Lebuzo might have given his
address because he knew that the
vehicle belonged to him because he
used to work for him and that he knew his address is not far fetched
or improbable. In fact I
find it probable. There is another reason
why Lebuzo could have done it and that is that he genuinely thought
that he was driving
the motor vehicle on behalf of the defendant
because the defendant’s son asked him to drive the vehicle. So for
the trip to Bloemfontein
he was – according to him – in the
employ of the owner of the car. The correctness of the entry in the
report is dependent on
Lebuzo’s intention and understanding of his
position. He did not testify. I have no reason to reject the
evidence of the defendant
and his son.
[12] Mr Grobler also
requested me to reject the evidence of the defendant and his son
because it is improbable that the accident happened
on a Monday –
the day on which the son works for himself – and because it is
improbable that father and son would not speak about
the accident for
a period of four years thereafter whilst the son is still employed by
the defendant. In my view nothing much turns
on this. The fact that
the collision occurred on a day that the driver worked for his
remuneration does not mean that he became
an independent contractor
or did not drive the vehicle in the cause and scope of his
employment. The fact that he worked for his
remuneration is in the
interest of the employer – who has a duty to remunerate him for
services rendered. Therefore the fact that
he worked on Mondays for
his own account is at best a red herring. On the issue of his
relationship with his father after the incident,
Buti testified that
his father was not happy about the fact that he acted contrary to his
clear instructions. They were not on speaking
terms. He used his
mother and his sister as a conduit to his father. I do not find this
to be so improbable as to say that their
version is implausible and
improbable.
[13] Mr Grobler also
argued that although the defendant said he keeps documents the
defendant did not produce any documents relating
to Lebuzo’s
dismissal. Firstly he never testified about documents relating to
Lebuzo’s dismissal. Secondly he never testified
from when he kept
documents. Thirdly he was never asked to discover documents relating
to Mr Lebuzo or his relationship with Mr
Lebuzo. Lastly it has
always been the defendant’s contention that Lebuzo was not in his
employ at the relevant time, the plaintiff
did not ask sufficient
further particulars in order to discern what the true relationship
between the two was, if any, at the relevant
time. The plaintiff
endeavours to project its failures and minimalist approach on the
defendant. In my view the defendant clearly
showed that he was not
Lebuzo’s employer at the relevant time. The plaintiff therefore
did not succeed in discharging its onus
to prove on a balance of
probabilities that Lebuzo was employed by the defendant at the
relevant time and that he was acting in the
case and scope of his
employment.
[14] The
question that must be considered in this matter – which was raised
quite half heartedly by Mr Grobler – is what is the
position where
an employee, employed to drive a motor vehicle or taxi on behalf of
his employer, delegates, in breach of his clear
instructions to the
contrary, the driving of his employer’s vehicle to another.
[15] As stated above the
fact that Buti drove the vehicle on Mondays and pocketed the takings
is neither here nor there. He was still
employed by the defendant
and he was still acting within the scope of his employment. The
arrangement in relation to Mondays was
just a convenient way to
structure the manner in which he would be remunerated. The defendant
still had total control over the vehicle
on Mondays. Buti had to
fetch the car from his yard and take it back there in the evenings.
Buti did not have authorization to
give the car to anyone to drive on
his behalf on Mondays. Although he pocketed all the takings he did
so as part of his conditions
of employment. This obviously obviated
him being paid by the defendant for his labour.
[16] The fact that he was
not permitted or allowed to give the car to any other person does not
alter the situation. His core function
was to drive the vehicle as a
taxi on behalf of his employer. The fact that he asked, without
authorization, Lebuzo to drive the
vehicle is an improper mode that
he employed in order to achieve his core function. In
Francis
Freres and Mason (Pty) Ltd v Public Utility Transport Corporation Ltd
1964 (3) SA 23
(D) at 30 H Caney J said the following:
“…
the
employer is responsible for the consequences of the collision
provided his employee was acting within the scope of his employment
in doing what he did. That what he did was unauthorised or even
forbidden does not necessarily take it out of the scope of his
employment;
if it was a method or mode, though improper, of doing
what he was authorised to do, it was within the scope of his
employment, for
the employer is responsible not merely for what he
authorised his employee to do, but also for the way in which he does
it…”
See also
Ngubetole
v Administrator, Cape and Another
1975 (3) SA 1
(AD) at 10 E
– 12 D. Clearly when Buti delegated his functions to Lebuzo,
albeit unauthorization, he acted within the cause and
scope of his
employment.
[17] This, without more,
however does not make the employer vicariously liable. It must still
be determined whether Buti acted negligently
in giving Lebuzo the car
and whether his negligence was the cause of the collision. In
Francis Freres & Mason
supra
Caney puts it
thus at 30 F – G:
“
when an employee whose function it
is to drive a vehicle for his employer delegates the driving of it to
another person (or permits
another or puts it in another’s power to
drive it) and as a consequences of negligent driving by that other a
collision occurs,
it is a question of fact whether the employee acted
negligently in doing what he did and if so whether his negligence was
a cause
of the collision…”
[18] In casu Buti allowed
Lebuzo to drive the car. He knew Lebuzo. Lebuzo used to work for
his father as a taxi driver. There is
no indication that Lebuzo was
not fit to drive a motor vehicle or a taxi on that particular day.
Lebuzo does freelance work as a
taxi driver and other taxi owners or
drivers use his services. There is no indication that he was in the
habit of driving negligently
or recklessly. There is no indication
that Buti was negligent in allowing him to drive the taxi. Lebuzo’s
competence as a taxi
driver was not in issue. The fact that he
misappropriated funds does not mean that he is a bad or incompetent
driver. On the facts
of this case it has not been shown that Buti
acted negligently by allowing a licensed and competent driver to
drive the taxi. We
are not dealing with a unlicensed, unskilled and
incompetent driver. See
Weir Investments LTD v Paramount Motor
Transport
1962 (4) SA 589
(D & C.L.D)
Gumede en
Andere v SA Eagle Versekeringsmaatskappy Bpk
1989 (3) SA 741
(T) at 749. On this ground too the claim ought to fail.
[19] Mr Grobler also
argued that the defendant should be held liable as the owner of the
vehicle. In
South African General Investment & Trust Co.
Ltd v Mavaneni
1963 (4) SA 89
(D) at 91 E – G Fannin J
captured the requirements for vicarious liability of the owner of a
vehicle as follows:
“
In South Africa the owner of a
motor car is liable for the negligent driving of it by another person
authorised by him to drive it
if:
the vehicle is being driven on behalf
of the owner, and
the relationship between the owner
and the driver is such that the former retains the right to control
the manner in which the car
shall be driven.”
The requirements stated
in the Mavaneni case were discussed and analysed in
Messina
Associated Carriers v Kleynhaus
2001 (3) SA 868
(SCA) and at
875 H – J paragraph 15 Scott JA came to the following conclusion:
“
As
important as the requirements identified in the Mavaneni case may be,
they are, I think no more than indicia and should be recognised
as
such. Ultimately the true inquiry is whether the relationship
between the owner and the driver and the interest of the former
in
the driving of the latter is sufficiently analogous to the case of an
employee driving in the course and scope his employment
to justify
the negligence of the driver being attributed to the owner. The
answer will depend not only on a careful analysis of
the facts of
each case but also on considerations of policy”
[20] On the facts of this
matter it is clear that Lebuzo was not authorised by the defendant to
drive the motor vehicle. As stated
above, the vehicle was indeed
driven, albeit indirectly, on the owner’s behalf without his
authorisation. There was no agreement
between the defendant as owner
and Lebuzo as driver. The owner retained the right to control the
manner in which the car was driven
viz a viz Buti. When Buti allowed
Lebuzo to drive the vehicle without the defendant’s knowledge and
authorisation, he and not
the defendant had the right to control the
manner in which the car shall be driven. If Buti had the right to
delegate to Lebuzo
then maybe the defendant could be said to have
retained the right to control the manner in which the car shall be
driven. The defendant’s
evidence in this matter is clearly that he
would have requested Lebuzo to stop the vehicle and he would have
driven the vehicle himself
if needs be. He would not have allowed
Lebuzo under any circumstances to drive his car. It seems to me that
the only connection
between the defendant and Lebuso was that Lebuso
was driving a car that belonged to the defendant. Symphatetic as I
am towards the
plaintiff, I do not think that public policy requires
that the ambit of vicarious liability of an owner of a vehicle should
be extended
under circumstances such as these under consideration in
the present case.
[21]
Accordingly I
make the following order.
(a) The
claim is dismissed with costs.
____________
C.J.
MUSI, R
On
behalf of the Plaintiff: Adv. S. Grobler
Instructed
by:
Naudes
BLOEMFONTEIN
On
behalf of the Defendant: Adv. P.U. Fischer
Instructed
by:
Moroka
Attorneys
BLOEMFONTEIN
/ms