H Mohammed & Associates v Buyeye (A 1228/2003) [2004] ZAWCHC 21; 2005 (3) SA 122 (C) (10 September 2004)

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[2004] ZAWCHC 21
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H Mohammed & Associates v Buyeye (A 1228/2003) [2004] ZAWCHC 21; 2005 (3) SA 122 (C) (10 September 2004)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
Case No. A 1228/2003
In the matter between:
H MOHAMMED &
ASSOCIATES
Appellant
And
ADDERLEY NOMVUZO
BUYEYE
Respondent
JUDGMENT DELIVERED 10 SEPTEMBER 2004
DAVIS J.
Introduction:
The respondent instructed appellant, a firm of attorneys, to
represent her in relation to a claim for damages flowing from
injuries
which she sustained in a motor accident which occurred on
the N2 highway between Swellendam and Riviersonderend on the night of
Thursday
2 June 1992. As a result of the injuries sustained,
respondent was rendered paraplegic. At the time of the accident she
was a passenger
in a minibus taxi returning from the Transkei. The
taxi collided with a bakkie driven by one J A Schoonwinkel.
Respondent’s case was
that appellant had conducted her affairs negligently and breached the
mandate which had been given to it.
The parties agreed that the
issues relating to the nature and extent of the injuries suffered by
the respondent and the quantum
of her damages would stand over for
later determination. The claim was formulated in an amount of R2,3m.
The issues that the
court
a quo
was requested to determine were:
The precise terms of the mandate given by respondent to appellant;
Whether, had the respondent timeously pursued the claim filed with
the appointed agent of the MMF based on the negligence of
Schoonwinkel,
that claim would, on a balance of probabilities, have
succeeded;
Whether the respondent breached the mandate it had accepted by
failing to institute action timeously against the driver of the
minibus taxi in which the plaintiff was being conveyed, the driver
being Mr Xegwana;
If the mandate had indeed been breached, the extent to which an
action instituted against him would have effected a recovery;
Whether the taxi was owned by Mr R J Josephs at the relevant time;
Whether at the relevant time Mr R J Josephs was the employer of Mr
Xegwana or a person otherwise vicariously liable for his actions;
Whether the respondent breached the mandate that it accepted by
failing to institute action timeously against Mr R J Josephs;
If so, the extent to which an action instituted against him would
have effected a recovery.
The court
a quo,
per
N C
Erasmus J,
held that the appellant was mandated
to pursue claims against the MMF, alternatively the driver of the
taxi in which the respondent
had travelled and, alternatively, the
owner of the taxi.
Erasmus J
also held that Schoonwinkel, the
driver of the other vehicle involved in the accident, was causally
negligent in relation
to the collision and therefore, if the appellant had pursued the
claim against the MMF, it would have succeeded.
Having so found, it
became unnecessary for the court
a quo
to consider the
further issues relating to possible claims against the driver of the
taxi or its owner.
On appeal, Mr Mitchell,
who appeared on behalf of the appellant, conceded that, if the claim
against the MMF based on the negligence
of Schoonwinkel was a viable
claim, the mandate required the appellant to pursue it. The critical
issue for determination on appeal
were the question of the negligence
of Schoonwinkel and, alternatively, whether Mr R J Josephs was the
person vicariously liable
for the delicts of Mr Xegwana.
The negligence of Mr Schoonwinkel.
The evidence in relation to the collision consisted of the direct
testimony of Mr Xegwana and evidence that the appellant placed
before
the court in the form of a transcript of evidence given by
Schoonwinkel at the inquest of the death of one of the passengers
of
the taxi. Schoonwinkel died prior to the date of the trial.
Accordingly the evidence sought to be adduced was hearsay evidence.

The court admitted this evidence in terms of
section 3(1)
of the
Law
of Evidence Amendment Act 45 of 1988
.
Mr Mitchell did not
suggest in argument that the court erred in admitting the hearsay
evidence.
Mr Xegwana testified
that he was the driver of the minibus taxi which was on a journey
from the Transkei to Cape Town. Immediately
prior to the accident he
was travelling on the road between Swellendam and Riviersonderend.
Behind him was another taxi owned by
Mr Joseph which was driven by Mr
Buwa. Mr. Xegwana testified that the taxi was travelling at
approximately 100 kph when he saw the
bakkie engaging its right
indicator. Shortly thereafter, it began to execute a gradual
movement towards the right side of the road.
Mr Xegwana testified
that this created an opportunity for the taxi to pass on the left of
the bakkie. He was convinced that it was
turning right, given the
nature of its movement as well as the fact that its right indicator
had been engaged by the driver. While
he was in the act of passing
on the left of the bakkie, the latter unexpectedly began to execute a
turn to the left, presumably
in order to enter a gravel road which
was on the left of the intersection. It was this unexpected manoeuvre
by the bakkie which caused
the collision between the trailer drawn by
the taxi and the bakkie.
Schoonwinkel’s
evidence, which he gave during the inquest application, was to the
effect that he was driving, at approximately 23h10
on 2 July 1992, in
the direction of Riviersonderend along the N2 road. He slowed down
to approximately 20 kph some 100-120 metres
before an intersection to
the left where a gravel road led to his farm. He then informed the
court: ‘Ongeveer 100 metres, 120
metres van die afdraai het ek na
links beweeg langs die geelstreep en toe later in die geelstreep wat
daar is, en my flikker lig
aangesit vir links – om links te draai.
Ek het gemerk op daardie stadium dat ‘n voertuig wat ek reeds
vantevore ver terug gemerk
het, reeds redelik naby my, aan my is,
agter my en voordat ek kon links draai het ek ‘n geruis op die
gruis gehoor en hy was besig
om aan die linkerkant van my verby te
kom en het toe gebots aan die linkerkant van my voertuig’.
He was then asked the
following:
‘Nou sal u net vir
die hof kortliks verduidelik: u het aan die linkerkant van die pad,
links van die geelstreep gery? -- Ja, nie
links van die geelstreep
nie, op die geel. Ek was op daardie stadium toe hulle my geraak het,
was ek alreeds met die linkerkantse
wiele binne in die geelstreep en
die regterkantse wiele nou natuurlik buite’.
Erasmus J
found
that the probabilities in respect of the two versions of the
collision were equally balanced. He then went on to conclude ‘It
would be improbable that Schoonwinkel would turn to the left towards
his farm and indicate to the right. It is equally improbable
that
if Xegwana had seen the indicator to the left that he would take the
suicidal step of overtaking on the left. In my view, however,
on
Schoonwinkel’s own evidence he was aware of this vehicle following
him. The collision was between the trailer drawn by the taxi
and the
bakkie. Nowhere in his evidence does he give an indication that he
looked where the vehicle was before he turned it must
have been very
close to him, had he looked he would have seen the vehicle and would
not have turned to the left or would have taken
other evasive action.
On this alone one can infer that his actions were at least to an
extent negligent. (sic)’ Although
Erasmus J
appeared to
find that Xegwana was reckless, it was his view that Schoonwinkel
could not be absolved ‘simply because Xegwana was
reckless. This
is because Schoonwinkel must have been aware of the reckless conduct:
he must have been aware of the fact that Xegwana
was intending to
pass him on the left before he executed the turn in light of the fact
that Xegwana was so close behind him and the
fact the Xegwana did not
strike Schoonwinkel from the back.’
Mr Mitchell submitted
that, if the evidence of Schoonwinkel was accepted no negligence
could be attributed to him in relation to the
cause of the accident.
Mr Mitchell contended that the duty of a driver is to indicate his
intention to turn his vehicle from its
path of travel at the time
when he is able to give adequate warning to vehicles travelling
behind him. This had been done at a point
between 100-120 metres
from the intersection. Schoonwinkel testified that he moved towards
the left of the road and switched on
his indicator. At that stage,
there was nothing to alert him to any need to take precautions nor to
lead him to assume that his
signal was not being recognized. Mr
Mitchell further submitted that there was nothing to suggest that
Xegwana would have behaved
recklessly by seeking to overtake on the
left. Before he turned, Schoonwinkel heard a noise on the gravel
next to him as the taxi
collided with the left hand side of his
vehicle. In Mr Mitchell’s view there were accordingly no grounds
to suggest that he could
at that time have taken steps to prevent the
collision. Mr Mitchell also submitted that there was no evidence as
to where the impact
had occurred. He conceded that, if the bakkie
had collided with the trailer, then there was a greater probability
that Schoonwinkel
had been negligent because the taxi would have
traveled past the bakkie at the moment that Schoonwinkel attempted to
turn to the
left. However, according to Schoonwinkel’s evidence,
the taxi struck him from behind and the point of contact was with the
left
hand passengers’ door.
Mr McClarty, who
appeared on behalf of the respondent, emphasized the fact that it was
only Xegwana’s evidence which had been subjected
to
cross-examination. This evidence had a greater element of
reliability than that of Schoonwinkel’s testimony which was given
at an inquest, and was not tested under cross-examination. Mr
McClarty submitted further that Schoonwinkel’s version was
inherently
improbable in that it was inexplicable that Xegwana would
have sought to overtake on the left in circumstances where
Schoonwinkel’s
left indicator was engaged and his vehicle was
moving to the left. In Mr McClarty’s view the inherent
improbability of such outrageously
reckless conduct on the part of
Xegwana, compelled the rejection of Schoonwinkel’s version of
events. Mr McClarty emphasized the
passage of Schoonwinkel’s
evidence where he said that his vehicle had moved alongside the
yellow line and then crossed the yellow
line as he attempted to turn.
Schoonwinkel then stated ‘Ek het gemerk op daardie stadium dat ‘n
voertuig wat ek reeds vantevore
ver terug gemerk het, reeds redelik
naby my, aan my is, agter my en voordat ek kon links draai het ek ‘n
geruis op die gruis gehoor
en hy was besig om aan die linkerkant van
my verby te kom….’ According to Mr McClarty’s interpretation
of this passage, Schoonwinkel
must have realized that Xegwana’s
vehicle was approximately alongside his bakkie when he executed the
turn to the left, thereby
causing the collision. In these
circumstances, it was clear that he had been negligent in seeking to
turn when he must have apprehended
the real possibility that such a
turn would result in a collision between the bakkie and the taxi.
In an evaluation of the
competing versions of Xegwana and Schoonwinkel a court must confront
the fact that neither version is without
blemish. Schoonwinkel’s
evidence was given at the inquest proceedings. As Mr McClarty
correctly observed he had a motive to colour
his evidence in an
attempt to exculpate himself from being held responsible for the
death of the deceased. Furthermore he was not
cross-examined during
the proceedings. That he might well have used his left indicator
does not entirely exclude the possibility
that his vehicle moved to
the right before executing a turn to the left. This movement would
explain the attempt by Xegwana to attempt
to pass the bakkie on its
left hand side.
When Xegwana was
cross-examined, it was put to him that Buwa, the driver of the other
taxi owned by Joseph, had provided a statement
to the effect that the
bakkie’s left hand indicator was on, albeit that the bakkie had
begun to move to the right before it executed
the turn to the left.
This was denied by Xegwana. However he could never satisfactorily
explain why Schoonwinkel would wish to
turn to the right when it was
the road on the left hand side of the N2 which led to his farm.
Furthermore, as Mr Mitchell noted,
when giving a statement to the
police subsequent to the collision Xegwana had every reason to
endeavour to exculpate himself. There
was no reason for him to be
aware of the fact that the road to the right lead only to a farm
which Schoonwinkel did not own. He
too would have been motivated to
explain the accident to his best advantage by suggesting that the
right indicator had been employed
by Schoonwinkel.
Erasmus J
found
that the probabilities on both versions were equally ‘balanced’.
If a court is unable to come to any other conclusion than
that the
two versions are an equipoise, it is extremely difficult to justify
a conclusion, in a case such as the present dispute,
that respondent
would have discharged the onus, on a balance of probabilities, of
proving that Schoonwinkel was negligent. Mr McClarty
sought to
circumvent this difficulty by submitting that the only reasonable
inference to be drawn from the two versions was that
Schoonwinkel’s
version was inherently improbable because it would have been so
unreasonable for Xegwana to attempt to overtake
on the left hand side
in circumstances where the left hand indicator was operating and the
vehicle was moving towards the intersection.
In
MaCleod v Rens
1997 (3) SA 1039
(E) at 1049 B,
Erasmus J
adopted the
second principle set out in
R v Blom
1939 AD 188
at 202-203 to
a civil case as follows: ‘The proved facts should be such as to
render the inference sought to be drawn more probable
than any other
reasonable inference. If they allow for another more or equally
probable inference, the inference sought to be drawn
cannot prevail.’
When the competing versions of Xegwana and Schoonwinkel are weighed
up it is not possible to select one conclusion
which appears to be
the more natural or probable one from the alternatives to be gleaned
from all the available evidence. Neither
Xegwana’s nor
Schoonwinkel’s version can be said to be a more probable
explanation of the cause of the accident. Accordingly,
the conclusion
to which the trial court arrived, namely that, on the probabilities,
Schoonwinkel was causally negligent cannot be
justified.
Was Mr Josephs
vicariously liable for the delict of Mr Xegwana.
Respondent alleged
that at all material times Xegwana was an employee of R J Josephs and
hence the accident had occurred in the course
and scope of Xegwana’s
employment. Alternatively, respondent alleged that Xegwana drove the
vehicle under the direct or indirect
control and directions of
Josephs and in furtherance of the latter’s business. The accident
occurred on 2 June 1992. According
to Mr R J Josephs. ‘The company
R Josephs and Company (Pty) Ltd was the company which owned the
transport business, the partnership
does not include the ownership of
the taxi.’
Mr Josephs’ father
died in 1990 and his mother inherited the shares of the company. Mr
Josephs testified that he needed to run
the business until
approximately 1993, at which stage he wound up the business. At no
time during this period did he own the shares
of the company.
In order for the
respondent to have shown that Mr Josephs was vicariously liable for
the delicts of Mr Xegwana, she would have had
to show that Josephs
was Xegwana’s employer or that he was the owner of the taxi and
consequently liable for the negligent driving
of his agent. The
critical evidence in this regard was given by Mr Josephs. According
to his evidence, he managed the taxi business
after the death of his
father including at the time of the collision. However, he made it
clear that, while he managed the business,
the employer of the taxi
drivers, including Xegwana, was R Josephs and Company (Pty) Ltd. The
shares of that company were initially
owned by Joseph’s father and
later his mother. R J Joseph was only the manager. By 1993 that
business had effectively ceased to
exist. At no time during the
relevant period did Josephs own shares in the company.
Xegwana’s evidence in
this regard was that he was employed “by Josephs” for a few
months. The latter operated this taxi business
from Zennex Garage.
He saw Mr Josephs at both the Zennex Garage and at a place called
Mfuleni, where passengers were loaded into
the taxis on a regular
basis. Xegwana handed cash which he had earned from the driving of
the taxis to Josephs. He was paid by
Buwa, whom he described as “his
senior driver”, who in turn received the money from Josephs. He
testified that he had obtained
employment as a taxi driver through Mr
Buwa who was employed by Josephs. He had only been in the employ of
Josephs for a few months
before the accident. In my view, it may be
accepted, on the probabilities, that Xegwana was in an employment
relationship and was
driving in the course and scope of that
employment relationship when he negligently caused the collision to
happen. Furthermore,
the respondent was a paying passenger.
The onus lay on the
respondent to prove that Xegwana was employed by Josephs. In my
view, the evidence does not establish, on the
probabilities, that
Xegwana was employed by Josephs in his personal capacity. It appears
probable that Josephs was employed by the
company.
In my view, the
respondent failed to establish an employer/employee relationship
between Josephs acting in his personal capacity and
Xegwana. The
evidence goes no further than to show that it is as probable that
Josephs was merely managing the company and in such
capacity employed
Xegwana as it is that he employed him in his personal capacity and
was running the business for his own account.
I turn to consider the
alternative facts upon which respondent relies to prove a
relationship which should give rise to vicarious
liability. The
first question that arises is whether the respondent has proved that
Josephs was the owner of the taxi which Xegwana
was driving at the
time of the collision. In this regard, the evidence is again far
from clear. It was Josephs’ evidence that
he inherited the taxis
from his father. It does not appear as though the taxis were owned
by the company. A printout from Santam
which was put to Josephs
during his cross-examination reflects that that particular taxi,
amongst others, was insured for “Josephs
R.T. estate late” as
from the 30
th
of September 1992. This was his father’s
estate. The executors of the estate were Boland Bank. His mother
had been married in
community of property to his father and she had
inherited all the vehicles. However, Josephs claimed that he had
been given the
“responsibility” by his mother who was the
beneficiary of the estate. A vehicle registration form for 1994
reflects that Josephs
was the owner of this particular taxi at that
date.
In my view, although it
would appear on the probabilities, that Josephs was given the
relevant taxi by his mother and that it was
subsequently registered
in his name, it is by no means apparent in the evidence that this was
the situation on the 2
nd
of June 1992 when the collision
occurred. Accordingly it is not possible to find on the
probabilities that Josephs was the owner
of the taxi. It would seem
equally probable that Josephs was acting as his mother’s agent or
that of the executor in authorizing
Xegwana to drive the taxi. The
likelihood, on the evidence was that Josephs’ father’s estate was
the owner of the taxi at the
time of the accident.
This, however, is not
the end of the enquiry. In the matter of
Van Blommenstein v
Reynolds
1934 CPD 265
at 269, it was held that the person who had
the right of control of the car, although she was not the owner
thereof, and who authorized
a third person to drive the car was
because of the particular facts of that matter, vicariously liable
for the delict of thee driver
whom she had authorized to drive it.
In that matter, the person held to be vicariously liable had been in
the motor vehicle at the
time of the negligent act and in a position
where she could directly control the driving thereof.
In
Messina
Associated Carriers v Kleinhaus
2001(3) SA 868 (SCA)
Scott JA
distinguished between vicarious and personal (direct) liability
as follows:-
“
The former of course, is not dependent on fault on the part of
the person sought to be held liable.
An employer who happens
to be present in a vehicle may well incur personal liability if he
exercises the right to control the manner
in which his employee
drives in such a way as to cause harm to another or if he fails to
exercise it in order to prevent harm to
another, for example if he
were to instruct the driver to drive at a dangerous speed or if he
were to sit back and allow the driver
to continue to drive in a
dangerous manner. The same would be true of an owner – passenger
in circumstances where the driver was
not his employee. But direct
control or the power to control has never been a requirement of
vicarious liability. ….The right
to control, being an element of
the employer/employee relationship, is regarded as an important
factor in determining whether such
a relationship exists, but once
it is found to exist it is of no consequence that at the time the
employee commits the delict, the
employer is not present to exercise
his right of control. In these circumstances there would seem in
principal to be no reason why,
in the case of an owner who is not the
employer of the driver, the physical presence of the former and the
power to control (as oppose
to the right to control) should be
introduced as an requirement for vicarious liability.
It is true that in many, if not all, reported cases in which an
owner (in the absence of an employer/employee relationship) has been
held vicariously liable, he has been a passenger in a vehicle when it
was negligently driven. But that is no reason for requiring
his
presence in the vehicle as a rule of law. Such a requirement is not
only difficult to justify on a rational basis but strikes
me as
likely to produce anomalous results. An owner who allows or instructs
another to drive his motor vehicle undoubtedly has a
right to give
directions as to the manner in which it is to be driven…. Whether
this right of control can always be equated with
the right of control
which an employer has need not be decided. But once it is accepted
that he has such a right there is no reason
why his added presence in
the vehicle should be treated as a sine qua non for vicarious
liability.”
If it is accepted that the ownership of the vehicle is not the
criterion for liability, but no more than one of the
indicia
which
establishes the necessary relationship between himself and the
driver, and that his liability arises from his right as owner
to
control the vehicle, logically, it must follow that if such a right
is transferred to another that that might be sufficient to
establish
a relationship on which vicarious liability will arise. In the
present case, the facts are distinguishable from those
in
Van
Blommenstein v Reynolds
,
supra
in that the person held to
be vicariously liable had the power and the right to control the
vehicle. It should therefore, on the
principles set out in
Messina,
supra
correctly be regarded as a case of personal (direct)
liability arising out of the power to control the driving of the
vehicle in addition
to the right to control it. It is equally
probable in the present case, that in exercising the right to control
the vehicle, Josephs
was acting as agent to either the executor of
his father’s estate or his mother. The facts are not sufficiently
clear as to the
particular relationships to conclude that in law
Josephs should be held vicariously liable for the negligent acts of
Xegwana. It
has not been shown that Josephs himself was anything
more than an agent or employee. In my view, there is no basis by
which the
manager of a business, or the agent of an owner should be
held vicariously liable for the delicts of a person to whom he gives
instructions
on behalf of the employer of that person or the owner of
the vehicle.
For these reasons,
respondent was not able to establish that R J Josephs was the person
who in law, would have been liable for the
delicts of Xegwana, being
the employer of Xegwana. Thus appellant’s failure to take any
action against Josephs could not be classified
as negligent conduct.
In my view, the evidence presented to the court
a quo
constitutes an insufficient basis for holding Schoonwinkel
negligent in relation to the collision. Furthermore on the evidence,
particularly
that of Mr Josephs, there was no basis for finding that
he was a person who was vicariously liable for the delicts of
Xegwana.
In the particulars of
claim, an amount of R25 000, was claimed by virtue of the negligence
of the driver of vehicle CY 3900 in which
respondent was a passenger
at the time of the collision. This claim was not opposed and thus
the amount of R25 000 stands to be
awarded to respondent.
Accordingly, the appeal
succeeds with costs and the judgment of the court
a quo
is replaced thus:
Plaintiff is awarded R25 000 in damages.
First defendant is granted absolution from the instance in respect
of the claim for R2 354 441.00. together with costs.
________________
DAVIS J
I agree

_________________
HLOPHE JP
I agree

________________
KNOLL J