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[2000] ZASCA 176
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Minister of Safety and Security v Jordaan (87/98) [2000] ZASCA 176; 2000 (4) SA 21 (SCA); (2000) 21 ILJ 2585 (SCA) (26 May 2000)
Case No 87/98
REPORTABLE
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
In
the matter between
THE
MINISTER OF SAFETY
AND
SECURITY APPELLANT
and
ANDRé
JORDAAN RESPONDENT
CORAM: VIVIER, SCOTT JJA
et
MTHIYANE
AJA
HEARD:
8 MAY 2000
DELIVERED:
26 MAY 2000
Motor
collision - whether policeman driving in the course and scope of his
employment.
J
U D G M E N T
SCOTT
JA
/....
SCOTT JA:
[1] The respondent sued the
appellant for damages in the Cape of Good Hope Provincial Division
arising out of a motor collision
which occurred at about 8.35 pm on
Sunday, 5 February 1995, near Kraaifontein on the N1 highway between
Cape Town and Paarl.
One of the vehicles involved in the collision
was owned by the appellant and was being driven at the time by
detective sergeant
Madden who was employed by the appellant. It
appears that the appellant’s vehicle, which was travelling
from north to south,
i e in the direction from Paarl to Cape Town,
suddenly crossed over the island separating the north- and
southbound carriageways
and collided with a vehicle in which the
respondent had an interest and which was then travelling in the
opposite direction.
Both Madden and the sole passenger in his
vehicle were killed in the collision. In its particulars of claim
the respondent alleged
that at the time Madden “was acting
within the course and scope of his employment with [the appellant],
alternatively,
... was acting as an agent of and was furthering the
aims and interest of [the appellant]”. The allegation was
denied by
the appellant. At a pre-trial conference it was agreed
between the parties that this issue be decided first and an
appropriate
order was made in terms of Rule 33(4). After hearing
evidence Ngcobo J found in favour of the respondent
and ruled that
Madden was acting within the course and scope of his employment with
the appellant at the time of the collision.
Leave to appeal was
refused by the Court
a
quo
but
subsequently granted by this Court.
[2] The events preceding the collision are largely
common cause. Madden was stationed at Fish Hoek. On the day in
question,
Sunday 5 February 1995, he was on what was known as
“stand-by” duty. This had begun at 7.30 pm on Friday,
3 February,
and was due to end at 7.30 am on Monday, 6 February. It
meant that he, together with a fellow detective, warrant officer
Pamplin,
had to be available to deal with all in-coming cases during
that period. It appears that previously in about September 1994
Madden had been entrusted with the investigation of a death by
drowning. The victim’s body was discovered on the west coast
of the Cape Peninsula near Kommetjie by Dr Haywood who lived and
practised at Franschhoek. In order to complete the investigation
a
formal statement was required from Dr Haywood. According to captain
Smit, who was in charge of the detective branch at Fish
Hoek, some
difficulty had been experienced in obtaining a statement from Dr
Haywood “telephonically”, by which he
meant presumably
by telefax. On 18 January 1995 he accordingly instructed Madden to
go to Franschhoek to obtain the statement.
This instruction was
recorded in the investigation diary. By 27 January, Madden had not
yet done so and Smit requested him
to expedite the matter. The
investigation diary records that on 31 January Madden undertook to
go to Franschhoek to obtain the
statement while he was on stand-by
duty on the 4th or 5th February. On Friday morning, 3 February,
Pamplin, too, spoke to Madden
about the outstanding statement.
Pamplin was Madden’s superior and one of his duties was to
check the progress being made
in the investigations carried out by
detectives under his control. Madden undertook to obtain the
statement in the course of
the forthcoming weekend. On Sunday
morning, 5 February, Madden asked Pamplin, who was also on stand-by
duty, to “cover”
for him between 6 and 8 pm that
afternoon while he went to Franschhoek to obtain the statement from
Dr Haywood. The arrangement
which Pamplin and Madden had previously
made was that the former would handle the cases coming in from Ocean
View while the
latter would deal with the Fish Hoek and Simon’s
Town cases.
[3] At the time a constable stationed at Fish Hoek,
one Theron, was attending a detective training course at a police
college
in Paarl. Transport to and from Paarl was provided for
trainees at the beginning and end of the course but they were not
provided
with transport to enable them to go home for weekends
during the course unless the trip was specifically authorised by a
policeman
of appropriate rank. Madden must have known that Theron
was coming home for the weekend commencing Friday, 3 February,
because
during the preceding week he asked Smit for permission to
give Theron a lift back to the college on Sunday afternoon when he,
Madden, went to Franschhoek. Paarl and Franschhoek are relatively
close by and driving to Franschhoek via Paarl would not have
involved many additional kilometres. Smit thought there would be no
problem and telephoned the district commissioner for confirmation.
The latter unexpectedly refused to grant permission. As anticipated,
Theron came home to Fish Hoek for the weekend. He brought
with him a
fellow trainee from Natal. They had been driven to Fish Hoek in a
police vehicle with the necessary permission. That
night Madden
visited Theron at his house. According to Theron he asked Madden if
he could arrange to have him and his colleague
transported back to
Paarl in time for their evening meal at 5 pm. Madden did not commit
himself but indicated that it may be
possible. Nonetheless, he
arrived at about 3 pm on Sunday, 5 February, at Theron’s house
in a police vehicle and conveyed
Theron and his fellow trainee back
to Paarl, arriving there shortly before 5 pm. He explained that he
was, in any event, going
in that direction in order to investigate a
case. A member of Madden’s family, who presumably came for the
ride, travelled
with them. According to Theron this was not
permitted.
[4] What happened between 5 pm and 8.35 pm when the
accident occurred, is unknown. Madden did not see Dr Haywood. The
latter
testified that he had been telephoned the previous day,
Saturday 4 February, by Madden who had asked him to write his own
statement,
obtaining assistance at the local police station if
required, and then telefax the statement to Madden that same day.
He said
he had undertaken to telefax the statement that day but in
fact had not done so. He testified further that although Madden did
not know his address in Franschhoek, as a general practitioner in
Franschhoek he was well known in the village and Madden would
have
had no difficulty in finding him.
[5] The standard test for vicarious
liability is of course whether the delict in question was committed
by an employee while
acting in the course and scope of his
employment. The inquiry is frequently said to be whether at the time
the employee was about
the affairs or business or doing the work of
the employer (see for eg
Minister
of Law and Order v Ngobo
[1992] ZASCA 172
;
1992 (4) SA 822
(A) at 827 B;
Minister
of Police v Rabie
1986 (1) SA 117
(A) at 132 G). This is no doubt true, but it should
not be overlooked that the affairs or business or work of the
employer in
question must relate to what the employee was generally
employed or specifically instructed to do. Provided the employee was
engaged in activity reasonably necessary to achieve either
objective, the employer will be liable (see
Estate
Van der Byl v Swanepoel
1927 AD 141
at 145 - 146, 151 - 152). The difficulty of course is
that while the general approach to be adopted may be easy enough to
formulate,
its lack of exactitude is such that problems inevitably
arise in its application. This is particularly so in the so-called
“deviation”
cases. What is clear is that not every act
of an employee committed during the time of his employment which is
in the advancement
of his personal interests or for the achievement
of his own goals necessarily falls outside the course and scope of
his employment.
(
Viljoen
v Smith
[1996] ZASCA 105
;
1997 (1)
SA 309
(A) at 315 F - G.) In each case, whether the employer is to
be held liable or not must depend on the nature and extent of the
deviation. Once the deviation is such that it cannot be reasonably
held that the employee is still exercising the functions to
which he
was appointed, or still carrying out some instruction of his
employer, the latter will cease to be liable. Whether that
stage has
been reached is essentially a question of degree. (See
Feldman
(Pty) Ltd v Mall
1945 AD 733
at 756 - 7;
Union Government v Hawkins
1944 AD 556
at 563;
Viljoen v Smith, supra,
at 316 E - 317 A.) The answer in each case will depend upon a close
consideration of the facts. The same is true of the inquiry
as to
whether the deviation has ceased and the employee has resumed the
business of his employer.
[6] Against this background, I turn
to the only question in issue, namely whether on the facts set out
above the Court
a
quo
was correct in
concluding that at the time of the accident Madden was driving the
vehicle in question in the course and scope
of his employment.
Counsel for the appellant submitted that the correct inference to be
drawn was that the sole purpose of the
journey was to deliver Theron
and his fellow trainee to Paarl and that this fell beyond the scope
of Madden’s employment.
[7] Had this indeed been the sole purpose of the
journey I am satisfied that the appellant would not be vicariously
liable for
any damage that the respondent may have suffered. It is
true that in conveying the trainees to their college in Paarl Madden
was in a sense engaged in the affairs of the appellant. But Madden
was employed as a detective; not as a driver. He had no
instructions
to take the trainees to Paarl. On the contrary, his
request for permission to do so had been expressly refused. Had this
been
the sole object of the journey Madden would therefore not have
been acting in the course and scope of his employment.
[8] In support of his submission
that Madden’s sole objective had been to take the trainees to
Paarl, counsel for the appellant
relied essentially on two facts
which emerged from the evidence: the first was Madden’s
telephone conversation with Dr
Haywood on the previous day,
Saturday 4 May
1995; the second was Madden’s failure to make contact with Dr
Haywood on the Sunday evening. These facts,
he argued, indicated
that prior to setting out for Paarl Madden had already abandoned any
notion of travelling to Franschhoek
to obtain the statement from Dr
Haywood.
[9] In seeking to draw the proper
inference from the facts it goes without saying that the telephone
conversation and Madden’s
failure to make contact with Dr
Haywood must be considered against the background of what had passed
before. Initially it had
been sought to obtain the statement from Dr
Haywood by telefax. Only when this proved unsuccessful was Madden
instructed to travel
to Franschhoek and obtain it himself. Madden’s
superiors were obviously anxious to see the investigation completed
and
he was urged to expedite the matter. The statement was, however,
something of a formality. In these circumstances it is not
surprising
that before travelling all the way to Franschhoek Madden
should have made one last attempt to procure it by telefax. This he
did on the Saturday by telephoning Dr Haywood. He had, of course,
given the undertaking to his superiors that he would obtain the
statement by not later than the weekend. What is significant is that
in the course of the telephone conversation he requested
Dr Haywood
to telefax the statement that same day. Once Dr Haywood failed to do
so Madden would really have had no option but
to go and take the
statement himself. The telephone call does not therefore justify the
inference that Madden had abandoned any
intention of going to
Franschhoek; it is merely indicative of an intention to avoid the
trip if at all possible. It is true of
course that during the
preceding week Madden had sought permission to take Theron to Paarl
in the event of him going to Franschhoek,
but what is of
significance is that on Friday evening Madden was not prepared to
finally commit himself to taking Theron to Paarl.
It was only on
Sunday morning, by which time it was apparent that Dr Haywood had
not telefaxed the statement as agreed, that
Madden confirmed with
Pamplin that he would indeed be going to Franschhoek that afternoon
and requested Pamplin to “cover”
for him in his absence.
That afternoon Madden collected Theron and his fellow trainee at the
former’s house. Madden mentioned
to Theron that there was no
problem with giving them a lift as, in any event, he had to go to
someplace in the vicinity of Paarl
to investigate a case. In these
circumstances the most natural or acceptable inference (cf
Govan
v Skidmore
1952
(1) SA 732
(N) at 734 A - D;
A
A Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982 (2) SA 603
(A) at 614
in
fine
- 615B) is
that Madden set out with the object of going to Franschhoek to
collect the statement and dropping off the trainees
at Paarl on the
way. The deviation to Paarl was, of course, contrary to instructions
but by the time the accident had occurred
the deviation had long
since been completed.
[10] In arriving at this conclusion I have not
overlooked the fact that in the event Madden did not see Dr Haywood
to take the
statement from him. Why he did not do so, one simply
does not know. But anything could have happened. He may, for
example, have
had a mechanical break-down. The most likely inference
is that something untoward must have occurred. Madden was a
detective
sergeant with nine years’ experience in the police
service. There is nothing to suggest that he was an irresponsible
policeman.
It is true that he did not have permission to drop off
the trainees at Paarl, but having regard to the minimal extra
distance
involved, even Smit was surprised that permission had been
refused. Once having reached Paarl it would have been the easiest
thing to go to Franschhoek to collect the statement even if he had
been intent on going for a joyride or on some “frolic”
of his own. Having regard to what had gone before, his failure to
produce the statement, in the absence of some good reason,
would
have caused him considerable embarrassment, if not landed him in
trouble with his superiors.
Indeed, Pamplin was doing Madden’s work so that
the latter could collect the statement. But even if after dropping
off the
trainees Madden had decided to abandon his earlier intention
of obtaining the statement and had embarked upon some activity in
pursuance of his own interests (which would seem unlikely) the
probabilities are that by the time the accident occurred he would
have completed whatever it was he had been doing in the intervening
period and would have been driving back to the police station
to
continue his stand-by duty. In these circumstances he would by then
have resumed driving within the course and scope of his
employment.
Indeed, counsel for the appellant did not contend the contrary.
[11] It follows that in my view the respondent
succeeded in discharging the onus of proving that at the time of the
accident
the appellant was acting within the course and scope of his
employment.
[12] The
appeal is accordingly dismissed with costs.
D
G SCOTT JA
Concur
:
VIVIER
JA
MTHIYANE
AJA