REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 217/03
In the matter between:
THE MEC FOR DEPARTMENT OF
PUBLIC WORKS (EASTERN CAPE) Appellant
and
THAMSANQA FALTEIN Respondent
CORAM: MPATI DP, ZULMAN, BRAND, CLOETE and HEHER JJA
HEARD: 7 MAY 2004
DELIVERED: 28 MAY 2004
Summary: Vicarious liability – driver employ ed as such but not authorised to drive on
specific journey – whether acting in course and scope of his employment when
taking over from authorised driver and negligently causing accident – whether
employer indemnified from liability by s 40 - of Public Service Act, 1994.
____________________________________________________________
JUDGMENT
____________________________________________________________
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MPATI DP:
[1] The respondent was an employee of t he Department of Public Works
in the Eastern Cape (the department) stationed at Grahamstown. On 16
November 1996 he sustained serious injuries in a collision near Whittlesea
between a bus owned by the department and another motor vehicle. The
respondent was a passenger in the bus together with other employees of the
department and other persons. He sued the appellant, in his capacity as the
Member of the Executive Council responsible for Public Works in the Eastern
Cape Province, for payment of the sum of R1 364 000, alleged to be the
difference between the damages actually suffered and an amount of R25 000
recoverable from the Multilateral Mot or Vehicle Accident Fund in terms of
Article 46(1)(a)(i) of the Agreement promulgated in accordance with Section
6 of the Multilateral Motor Vehicle Fund Act, 93 of 1989. It was alleged in the
particulars of claim that the collision was caused solely by the negligent
driving of Mr Owen Belwana, who was also an employee of the department,
while acting in the course and scope of his employment as such.
[2] The appellant denied liabi lity and pleaded that at the time of the collision
the bus was being operated by the passengers, including the respondent, in
the course of a private contract of loan concluded between them and the
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department. He accordingly denied that Belwana was acting in the course
and scope of his employment at the time of the collision.
[3] At the commencement of the trial the court a quo (White J) granted an
order by agreement separating the issues of liability and quantum. The trial
proceeded on the issue of liability only. At the conclusion of the trial White J
found in favour of the respondent. This appeal is with his leave.
[4] In this court the finding of the court a quo that the accident was due to
the negligence of the driver, Belwana, was not challenged. The main issue
in this appeal therefore is whether at t he time of the accident Belwana was
acting in the course and scope of his employment with the appellant. A
related issue is the nature of the agreement concluded between the appellant
and the passengers in the bus. If the main issue is determined in favour of
the respondent, then two further issues arise for consideration, viz:
1. Whether the respondent had entered into an agreement with the
appellant in terms of which he indemnified the appellant against injury
or loss that he might suffer as a result of his conveyance on the bus;
and
2. Whether the respondent is precluded by the provisions of Section 40 of
the Public Service Act 1994 from claiming compensation from the
4
appellant.
[5] It was common cause at the trial that it had been the policy of
management, not only in Grahamstown but also at two other depots of the
department in Graaff-Reinet and Lusikisiki, that in the event of the death of an
employee a bus would be available by the department to convey employees,
who so wished, to attend the funeral of such deceased employee. The
deceased’s relatives and friends were also permitted to travel on the bus. The
understanding was that the employees who would attend the funeral would
appoint, from amongst their number, a person who was employed by the
department as a driver to drive the bus. He would then be given a written
authority to do so by management.
[6] In November 1996 the employees at the Grahamstown depot wished to
attend the funeral of a colleague who was to be buried at Cala. The funeral
was scheduled to take place on 16 November 1996. The workers approached
the resident engineer in charge of the depot at the time, Mr Jan van Zyl Smit
(Smit) and asked him to make a bus available to them. Smit agreed.
However, remembering that there had been a change of policy, he called for
and received a circular from the Lusikisiki depot, which required, inter alia,
that ‘use of Government-owned motor transport for funeral purposes by
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officials/employees be discontinued forthwith’. When the shop stewards were
informed about the change in policy they did not accept the decision. They
claimed that management had acted unilat erally without consultation. Smit
consequently telephoned the director of the department, Mr Cocks, who, after
discussing the matter with Smit and the respondent, who was also a shop
steward, authorised the use of the bus. After further discussion it was agreed
between Smit and the workers that the bus, which would be made available
with a full tank of fuel, was to be returned in the same condition, ie with a full
fuel tank, a responsibility that the workers accepted. They were then asked to
prepare a list of those who wished to attend the funeral. Mr Gladman Magadla
(Magadla) was nominated as the driver of the bus and he was accordingly
given the necessary written authority.
[7] It is not in dispute th at on the day of the funeral Magadla drove the bus
to Cala, but that after the funeral and when he boarded the bus with the
intention of driving it back to Grahamstown, he found Belwana sitting behind
the steering wheel. In his testimony Magadla denied that he allowed Belwana
to drive the bus. He said that when he saw Belwana sitting behind the steering
wheel he did not want to cause an argument by insisting that he (Magadla)
was the one authorised to drive the bus. He testified, however, that when he
6
asked the people in the bus whether Belwana could drive back to
Grahamstown they made it clear that they did not want him (Magadla) to drive
again.
[8] It was common cause at the trial that a shop steward was appointed, by
those attending a funeral, to be in control on the bus. The respondent bore
that responsibility on the day in question. He testified that the person in
charge had to ensure that discipline prevailed during the journey and that the
agreement between management and the workers was complied with. He
said, however, that drivers were appointed by management and that the
person in charge had no authority over them. He accordingly could not forbid
Belwana to drive the bus.
[9] In substantiation of the appellant's case that neither Magadla nor
Belwana was not acting in the course and scope of his employment when
each drove the bus, Smit testified t hat the workers were not on duty over
weekends and thus attended the funerals of deceased colleagues in their own
time. The department, as said, made busses available to its workers as a
goodwill gesture and the drivers were never paid by the department for driving
on these occasions. They drove on a voluntary basis (save where a driver
transported a deceased worker’s belongings, in which case he would be paid).
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Smit conceded, however, that drivers had to adhere to certain rules and
regulations of the department governing t he way in which they drove. They
were subject to the instructions of management as to where they could and
could not go. They would drive the busses to the funerals as if it was a normal
day at work. With regard to the instant case, he said that the people in the bus
had no authority to change the driver. However, because Belwana was
allowed by the shop stewards to take over from Magadla, this was out of
management’s control and management could not discipline Belwana,
although he drove without management’s consent.
[10] The issue whether at t he time of the collision Belwana was acting in the
course and scope of his employment with the appellant necessarily involves
an enquiry into whether Magadla, the ‘authorised driver’, was acting in the
course and scope of his employment when he drove the bus on the day in
question. The critical consideration, then, is whether the drivers, in particular
Belwana, were engaged in the affairs or business of their employer. Estate
Van der Byl v Swanepoel 1927 AD 141; Minister of Law and Order v Ngobo
1992 (4) SA 822 (A) at 827B. A master is liable for damage caused to a third
party by the negligence of his servant when the servant is clearly acting wholly
within the scope of his authority, or in other words, when the servant is doing
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exactly what his master told him to do. Van der Byl v Swanepoel, supra, at
145. And what is generally regarded as the most important consideration for
the purpose of deciding whether a person is a servant at common law, is
whether the employee ‘has the right to control, not only the end to be
achieved by the other’s labour and the general lines to be followed, but the
detailed manner in which the work is to be performed’ R v AMCA Services and
another 1959 (4) SA 207 (A) at 212H. In Colonial Mutual Life Assurance
Society Ltd v MacDonald 1931 AD 412 De Villiers CJ expressed the test as
follows:
‘But while it may sometimes be a matter of extreme delicacy to decide whether the control
reserved to the employer under the contract is of such a kind as to constitute the employer
the master of the workmen, one thing appears to me to be beyond dispute and that is that
the relation of master and servant cannot exist where there is a total absence of the right
of supervising and controlling the workmen under the contract; in other words unless the
master not only has the right to prescribe to the workmen what work has to be done, but
also the manner in which that work has to be done.’
(At 434 in fin and 435.)
[11] Magadla testified that he was paid by the department when he drove to
a funeral. He was corroborated in this regard by Mr Temba Mfengwana, who
was at the time employed by the department at the Grahamstown depot as a
9
laboratory assistant. The latter was, during cross-examination, referred to a
copy of the minutes of a meeti ng that was held on 12 June 1996, between
management and shop stewards at which he was present, in which is
recorded that ‘only a qualified driver on a voluntary basis will drive a bus’
conveying workers to a funeral. The witness agreed with the contents of the
document and agreed that drivers volunteered to drive. The trial court made
no finding on the issue, bearing in mind that Smit denied that the drivers were
paid for driving to and from a deceased worker’s funeral. The trial court also
made no credibility findings and merely said that all the witnesses ‘appeared
to be striving to be honest’.
[12] Although proof of the allegation that drivers were paid would have
placed the issue of course and scope beyond doubt, absence of payment
would not, by itself, have constituted proof that the drivers were not acting
within the course and scope of their employment when driving to and from a
deceased employee’s funeral. Rodrigues and others v Alves and others 1978
(4) SA 834 (A). Accordingly, counsel’s argument that if Magadla’s evidence
that he was paid for driving on the trip is accepted, then he was the person
employed by the appellant for the purpose of driving the bus and that that
excluded any possibility that Belwana could also have been driving the bus in
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the course and scope of his employment with the appellant, cannot be
upheld.
[13] It is clear that on the day in question control of the bus was entrusted,
by management, to Magadla for the purpose of conveying employees and
other persons to Cala and back to Grahamstown. In this regard he was given
written authority, albeit that the purpose of the written authority was to ensure
that he would not be arrested for unauthorised use of one of the department’s
vehicles. Even though Magadla was nominated by the employees who were
to attend the funeral to be the driver, he still had to receive instructions from
management to drive the bus to and from Cala. He could not, for example, do
whatever he pleased thereafter with the bus, nor could the passengers
instruct him to convey them to some place other than the funeral. He was
bound to adhere to management’s instructions. In my view Magadla, was
under the control of management when he drove the bus on the day in
question.
[14] Belwana was employed by the department as a driver. Part of his work
was to convey workers to and from sites where they were to do duty. Smit
testified that drivers at the depot had a blanket authority to drive the
department’s vehicles for a month at a time. And because of this, he said, ‘if
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there was a problem with Mr Magadla I as management had no reason why
Mr Belwana could not drive the bus’. It is for that reason, he said, that no
action was taken against the two drivers. (He had testified that by allowing
Belwana to take over from him, Magadla was also not without blame.)
[15] Belwana was not driving the bus back from the funeral for his own
purposes. He was doing exactly what Magadla had been instructed by
management to do, ie to convey the passengers back to Grahamstown after
the funeral. Cf Rodriques v Alves , supra. In that case an ex partner in a
farming operation had lit a fire on the farm which had negligently been
permitted to spread to a neighbouring farm causing damages. He was not
employed on the farm but through boredom busied himself on it by
supervising the labour force and washing vegetables, wearing working clothes
and had a vegetable carrying sack. He was not remunerated. It was held that
when he set fire to the grass he was clearly about the business of the
appellants (his former partners). In my view, it cannot be said merely because
Belwana had not been authorised to drive on that particular day he was not
acting in the course and scope of his employment with the appellant. Indeed,
as has been mentioned above, Smit would have had no objection to Belwana
driving if something had happened to Magadla. And something did happen:
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the passengers did not want Magadla to drive back to Grahamstown. It
cannot be said that Belwana was the servant of the passengers for the time
being; they had no right to control how he drove the bus. It follows that
Belwana was acting in the course and scope of his employment with the
appellant at the time of the collision. Counsel for the appellant conceded,
correctly in my view, that this finding disposes of the ancillary issue of the
nature of the agreement concluded between management and the
passengers who were conveyed on the bus.
The Indemnity
[16] Smit testified that when a departmental bus was used for attending a
funeral, passengers had to sign a form in which they indemnified the appellant
against any damage or loss suffered as a result of being conveyed on the bus.
He said that on this occasion he had spoken to the shop stewards and it was
agreed that such forms were to be signed. Temba Mfengwana, however,
testified that the only persons who were required to sign indemnity forms were
relatives or friends of the deceased who wished to travel on the bus.
Magadla’s evidence was that the occasion at issue was the first where
indemnities had to be given and only by non-workers. The respondent
testified that Mr Calitz, the chief administration clerk, had asked him whether
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family members of the deceased were also going to travel on the bus and
when he (the respondent) answered in the affirmative, Calitz gave him
indemnity forms which he said should be signed by such family members. He
handed the forms to another person – not an employee of the department –
with instructions to get non-employers to complete the forms. It appears,
however, that certain employees also signed the forms.
[17] It is unclear on the evidence whether only non-workers or also
employees of the department had to si gn indemnity forms. Although Smit
testified at first that he had spoken to the shop stewards and that it was
agreed that indemnity forms were to be signed, he could not recall whether or
not he told them who had to sign the forms. Calitz was unavailable at the trial
as he had resigned from the departm ent in 1996. His whereabouts were
unknown. The respondent did not sign an indemnity form. The appellant was
obliged to establish, in answer to the respondent’s claim in delict, that the
respondent had indemnified him against any damage or loss he might have
suffered as a result of the collision. Durban’s Water Wonderland (Pty) Ltd v
Botha and another 1999 (1) SA 982 (SCA) at 991 D-G. He has failed to do
so.
Indemnity in terms of Section 40 of the Public Service Act 1994
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[18] This section reads:
’40 Limitation of liability
Whenever any person is conveyed in or makes use of any vehicle, aircraft or vessel which
is the property of the State, the State or a person in the se rvice of the State shall not be
liable to such person or his spouse, par ent, child or other dependant for any loss or
damage resulting from any bodily injury, loss of life or loss of or damage to property caused
by or arising out of or in any way connect ed with the conveyance in or the use of such
vehicle, aircraft or vessel, unless such person is so conveyed or makes use thereof in, or
in the interest of, the performance of the f unctions of the State: Provided that the
provisions of this section shall not affect the liability of a person in the service of the State
who in fully causes the said loss or damage.’
At the commencement of his argument in this court counsel for the appellant
conceded that the words ‘in, or in the interest of, the performance of the
functions of the State’ (the Afrikaans version is ‘by, of in belang van, die
verrigting van die werksaamhede van die Staat’) must be read disjunctively,
so that the exception applies not onl y to a person who is conveyed in the
performance of the functions of the State (‘by die verrigting van die
werksaamhede van die Staat’), but also to a person who is conveyed in the
interest of the performance of the functions of the State(‘in belang van die
verrigting van die werksaamhede van die Staat’). In my view this concession
was correctly made. The latter concept is wider than the former. The former
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would be limited to conveyance linked to the performance of State functions,
which the present is not.
[19] The policy of making vehicles avai lable to workers to attend funerals of
deceased colleagues was clearly an industrial relations exercise. Smit said
that it was done as a gesture of goodwill, obviously aimed at keeping the
workforce happy. In my view, it is in the interest of the performance of the
functions of the State (‘in belang van die verrigting van die werksaamhede van
die Staat’) that good relations prevail between management and workers.
[20] It follows that the appeal must fail. The following order is made:
The appeal is dismissed with costs.
L MPATI DP
CONCUR:
ZULMAN JA
BRAND JA
CLOETE JA
HEHER JA