REPORTABLE (89)

Judgment No. SC 86/02

Civil Appeal No. 95/01

NATIONAL SOCIAL SECURITY AUTHORITY v

DOBROPOULOS & SONS (PRIVATE) LIMITED

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE, JULY 4 & NOVEMBER 14, 2002

G S Wernberg, for the appellant

R M Fitches, for the respondent

CHIDYAUSIKU CJ: The sole issue in this case, as Mr Wernberg correctly submitted, is whether at the time of the admitted collision which occurred on 25 July 1997 between a vehicle driven by the respondent’s employee, Mr Boniface Mukudu (“Mukudu”), and a vehicle driven by the second plaintiff in the court a quo, Mr Chimonyo (“Chimonyo”), Mukudu was acting in the scope and course of his employment with the respondent, or whether he had deviated therefrom to such an extent as to have justified the trial court’s finding that the respondent was not vicariously liable for Mukudu’s actions.

The facts of this case are that the respondent employed Mukudu as a driver. On the day of the accident Mukudu was instructed to take a load of lime from Odzi and deliver it to Claire Estate in Nyazura. From Odzi to Nyazura is a distance of about twenty-five kilometres. Mukudu left at about 9.00 am and this was his task for the day.

The evidence establishes that Mukudu arrived at Claire Estate between 11.00 am and 11.15 am. After his arrival, Mukudu unhitched from the horse the articulated trailer bearing the lime, leaving the latter behind whilst he went off to some unknown destination. The task of off-loading the lime from the trailer was completed at about 2.30 pm. Had Mukudu been present on the completion of the off-loading, he could have left the farm and arrived back at the Depot at between 3.15 and 3.30 pm, given the distance between Claire Estate and the Depot.

Mukudu, for reasons known to him alone, did not return to Claire Estate until some time after 6.00 pm. He was next seen with the vehicle at about 7.30 in the evening. The vehicle was parked outside the Star Bar, very close to the scene of the accident. The accident occurred about one-and-a-half hours later, at about 9.00 pm.

While at the Star Bar Mukudu met up with Mr Pawaringira (“Pawaringira”) a mechanic in the employ of the respondent. He reported to Pawaringira that the vehicle was overheating. However, when the latter looked at the gauge it reflected otherwise. Mukudu alleged that the fan belt had broken. It was not possible to ascertain that. Mukudu thereafter drove the vehicle going to the Depot. He gave a lift to a number of employees of the respondent who were going to the respondent’s Depot. Among the respondent’s employees given a lift was Mr Mudyiwa (“Mudyiwa”) who was employed as a driver by the respondent. Mukudu asked Mudyiwa to take over driving the vehicle from Mukudu’s house to the respondent’s Depot. Apparently Mukudu’s house was some short distance before getting to the respondent’s Depot. Mukudu also asked Mudyiwa to sit next to him so that he could observe the flow of gears. Mudyiwa was a licensed and authorised driver of the respondent. Pawaringira was also seated in the cab next to the passenger door. Mukudu drove out of the durawall surrounding Star Bar onto the junction entering the main road to the respondent’s Depot. He failed to give way at the junction and collided with another vehicle.

It is common cause that in order to have returned to the Depot Mukudu’s journey would have taken him past the scene of the accident, the Star Bar being some fifty metres off the main road along which he would have travelled in each direction. The accident occurred as Mukudu drove back onto the main road at that point.

On these facts the learned judge in the court a quo concluded that Mukudu had deviated from the course of his employment to the extent that he was on a frolic of his own at the time of the accident and his employer was not vicariously liable. The reasoning of the learned judge is to be found on pp 9-10 of the cyclostyled judgment:

“Therefore, according to the evidence, as far as time is concerned, the vehicle when it was involved in the accident, was more than six hours overdue in terms of what the second defendant was supposed to do.

It is true that he was on the route on the Harare-Mutare (highway) as far as where the truck was found after the accident. But he also had deviated in the sense that he was not going to be returning the vehicle himself to the Depot. In fact, the second defendant had already made up his mind that the vehicle was going to be returned by another junior employee and that when the collision occurred he was in the process of instructing him how to change the gears of that vehicle. Therefore, that was a further deviation or digression from what his duty was towards his employer.

I am not persuaded, and although the vehicle was only fifty metres away from the main road, that as far as space is concerned that was not such a major deviation to constitute one that still made the first defendant employer liable for the conduct of the second defendant driver, Boniface.

It is clear that he deviated from what was his employer’s affair(s) or business in that he went to the Bar and had consumed liquor and, in fact, deviated from his employer’s affairs or business by asking that an unauthorised junior employee drive that vehicle back to the Depot. I am satisfied from the evidence that such deviation was sufficient to convert it into an act of the second defendant (on) a ‘frolic of his own’.”

With the greatest respect, I am unable to agree with the learned judge’s conclusion that at the time the accident occurred Mukudu was not acting within the scope of his employment and that he was on a frolic of his own. A close examination of the above remarks of the learned judge reveals that the learned judge seriously misdirected himself in his assessment of evidence given by the respondent’s witnesses in certain material respects.

In this regard, the evidence of Pawaringira, a witness for, and a mechanic in the employ of, the respondent, is instructive as to why Mukudu stopped at Star Bar and how the accident occurred. His evidence was as follows:

“BY THE COURT: Q. The last witness said you came out of a truck which was involved in an accident that evening. Do you remember the accident? A. Yes, my lord.

Q. How did you get into that truck? A. I had come to Riverside to buy some cigarettes.

Q. Who had come? A. I.

Q. You had gone to Riverside to buy some cigarettes? A. Yes. When I got there I saw this driver seated with the other guys drinking.

Q. Where? A. At Riverside Star Bar.

MR FITCHES: Q. Where were they drinking beer? A. Riverside Star Bar.

ADAM J: Q. What time was this? A. It was about 9.00 in the evening.

MR FITCHES: Q. Did you see the truck? A. I saw the truck, yes.

Q. Where was it? A. It was parked inside the durawall of the beerhall.

Q. And then, did you speak to Boniface at all? A. I spoke to him. He told me about the problem on the truck, saying it was over-heating.

Q. What was he drinking when you saw him? A. He was drinking opaque beer.

Q. Did you sit with him and drink some? A. No, I did not. I told him I did not want beer that day. I had only come to buy cigarettes.

Q. What was your job at the company at the time? A. I am a motor mechanic.

Q. So, and he told you something, what? A. So I told him the truck …

Q. He told you there was a problem with the truck. Tell us about that? A. He told me there was (a) problem on the truck. It was over-heating.

Q. So what did you do? A. I checked on the gauge and the gauge was low, showing that this truck has cooled down.

Q. What, precisely, when he said over-heating, did he say exactly whether something had broken or what did he say to you? A. He said the fan belt was broken.

Q. The fan belt that drives which? A. Which drives the water pump.

Q. Did you check that yourself? A. I could not see it because it was night. I had no light to see it.

Q. Did you believe what he said to you about the heating? A. I just believed for the moment, because I could not have time to check it. It was at night, there was no light to illuminate, so that …

Q. But you found the gauge (was) alright? A. The gauge was down, yes.

Q. So what did you say then, after what happened, what you witnessed? A. I went inside the beerhall to buy my cigarettes. After buying my cigarettes, I started talking to the other guys who were there, farm work-mates. Then from there, he said he was going. They had finished their beer which they were drinking.”

It is quite clear from the above that Mukudu stopped at the Star Bar for possibly two reasons – either to have a drink of beer (which he was seen drinking), or to allow the vehicle which was over-heating to cool down before proceeding to the respondent’s Depot. The learned judge concluded that Mukudu had stopped to drink beer and simply dismissed the other possible reason without explanation.

As to how the accident occurred, the same witness had this to say in his evidence-in-chief:

“Q. Do you know one Mudyiwa? A. Yes, I know him.

Q. Tell us about Mudyiwa? A. Mudyiwa is another driver who was also working for Suncrest.

Q. What happened that night involving Mudyiwa? A. Mudyiwa stays right close to the Depot and Boniface was staying just about one-and-a-half kilometres from Riverside to where he was staying. So he stayed behind, unlike Mudyiwa who was staying at the Depot. So Boniface told Mudyiwa to take the truck to the Depot so that he could be left behind at his house, because it was during the night.

Q. So he told Mudyiwa to take the truck to the Depot? A. Yes.

Q. Was Mudyiwa licensed to authorised to drive a truck to your knowledge? A. Mudyiwa is a licensed and an authorised driver.

Q. But that truck was in the care of who that night, Mudyiwa or Boniface? A. It was in Boniface’s.

Q. Did he show Mudyiwa everything about the truck? A. The time we got out of the beerhall durawall, he told Mudyiwa to sit very close to him, so that he could see how he was shifting the gears and the positions.

Q. Were you in the cab at the time as well? A. Yes, I was seated by the door, the passenger door.

Q. So, he told Mudyiwa to sit near him? A. Yes.

Q. So that he can see the gears? A. Gears, yes. At that time we were driving out of the durawall, the time he was changing the gears. And when we got to the junction, he did not even give way. He just went straight into the highway and turned right.

ADAM J: Q. He did not give way and did what, turned right at the junction? A. Yes, into the highway.

Q. Carry on. A. He had only managed to drive past the middle white line, with the horse only. The trailer was still tracking behind and it was almost across the road, the highway. Then I just saw some lights coming from Mutare going up at Riverside. I just saw some light(s) and suddenly, in a blink of an eye, I just heard a sound coming from the back. It was a truck which had smashed (into) the trailer.”

The learned judge in the court a quo concluded that Mukudu was instructing the other driver when the accident occurred and that this giving of instructions to another driver was outside the scope of Mukudu’s terms of employment and that that conduct somehow contributed to the accident.

This is not borne out by the above evidence. The above evidence establishes that Mukudu simply asked Mudyiwa, an authorised driver, to sit next to him so that he could observe how the gears were changed. There is no suggestion in the evidence that Mudyiwa’s sitting next to Mukudu in any way contributed to the accident. The accident occurred, according to the respondent’s own witness, because Mukudu failed to give way to traffic that had the right of way.

It is also clear from the evidence of the respondent’s own witness that Mukudu intended to give Mudyiwa the vehicle later and farther down the road when they got to where Mukudu lived. He had not done so at the time of the accident.

To suggest that Mukudu was on his own frolic at the time of the accident because he had planned to hand over the vehicle at a later stage is untenable.

It is common cause that at the time of the accident Mukudu was driving towards his employer’s Depot, with the intention of returning to the Depot his employer’s vehicle. Mukudu’s mandate was to deliver the lime to Claire Estate and return the vehicle to the Depot after such delivery. Mukudu, when the accident occurred, was doing precisely that though late, about six hours late. In my view, the fact that Mukudu was returning the vehicle late does not convert his master’s business of returning the vehicle into his own. In my view, the deviation in terms of time taken, together with the other circumstances of this case, does not constitute a departure from the employer’s mandate sufficiently to exonerate the employer from vicarious liability.

It is also common cause that the Star Bar is some fifty metres or so from the road Mukudu had to travel on to his employer’s Depot. He deviated to this place. The deviation is minimal in terms of space and the reasons for the deviation are not entirely clear. Mukudu stopped at Star Bar either to drink beer or to allow the vehicle he was driving to cool down. He himself did not give evidence, and therefore the reason for his stopping at Star Bar remains, to some extent, a matter for conjecture.

Mr Wernberg referred the Court to two cases whose facts, he argued, were strikingly similar to the facts of this case. He referred us to the case of Biti v Minister of State for Security 1999 (1) ZLR 165 and the case of Feldman (Pvt) Ltd v Hall 1945 AD 733. In both cases the employer was held vicariously liable for the delict of an employee in circumstances very similar to the present case. He drew certain comparisons in support of his submissions.

The facts in Biti’s case supra are that the driver of a government vehicle was instructed to take three government officers home after work and then keep the vehicle safely overnight. In the morning he was to pick up the same officers and drive them to their workplace. He was on call while not actively on duty. About two-and-a-half hours after he should have finished dropping the three officers, he rammed into a stationary taxi owned by the plaintiff, badly damaging the taxi and severely injuring the plaintiff. The accident occurred at a place which was about a five kilometre deviation from the route he would have taken to drop off the government officers. There was some evidence that the driver was heavily intoxicated and that he had his girlfriend in the car. The trial court had held that the Ministry which employed the driver was not vicariously liable. On appeal, that decision was reversed and it was held that the standard test for vicarious liability required the court to decide whether the wrongdoer was engaged in the affairs or business of the employer when he committed the delict. The Appeal Court held that the business of the government driver included not only the transporting of passengers to their homes, but also keeping the vehicle in safe overnight custody and although the driver had deviated from his authorised route, the deviation, in terms of time and space, from it was not such as to convert it into “a frolic of his own”. The improper mode of exercising his duty of keeping the vehicle safely overnight was still done within the course of his employment and the Ministry which employed him was vicariously liable.

Mr Wernberg submitted that by comparison:

“… the deviations in terms of time and space were, in casu, far less significant. Firstly, the question of keeping the vehicle overnight does not arise in the instant case. The vehicle, as previously submitted, was in the process of being returned, albeit late. In each case it was clearly the obligation of the respective driver not to have consumed alcohol; and, in each, they did. In Biti’s case, the driver was intoxicated. In the instant case, the respondent’s own witnesses differed widely on the point. One said that he was intoxicated; the other said that he was not. In Biti the driver was carrying an unauthorised passenger. In this case, whilst there were several of the respondent’s employees aboard, it was never suggested that this was irregular. It is respectfully submitted that the fact that there may have been two deviations in the instant case; viz the earlier one when the trailer was unhitched and left at Claire Estate and the deviation to the Star Bar, are more than ‘made up for’ – for comparison purposes – by the fact that there was a five kilometre deviation from the authorised route in the Biti case.”

The facts in Feldman’s case supra were as follows. A servant of the defendant had been given custody of a motor van and a number of parcels, with instructions to drive the van and deliver the parcels to various customers in a town. Having delivered the parcels he was to return the van to a certain garage. It appeared that after delivering the parcels he had driven the van to a place some miles away on his own business, and while there drank enough liquor to make him incapable of driving the van with safety. Shortly after his departure from such place on his way back to the garage, he negligently collided with and killed the father of two children. On these facts the court concluded that the employer was vicariously liable.

Mr Wernberg submitted that the facts in Feldman’s case supra were very close to the facts of this case and drew some comparisons. He made the following submissions. Both drivers were employed to effect deliveries. Both were in the process of returning their respective vehicles to their employer’s premises when they were involved in collisions. Both deviated from their authorised routes in order to consume alcohol. In the instant case, Mukudu should have been back at the Depot by 3.00 or 3.30 pm. He was involved in the accident at about 9.00 pm, some five-and-a-half or six hours later. In the Feldman case supra, the driver of the van, one Baloyi, should have returned it to its garage immediately after reporting off duty at 1.00 pm on the Saturday in question. Baloyi in fact deviated by many miles from the route which he ought to have taken and only resumed his journey back to the garage at 6.30 pm. He, too, was involved in his collision five-and-a-half hours after the vehicle ought to have been returned. He submitted that, factually, the two cases were startlingly similar and that it could not be said that, merely because Mukudu had told another driver to observe the manner in which the gears were changed in order to facilitate the intended later assumption of control of the vehicle for the last short distance back to its Depot by the latter, this constituted a material distinction from the facts of the Feldman case supra. He argued that the deviation in terms of distance in the latter was obviously of a much greater extent.

I am persuaded by Mr Wernberg’s submissions that both the cases of Biti supra and Feldman supra bear a striking resemblance to the facts of this case. In both those cases the court held the employer vicariously liable.

The rationale behind holding employers vicariously liable for the acts of their employees, even where the latter have deviated from the strict course of their duty, is clearly set out in the Feldman case supra at 740, where WATERMEYER CJ quoted with approval a passage from an earlier decision of the same court in Estate van der Byl v Swanepoel 1927 AD 141 at 150:

“… it is right and proper that the employer should be liable ‘where one of two innocent parties has to suffer a loss arising from the misconduct of a third party it is for the public advantage that the loss should fall … on that one of the two who could most easily have prevented the happening or the recurrence of the mischief’. (Coupé Co v Maddick, per CAVE J, 1891 LR 2 QBD at p 417). It is within the master’s power to select trustworthy servants who will exercise due care towards the public and carry out his instructions. The third party has no choice in the matter and if the injury done to the third party by the servant is a natural or likely result from the employment of the servant then it is the master who must suffer rather than the third party.”

This formulation has been consistently followed. See, for example, Ess Kay Electronics (Pty) Ltd and Anor v First National Bank of Southern Africa Ltd 2001 (1) SA 1214 (SCA); Minister of Law and Order v Ngobo 1992 (4) SA 822 (A).

This approach does not depend upon a “creation of risk” theory, which this Court declared to be of no application in the Biti case at p 169 in fine – 171, following the decision in Minister of Law and Order v Ngobo supra, but uses the customary test for determining the existence of vicarious liability which “serve(s) the interests of society by maintaining a balance between imputing liability without fault, which ran counter to general legal principle, and the need to make amends to an injured person who might otherwise not be recompensed”.

In Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA) SCOTT JA held at 24-25A that:

“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 example, Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) at 827B; Minister of Police v Rabie 1986 (1) SA 117 (A) at 132G). 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 145-6, 151-2). 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 interest or for the achievement of his own goals necessarily falls outside the course and scope of his employment. (Viljoen v Smith 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 316E-317A). 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.”

In the Feldman case supra at p 742 WATERMEYER CJ made the following observation:

“… a variety of situations may arise having different legal consequences.

(a) If (an employee) abandons his master’s work entirely in order to devote his time to his own affairs then his master may or may not, according to the circumstances, be liable for harm which he causes to third parties. If the servant’s abandonment of his master’s work amounts to mismanagement of it or negligence in its performance and is, in itself, the cause of harm to third parties, then the master will naturally be legally responsible for that harm. … If, on the other hand, the harm to a third party is not caused by the servant’s abandonment of his master’s work but by his activities in his own affairs, unconnected with those of his master, then the master will not be responsible.

(b) If he does not abandon his master’s work entirely but continues partially to do it and at the same time to devote his attention to his own affairs, then the master is legally responsible for harm caused to a third party which may fairly, in a substantial degree, be attributed to an improper execution by the servant of his master’s work, and not entirely to an improper management by the servant of his own affairs.”

The learned CHIEF JUSTICE then went on to hold that the employee’s conduct fitted into the latter category and that the employee had not abandoned his master’s work entirely.

This formulation from Feldman case supra has been referred to with approval on a number of occasions and was adopted by the South African Supreme Court of Appeal recently in the case of Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA).

The conduct of Mukudu in casu is no different to that of the driver in the Feldman case supra. To distinguish it on the basis of holding that there was not one, but three deviations from Mukudu’s duty is, with respect, artificial. The test of time and space must not be elevated to an artificial level. The test is simply a tool by which a court will be guided in determining whether an employee has abandoned his employer’s work altogether. If, for example, Mukudu had, instead of returning the vehicle (as was his intention) to the Depot, driven to Mutare on a mission of his own, it could not be said that he was acting in the course of his employment. In that instance, the distance factor would constitute strong evidence of an intention to abandon his master’s work. In casu, however, the spatial deviation, apart from being minute, is of very limited relevance because Mukudu’s intention is known. Mukudu was in the process of returning the vehicle to its Depot. He, therefore, was continuing to perform his employer’s work, albeit negligently and “in an improper manner”. By further analogy, if a person were employed to drive from one point to another and was specifically instructed not to stop at any places along the way, but that in contravention of such orders, the driver stopped at one point before being involved in a collision, it cannot be said that such a deviation absolved the employer from liability. Even if the driver had stopped twice, three or even five times before he collided with another vehicle, that would not absolve the employer. It would be untenable to say that because the driver deviated from specific instruction on so many occasions, he was no longer acting in the course of his employment when he was actually proceeding to the intended destination. In reality, there is no distinction between this analogy and the instant case. Whatever deviations Mukudu might have made, at the time of the collision he had clearly recommenced the assigned task of ensuring the return of the vehicle to its Depot.

In the result, I would allow the appeal with costs.

The order of the court a quo is set aside and substituted with the following order –

“Judgment be and is hereby awarded in favour of the first plaintiff against the first, second and third defendants jointly and severally, the one paying the other to be absolved, in the sum of $419 169.00, with interest a tempore morae thereon at the prescribed rate from July 1997 to date of payment and costs of suit.”

ZIYAMBI JA: I agree.

MALABA JA: I agree.

Scanlen & Holderness, appellant's legal practitioners

Henning, Lock, Donagher & Winter, respondent's legal practitioners