No. SC 86/02
Appeal No. 95/01
SOCIAL SECURITY AUTHORITY v
& SONS (PRIVATE) LIMITED
COURT OF ZIMBABWE
CJ, ZIYAMBI JA & MALABA JA
JULY 4 & NOVEMBER 14, 2002
for the appellant
for the respondent
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
respondents 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
courts finding that the respondent was not vicariously liable
facts of this case are that the respondent employed Mukudu as a
driver. On the day of the accident Mukudu was instructed to
load of lime from Odzi and deliver it to Claire Estate in Nyazura.
From Odzi to Nyazura is a distance of about twenty-five
Mukudu left at about 9.00 am and this was his task for the day.
The evidence establishes that
arrived at Claire Estate between 11.00 am and 11.15 am.
After his arrival, Mukudu unhitched from the horse the
trailer bearing the lime, leaving the latter behind whilst he went
off to some unknown destination. The task of off-loading
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.
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.
occurred about one-and-a-half hours later, at about 9.00 pm.
at the Star Bar Mukudu met up with Mr Pawaringira (Pawaringira)
a mechanic in the employ of the respondent. He reported
Pawaringira that the vehicle was overheating. However, when the
latter looked at the gauge it reflected otherwise. Mukudu
that the fan belt had broken. It was not possible to ascertain
that. Mukudu thereafter drove the vehicle going to the
gave a lift to a number of employees of the respondent who were going
to the respondents Depot. Among the respondents
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 Mukudus house to the respondents
Depot. Apparently Mukudus house was some short
getting to the respondents 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 respondents
Depot. He failed to give way at
the junction and collided with another vehicle.
is common cause that in order to have returned to the Depot Mukudus
journey would have taken him past the scene of the accident,
Bar being some fifty metres off the main road along which he would
have travelled in each direction. The accident occurred
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
accident and his employer was not vicariously liable. The reasoning
of the learned judge is to be found on pp 9-10
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.
am not persuaded, and although the vehicle was only fifty metres away
from the main road, that as far as space is concerned that
such a major deviation to constitute one that still made the first
defendant employer liable for the conduct of the second
is clear that he deviated from what was his employers affair(s) or
business in that he went to the Bar and had consumed liquor
fact, deviated from his employers 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 judges conclusion that at the
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
evidence given by the respondents witnesses in certain material
this regard, the evidence of Pawaringira, a witness for, and a
mechanic in the employ of, the respondent, is instructive as to
Mukudu stopped at Star Bar and how the accident occurred. His
evidence was as follows:
THE COURT: Q. The last witness said you came out of a truck which
was involved in an accident that evening. Do you remember
accident? A. Yes, my lord.
Q. How did you get into that
truck? A. I had come to Riverside to buy some cigarettes.
had come? A. I.
had gone to Riverside to buy some cigarettes? A. Yes. When I
got there I saw this driver seated with the other guys
A. At Riverside Star Bar.
FITCHES: Q. Where were they drinking beer? A. Riverside Star
J: Q. What time was this? A. It was about 9.00 in the evening.
FITCHES: Q. Did you see the truck? A. I saw the truck, yes.
was it? A. It was parked inside the durawall of the beerhall.
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
was he drinking when you saw him? A. He was drinking opaque
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
was your job at the company at the time? A. I am a motor
and he told you something, what? A. So I told him the truck
told you there was a problem with the truck. Tell us about that?
A. He told me there was (a) problem on the truck.
what did you do? A. I checked on the gauge and the gauge was
low, showing that this truck has cooled down.
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.
fan belt that drives which? A. Which drives the water pump.
you check that yourself? A. I could not see it because it was
night. I had no light to see it.
you believe what he said to you about the heating? A. I just
believed for the moment, because I could not have time to
It was at night, there was no light to illuminate, so that
you found the gauge (was) alright? A. The gauge was down, yes.
what did you say then, after what happened, what you witnessed?
A. I went inside the beerhall to buy my cigarettes.
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.
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 respondents
learned judge concluded that Mukudu had stopped to drink beer and
simply dismissed the other possible reason without
to how the accident occurred, the same witness had this to say in his
Q. Do you know one Mudyiwa?
A. Yes, I know him.
us about Mudyiwa? A. Mudyiwa is another driver who was also
working for Suncrest.
happened that night involving Mudyiwa? A. Mudyiwa stays right
close to the Depot and Boniface was staying just about
kilometres from Riverside to where he was staying. So he stayed
behind, unlike Mudyiwa who was staying at the Depot.
told Mudyiwa to take the truck to the Depot so that he could be left
behind at his house, because it was during the
he told Mudyiwa to take the truck to the Depot? A. Yes.
Mudyiwa licensed to authorised to drive a truck to your knowledge?
A. Mudyiwa is a licensed and an authorised driver.
that truck was in the care of who that night, Mudyiwa or Boniface?
A. It was in Bonifaces.
he show Mudyiwa everything about the truck? A. The time we got
out of the beerhall durawall, he told Mudyiwa to sit very
him, so that he could see how he was shifting the gears and the
you in the cab at the time as well? A. Yes, I was seated by the
door, the passenger door.
he told Mudyiwa to sit near him? A. Yes.
that he can see the gears? A. Gears, yes. At that time we
were driving out of the durawall, the time he was changing
And when we got to the junction, he did not even give way. He
just went straight into the highway and turned right.
J: Q. He did not give way and did what, turned right at the
junction? A. Yes, into the highway.
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
The learned judge in the court
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 Mukudus 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 Mudyiwas
sitting next to Mukudu in any way
contributed to the accident. The accident occurred, according to
the respondents own witness,
because Mukudu failed to give way to
traffic that had the right of way.
is also clear from the evidence of the respondents 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.
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
is common cause that at the time of the accident Mukudu was driving
towards his employers Depot, with the intention of returning
the Depot his employers vehicle. Mukudus mandate was to
deliver the lime to Claire Estate and return the vehicle to the
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
masters 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
employers mandate sufficiently to exonerate the employer from
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 employers 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
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
present case. He drew certain comparisons in support of his
The facts in Bitis
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
taxi owned by the plaintiff, badly damaging the taxi and
severely injuring the plaintiff. The accident occurred at a place
was about a five kilometre deviation from the route he would
have taken to drop off the government officers. There was some
that the driver was heavily intoxicated and that he had his
girlfriend in the car. The trial court had held that the Ministry
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
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
mode of exercising his duty of keeping the vehicle safely
overnight was still done within the course of his employment and the
which employed him was vicariously liable.
submitted that by comparison:
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,
submitted, was in the process of being returned, albeit late. In
each case it was clearly the obligation of the respective
to have consumed alcohol; and, in each, they did. In Bitis
case, the driver was intoxicated. In the instant case, the
respondents 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 respondents employees aboard,
was never suggested that this was irregular. It is respectfully
submitted that the fact that there may have been two deviations
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
for for comparison purposes by the fact that there was a
five kilometre deviation from the authorised route in the
The facts in Feldmans
were as follows. A servant of the defendant had been given custody
of a motor van and a number of parcels, with instructions to
the van and deliver the parcels to various customers in a town.
Having delivered the parcels he was to return the van to
garage. It appeared that after delivering the parcels he had driven
the van to a place some miles away on his own business,
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.
submitted that the facts in Feldmans
were very close to the facts of this case and drew some comparisons.
He made the following submissions. Both drivers were employed
effect deliveries. Both were in the process of returning their
respective vehicles to their employers premises when they
involved in collisions. Both deviated from their authorised routes
in order to consume alcohol. In the instant case, Mukudu
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
the driver of the van, one Baloyi, should have returned it to its
garage immediately after reporting off duty at 1.00 pm on
Saturday in question. Baloyi in fact deviated by many miles from
the route which he ought to have taken and only resumed his
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,
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
He argued that the deviation in terms of distance in the latter was
obviously of a much greater extent.
I am persuaded by Mr Wernbergs
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
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:
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.
Co v Maddick, per
CAVE J, 1891 LR 2 QBD at p 417). It is within the
masters 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
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
a balance between imputing liability without fault, which
ran counter to general legal principle, and the need to make amends
an injured person who might otherwise not be recompensed.
of Safety and Security v Jordaan t/a Andre Jordaan Transport
2000 (4) SA 21 (SCA) SCOTT JA held at 24-25A that:
standard test for vicarious liability is, of course, whether the
delict in question was committed by an employee while acting
course and scope of his employment. The inquiry is frequently said
to be whether at the time the employee was about the
business or doing the work of the employer (see, for example,
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
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
advancement of his personal interest or for the achievement of his
own goals necessarily falls outside the course and scope
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
whether the deviation has ceased and the employee has resumed the
business of his employer.
In the Feldman
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
masters 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 servants abandonment of his
masters 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 servants
abandonment of his masters 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
masters 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 masters work, and not entirely to
an improper management by the servant
of his own affairs.
learned CHIEF JUSTICE then went on to hold that the employees
conduct fitted into the latter category and that the employee
abandoned his masters work entirely.
This formulation from Feldman
has been referred to with approval on a number of occasions and was
adopted by the South African Supreme Court of Appeal recently
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
To distinguish it on the basis of holding that there was not one,
but three deviations from Mukudus 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
be guided in determining whether an employee has abandoned his
employers work altogether. If, for example, Mukudu had,
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
abandon his masters work. In
casu, however, the
spatial deviation, apart from being minute, is of very limited
relevance because Mukudus intention is known. Mukudu
was in the
process of returning the vehicle to its Depot. He, therefore, was
continuing to perform his employers work, albeit
in an improper manner. By further analogy, if a person were
employed to drive from one point to another and
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
from specific instruction on so many occasions, he was no
longer acting in the course of his employment when he was actually
to the intended destination. In reality, there is no
distinction between this analogy and the instant case. Whatever
Mukudu might have made, at the time of the collision he
had clearly recommenced the assigned task of ensuring the return of
to its Depot.
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
be and is hereby awarded in favour of the first plaintiff against the
first, second and third defendants jointly and severally,
paying the other to be absolved, in the sum of $419 169.00, with
tempore morae thereon
at the prescribed rate from July 1997 to date of payment and costs of
JA: I agree.
JA: I agree.
Scanlen & Holderness,
appellant's legal practitioners
Lock, Donagher & Winter,
respondent's legal practitioners