Judgment No. HB 79/2004    

                                                                                    Case No. HC 3650/2000

SELINA GUDO

Versus

SIITA MUTEMO

And

KHETHIWE NCUBE

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 4 JUNE 2002 & 10 JUNE 2004

T Moyo for plaintiff

N Fuzwayofor 1^st defendant

Civil Action

            CHIWESHE J:          The plaintiff in this matter seeks damages arising out of a road traffic accident involving plaintiff’s motor vehicle a Datsun 140Y registration number 570-451V and second defendant’s vehicle a Toyota Hiace registration number 704-969V.  The accident occurred along Masiyephambili Drive, Tshabalala, Bulawayo.

            At the relevant time the second defendant’s vehicle was being driven by the first defendant.  The first defendant has not entered an appearance to defend the action.  The police were of the view that the accident was caused by the negligence of the first defendant.  Indeed there appears to be aprima facie case, in support of that view.  For the purposes of these proceedings it can be assumed that in principle the first defendant was the blameworthy party.

            The question to be decided is whether the second defendant is vicariously liable for first defendant’s misdeeds.   The second defendant’s contention is that the first defendant was not her employee.  She neither knew nor did she authorise the first

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defendant to drive the motor vehicle in question.  That being the case so argues the second defendant, the first defendant was not her employee and was therefore not acting during the course and within the scope of any contract of employment between them.  On that basis she argues the doctrine of vicarious liability cannot be evoked against her to found a claim for damages.

            The circumstances under which the first defendant came into possession of the second defendant’s vehicle are described by the second defendant’s regular driver, one Trust Sibanda.  He said that on the day in question he had been privately hired to ferry a wedding party to Esigodini.  Before he left for Esigodini he decided to go back to his house in Nkulumane to have a bath.  As he was having his bath the first defendant (a friend of his) came and asked him why he had parked the vehicle.  On hearing of the impending trip to Esigodini, the first defendant offered to accompany him.  The first defendant had then indicated that he too would rush to his house at Sizinda in order to change his clothes.  The witness remained bathing.  He then heard the vehicle being driven away by the first defendant.  He said he was not perturbed by this development as he knew that the first defendant was a driver and was confident he would soon be back.  After thirty minutes the witness received information that the kombi (second defendant’s vehicle) had been involved in an accident.  After attending to the scene of the accident the witness had reported to the second defendant that he (and not the first defendant) had had an accident with the second defendant’s vehicle.  He said he lied to her as he feared she might dismiss him from his employ.  He said he had no authority to hand over the second defendant’s vehicle to anyone.

            From the foregoing it can be safely inferred that it was Trust Sibanda who authorised the first defendant to drive the vehicle in question or at the very least Trust

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Sibanda did not object to the first defendant’s removal of the vehicle from his possession.  If the vehicle had been removed without his knowledge or consent he would have reported the matter to the police and/or to the second defendant.

            The second defendant’s defence is two fold, namely, that as the first defendant was not her employee, she could not be held vicariously liable for his misdeeds, and vis a vis damages that the plaintiff did not proffer admissible evidence to prove her damages.  On that basis argues the second defendant, the claim must be dismissed with costs.

            Is the second defendant vicariously liable in respect of the delict committed by the first defendant?  In my view it is has not been shown that the relationship between second and first defendant is one of an employer and an employee or one of principal and agent.  Attempts have been made to prove the existence of some relationship on account of entries made by the Sheriff in serving process in this matter.  Whilst such process being official documents would ordinarily be admissible as evidence it was imperative in this matter that the party wishing to rely on such document calls the Deputy Sheriff who served the process to give evidence tending to prove the inference sought.  For that reason it shall be presumed that the first defendant was not an employee of the second defendant.  That being the case, is there any basis upon which the doctrine of vicarious liability may be invoked against the second defendant?

            The leading case on vicarious liability is Biti v Minister of State Security 1999(1) ZLR 165 (S).  In that case McNALLY JA at page 169 quoted with approval the remarks by DAVIS AJA in Feldman (Pty) Ltd v Mall 1945 AD 733 defining the

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phrase “scope of his employment”  DAVIS AJA stated that the phrase meant “the exercise of the functions to which he has been appointed”.  He went on to say:

“Those (functions) in Baloyi’s case did not consist merely in the delivery of parcels in and about Johannesburg by the use of his master’s van; they included the care and control of that van when it was in his possession, and they included also the duty to return it to the garage in Saver Street at the close of the day’s operations”.

            Further is was stated by DAVIS AJA as follows-

“The question is not whether he authorised or indeed desired, some particular act of his servant, or whether it is to his benefit, but whether whatever his attitude towards it, and whatever its consequences to him, that act of the servant flows sufficiently naturally from what he did authorise that he should have foreseen it as a likely result should the servant prove untrustworthy.  For when he appointed the servant, he knew that he could in large measure only control him in theory, and yet he knew also that he was, in the words of SHAW CJ, ‘bound to see that his affairs were conducted with due regard to the safety of others’”.

            McNALLY JA was however cautious to adopt the approach by DAVIS AJA particularly because it had been criticised in latter decisions of the South African courts.  This approach called the “creation of risk” approach has not found favour with the courts.  The “standard approach” which the courts tend to adapt is “whether the wrongdoer was engaged in the affairs or business of his employer”.  If the first defendant were the second defendant’s employee the application of the standard test (or any other test for that matter) would have posed no difficulty.  In the present case the delict complained of was occasioned by a third party who has no relationship with the owner of the vehicle in question.  The arrangement to let the first defendant drive the vehicle was entered into by the second defendant’s employee, Trust Sibanda, without the consent or authority of the second defendant.  Alternatively it was Trust

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Sibanda’s negligence and acquiescence that led to the first defendant’s assumption of control and possession of the vehicle.

            In the case of Francis Frers and Mason v PUTCO 1964(3) SA 23(D) the defendant company employed one Louw as a bus driver.  He had asked another employee of defendant to drive the bus to defendant’s workshop.  This employee had not been employed as a driver nor was he licensed to drive a bus.  On his way to the workshop he collided with two vehicles owned by the plaintiff.  It was held that as the latter employee had not been engaged as a bus driver, the defendant was not vicariously liable for his negligent driving.  However it was held that in delegating the driving of the bus Louw had acted within the scope of his employment and as the other employee was not skilled or licensed to drive a bus Louw had been negligent in handing over the bus to him and that Louw’s negligent conduct was causally related to the harm suffered by the plaintiff.  The defendant was thus held vicariously liable for Louw’s negligent conduct and for the harm suffered by the plaintiff.

            I am persuaded by the reasoning in that case.  It establishes the causal link between the employee who deliberately or negligently surrenders the control of a vehicle entrusted to him by his employer to a third party and the delicts that may be committed by that third party whilst he is in such control.  Once that link is established the employer cannot be herd to deny liability merely on the grounds that such third party is not his employee, for it is the employee’s failure to retain control over the vehicle that has led to the commission of the delict by a third party.  The reasoning appears to me to uphold sound public policy.  It is the responsibility of an employer such as the second defendant to ensure that its servants conduct its business in a manner that is not prejudicial to the interests of others and where its servants

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wrongfully entrust the employer’s property with strangers, the employer cannot escape liability but accept the consequences arising from such mal-practices by such servants who to all intents and purposes will have acted within the scope and during the course of their employment.

For these reasons I hold that the second defendant is vicariously liable for the delict committed against the plaintiff by the first defendant.

            It is clear that the plaintiff suffered damages as a result of this accident.  The question that needs to be resolved is the quantum of such damages.  It is trite that the quantum of damages must be proved even in matters in which the claim is unopposed.  I agree with the submission by the second defendant that the plaintiff has failed to prove the quantum of the damages claimed.  Firstly no attempt has been made to evaluate the wreck of the vehicle.  The plaintiff agrees that the wreck is of some value.  The value of the wreck must be set off against the total claimed if the plaintiff is to retain the wreck.  Alternatively if the total claim is to be maintained then the wreck or its value must be tendered to the defendant, otherwise, the plaintiff will be unjustly enriched.

            Secondly, the persons who gave opinions as to the replacement value of the vehicle or the extent of its damages were not called to give evidence under oath, nor were their statements reduced to affidavit form.  The plaintiff proceeded as if their evidence was common cause.  In fact the plaintiff has argued that the second defendant’s plea does not put at issue the quantum of damages.  I disagree.  The second defendant clearly states in its plea that it denies being liable “in the amount claimed or at all.”  Whilst the emphasis in that denial is based on non-liability it is clear to me that the second defendant also puts in issue the quantum of damages, in

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the event that it is found liable.  And indeed in terms of the pre-trial conference minute, the second issue is put thus “(b) whether plaintiff has suffered damages in the amount claimed or at all.”

            In the premise I hold that the question of quantum is an issue in this matter and for the reasons stated above the plaintiff has failed to discharge the onus cast upon it to prove the quantum of damages.

            Accordingly and for that reason it is ordered that the plaintiff’s claim be and is hereby dismissed with costs.

Hwalima & Associates, plaintiff’s legal practitioners

Calderwood, Bryce & Hendrie, first defendant’s legal practitioners