Bezuidenhout NO v Esko (2) (379/2001) [2002] ZASCA 153 (29 November 2002)

.RTF of original document

IN THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

CASE NO 379/2001

In the matter between

LF BEZUIDENHOUT NO Appellant

and

ESKOM Respondent

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CORAM: HOWIE, STREICHER, MPATI JJA, HEHER et LEWIS AJJA

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Date Heard: 7 November 2002

Delivered: 29 November 2002

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J U D G M E N T

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HOWIE JA

HOWIE JA:

[29] I have had the benefit of reading in draft the judgment of my learned Colleague, Heher AJA. As far as the appeal is concerned I agree with his conclusion that the overwhelming weight of the relevant case law, particularly the Marais case, warrants a finding adverse to the appellant.

[30] However, the answer to the appeal lies to my mind in what is stated by PS Atiyah, Vicarious Liability in the Law of Torts (1967) in the second of the two passages from his work which are quoted in para [17] of my learned Colleague's judgment. The vital part of that passage - and I repeat it here for convenience - reads as follows:

"... the tort of negligence does not consist solely of an act of negligence, but depends on the existence of a duty of care and a breach of that duty ... . The duty of care which is owed by the driver to the passenger is a duty which the servant has imposed on himself outside the scope of his authority. That being so, the tort of negligence which the driver commits against the passenger does not arise out of the performance of an authorised act. Although the breach of duty does so, the duty itself does not."

[31] Cast in the language of South African law, the delict alleged here consisted of fault coupled with a legal duty to act without causing harm to another. Obviously a delict was committed against Roux by Oelofse and the driving per se was within the scope of Oelofse's employment. Equally obviously, it was the negligent driving which caused Roux's injuries. But those considerations do not by themselves in the present case establish vicarious liability on the part of the respondent. What the appellant also had to show in order to succeed was that the legal duty which Oelofse's negligent driving served to breach, was a duty which arose within the scope of his employment. This is where the prohibition against passengers makes its impact. Their conveyance was forbidden. Accordingly, although Oelofse owed a legal duty to Roux to drive without harming him, that duty only arose because he was accepted as a passenger outside the scope of Oelofse's employment. For the appellant's success, as I have said, that duty had to have arisen within the scope of Oelofse's employment. A crucial element of the cause of action was absent.

[32] In my view this is the legal ratio of the reasoning in the majority judgment in Marais' case and the answer to critics such as Cooper, Delictual Liability in Motor Law 394 - 8 who contend that where, as in a case like this, it is the negligent driving that causes the injury, vicarious liability must follow once that driving occurs within the scope of the driver's employment.

[33] It follows that I agree that the appeal must fail. I also agree with my learned Colleague's reasons for dismissing the cross-appeal, and with the orders he proposes.

_____________________

CT HOWIE

JUDGE OF APPEAL

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