IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN  		

  Case no: CA 38/2010
  	  Date Heard:26/11/2010
  Date Delivered:20/01/2011
							
In the matter between:

AGHERDIEN FAHIEN   		   		    APPELLANT

Versus

BROWERS RENÉ		 			RESPONDENT

JUDGMENT

SANDI J:

[1] The appellant appeals against the judgment of the Magistrate of Port Elizabeth in which the learned Magistrate dismissed the appellant’s action with costs. For convenience I shall refer to the appellant as plaintiff, and to the respondent as defendant.

[2] The plaintiff sued the defendant for damages amounting to 
R7 176-30 arising from an accident which occurred on 12 September 2008 between the plaintiff’s vehicle driven by the plaintiff, and a Toyota minibus taxi driven at the time by one Lesego Kalebe.

[3] In his particulars of claim the plaintiff pleaded that the minibus taxi was owned by the respondent and that, at the time of the accident, Kalebe was acting in the scope and the course of his employment with the defendant. 

[4] To this the defendant pleaded that he was not the owner of the taxi and that ownership thereof vested in one Barends who arranged with defendant to park the taxi in defendant’s yard because he wanted his taxi to be close to the taxi route on which it operated. Defendant also pleaded that he was not vicariously liable for the conduct of Kalebe.

[5] In dismissing the plaintiff’s claim the learned Magistrate found that: “… this court has no proof that the defendant is the owner of the vehicle …  The owner of the vehicle who came forward is a person by the name of Mr Barends.”

[6] It is clear that the learned Magistrate’s judgment was influenced by the manner in which the trial was conducted and argument presented to him. This caused the Magistrate to focus his mind on the question of ownership of the taxi. Hence the learned Magistrate did not deal with the issue of vicarious liability.

[7] As appears from above, the issues raised in the pleadings are the following: 
a)	vicarious liability; 
b)	the negligence of Kalebe ; and 
c)	the quantum of damages suffered by the plaintiff.

[8] At the trial the quantum of the plaintiff’s damages was admitted by the defendant and he did not contest the negligence of Kalebe. Vicarious liability remained the sole issue for determination by the learned Magistrate.

[9] This case was not concerned with the ownership of the taxi. The only issue the Magistrate had to decide was whether, on the evidence taken as a whole, there was evidence which showed that the defendant exercised supervision and control over Kalebe. In Midway Two Engineering & Construction  Services v Transnet BPK 1998 (3) SA 17 (SCA) at 22E and 23G-I and Smit v Workmen’s Compensation 1979 (1) SA 51 (AD) at 62E-63B it was held that in determining the question of vicarious liability supervision and control of the employee is not the only issue to be weighed on the scale. It is but merely one of the indicia to be considered. Though it is an important issue, there may also be other relevant issues to be considered by the Court.

[10] The plaintiff and his wife gave evidence at the trial. Plaintiff testified as follows: He was driving his vehicle home on his way from work. Ahead of him he noticed a taxi that was stationary on his side of the road. Plaintiff stopped his vehicle behind it. Instead of moving forward the taxi commenced to reverse towards plaintiff’s vehicle. Plaintiff hooted to alert the taxi of the presence of his vehicle behind the taxi. The taxi driver did not hear the hooter and bystanders who saw the imminent accident started shouting at the taxi driver. In spite of the warnings the taxi continued reversing until its rear portion collided into the front portion of plaintiff’s vehicle.

[11] As the taxi was proceeding towards the plaintiff, the plaintiff could not get his vehicle into reverse gear and he hooted again until the accident occurred.

[12] Damage to the plaintiff’s vehicle was on its front part. There was no apparent damage to the taxi.

[13] The taxi driver, Kalebe, confessed to the plaintiff at the scene of the accident that he did not see his vehicle. He said he did not hear the hooter because he was playing loud music in the taxi. Kalebe admitted to the plaintiff that he was employed by the defendant.

[14] Immediately after the accident and at the scene thereof, Kalebe spoke to the owner of the taxi on his cellphone. In the course thereof he handed the cellphone over to the plaintiff and told the plaintiff that the owner of the taxi wanted to speak to him. Indeed the plaintiff spoke to the owner who described himself to the plaintiff as René. René told the plaintiff that he was the owner of the taxi. He asked the plaintiff to report the accident to the police and to bring him the police case number. René invited the plaintiff to come to his home that evening. René is the defendant in this matter.

[15] Accompanied by his wife, plaintiff went to the defendant’s home that evening. On arrival at the defendant’s home, the defendant came out of the house and went to speak to the plaintiff in the street. The defendant told the plaintiff that he was not going to lodge a claim with his insurance because the taxi was not damaged. The defendant also told the plaintiff that he could not afford to repair the plaintiff’s vehicle because he had just bought a house and that as the result thereof he was not in a financial position to pay the plaintiff. He told the plaintiff to discuss the matter with Kalebe. He could not supply the plaintiff with the address of Kalebe.

[16] The plaintiff testified that the defendant confirmed that Kalebe was in his employ.

[17] Under cross examination by the defendant’s counsel, it was put to the plaintiff that the defendant never admitted to the plaintiff that he was the owner of the taxi. It was also put to the plaintiff that the defendant was acting on the instructions of the owner of the vehicle to appoint Kalebe as the driver of the taxi.

[18] Further, it was put to the plaintiff that the defendant informed him that one Barends owned the taxi. This was denied by the plaintiff. The plaintiff persisted in his version that the defendant admitted that he was the owner of the taxi.

[19] Plaintiff’s wife, Mrs Agherdien, also testified as follows: On 12 September 2008 she accompanied the plaintiff to the home of the defendant. On arrival at the defendant’s home the taxi that had collided with plaintiff’s vehicle was stationary in the street. In her presence the two had a conversation in the street during which the defendant told the plaintiff that not much damage had been caused to the taxi and that the insurance company was not going to pay for the damage to the taxi. She stated that defendant said he had “no money to fix our vehicle. He bought a house and we should talk to the driver about it.” She said that the defendant did not deny that the driver (Kalebe) was working for him. Thereafter the defendant walked to his house, and she and the plaintiff drove home.

[20] The first witness to give evidence for the defendant was Keenen Derek Barends (“Barends”). His evidence was the following: He was the owner of the minibus taxi which collided with the plaintiff’s motor vehicle. The first time he heard about the accident was after the defendant had received summons in this matter.

[21] Barends testified that he had entered into a business arrangement with the defendant regarding the taxi. Because the defendant’s house was situated near the route of the taxis he arranged with the defendant to keep his taxi in his yard. The defendant looked after the taxi and collected the fares from the taxi driver which the defendant deposited into his bank account. He said that the defendant was acting in his interest.

[22] Barends said that the defendant was responsible for employing the taxi drivers. The defendant hired and fired them. He, Barends, had no contact with the drivers and did not know them.

[23] Payment of the drivers’ salaries was attended to by the defendant. The defendant would pay them a portion of their daily takings on the basis of a tariff.

[24] Barends said he was told about the accident after the defendant received the summons. He did not do anything about the summons because he did not know about the accident. He did not read the summons. He said that at some stage Kalebe told him that he would attend to the matter himself.

[25] Under cross-examination Barends said he did not take possession of the summons when the defendant showed it to him. When asked why he did not take the summons if he was the owner of the vehicle, he said that the reason why he did not take the summons was that he was not aware of the accident at the time. He said he did not have an accident claim, the case number of the police or their report. He said when the defendant showed him the summons he did not look at it.  He also said he was not informed that the taxi in question had been involved in an accident. One of the reasons he gave for not taking the summons from the defendant was that Kalebe had told him that he would deal with the matter himself.

[26] The defendant testified and gave the following version: He kept the taxi in his yard. In the morning he would give the taxi keys to Kalebe. The keys would be returned to him in the early evening at which time he would also collect the money from Kalebe which he would deposit into the bank account of Barends the next day. He, the defendant, was responsible for hiring and firing the taxi drivers. In the case of Kalebe, he satisfied himself only that he had a valid driver’s license and a passenger permit before allowing him to drive the taxi. 

[27] The defendant said he kept the taxi on his premises. His instruction from Barends was to see to it that the taxi driver parked the taxi in his yard every evening. He would collect the money from him and deposit it into the account of Barends.

[28] Regarding the employment of Kalebe, his evidence was that Kalebe approached him seeking work. His instruction from Barends was that in a situation like that he only had to satisfy himself that the driver had a valid driver’s license and permit to transport passengers. Once Kalebe satified these requirements he permitted him to drive the taxi in question.

[29] With regards to the telephone conversation he had with the plaintiff immediately after the accident, he said that his instruction from Barends was that the accident had to be reported to the police station.

[30] The defendant said that at his home he told the plaintiff to bring him a quotation.

[31] About three weeks after the accident he received a summons from the plaintiff.

[32] He denied that he hired Kalebe. According to him he just gave Kalebe the taxi keys. The defendant said the following in his evidence: 
Mr van Vollenhoven: “Sir a guy that you have not hired, that you don’t know whether Mr Barends has hired, you are prepared to hand him the keys of a van standing in your yard.” (sic)

Mr Browers (defendant): “There is no requirements sir. The only requirements when you are a taxi driver you should have a valid PDP and a valid driver’s license, that is what is required. It does not matter who you are, if there is no other things attest to it we allow a guy to drive a van. And Lesego Kalebe had a valid driver’s license and a valid PDP and that is the reason why I allowed him. That was instructions coming from Mr Barends.” (sic)

[33] When it was put to him that Barends testified that he (the defendant) hired Kalebe, he denied this. However, he admitted that before he employed Kalebe he did not consult Barends. 

[34] The upshot of the defendant’s evidence under cross-examination was that anyone who comes to him looking for a job to drive a taxi only has to produce a driver’s license and a permit to transport passengers. It matters not that he did not know such a person.

[35] This is the evidence that was placed before the learned Magistrate.

[36] Because the learned Magistrate was of the view that absence of proof of the ownership of the taxi was the only issue, he obviously saw no need to analyse and evaluate the evidence of the witnesses.  He made no credibility findings and did not consider the probabilities and improbabilities of the matter.

[37] Though we sit as a Court of Appeal in this matter we are in as good a position as the learned Magistrate to make those findings on the record of the trial Court.

[38] I now turn to the evaluation of the evidence. It is not in dispute that the plaintiff spoke to the defendant over the telephone at the scene of the accident immediately after its occurrence. It is also not in dispute that Kalebe told the plaintiff at the scene of the accident that the defendant was the owner of the taxi. Hence, Kalebe called the defendant on his cellphone and got the plaintiff to speak to him.

[39] It seems that the word “owner” was used by Kalebe in the sense that the defendant had control over the taxi in question and that he had supervisory powers over Kalebe. The plaintiff also said that the defendant told him that he was the owner of the taxi, though the defendant denied having made such an admission. On this issue what immediately springs to mind is why the defendant would invite the plaintiff to his home to discuss the accident if his involvement in this matter was to keep the taxi in his yard only. By so doing he attracted liability to himself for the accident caused by Kalebe. On probabilities a reasonable person in these circumstances would have disclosed to the plaintiff there and then the identity of Barends as the owner of the taxi and employer of Kalebe. That much is common sense. 

[40] What the evidence shows is that Kalebe’s knowledge was that defendant owned the taxi. His spontaneous reaction immediately after the accident was to contact the defendant. Kalebe arranged that the plaintiff and the defendant should communicate with each other at the scene of the accident. Kalebe made no mention of Barends as the taxi owner.

[41] When the plaintiff spoke to the defendant telephonically, the latter acknowledged that he was the owner of the taxi in question. The defendant as well did not make mention of Barends.

[42] Faced with this situation, I would have expected the defendant to have told the plaintiff that Barends was the owner of the vehicle and that his association with Kalebe was the result of an arrangement agreed to between him and Barends to keep the taxi in his yard.

[43] The defendant knew that plaintiff’s vehicle had been damaged as the result of Kalebe’s negligence. In my view any reasonable person in defendant’s position would have told the plaintiff over the cellphone that he was not in control of the taxi and had no supervisory powers over Kalebe. He would have told the plaintiff that Kalebe was in the employ of Barends.

[44] When the plaintiff and his wife visited the defendant’s home that evening nothing was said by the defendant about Barends. How could this have escaped his mind? Why did defendant say he had no money to fix the vehicle if he was not liable to pay plaintiff’s damages? 
[45] If he, the defendant, did not consider himself liable for the plaintiff’s damages, why did he invite him to his house to discuss the accident.

[46] I consider that this would have been a simple matter for the defendant to deal with, namely to tell the plaintiff that Barends was responsible for the damages sustained by him.

[47] If Barends owned the taxi and had it been insured, I would have expected the defendant to have informed Barends about the accident immediately after it had occurred so that it could be reported to the insurance company which, given the facts of this case, would in all probability have settled the case without resort to litigation.

[48] If, to the knowledge of the defendant, Barends was the owner of the taxi and had insured it to cover himself in case of liability to third parties, it is unbelievable that the defendant would not have reported the accident to Barends on the same day.

[49] The defendant and Barends contradicted each other in their evidence. Barends testified that the defendant had the power to hire and fire drivers. The defendant denied this in his evidence. 

[50] Their evidence is not only contradictory but improbable in the extreme. It cannot be relied upon. On the other hand the evidence of the plaintiff and his wife was the more probable in the circumstances.

[51] Common sense dictates that, if the defendant was not liable in the case, he would have reported the accident to Barends without delay and would have made sure that Barends took responsibility for the damages to plaintiff’s vehicle.

[52] I find that the defendant’s version is improbable and should be rejected as such. On the evidence, in particular Barends’s evidence, I am satisfied that the defendant is vicariously liable for the damages plaintiff sustained as a consequence of the accident.

[53] In the result the following order is made:

a)	the appeal succeeds with costs.
b)	the order made by the Magistrate is set aside and is replaced with the following:
i)	the defendant is ordered to pay plaintiff’s damages in the sum of R7 176-30;
ii)	interest on the said sum of R7 716-30 at the legal rate from a date fourteen (14) days after  the  date of judgment to the date of payment;
iii)	costs of suit together with interest thereon at prevailing legal rate of interest from a date fourteen (14) days after allocatur to date of payment.

B Sandi 
Judge of the High Court 
Eastern Cape, Grahamstown

Van Zyl J
I agree.

D Van Zyl
Judge of the High Court 
Eastern Cape, Grahamstown

Appearances        				:                     
Attorney’s for the Appellants 		:	Adv M Beneke 
c/o MESSRS Neville Borman & Botha		
22 Hill Street
Grahamstown
(REF : Mr J Powers)	
		
Attorney  for the Respondents		:	Adv C. Clock
							c/o MESSRS Nolte & Smith
							42 Beaufort Street 
							Grahamstown
							(REF:  Sandra Amm)