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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Case number: 2548/2016

In the matter between:

WARREN POPE                                                                                                1^st Applicant

MARLENE POPE                                                                                              2^nd Applicant

and

JOHANNES FRANCIOS HATTINGH                                                      1^st Respondent

ROZELLE SALLY HATTINGH                                                                  2^nd Respondent

CORAM:                                           MHLAMBI J,

HEARD ON:                                     4;5 and 7 May 2021

DELIVERED ON:                             31 August 2021

MHLAMBI, J

[1]        The dispute in this matter is whether the defendants are vicariously liable for the conduct of their servant, Mr Pharaoh Mhone, who deviated from the course and scope of his employment as an employee at a guesthouse by causing the death and inflicting injuries to the paying guests of the guesthouse.

[2]        Mr Pharaoh Mhone, (“Mhone”), a thirty-three-year-old Malawi-born male was employed by either or both the first and second defendants on 28 April 2014 when the said Mohone fatally shot and killed Brian Pope and critically injured Tilly Pope who also died a short while later.

[3]        On or about 10 March 2014 the second plaintiff made a booking reservation on the internet through a company known as Safari to utilize the facilities on the Farmyard, to wit, Tweevley farm, arriving on 18 April 2014 and departing on 21 April 2014 in order for the family consisting of the first plaintiff, second plaintiff, their two children, the first plaintiff’s father and step-mother, Brian Pope, sixty-two (62) years old and Tilly Pope, forty-seven (47) years old, to get away for the Easter weekend.

[4]        The first plaintiff testified that upon her, second plaintiff and their two children’s arrival at Tweevley farm on the 18^th of April 2014, they saw Mhone playing with his children behind a high electric fence. The gate was closed. The latter opened the gate with a remote control device, led them to the guest cottage, showed them all the facilities they could enjoy and handed them the keys to the cottage.  Brian and Tilly Pope arrived at the farm from Durban about two hours later.

[5]       Save for the plaintiffs, the only other persons on the farm were Mhone, his wife and their child. In the evening, the guests supped on snoek fish and gave the leftovers to Mhone. The following morning Mhone minded the birds at the birds’ cage and fed the horses at the stables while his wife worked in the defendants’ main house and the guesthouse.

[6]        In the early hours of the morning on 20 April 2014, the said Mhone entered the cottage where the Pope family slept and entered the bedroom where Brian and Tilly Pope slept and fired shots at the sleeping couple with a firearm belonging to the second defendant, instantly killing the said Brian and Tilly Pope.

[7]        Upon hearing the gun shots, the first and second plaintiffs ran to the door of the room in which the elderly Pope couple slept and noticed Mhone standing at the door of the room with a fire arm in his hand. The first plaintiff ran towards him and a scuffle ensued for the possession of the firearm. The plaintiff could not disarm Mhone and the latter then ran away. The first plaintiff went back to the elder Pope’s room and found that his father was already dead and Tilly Pope was still alive but in a critical condition. Whilst the first plaintiff resuscitated her, Mhone arrived and attacked the first plaintiff with a rod but the first plaintiff was able to take the rod away from him. He fled and returned with a garden fork and plunged it into the first plaintiff’s neck and chest and left him for dead.

[8]        Mhone returned to the barricaded room but could not gain entry. He ran around the house breaking the bedroom windows with a thick metal rod, stuck his hand through the broken window, opened the widow latch and entered the bedroom. He stood on the bed and struck the second plaintiff therewith. The second plaintiff lifted up her left arm to protect her head but the metal rod hit her on her left arm and head resulting in a fracture of the forearm. He left the room but returned armed with a garden fork and threatened the second plaintiff with stabbing motions in her direction. He asked the second plaintiff for her hand bag, opened it and asked for the pin numbers of her bank cards. He removed the bed barricading the bedroom door, opened the door, instructed the second plaintiff and the two children to look for wallets, cell phones and keys to the motor vehicles on the premises. He found and removed the cash from the the wallet of Brian Pope. He also found the cell phones and the keys to the first plaintiff’s car.

[9]        He drove off in the second plaintiff’s motor vehicle but returned a few minutes later, instructed the second plaintiff and her two children to get into the motor vehicle and commanded her to drive to the house on the farm where he, Mhone, stayed as he wanted to fetch his family. As he alighted from the vehicle, the second plaintiff sped away towards the main gate where she was met by neighbours. The second plaintiff and her two children were taken to the Harrismith Provincial Hospital and later transferred to the Mediclinic Hoogland Hospital at Bethlehem.

The Law

[10]     The general principle was stated in Feldman v Mall[1] that an employer is vicariously liable for a wrong committed by an employee during the course and scope of his employment. Where an employee commits a delict whilst solely or partially about the business of the employer, the application of the principle of vicarious liability generally presents no problem. Difficulties arise when the employee commits an intentional wrong entirely for his or her own purposes.[2] In such instances, the act done by the servant may fall outside the course and scope of his or her own employment. A subjective and objective test is to be applied to determine whether the act falls outside the course and scope of his or her employment.[3]

[11]     The subjective test refers to the servant’s intention while the objective test is satisfied and the master is held liable if there is a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master. In K v Minister of Safety and Security, [4] the following was stated:

“44. From this comparative review, we can see that the test set in Rabie, with its focus both on the subjective state of mind of the employees and the objective question, whether the deviant conduct is nevertheless sufficiently connected to the employer’s enterprise, is a test very similar to that employed in other jurisdictions. The objective element of the test which relates to the connection between the deviant conduct and the employment, approached with the spirit, purport and objects of the Constitution in mind, is sufficiently flexible to incorporate not only constitutional norms, but other norms as well. It requires a court when applying it to articulate its reasoning for its conclusions as to whether there is a sufficient connection between the wrongful conduct and the employment or not. Thus developed, by the explicit recognition of the normative content of the objective stage of the test, its application should not offend the Bill of Rights or be at odds with our constitutional order.”

[12]       In Minister of Police v Rabie, [5] the Minister was held liable for a wrongful arrest by a member of the police who, whilst not on duty, unlawfully arrested, assaulted and caused the plaintiff to be unlawfully detained. The court held that by appointing the police officer and clothing him with the powers of that position, the state created a risk of harm to others which rendered the state liable for his actions. The position was stated as follows:  

“By approaching the problem whether Van der Westhuizen's acts were done "within the course or scope of his employment" from the angle of creation of risk, the emphasis is shifted from the precise nature of his intention and the precise nature of the link between his acts and police work, to the dominant question whether those acts fall within the risk created by the State. By appointing Van der Westhuizen as a member of the Force, and thus clothing him with all the powers involved, the State created a risk of harm to others, viz the risk that van der Westhuizen could be untrustworthy and could abuse or misuse these powers for his own purposes or otherwise, by way of unjustified arrest, excess of force constituting assault and unfounded prosecution. Van der Westhuizen's acts fall within this purview and in the light of the actual events it is evident that his appointment was conducive to the wrongs he committed.”

[13]  In Stallion Security,[6] it was stated that:

“The creation of a risk that eventuated, is an important consideration in determining vicarious liability of an employer under the ‘close connection’ test….  [32] For these reasons our law as developed in Rabie and K, should be further developed to recognise that the creation of risk of harm by an employer may, in an appropriate case, constitute a relevant consideration in giving rise to a sufficiently close link between the harm caused by the employee and the business of the employer. Whether the employer had created the risk of the harm that materialised, must be determined objectively.”

The issues

[14]     At the inception of the trial, the defendants made certain admissions which are contained in Exhibit “A” before the court. Part “B” contains the defendants’ disputed points which read as follows:

“The defendants persist with their denial of the allegations contained in paragraph 6 of the particular of claim and expressly deny that:

(i)              Mr Mahone was appointed by any of the defendants as a caretaker of the farm Tweevley or The Farmyard;

(ii)            When Mr Mahone committed the aforesaid wrongful acts, Mr Mahone acted in the course and scope of his employment towards either the first defendant or second defendant;

(iii)           The wrongful acts were committed by Mr Mahone in the furtherance of the second defendant and/or the defendants’ interests or in the execution of Mr Mahone’s duties in terms of his employment towards the second defendant;

(iv)           The wrongful acts committed by Mr Mohone were incidental to his employment with the second defendant or in the course and scope of his employment with the second defendant (or the first defendant, should the Court find that Mr Mahone was employed by the first defendant; alternatively, the defendants jointly)”

.

[15]     The real issues for determination are whether the defendants are vicariously liable for the wrongs committed by Mhone and whether he was in the employment of both defendants or not.

Was Mr Mhone employed by one or both defendants?

[16]     It is common cause and undisputed that the first and second defendants are married out of community of property and that the first defendant is the registered owner of the immovable property known as the farm Tweevley, Free State Province.[7] Both defendants admitted that Mhone was in the employment of the second defendant as a general labourer in respect of the “The Farmyard” guesthouse conducted by the second defendant on the farm Tweevley as from 2011 until 21 April 2014. The first and second defendants were not on the farm, Tweevley, or The Farmyard during the period 18 April 2014 until 20 April 2014. Mhone met the first and second plaintiffs on 18 April 2014 and handed them the keys to The Farmyard.[8]

[17]     Mr Bruwer, on behalf of the plaintiffs, submitted that Mhone was in the employ of both the defendants and at least by the second defendant if regard is had to both the pleadings and the evidence before the court. The question that arises is whether the first defendant was the employer of Mr Mhone.

[18]     The first respondent testified that Mr Mhone was never appointed as his employee but was employed by the second defendant. He, Mhone, sometimes assisted with work on the farm for no remuneration. Johannes Dlamini, the defendants’ witness, confirmed that Mhone worked for the second defendant and was responsible for the guesthouse which he kept clean on the inside and the garden. He conceded that Mhone, who never worked with either the cattle or the horses, would be requested occasionally to assist with the goats when they were pushed to the crush. All the workers were off-duty during the weekend following Good Friday and only Mhone remained on the farm.

[19]     In an affidavit deposed to by the first defendant on 3 March 2017 in an interlocutory application to the main action in terms of Rule 13(3)(b) of the Uniform Rules of Court,[9] the first defendant stated the following:

“21.      Rozelle and I are residing on the farm Tweevlei, district Harrismith, Free State Province (“Tweevlei”). We, inter alia, conduct farming activities on Tweevlei, as well as a guesthouse.

28.       In the particulars of claim, it is alleged that Pharaoh Mhone (“Mhone”), a major male who was in my employment at the time of the incident, was the person who shot and killed Brain and Tilly and who attacked and injured Warren and Marlene.

31.       Our defence to the claim is as set out in our plea…. we deny that he did so in the course and scope of his employment with us.”

[20]     In the defendants’ plea filed during October 2016, the defendants admitted that Mr Pharaoh Mhone was employed by the first defendant and that, as an employee, from time to time acted in the course and scope of his employment and in accordance with his duties in respect thereof.[10] Mr Mhone was employed by the first defendant as general farm worker and labourer.[11] The plaintiffs’ request for further particulars in terms of Rule 21 filed on 13 September 2019, prompted an answer which led to the amendment of the defendants’ plea[12] to the following effect:

“The Defendants plead that Mr Pharaoh Mhone (“Mr Mhone”) was, at all relevant times hereto, employed as a general labourer by the Second Defendant in respect of the guesthouse known as ‘The Farmyard’ and that Mr Mhone, as employee, from time to time acted in the course and scope of his aforesaid employment and in accordance with his duties- in respect thereof.”[13]

[21]     In his affidavit of 3 March 2017, the first defendant stated that both defendants resided on the farm Tweevlei and they conducted farming activities on Tweevlei as well as a guesthouse. Both had their names and particulars imprinted on the business cards of the ‘Farm Yard Self Catering Guesthouse and Hunting’.[14] In her affidavit deposed to on 20 April 2014, the second defendant described herself as the manageress (“bestuurderes”) of the Farmyard guest farm or “gaste plaas” on which there was a guesthouse. She did not refer to herself as the owner of the guesthouse.[15]

[22]     In paragraphs 8 and 9 of the affidavit to the police,[16]she stated that:

“Ek wil meld dat Pharaoh ongeveer 5 jaar vir ons werk…en dat hy die opsigter op die plaas was en die gastehuis vir my moes hanteer het.” It is therefore evident that the defendants’ protestations that Mhone was solely in the employ of the second defendant, were false and that, in reality, Mr Mhone was indeed in the employ of both the defendants.

Are the defendants vicariously liable for Mhone’s acts?

[23]     It was argued on behalf of the plaintiffs that their uncontested evidence is that Mhone was the caretaker. The second plaintiff testified that she was a trained chef and involved in the hospital industry. In the hospital industry, a guesthouse would have a caretaker such as Mhone who would act as receptionist, allow the plaintiffs onto the farm and the guesthouse and attend to their enquiries during their stay at the guesthouse.

[24]     However, the evidence of the plaintiffs did not stand alone, it was submitted, and that both defendants stated in affidavits that Mhone was the caretaker (opsigter). The first defendant stated in his affidavit to the police on 21 April 2014 that the second defendant appointed Pharaoh Mhone “as opsigter van die gastehuis.”[17]The second defendant stated in her affidavit made to the police on 20 April 2014,[18] after the fatal events took place, that:

 “Ek het die opsigter nl Pharaoh Mhone wat ‘n Malawi burger is opdrag gegee om die mense te ontvang en te sorg dat hulle reg is.” Paragraph 9 of the same affidavit makes it abundantly clear that Mhone was the caretaker and the second defendant conceded having said the words under cross-examination.[19] In paragraph 7 of the same affidavit she stated further that:

“Ek wil meld dat Pharaoh en Emily wat op die plaas vir my werk toegang tot die huis het aangesien hulle skoonmaak.” Emily is Mhone’s wife.

[25]     There were serious contradictions in the evidence of both the defendants to such an extent that whenever they were confronted with them, both put the blame on their erstwhile attorney, one Mr Gawie Rossouw. It stood like a pole above water that both defendants wanted to evade liability by denying that Mhone was in both their employment. The second defendant testified that Mhone cleaned the guesthouse, washed the dishes, cut the grass, fed the animals and the horses and kept everything clean and tidy. The horses were available to the guests in the guesthouse. At times he would work the fence for the first defendant. On 1 April 2014 the first defendant drew fifteen thousand rands cash and gave it to Pharaoh. During cross-examination, she denied that the first defendant ever gave a salary to Mhone.

[26]     The first defendant testified and conceded during cross-examination that he knew the contents of the Plea to the Particulars of Claim and its amendment. He knew that they would serve before the court, but did not know that the contents were false. He was counselled by his erstwhile attorney, Mr G Rossouw, to state, for insurance purposes, that Mhone was in his employment as the insurance policy was in his name. He read and signed the affidavits which were properly commissioned. On being confronted with the inconsistencies and contradictions in his evidence, he also put the blame on the attorney alleging that he thought the attorney knew what he did.

[27]     In determining whether an employer is vicariously liable for an employee’s unauthorised intentional wrong, the following was stated in K v Minister of Safety and Security[20]:

“(C)ourts should be guided by the following principles:

(1)            They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of ‘scope of employment’ and ‘mode of conduct’.

(2)            The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability.

Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice.

. . . .

(3)        In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:

(a)   the opportunity that the enterprise afforded the employee to abuse his or her power;

(b)   the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c)   the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)   the extent of power conferred on the employee in relation to the victim;

(e)   the vulnerability of potential victims to wrongful exercise of the employee’s power.”

[28]     I therefore find that during the Easter weekend commencing on 18 April 2021 until 20 April 2021 when Mhone killed and fatally injured the Popes, he was in the employment of both the defendants who entrusted both the farm and the guesthouse to him with the responsibility, amongst others, to care for the Pope family. The safety of the Pope family was in the hands of Mhone. He had access to both the guesthouse and the defendants’ house. In his plea explanation in terms of section 112(2),[21] he explained that he went to his employer’s house as he had the key, with the purpose of stealing the firearm to use in the robbery of the guests. He knew where the key of the safe was. He took a bottle of rum and ammunition and consumed some of the rum. Mhone had the duty and responsibility to care or “sorg” for the Popes who trusted him and shared their supper with him. He was left all by himself to look after the guests for the weekend and to be of assistance to them whenever the need arose. He had easy access to the guesthouse and knew the surroundings well. The nature of his work and the responsibilities he was clothed with for the weekend in question, militated against the wrongful deeds he committed against the defendants and their parents.

[29]     In committing the crimes, Mhone infringed the Popes’ rights to dignity and security of the person and failed in his and his employer’s obligation to keep the defendants and their parents safe from harm. There is therefore a sufficiently close connection between Mhone’s wrongful acts and the defendants or employers’ business. Taking into consideration all the objective factors and norms, I find that the defendants are vicariously liable for Mhone’s wrongful acts.

[29]     The plaintiffs have been successful and are entitled to the costs.

[30]     The following order is made:

Order:

1.        It is declared that both the defendants are liable to the plaintiffs for the damages suffered by the plaintiffs as a result of the wrongful conduct of Mr Pharaoh Mhone in the early hours of 20 April 2014;

2.        The first and second defendants are ordered to pay the plaintiffs’ costs jointly and severally, the one paying, the other to be absolved.

MHLAMBI, J 

On behalf of the Plaintiff:                            Adv. A P Bruwer

Instructed by:                                                Strauss Daly Incorporated

                                                                        104 Kellner Street

                                                                        Westdene

                                                                        BLOEMFONTEIN

On behalf of the respondent:                     Adv. CD Pienaar

Instructed by:                                                Phatshoane Henny INC.

                                                                        35 Markgraaf Street

                                                                        Westdene

                                                                        BLOEMFONTEIN

[1] 1945 AD 733.

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