Protea Coin Security Company (Pty) Ltd v Mpaka and Others (269/11) [2013] ZAECMHC 34 (21 November 2013)

Protea Coin Security Company (Pty) Ltd v Mpaka and Others (269/11) [2013] ZAECMHC 34 (21 November 2013)

The appeal succeeded because the respondent failed to discharge the onus of proving that the person responsible for the shooting was an employee of the appellant. The appellant's evidence, which was unchallenged, established that its business in Mount Frere was operated by a franchisee and that the alleged wrongdoer was not its employee. The trial court erred in relying on the dominant impression created by uniforms and insignia, which is insufficient to establish an employment relationship as a matter of fact. The respondent did not prove the requisite elements for vicarious liability, and therefore the claim against the appellant could not succeed.

Citation
[2013] ZAECMHC 34
Parties
Appellant: Protea Coin Security Company (Pty) Ltd; Respondent: Christina Nomkhosi Mpaka; Defendant: Galacom Distributors CC; Defendant: Casper Cornelius Heyneke; Defendant: Charles Douglas Heyneke; Defendant: Bartholomeus Rudolph Jacobus Heyneke; Defendant: Mark Paul Barnard
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
21 November 2013
Case Number
269/11
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal upheld; respondent's claim dismissed with costs.
Judges
G. Goosen, J. W. Eksteen, L. P. Pakade
Legal Topics
Vicarious Liability, Negligence, Franchise Agreement, Burden of Proof
Delict Civil Procedure Vicarious Liability Negligence Franchise Agreement Burden of Proof

Case Brief

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Parties

Protea Coin Security Company (Pty) Ltd

Appellant

Christina Nomkhosi Mpaka

Respondent

Galacom Distributors CC

Defendant

Casper Cornelius Heyneke

Defendant

Charles Douglas Heyneke

Defendant

Bartholomeus Rudolph Jacobus Heyneke

Defendant

Mark Paul Barnard

Defendant

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the appellant was vicariously liable for the negligent shooting by an alleged employee.
  2. 2 Whether an employment relationship existed between the appellant and the alleged wrongdoer.
  3. 3 Whether the respondent discharged the onus of proof regarding vicarious liability.

Ratio Decidendi

The appeal succeeded because the respondent failed to discharge the onus of proving that the person responsible for the shooting was an employee of the appellant. The appellant's evidence, which was unchallenged, established that its business in Mount Frere was operated by a franchisee and that the alleged wrongdoer was not its employee. The trial court erred in relying on the dominant impression created by uniforms and insignia, which is insufficient to establish an employment relationship as a matter of fact. The respondent did not prove the requisite elements for vicarious liability, and therefore the claim against the appellant could not succeed.

Court Disposition

Appeal upheld; respondent's claim dismissed with costs.

Orders

  • The appeal succeeds.
  • The order of the trial court is altered to read: The plaintiff’s claim is dismissed with costs; and the defendant is ordered to pay the costs of the third party.