T Young t/a T Young Transport v Value Logistics Ltd (CA 230/09) [2010] ZAECGHC 10 (25 February 2010)

IN THE HIGH COURT OF SOUTH AFRICA Case No: CA 230/09

(EASTERN CAPE, GRAHAMSTOWN) Date heard: 19 February 2010 Date Delivered: 25 February 2010

REPORTABLE In the matter between: T YOUNG t/a T YOUNG TRANSPORT Appellant and

VALUE LOGISTICS LIMITED Respondent

JUDGMENT

KROON J: Introduction: This appeal finds its origin in a motor collision which occurred on 6 April 2005 on the N2 freeway outside Port Elizabeth when a motor vehicle driven by one Daniels came into collision with a motor vehicle owned by the respondent. The respondent instituted action in the magistrate’s court for the recovery of damages arising out of the damage sustained by its vehicle. The appellant was cited as the first defendant and Daniels as the second defendant. The former’s citation was founded on the allegation that in driving the vehicle in question Daniels was acting in the course and scope of his employment with the appellant.

In issue on the pleadings were the following:

(a) whether the collision was due to the negligence of Daniels.

(b) whether Daniels was acting in the course and scope of his employment with the appellant;

(c) the quantum of the damage suffered by the respondent as a result of the collision.

The magistrate found in favour of the respondent on the first two issues, fixed the respondent’s damages in the amount claimed and gave judgment accordingly, the liability of the defendants being declared to be joint and several.

The appellant’s appeal against the magistrate’s judgment was restricted to an attack on the finding that at the time of the collision Daniels was acting in the course and scope of his employment with the appellant.

Agreed facts

The following further facts were common cause on the pleadings and/or in terms of pre-trial agreements reached between the parties:

(a) The appellant carried on business at a stated address in Cape Town under the style of ‘T Young t/a T Young Transport’;

(b) Daniels was employed by the appellant at the said address;

(c) The appellant was the owner of the vehicle driven by Daniels.

Discovery

In response to a notice filed on behalf of the respondent the appellant and Daniels (who were represented by the same firm of attorneys in the court a quo) filed a joint discovery affidavit, deposed to by the appellant. Therein the appellant described himself as ‘a director of the first defendant’. This description is presumably to be ascribed to the fact that the original summons of the respondent cited, as the first defendant, an entity styled ‘Young Transport Services CC’. The summons and the annexed particulars of claim were subsequently amended to reflect that the first defendant was ‘T Young t/a T Young Transport’, which was admitted in the amended joint plea of the appellant and Daniels. Despite these developments the discovery affidavit referred to bore a heading reflecting that the first defendant was the close corporation referred to above.

The affidavit included the following paragraph:

‘The Defendants have in their possession or power the documents relating to the matter in question in this action as set forth in the First Schedule hereto’.

Two of the items reflected in the schedule were the following:

‘DATE DESCRIPTION

08/04/05 Quotation number 2669 from Mercedez Benz Commercial Body Repair Centre.

12/04/05 Motor Accident Claim Form’.

The evidence

The only evidence adduced at the trial bearing on the issue of the appellant’s vicarious liability for the negligence of Daniels was that of Mr Araque, a director of the firm of attorneys representing the respondent, and who conducted the litigation on its behalf in the court below.

The defence cases were closed without any evidence being adduced on behalf of the appellant or Daniels.

Araque testified that at his request the attorneys for the defendants made available the two items reflected in the schedule to the discovery affidavit referred to in paragraph 8 above. He then commenced testifying as to what the contents of the two documents were. Objection was taken to the admissibility of the evidence by Ms Zietsman (who also appeared for the appellant on appeal) on the grounds that same was of a hearsay nature. The magistrate, however, overruled the objection and allowed the evidence. I will revert to this issue later.

Araque confirmed that ex facie the quotation (dated two days after the collision and addressed to Terence Young Transport), it related to repairs to the vehicle of the appellant that was involved in the collision. He further confirmed that ex facie the motor accident claim form (dated six days after the collision), it reflected the following:

(a) The name and occupation of the insured was Terence Young, a director (ie the appellant);

(b) The address of the insured was that referred to in the pleadings;

(c) The damage to the appellant’s vehicle was that reflected in the quotation, which was annexed to the claim form;

(d) The driver of the vehicle at the relevant time was Daniels;

(e) Daniels was in the employ of the appellant;

(f) The occupation of Daniels was that of a ‘driver’;

(g) Daniels was driving the vehicle with the permission of the appellant;

(h) The date and place of the accident in question corresponded with what was common cause on the pleadings;

(i) The accident occurred whilst the appellant’s vehicle was being driven ‘with goods en route to East London’;

(j) The purpose for which the vehicle was being used at the time of the collision was ‘transporting goods’.

(k) The document was purportedly signed by the insured in his capacity as director, under a declaration that the particulars recorded in the form were true in every respect.

Admissibility and relevance of the evidence

In this Court Ms Zietsman repeated her objection to the admissibility of the evidence. Again, however, the objection cannot be sustained. Araque’s evidence did not purport to establish the truth of the contents of the two documents in question; instead, he merely placed on record what those contents were. Accordingly, his evidence was not of a hearsay nature, but was direct testimony and, as will be shown below, being also relevant, it was admissible testimony.

The first question that arises is whether the authorship of, or responsibility for, the motor accident claim form is to be attributed to the appellant. For the reasons that follow that question falls to be answered in the affirmative.

In S v Boesak1 at issue was the admissibility of a certain letter invoked by the prosecution as part of its case against the accused on certain counts faced by him. The grounds on which it was sought to resist the admissibility of the letter embraced inter alia the contention that the authenticity of the letter had not been proved beyond a reasonable doubt. In rejecting the contention the Court reasoned as follows (as appears from the headnote of the report).

It had not been put in issue that the letter had been typed on the letterhead of the accused’s organisation, nor that it had been sent to the addressee. There was no direct evidence that the signature on the letter was that of the accused: no witness had seen him signing it. But lack of such proof was not the only relevant enquiry. The enquiry included whether the accused had authorised the letter or given instructions for its typing and despatch or had knowledge of its contents or had affirmed its contents by signing it. The State’s case rested on inference from circumstantial evidence. Counsel for the accused had not challenged the witness in question by putting to her that the accused had not written the letter: his consequent silence thereon could accordingly be seen as an admission or acquiescence. Nor were the contents of the letter ever disputed. The letter related to the matter which was the subject of the charges against the accused and acknowledged receipt of the money to which the charges related. Further, it had never been disputed that the accused had written or signed the letter. In respect of other documents purportedly signed by the accused, it had either been accepted ‘on the face of it’ or conceded that the signature was that of the accused. There was therefore at least prima facie evidence of the authenticity of the letter, which had in fact not been

put in dispute. It was not incumbent on the State to have produced evidence that no one else had authorised, written or signed the letter; the State was not required to plug every loophole, counter every speculative argument and parry every defence that could be conceived by imaginative counsel without a scrap of evidence to substantiate it. There was no evidence to suggest that the letter had not been authorised, written or signed by the accused. The law requires that a cross-examiner should put his defence on each and every aspect which he wished to place in issue, explicitly and unambiguously, to the witness implicating his client. A criminal trial was not a game of catch as catch can nor should it be turned into a forensic ambush. The State had accordingly proved the admissibility and authenticity of the letter beyond a reasonable doubt. Further, and perhaps more conclusive, proof of the authenticity of the letter lay in a comparison of the signature on the letter with the signature of the accused at the end of his affidavit in support of the application for leave to appeal: the signatures were identical or apparently so. The comparison established a prima facie inference that the letter had been written and signed by the accused. In the absence of rebuttal it became, under the circumstances of the case, conclusive proof. Taken in conjunction with all the other factors indicative of the authenticity of the letter the Court was entitled to conclude prima facie that it had been written and signed by the accused and, in the absence of evidence to the contrary, and having regard to the other indiciae set out above, the authenticity of the letter was proved beyond a reasonable doubt.

Subject to the following:

that the contents of the motor accident claim form relate to the incident which was the subject of the respondent’s claim against the appellant;

that I am unable to say, on a comparison of the signature on the claim form with that at the end of the appellant’s discovery affidavit, that they are identical or even apparently so;

that the present is a civil matter, where the standard of proof applicable is a balance of probabilities,

the comments and approach in Boesak are mutatis mutandis of application in the instant matter. It may be added that the claim form was expressly described in the appellant’s discovery affidavit as a document relating to the matter which was the subject of the litigation. I conclude therefore that the respondent tendered prima facie proof of the authenticity of the claim form and, in the absence of evidence to the contrary, it is what ex facie it purports to be.

The next question relates to the relevance of the contents of the claim form. In addition to affirming the correctness of the agreed facts referred to in paragraph 5 above, as well as the fact of the collision referred to in the pleadings, the claim form recorded:

that Daniels was driving the appellant’s vehicle with the latter’s permission;

that Daniels was employed by the appellant as a driver;

that at the relevant time Daniels was driving the vehicle ‘with goods’ to East London and that the purpose of the journey was the ‘transportation of goods’.

As will be shown below, these factors are relevant to the questions what inferences may be drawn and whether the respondent discharged the onus resting on it.

Principles applicable to the approach to the evidence

Whether an employer is vicariously liable for particular acts of an employee will depend on a careful analysis of the facts of each case and also considerations of policy. Van Drimmelen and Partners v Gowar and Others.2

While the onus of establishing that the appellant was in law vicariously liable for the negligent actions of Daniels remained at all times on the respondent the latter was assisted in the discharge of that onus by the following considerations:

(a) Where the facts bearing on the issue in respect of which the plaintiff bears the onus of proof fall peculiarly within the knowledge of the defendant less evidence will be required from the former to establish a prima facie case than would under other circumstances be required. Union Government (Minister of Railways) v Sykes;3 Goosen v Stevenson,4 Marine and Trade Insurance Co Ltd v van der Schyff;5 Gericke v Sak,6 Macu v du Toit en ‘n Ander;7 Diskin v Lester Braun & Associates (Pty) Ltd.8

(b) In determining whether the plaintiff has succeeded in establishing a prima facie case against the defendant the Court is entitled to have regard to the fact that the defendant has failed to give evidence. Hasselbacher Papier Import and Export (Body Corporate) and Another v M V Stavroula,9 Olympic Passenger Service (Pty) Ltd v O’Connor.10 The failure by the defendant to call evidence available to him on matters that are unquestionably within his knowledge can in appropriate circumstances found an inference adverse to the defendant, and where two explanations are more or less equally open on the evidence, tip the scales in favour of the plaintiff. Galante v Dickenson;11 Marine and Trade Insurance.12

(c) Where the plaintiff has established a prima facie case against the defendant and the latter has peculiar knowledge whether or not there is an innocent explanation that would

exculpate him from liability the defendant must bear the consequences of a finding adverse to him if he fails to adduce evidence of that explanation and submit it to the scrutiny of cross-examination. In any event, where the plaintiff’s evidence constitutes prima facie proof failure by the defendant to adduce evidence to rebut or neutralise the prima facie proof converts that proof into conclusive proof. Ex parte Minister of Justice: In re R v Jacobsen and Levy;13 South African Railways and Harbours v Dlamini;14 Diskin;15 Boesak.16

Assessment

The admissions by the appellant that the vehicle in question belonged to him and that Daniels was in his employ constitutes some evidence that Daniels was acting in the course and scope of his employment. (Cf the comments in van Drimmelen17 where it was stated that ownership by the master of the vehicle through which the harm was done, may provide material for inference, but by itself is immaterial; and the master is not liable merely because he gave his servant permission to use a vehicle owned by him). That, coupled with the fact that it fell within the appellant’s peculiar knowledge whether Daniels was in fact acting in the course and scope of his employment, would have constituted a sufficient answer to an application for absolution from the instance had the appellant applied therefor after the respondent closed its case in the court a quo. Olympic Passenger,18 Gandy v Makhanya.19

After the close of the defence cases these factors contributed to a finding that prima facie proof of the respondent’s case was tendered by it. The foundation for that finding is enhanced by the contents of the motor accident claim form referred to earlier, specifically the statements that Daniels had the appellant’s permission to drive the vehicle, that Daniels was employed as a ‘driver’, that the purpose of the journey on which Daniels was engaged was ‘transporting goods’ and that the accident occurred while he was en route to East London ‘with goods’. The style under which the appellant traded was ‘T Young Transport’ and the ready inference is that the business of the appellant was the transport of goods and that that was what Daniels was about at the time in question.

In my judgment, the above factors, taken cumulatively, and seen in the light of the legal principles set out earlier, constituted clear prima facie proof of the fact that Daniels was acting in the course and scope of his employment with the appellant when he negligently drove the latter’s vehicle and caused it to come into collision with the respondent’s vehicle. The failure of the appellant to offer any testimony to rebut or neutralise that prima facie proof converted it into conclusive proof.

Ms Zietsman sought to resist the finding that the factors referred to above constituted prima facie proof of the respondent’s averment that Daniels was acting in the course and scope of his employment with the appellant by citing the decision in Geoghegan v Pestana.20 Counsel first pointed to the dictum in the judgment21 to the effect that the first requirement for a prima facie case to be established is that the plaintiff must show that he has gone as far as he reasonably can in producing evidence. She submitted that the respondent had failed to meet this requirement because it had not sought the production of the appellant’s log books relating to the vehicle (a similar course to which the Court in Geoghegan held the plaintiff in that case could and should have taken).

The argument cannot be upheld. In addition to the further comments on Geoghegan set out below, I am of the view that the dictum in Geoghegan referred to by counsel should not be interpreted as requiring a plaintiff to adduce every piece of evidence that is theoretically available to it. In my view a plaintiff has done what is required of it when through its reasonable efforts it produces evidence to meet the second requirement posed in Geoghegan (which I would restate): the evidence produced must be of such a nature that if it remains unanswered it would justify a court, approaching the evidence reasonably, in finding for the plaintiff on the matters in issue and on which the onus rested on the plaintiff (a restatement of the attributes of a prima facie case). Second, the respondent could in any event accept at face value the completeness of the discovery affidavit referred to earlier and was not obliged to investigate whether further documents such as log books might be in existence.

Second, counsel sought to draw a parallel between the facts of the present matter and those that obtained in Geoghegan, where the Court dismissed an appeal against a magistrate’s order for absolution from the instance granted after the defendant had closed his case. In dismissing the appeal the Court inter alia sought to distinguish certain of the cases referred to above.22 I do not propose to recite the facts in Geoghegan or to discuss the reasoning in the judgment. Suffice it to record that I align myself with the following passage in the Full Bench judgment in Diskin:23 ‘The question of sufficiency of evidence in circumstances similar to the present has been dealt with in a number of cases. In Goosen v Stevenson 1932 TPD 223 the evidence of employment and scope of employment in a collision case was that the vehicle belonged to the defendant, and that the defendant confessed his guilt on a charge of allowing the driver in question to drive without a driver's licence. At 228 Tindall J said that the amount of evidence which will be regarded as prima facie proof depends very much on the circumstances. Less evidence will be required where the matter is within the knowledge of the defendant. And he went on to say that whether the inference that the person concerned was driving within the scope of his authority may be drawn is one which depends on the peculiar facts of each

case. On behalf of the respondent it was urged that Goosen's case was put in perspective by a judgment in Geoghegan v Pestana 1977 (4) SA 31 (T). In that case the only proof of employment in a collision case was that the vehicle allegedly driven by the defendant's servant was registered in his name. There was not, as in the present case, proof that the driver was in the employ of the defendant, nor were the other circumstances alluded to in Goosen's case present in that case. The Court furthermore appears not to have given consideration to the aspect stressed in Goosen's case, that the matter is one peculiarly within the knowledge of the defendant. The general approach in that judgment appears to me to be unduly formalistic. The approach adopted in Voortrekker Apteek (Edms) Bpk v Serfontein 1979 (3) SA 906 (O) appears to me to be in accordance with principle and logic. At 912 in fin Smuts J said: 'Dit kom my ook voor 'n praktiese en gesonde benadering te wees dat bewys dat 'n voertuig aan iemand behoort die afleiding regverdig dat die bestuurder daarvan die werknemer van die eienaar was wat opgetree het binne die bestek van sy opdrag en magtiging. Hierdie afleiding kan natuurlik weerlê word deur die eienaar aangesien hy die persoon is wat kennis sal dra van al die relevante feite.' This sort of reasoning moreover appears to accord with the approach adopted in Gandy v Makhanya

1974 (4) SA 853 (N). In that case there was, on the question of scope of employment, little more than that. The taxi involved in the collision belonged to the defendant and was being driven with a passenger in it. At 859A-C, Hoexter J, who delivered the judgment of the Court (and with whom Miller J agreed), held that in those circumstances the inference might reasonably be drawn that the taxi was being driven in the course and scope of the employment of the taxi driver. He also alluded to the fact that it was a matter peculiarly within the knowledge of the defendant. I accordingly find that on the evidential material before the Court there was sufficient prima facie proof that Mr Langa acted in the scope of his authority. In the absence of rebutting evidence the point becomes firmly established.’ I conclude therefore that the respondent discharged the onus it bore of proving that the appellant was vicariously liable for the negligence of Daniels, and that the appeal must accordingly fail.

Order

The appeal is accordingly dismissed with costs.

______

F

KROON Judge of the High Court

Boqwana,

AJ

I agree

______

X

M BOQWANA Acting Judge of the High Court

Appearances:

For Appellant: T Zietsman

Instructed by: Netteltons attorneys

Grahamstown (Mr Nettelton/Sam)

For Respondent: JJ Nepgen Instructed by: Wheeldon Rushmere & Cole

Grahamstown (Mr Huxtable)

(EASTERN CAPE, GRAHAMSTOWN) Date heard: 19 February 2010

Date Delivered: 25 February 2010

REPORTABLE

In the matter between:

T YOUNG t/a T YOUNG TRANSPORT Appellant

and

VALUE LOGISTICS LIMITED Respondent

JUDGMENT

KROON J:

Introduction:

This appeal finds its origin in a motor collision which occurred on 6 April 2005 on the N2 freeway outside Port Elizabeth when a motor vehicle driven by one Daniels came into collision with a motor vehicle owned by the respondent. The respondent instituted action in the magistrate’s court for the recovery of damages arising out of the damage sustained by its vehicle. The appellant was cited as the first defendant and Daniels as the second defendant. The former’s citation was founded on the allegation that in driving the vehicle in question Daniels was acting in the course and scope of his employment with the appellant.

In issue on the pleadings were the following:

(a) whether the collision was due to the negligence of Daniels.

(b) whether Daniels was acting in the course and scope of his employment with the appellant;

(c) the quantum of the damage suffered by the respondent as a result of the collision.

The magistrate found in favour of the respondent on the first two issues, fixed the respondent’s damages in the amount claimed and gave judgment accordingly, the liability of the defendants being declared to be joint and several.

The appellant’s appeal against the magistrate’s judgment was restricted to an attack on the finding that at the time of the collision Daniels was acting in the course and scope of his employment with the appellant.

Agreed facts

The following further facts were common cause on the pleadings and/or in terms of pre-trial agreements reached between the parties:

(a) The appellant carried on business at a stated address in Cape Town under the style of ‘T Young t/a T Young Transport’;

(b) Daniels was employed by the appellant at the said address;

(c) The appellant was the owner of the vehicle driven by Daniels.

Discovery

In response to a notice filed on behalf of the respondent the appellant and Daniels (who were represented by the same firm of attorneys in the court a quo) filed a joint discovery affidavit, deposed to by the appellant. Therein the appellant described himself as ‘a director of the first defendant’. This description is presumably to be ascribed to the fact that the original summons of the respondent cited, as the first defendant, an entity styled ‘Young Transport Services CC’. The summons and the annexed particulars of claim were subsequently amended to reflect that the first defendant was ‘T Young t/a T Young Transport’, which was admitted in the amended joint plea of the appellant and Daniels. Despite these developments the discovery affidavit referred to bore a heading reflecting that the first defendant was the close corporation referred to above.

The affidavit included the following paragraph:

‘The Defendants have in their possession or power the documents relating to the matter in question in this action as set forth in the First Schedule hereto’.

Two of the items reflected in the schedule were the following:

‘DATE DESCRIPTION

08/04/05 Quotation number 2669 from Mercedez Benz Commercial Body Repair Centre.

12/04/05 Motor Accident Claim Form’.

The evidence

The only evidence adduced at the trial bearing on the issue of the appellant’s vicarious liability for the negligence of Daniels was that of Mr Araque, a director of the firm of attorneys representing the respondent, and who conducted the litigation on its behalf in the court below.

The defence cases were closed without any evidence being adduced on behalf of the appellant or Daniels.

Araque testified that at his request the attorneys for the defendants made available the two items reflected in the schedule to the discovery affidavit referred to in paragraph 8 above. He then commenced testifying as to what the contents of the two documents were. Objection was taken to the admissibility of the evidence by Ms Zietsman (who also appeared for the appellant on appeal) on the grounds that same was of a hearsay nature. The magistrate, however, overruled the objection and allowed the evidence. I will revert to this issue later.

Araque confirmed that ex facie the quotation (dated two days after the collision and addressed to Terence Young Transport), it related to repairs to the vehicle of the appellant that was involved in the collision. He further confirmed that ex facie the motor accident claim form (dated six days after the collision), it reflected the following:

(a) The name and occupation of the insured was Terence Young, a director (ie the appellant);

(b) The address of the insured was that referred to in the pleadings;

(c) The damage to the appellant’s vehicle was that reflected in the quotation, which was annexed to the claim form;

(d) The driver of the vehicle at the relevant time was Daniels;

(e) Daniels was in the employ of the appellant;

(f) The occupation of Daniels was that of a ‘driver’;

(g) Daniels was driving the vehicle with the permission of the appellant;

(h) The date and place of the accident in question corresponded with what was common cause on the pleadings;

(i) The accident occurred whilst the appellant’s vehicle was being driven ‘with goods en route to East London’;

(j) The purpose for which the vehicle was being used at the time of the collision was ‘transporting goods’.

(k) The document was purportedly signed by the insured in his capacity as director, under a declaration that the particulars recorded in the form were true in every respect.

Admissibility and relevance of the evidence

In this Court Ms Zietsman repeated her objection to the admissibility of the evidence. Again, however, the objection cannot be sustained. Araque’s evidence did not purport to establish the truth of the contents of the two documents in question; instead, he merely placed on record what those contents were. Accordingly, his evidence was not of a hearsay nature, but was direct testimony and, as will be shown below, being also relevant, it was admissible testimony.

The first question that arises is whether the authorship of, or responsibility for, the motor accident claim form is to be attributed to the appellant. For the reasons that follow that question falls to be answered in the affirmative.

In S v Boesak1 at issue was the admissibility of a certain letter invoked by the prosecution as part of its case against the accused on certain counts faced by him. The grounds on which it was sought to resist the admissibility of the letter embraced inter alia the contention that the authenticity of the letter had not been proved beyond a reasonable doubt. In rejecting the contention the Court reasoned as follows (as appears from the headnote of the report).

It had not been put in issue that the letter had been typed on the letterhead of the accused’s organisation, nor that it had been sent to the addressee. There was no direct evidence that the signature on the letter was that of the accused: no witness had seen him signing it. But lack of such proof was not the only relevant enquiry. The enquiry included whether the accused had authorised the letter or given instructions for its typing and despatch or had knowledge of its contents or had affirmed its contents by signing it. The State’s case rested on inference from circumstantial evidence. Counsel for the accused had not challenged the witness in question by putting to her that the accused had not written the letter: his consequent silence thereon could accordingly be seen as an admission or acquiescence. Nor were the contents of the letter ever disputed. The letter related to the matter which was the subject of the charges against the accused and acknowledged receipt of the money to which the charges related. Further, it had never been disputed that the accused had written or signed the letter. In respect of other documents purportedly signed by the accused, it had either been accepted ‘on the face of it’ or conceded that the signature was that of the accused. There was therefore at least prima facie evidence of the authenticity of the letter, which had in fact not been

put in dispute. It was not incumbent on the State to have produced evidence that no one else had authorised, written or signed the letter; the State was not required to plug every loophole, counter every speculative argument and parry every defence that could be conceived by imaginative counsel without a scrap of evidence to substantiate it. There was no evidence to suggest that the letter had not been authorised, written or signed by the accused. The law requires that a cross-examiner should put his defence on each and every aspect which he wished to place in issue, explicitly and unambiguously, to the witness implicating his client. A criminal trial was not a game of catch as catch can nor should it be turned into a forensic ambush. The State had accordingly proved the admissibility and authenticity of the letter beyond a reasonable doubt. Further, and perhaps more conclusive, proof of the authenticity of the letter lay in a comparison of the signature on the letter with the signature of the accused at the end of his affidavit in support of the application for leave to appeal: the signatures were identical or apparently so. The comparison established a prima facie inference that the letter had been written and signed by the accused. In the absence of rebuttal it became, under the circumstances of the case, conclusive proof. Taken in conjunction with all the other factors indicative of the authenticity of the letter the Court was entitled to conclude prima facie that it had been written and signed by the accused and, in the absence of evidence to the contrary, and having regard to the other indiciae set out above, the authenticity of the letter was proved beyond a reasonable doubt.

Subject to the following:

that the contents of the motor accident claim form relate to the incident which was the subject of the respondent’s claim against the appellant;

that I am unable to say, on a comparison of the signature on the claim form with that at the end of the appellant’s discovery affidavit, that they are identical or even apparently so;

that the present is a civil matter, where the standard of proof applicable is a balance of probabilities,

the comments and approach in Boesak are mutatis mutandis of application in the instant matter. It may be added that the claim form was expressly described in the appellant’s discovery affidavit as a document relating to the matter which was the subject of the litigation. I conclude therefore that the respondent tendered prima facie proof of the authenticity of the claim form and, in the absence of evidence to the contrary, it is what ex facie it purports to be.

The next question relates to the relevance of the contents of the claim form. In addition to affirming the correctness of the agreed facts referred to in paragraph 5 above, as well as the fact of the collision referred to in the pleadings, the claim form recorded:

that Daniels was driving the appellant’s vehicle with the latter’s permission;

that Daniels was employed by the appellant as a driver;

that at the relevant time Daniels was driving the vehicle ‘with goods’ to East London and that the purpose of the journey was the ‘transportation of goods’.

As will be shown below, these factors are relevant to the questions what inferences may be drawn and whether the respondent discharged the onus resting on it.

Principles applicable to the approach to the evidence

Whether an employer is vicariously liable for particular acts of an employee will depend on a careful analysis of the facts of each case and also considerations of policy. Van Drimmelen and Partners v Gowar and Others.2

While the onus of establishing that the appellant was in law vicariously liable for the negligent actions of Daniels remained at all times on the respondent the latter was assisted in the discharge of that onus by the following considerations:

(a) Where the facts bearing on the issue in respect of which the plaintiff bears the onus of proof fall peculiarly within the knowledge of the defendant less evidence will be required from the former to establish a prima facie case than would under other circumstances be required. Union Government (Minister of Railways) v Sykes;3 Goosen v Stevenson,4 Marine and Trade Insurance Co Ltd v van der Schyff;5 Gericke v Sak,6 Macu v du Toit en ‘n Ander;7 Diskin v Lester Braun & Associates (Pty) Ltd.8

(b) In determining whether the plaintiff has succeeded in establishing a prima facie case against the defendant the Court is entitled to have regard to the fact that the defendant has failed to give evidence. Hasselbacher Papier Import and Export (Body Corporate) and Another v M V Stavroula,9 Olympic Passenger Service (Pty) Ltd v O’Connor.10 The failure by the defendant to call evidence available to him on matters that are unquestionably within his knowledge can in appropriate circumstances found an inference adverse to the defendant, and where two explanations are more or less equally open on the evidence, tip the scales in favour of the plaintiff. Galante v Dickenson;11 Marine and Trade Insurance.12

(c) Where the plaintiff has established a prima facie case against the defendant and the latter has peculiar knowledge whether or not there is an innocent explanation that would

exculpate him from liability the defendant must bear the consequences of a finding adverse to him if he fails to adduce evidence of that explanation and submit it to the scrutiny of cross-examination. In any event, where the plaintiff’s evidence constitutes prima facie proof failure by the defendant to adduce evidence to rebut or neutralise the prima facie proof converts that proof into conclusive proof. Ex parte Minister of Justice: In re R v Jacobsen and Levy;13 South African Railways and Harbours v Dlamini;14 Diskin;15 Boesak.16

Assessment

The admissions by the appellant that the vehicle in question belonged to him and that Daniels was in his employ constitutes some evidence that Daniels was acting in the course and scope of his employment. (Cf the comments in van Drimmelen17 where it was stated that ownership by the master of the vehicle through which the harm was done, may provide material for inference, but by itself is immaterial; and the master is not liable merely because he gave his servant permission to use a vehicle owned by him). That, coupled with the fact that it fell within the appellant’s peculiar knowledge whether Daniels was in fact acting in the course and scope of his employment, would have constituted a sufficient answer to an application for absolution from the instance had the appellant applied therefor after the respondent closed its case in the court a quo. Olympic Passenger,18 Gandy v Makhanya.19

After the close of the defence cases these factors contributed to a finding that prima facie proof of the respondent’s case was tendered by it. The foundation for that finding is enhanced by the contents of the motor accident claim form referred to earlier, specifically the statements that Daniels had the appellant’s permission to drive the vehicle, that Daniels was employed as a ‘driver’, that the purpose of the journey on which Daniels was engaged was ‘transporting goods’ and that the accident occurred while he was en route to East London ‘with goods’. The style under which the appellant traded was ‘T Young Transport’ and the ready inference is that the business of the appellant was the transport of goods and that that was what Daniels was about at the time in question.

In my judgment, the above factors, taken cumulatively, and seen in the light of the legal principles set out earlier, constituted clear prima facie proof of the fact that Daniels was acting in the course and scope of his employment with the appellant when he negligently drove the latter’s vehicle and caused it to come into collision with the respondent’s vehicle. The failure of the appellant to offer any testimony to rebut or neutralise that prima facie proof converted it into conclusive proof.

Ms Zietsman sought to resist the finding that the factors referred to above constituted prima facie proof of the respondent’s averment that Daniels was acting in the course and scope of his employment with the appellant by citing the decision in Geoghegan v Pestana.20 Counsel first pointed to the dictum in the judgment21 to the effect that the first requirement for a prima facie case to be established is that the plaintiff must show that he has gone as far as he reasonably can in producing evidence. She submitted that the respondent had failed to meet this requirement because it had not sought the production of the appellant’s log books relating to the vehicle (a similar course to which the Court in Geoghegan held the plaintiff in that case could and should have taken).

The argument cannot be upheld. In addition to the further comments on Geoghegan set out below, I am of the view that the dictum in Geoghegan referred to by counsel should not be interpreted as requiring a plaintiff to adduce every piece of evidence that is theoretically available to it. In my view a plaintiff has done what is required of it when through its reasonable efforts it produces evidence to meet the second requirement posed in Geoghegan (which I would restate): the evidence produced must be of such a nature that if it remains unanswered it would justify a court, approaching the evidence reasonably, in finding for the plaintiff on the matters in issue and on which the onus rested on the plaintiff (a restatement of the attributes of a prima facie case). Second, the respondent could in any event accept at face value the completeness of the discovery affidavit referred to earlier and was not obliged to investigate whether further documents such as log books might be in existence.

Second, counsel sought to draw a parallel between the facts of the present matter and those that obtained in Geoghegan, where the Court dismissed an appeal against a magistrate’s order for absolution from the instance granted after the defendant had closed his case. In dismissing the appeal the Court inter alia sought to distinguish certain of the cases referred to above.22 I do not propose to recite the facts in Geoghegan or to discuss the reasoning in the judgment. Suffice it to record that I align myself with the following passage in the Full Bench judgment in Diskin:23

‘The question of sufficiency of evidence in circumstances similar to the present has been dealt with in a number of cases. In Goosen v Stevenson 1932 TPD 223 the evidence of employment and scope of employment in a collision case was that the vehicle belonged to the defendant, and that the defendant confessed his guilt on a charge of allowing the driver in question to drive without a driver's licence. At 228 Tindall J said that the amount of evidence which will be regarded as prima facie proof depends very much on the circumstances. Less evidence will be required where the matter is within the knowledge of the defendant. And he went on to say that whether the inference that the person concerned was driving within the scope of his authority may be drawn is one which depends on the peculiar facts of each case.

On behalf of the respondent it was urged that Goosen's case was put in perspective by a judgment in Geoghegan v Pestana 1977 (4) SA 31 (T). In that case the only proof of employment in a collision case was that the vehicle allegedly driven by the defendant's servant was registered in his name. There was not, as in the present case, proof that the driver was in the employ of the defendant, nor were the other circumstances alluded to in Goosen's case present in that case. The Court furthermore appears not to have given consideration to the aspect stressed in Goosen's case, that the matter is one peculiarly within the knowledge of the defendant. The general approach in that judgment appears to me to be unduly formalistic.

The approach adopted in Voortrekker Apteek (Edms) Bpk v Serfontein 1979 (3) SA 906 (O) appears to me to be in accordance with principle and logic. At 912 in fin Smuts J said:

'Dit kom my ook voor 'n praktiese en gesonde benadering te wees dat bewys dat 'n voertuig aan iemand behoort die afleiding regverdig dat die bestuurder daarvan die werknemer van die eienaar was wat opgetree het binne die bestek van sy opdrag en magtiging. Hierdie afleiding kan natuurlik weerlê word deur die eienaar aangesien hy die persoon is wat kennis sal dra van al die relevante feite.'

This sort of reasoning moreover appears to accord with the approach adopted in Gandy v Makhanya 1974 (4) SA 853 (N). In that case there was, on the question of scope of employment, little more than that. The taxi involved in the collision belonged to the defendant and was being driven with a passenger in it. At 859A-C, Hoexter J, who delivered the judgment of the Court (and with whom Miller J agreed), held that in those circumstances the inference might reasonably be drawn that the taxi was being driven in the course and scope of the employment of the taxi driver. He also alluded to the fact that it was a matter peculiarly within the knowledge of the defendant.

I accordingly find that on the evidential material before the Court there was sufficient prima facie proof that Mr Langa acted in the scope of his authority. In the absence of rebutting evidence the point becomes firmly established.’

I conclude therefore that the respondent discharged the onus it bore of proving that the appellant was vicariously liable for the negligence of Daniels, and that the appeal must accordingly fail.

Order

The appeal is accordingly dismissed with costs.

______

F

KROON Judge of the High Court

Boqwana,

AJ

I agree

______

X

M BOQWANA Acting Judge of the High Court

Appearances:

For Appellant: T Zietsman

Instructed by: Netteltons attorneys

Grahamstown (Mr Nettelton/Sam)

For Respondent: JJ Nepgen Instructed by: Wheeldon Rushmere & Cole

Grahamstown (Mr Huxtable)

1 [2000] ZASCA 112; 2000 (3) SA 381 (SCA).

2 [2004] 1 All SA 175 (SCA) para [7] at 177.

3 1913 AD 156 at 173–4.

4 1932 TPD 223 at 228.

5 1972 (1) SA 26 (A) at 40A–C.

6 1978 (1) SA 821 (A) at 827 D–G.

7 1983 (4) SA 629 (A) at 647G–H.

8 1992 (3) SA 978 (T) at 981I.

9 1987 (1) SA 75 (C) at 79F-H.

10 1954 (3) SA 906 (N) at 908G-909G.

11 1950 (2) SA 460 (A) at 464-5.

12 Note 5 above at 37-39.

13 1931 AD 466 at 478-0.

14 1967 (2) SA 203 (T) at 208D-E

15 Note 8 above at 982F.

16 Note 1 above.

17 Note 2 above.

18 Note 10 above at 908-9.

19 1974 (4) SA 653 (N) at 859A-E.

20 1977 (4) SA 31 (T).

21 Id at 34B.

22 Id at 34H et seq.

23 Note 8 above at 981G-982F.