University of the Free State v Du Toit (A220/2019) [2020] ZAFSHC 145 (30 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Appeal number: A220/2019

In the matter between:

UNIVERSITY OF THE FREE STATE Appellant

and

JOHANNA CATHARINA DUTOIT Respondent

CORAM: NAIDOO J et MAJOSI , AJ

HEARD ON: 1 JUNE 2020

JUDGMENT BY: NAIDOO, J

DELIVERED ON: 30 JUNE 2020

[1] This is an appeal against the whole of the judgment of the Magistrates Court (Magistrate EM Sebe), Bloemfontein, delivered on

17th of April 2019. The respondent (as plaintiff) sued the appellant (defendant in the court a quo) for damages she sustained to her motor vehicle, as a result of a motor vehicle collision. The trial court granted judgment for the respondent, which resulted in the appellant launching this appeal. Due to the national lockdown regulations to curb the Covid-19 pandemic, read with directives issued by the Judge President of this Division, physical appearances in court by parties, legal representatives and others were kept to a minimum. For this reason, we chose to deal with the matter in terms of section 19 (a) of the Superior Courts Act 10 of 2013, by disposing of the appeal without hearing oral argument. The parties were given an opportunity to file supplementary Heads of

Argument in respect of any matter not dealt with in Heads of Arguments, and/or to highlight, amend or draw to the Court’s

attention any matter in the Heads of Argument they wished the presiding judges to consider.

[2] Both parties initially declined the opportunity and the appellant’s legal representatives insisted on presenting oral argument in court. They were then reminded that the court had exercised its powers in terms of Section 19 of the Superior Courts Act, which seems to have spurred them, at the proverbial eleventh hour, to avail themselves of the opportunity to file Supplementary Heads of Argument, which were filed by the appellant in the late afternoon of Friday 29 May 2020 and by the respondent on Saturday morning (30 May 2020), preceding Monday 1st of June 2020, when the appeal was scheduled for hearing. Adv C Snyman is on record for the appellant and attorney HF Fourie for the respondent.

[3] The background to this matter is that on 14 of March 2016, just after 15h00, the respondent had stopped in the right turning lane at a red robot at the intersection of Nelson Mandela Road and Parfitt Avenue in Bloemfontein. Her intention was to turn right onto Parfitt Avenue, in order to proceed to the shopping mall in front and to the left of her. A green arrow allows traffic to turn right into Parfitt Avenue. When the green arrow appeared, she proceeded into the intersection as she had right of way. Whilst in that process of turning right, her vehicle was hit by a light delivery vehicle (popularly referred to in South Africa as a bakkie. I will also refer to it in those terms) on the front, left hand side. The impact of the collision caused her vehicle’s airbags to deploy and the nose of her car to turn towards her right, almost facing Medi-Clinic Hospital to her right. She was in shock, having sustained a fracture to her finger, and did not even check the damage to her vehicle. She was helped out of her vehicle by someone, retrieved her mobile telephone from the vehicle and called her husband for assistance; he arrived at the scene a few

minutes later. She was taken by ambulance, presumably to hospital, where she received treatment for her finger. Frome her husband’s

evidence it appears that she subsequently required an operation to her hand

[4] The respondent’s husband also testified. His evidence was that upon receiving a telephone call from his wife, he went to the accident scene and ascertained that his wife’s motor vehicle had been involved in a motor vehicle collision with a bakkie. His wife’s vehicle was badly damaged on the front left hand side while the front of the other vehicle (bonnet and bumper) was damaged and its registration number plate was lying on the ground. The respondent’s husband took photographs of the scene and the vehicles involved in the collision. He also photographed the fallen number plate of the bakkie. Although he spoke to someone at the scene, he did not speak to the driver of the vehicle. From his testimony, it appears that someone in the bakkie was also injured. This concluded the respondent’s case. The appellant closed its case without calling any witnesses.

[5] The judgment of the court a quo was assailed on a number of grounds, which, in summary, are that the Magistrate erred in finding:

5.1 That the plaintiff/respondent had the necessary locus standi to institute action against and succeed with such action against the defendant. The insurance policy in respect of her motor vehicle was in her husband’s name. She bore no risk and therefore did not suffer damages;

5.2 that the unknown driver of the defendant’s/appellant’s vehicle acted within the course and scope of his employment with the appellant, alternatively in the furtherance of the interest of the appellant, without making a finding in those terms

5.3 The appellant was liable for 100% of the respondent’s damages, whereas:

5.3.1 the respondent was negligent in not keeping a proper lookout for vehicles travelling in the opposite direction while executing a right turn at the intersection in question, solely because the robot had changed in her favour.

5.3.2 the respondent led no evidence regarding the actions of the driver of the defendant’s vehicle, although her cause of action was premised on the sole negligence of that driver in colliding with her vehicle.

[6] The respondent, on the other hand, contends that the court was correct in finding that she had the necessary locus standi to institute proceedings by virtue of the fact that she is the owner of the vehicle. She also contends that subrogation does not come into play and is not relevant in this matter. Furthermore, the respondent indicated that she has proven vicarious liability, as the appellant pleaded that the vehicle that collided with the respondent’s vehicle belonged to it and identified the driver. The appellant did not present any evidence to rebut respondent’s assertion that he was acting in the scope of employment of the. The appellant, furthermore, did not present any evidence pertaining to negligence and thus did not disturb the court’s finding that the appellant was 100% liable for the respondent’s damages.

[7] The arguments before the court a quo indicate that three main issues were put forward for consideration by the court:

7.1 the locus standi of the respondent to institute this action, allied to which is the relevance of the principle of subrogation;

7.2 vicarious liability of the appellant for the damages suffered by the respondent;

7.3 whether there was any negligence on the part of the respondent in executing a right turn in the face of a green robot.

[8] It is common cause that the appellant had access to and consulted with three witnesses in preparation for the trial in this matter. The record indicates that the appellant’s version (or a version it would purportedly confirm under oath) was put to the respondent in cross-examination. It is also clear from the arguments by counsel and the judgment by the court a quo that the appellant closed its case without calling any of these witnesses. It seems that the portion of the record where the respondent and the appellant closed their respective cases is missing, or was not transcribed. However, this does not affect the ability of this court to consider the matter fully. Nowhere in the record or in the arguments before the court a quo or this court, does the appellant even attempt to explain this failure on its part to call its witnesses, who were clearly available to testify. It also does not appear that the respondent was given the opportunity to call these witnesses if she so chose. The inference that the appellant’s witnesses would not have advanced its case or would have given evidence detrimental to its

case, is unavoidable.

[9] I turn to deal with the issues I have identified above. The appellant persists in its Heads of Argument before this court that the respondent did not have locus standi to institute this action, as the action was in fact instituted by an insurance company, in the name of the respondent, after the former settled a claim and paid for the damages to the respondent’s vehicle, in terms of an insurance policy held by the respondent’s husband. This in effect means that there is thus no contractual relationship between the insurance company and the respondent which is a prerequisite for subrogation to take place. The insurance company in effect steps into the shoes of the insured. It has been held in a number of cases that the insurance company retains a personal right to claim from the insured such amount in respect of the damages (which it has paid) that the insured recovers from a third party. It has long been allowed in our law that the insurance company can sue in the name of the insured. It is argued before us that the respondent is not the insured, but her husband is. The latter bore the risk, and at worst the action should have been instituted in his name. The appellant then embarked on a convoluted argument regarding cession of the claim by the respondent, as owner of the vehicle, to the insurance company and that such cession should have been proved. In my view, the appellant’s arguments are erroneous and misplaced, for the reasons set out below.

[10] Firstly, the appellant completely ignored the rights of an owner who has suffered damage to his/her property, to claim such damages. The appellant failed to deal meaningfully with this aspect at all, in spite of this being pertinently raised by the respondent. Another aspect that the appellant seems to have side-stepped is that the insurance company was fully aware that the respondent was the registered owner of the vehicle and agreed to include the vehicle in the insurance policy taken out by her husband. That was a private contractual arrangement amongst the respondent, her husband and the insurance company. It was clearly in accordance with that contractual agreement that the insurance company settled the claim in respect of the damage to the vehicle. There was no duty on the respondent to disclose that contract or the consequences flowing therefrom. That contractual relationship is simply of no concern or consequence to the appellant. The respondent’s status as owner gave her the right, in any event, to have the claim instituted in her name, on the understanding that any amount recovered from the third party would be paid to the insurance company, as is normally the case when subrogation applies. It is difficult to imagine any insurance company settling a claim and bearing the cost of litigation if this was not the arrangement with the respondent and her husband. In my view subrogation does not apply in this matter.

[11] In this regard the matter of Smith v Banjo 2011 (2) SA 518 (KZP), is relevant. The court in Smith cited the definition of subrogation, from Joubert (ed) The Law of South Africa vol 12 (first reissue) para 373, as follows:

‘Subrogation as a doctrine of insurance law embraces a set of rules providing for the reimbursement of an insurer which has indemnified its insured under a contract of indemnity insurance. The gist of the doctrine is the insurer’s personal right of recourse against its insured, in terms of which it is entitled to reimburse itself out of the proceeds of any claims that the insured may have against third parties in respect of the loss.’

The court found that from a practical perspective the insurer’s involvement in the suit is irrelevant. For this reason it is clearly not necessary for the plaintiff to plead the insurer’s involvement in the suit. The court found further that a subrogated claim is not a fact that sustains a cause of action. It is merely a collateral fact and it is not necessary to plead and prove such a fact. (See paragraphs 12 and 13 of the judgment). The court further found that the plaintiff’s ownership of the vehicle in that matter was sufficient to establish locus standi to sue. I align myself with the findings of the court in Smith’.

[See also Rand Mutual Assurance Co Ltd v Road Accident Fund [2008] ZASCA 114; 2008 (6) SA 511 (SCA) and Ntlhabyane v Black Panther Trucking (Pty) Ltd and Another (A3083/08) [2009] ZAGPJHC 46 (1 September 2009); Van Wyk v Herbst 1954 (2) SA 571 (T); Lehmbeckers Transport (Pty) Ltd and Another v Rennies Finance (Pty) Ltd 1994 (3) SA 727 (C)].

[12] The second issue to be dealt with is the appellant’s contention that the respondent failed to establish that the appellant was vicariously liable. The appellant further alleged that the court a quo did not make a specific finding of vicarious liability. The appellant asserts that the respondent failed to tender any evidence that the driver of the appellant’s motor vehicle, was an employee acting within the course and scope of his employment or was furthering the interests of the appellant. The appellant appears to be under the impression that simply denying that the driver of its vehicle drove it in the course and scope of his employment with the appellant is sufficient. As indicated, it conveniently fails to deal with or explain its failure to call the very witness or witnesses who could have confirmed its version and rebutted that of the respondent. The relationship between the appellant and its driver was exclusively within the knowledge of the appellant, and would have been difficult, if not impossible for the respondent to establish. The impression created by the appellant’s failure to call its witnesses is that its intention was to make it impossible for the respondent to prove its relationship with its driver.

[13] In this regard, the principle was formulated in Voortrekker Apteek (EDMS) BPK v Serfontein 1979(3) SA 906 (O) at 912/3 as follows:

“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 deurdie eienaar, aangesien hy die persoon is wat kennis sal dra van al die relevante

feite.”

This is support for the respondent’s argument that if the appellant fails to testify and lead evidence to rebut the respondent’s

assertion that the driver was an employee of the appellant, the inescapable inference is that the vehicle was driven at the relevant

time in the course and scope of the driver’s employment.

[14] This approach was also followed in Venter v Bophuthatswana Transport Holdings (Edms) Bpk [1997] ZASCA 16; 1997 (3) SA 374 (A); also reported as [1997] ZASCA 16; [1997] 2 All SA 257 (A). See p 260/1, where the court reiterated this principle, fortifying my remarks that the plaintiff would not know the intimate details of the course and scope of the employment and would not be able to adduce evidence in that regard. The court in Venter cautioned that it must be borne in mind that this is an inference, and does not release the party who bears the onus from discharging the onus to show that the driver of the other vehicle drove in the course and scope of his employment. The circumstances or facts must, of course, justify the inference in order for the respondent to discharge the onus.

[15] It may be so that the court a quo, in its judgment did not make a specific finding in this regard or specifically refer to “vicarious liability”. This is regrettable, but must be viewed against the backdrop that the locus standi of the appellant was not a point of contention as the appellant alleged it was the owner of the bakkie and even revealed, in its

pleadings, the name of driver of its vehicle to be one Mr M.P Ramokoatsi. Conveniently, in the very same pleadings, the appellant

denied that he was acting in the course or scope of his employment with the appellant. The fact that the trial court did not make a specific finding does not prohibit this court from finding that, on the facts and circumstances of this matter, the appellant is vicariously liable for the damages suffered by the respondent, prompting the trial court to grant the order it did.

[16] No evidence was tendered by the defendant to rebut the inference that its driver was not driving the vehicle in the course and scope of his employment. Nowhere in the pleadings was it mentioned that the appellant may have, for instance, reported the matter to the police that MP Ramokoatsi drove their motor vehicle without consent, nor did it mention any reason why its vehicle came to be in Mr Ramokoatsi’s possession. The objective, undisputed facts are that the collision occurred at approximately 15h00 on Monday 14 March 2016, which is a day and time generally regarded as falling within normal working hours. That date is not a public holiday in South Africa and there is no evidence to suggest that it was not a normal working day. The appellant admitted ownership of the vehicle and provided the identity of the driver of its vehicle, a fact that was unknown to the respondent at the time of issuing the summons. In my view, the inference that the driver, Mr Ramokoatsi, was an employee of the appellant when the accident occurred and that he was acting within the course and scope of his employment with the appellant, or at least, furthering the interests of the appellant, is a reasonable one, and the only one that can be drawn from the evidence placed before the court a quo.

[17] The third issue for this court to consider pertains to the trial court’s finding that the defendant was 100% liable for the plaintiff damages. Both parties have quoted various cases in their heads of argument in respect of negligence and what can be regarded as negligent conduct on the part of a driver, especially in the situation of entering a robot-controlled intersection. I do not deem it necessary to undertake an analysis of these cases because the fact of the matter is, the respondent’s evidence on this aspect stands uncontested. She was stationary at a red robot and only proceeded into the robot controlled intersection when an arrow flashing green signalled for her to turn right. This would logically mean that traffic approaching her from the opposite direction would have been brought to a halt by a red robot allowing her to turn across the intersection in front of the now stationary traffic.

[18] The appellant alleges that the plaintiff was negligent as she did not keep a proper look-out when entering the intersection, even though the robot was in her favour. She bore the duty to ensure that the intersection was free of traffic before entering into it. The appellant’s argument is that the respondent did not see the bakkie and only felt it collide with her. She did not even know where her vehicle was struck. It does not lie in the mouth of the appellant to contend that the respondent was negligent, as it led no evidence to gainsay her version that she was able to safely enter the intersection. In fact, her version is corroborated by that of her husband. He was asked where the respondent’s vehicle was when he arrived on the scene of the collision. His uncontroverted evidence is that the vehicle was in the intersection, already past the middle line (of traffic in the opposite direction).

[19] The front of the bakkie was extensively damaged and the front left hand side of the respondent’s vehicle was damaged. When one compares where each vehicle was damaged, it is clear that the respondent was well into the intersection when the collision

occurred. Common sense and logic dictate that the collision occurred at a time when the robot must have been red for traffic travelling in the opposite direction. The collision, therefore, occurred because the driver of the bakkie did not heed the red robot and entered the intersection without having the right of way to do so. The collision does not appear to be what is commonly referred to as a “fender bender” where moderate damage is caused to both vehicles. The force of the collision must have been quite considerable to cause the airbags of the respondent’s vehicle to deploy and for her vehicle to have moved to the extent that it was almost facing the hospital situated on her right hand side. In my view, it is not unreasonable to infer that the driver of the bakkie must have entered the intersection at a high speed, which was negligent, unreasonable and inappropriate in the circumstances. In addition, he was not keeping a proper look-out and entered the intersection, ignoring the red robot which required him to stop.

[20] In the face of such evidence, the appellant failed to lead any evidence at all, in spite of its witnesses being available to

testify. In my view, the failure to do so and to rebut the respondent’s version of events, justified the trial court’s

finding the appellant was 100 % liable for the respondent’s damages. The manner in which the appellant chose to litigate in this matter is frowned upon. It pursued litigation well knowing that it had presented no evidence to counter the respondent’s version. It’s vigorous argument in an attempt to convince the court that the respondent was negligent because she said she did not see the appellant’s vehicle prior to the collision, is both opportunistic and appears to be a desperate attempt to compensate for the error of not leading any evidence at the trial. The trial court’s assessment regarding the credibility of the respondent and her husband as witnesses cannot be faulted, and its findings in that regard are supported.

[21] The appellant relies on the cases of Bezuidenhout NO v Eskom 2003(3) SA 83 (SCA), also reported at [2003] JOL 10401 (SCA), and Minister of Law and Order v Ngobo 1992(4) SA 822 (A), in support of its argument that the respondent failed to prove the essential elements to establish vicarious liability, namely:

21.1 that the person who committed the delict was an employee of the defendant;

21.2 that the employee performed the delictual act in the course and scope of her or his employment;

21.3 the scope of the employees duties at the relevant time.

[22] Bezuidenhout’s case dealt with the employee, Oelofse, who was employed to do electrical work, giving an unknown person (Roux) a lift, despite the strict instructions of his employer not to give lifts to any persons without the permission of his superiors. Oelofse negligently fell asleep, and was involved in an accident. Roux suffered serious injury, including brain damage. The court in essence found that Oelofse was not acting within the course and scope of the job he was employed to do, thus exonerating the employer from liability. In the Ngobo matter, two off-duty policemen in plain clothes became embroiled in an altercation with three other males who were strangers. Both

policemen drew their service firearms and fired five shots. The deceased was killed as a result. An action for damages was brought

against the Minister of Police on the basis of vicarious liability, which was granted in the trial court. On appeal, the court found that the two policemen were off duty, did not at any stage purport to be engaged in any police work, and they unnecessarily resorted to the use of firearms in an equally unnecessary altercation with strangers. They were in no sense engaged in the affairs of their employer and the only connection to their work is the use of their revolvers issued to them by the employer. On this basis, the appeal of the Minister was upheld, the court finding that the Minister ought not to have been held liable for the acts of the policemen.

[23] The reliance on those two cases by the appellant in this matter, in respect of vicarious liability, is not understood. In both those matters, evidence was led by both parties, and based on such evidence, the respective courts found that the employee/s in each case did not act in the course of their employment or in furtherance of their employer’s business. The appellant, in its Supplementary Heads of Argument embarked on a long discourse about an employee acting contrary to his employer’s instructions,

engaging in a frolic of his own and not doing what he was employed to do. This does not avail the appellant, as it failed to lead any evidence in rebuttal of the respondent’s version and in support of its denial that the driver was employed by it and acted in the course and scope of such employment. The court a quo had only the evidence of the respondent and her husband before it. For the reasons I have set out above, the only inference that could have been drawn in this matter is that Mr Ramokoatsi was employed by the appellant and drove the appellant’s vehicle in the course of his employment with the appellant. The assertion by the appellant that these two cases have overtaken the matter of Voortrekker Apteek or for that matter the Venter matter, which applied the principle formulated in Voortrekker, is incorrect.

[24] As I indicated, it is indeed regrettable that the court a quo failed to embark on a more detailed and thorough examination of the issues relating to vicarious liability and making a pertinent finding in that regard. That is not to say the trial court did not consider it. In paragraph [26] of the court’s judgment it finds “that the defendant or any person associated with the defendant was negligent on the day in question…”. As indicated this court is entitled to intervene in such a case to ensure that justice prevails. With regard to the issue of negligence

and the locus standi of the respondent, it is clear that the trial court considered these issues and, albeit not very elegantly worded, did make the correct finding. With regard to the appellant’s contention that the respondent had not proved the grounds of negligence pleaded in her summons, I have alluded to the conduct of the appellant’s driver in entering the intersection at what appears to be a high speed, against a red robot and causing the collision. In my view such conduct falls within the ambit of the grounds of negligence pleaded by the respondent.

[25] With regard to the appellant’s counterclaim, I note that the dismissal thereof by the trial court was not raised as a ground of appeal. The appellant raises it in its Heads of Argument on the basis that its counterclaim should not have been dismissed as it could, on the same set of facts also be found that there may have been 1% negligence on the part of the respondent. The court a quo did have to make a finding on the counterclaim and did so, correctly, in my view. The defendant has failed to establish negligence on the part of the respondent as it failed to lead any evidence in support of its version, and consequently has failed to prove its counterclaim. With regard to costs which the trial court apparently ordered to stand over for later adjudication, this court is not in a position to grant that order as the facts surrounding that order are not before this court.

ORDER

[26] In the circumstances, the following order is made:

1. Appeal is hereby dismissed with costs.

_____________________

NAIDOO, J

I concur

_______________________

MAJOSI , AJ

On behalf of Appellant: Adv. C Snyman

Instructed by: Phatshoane Henney Attorneys

36 Markgraaff Street

Westdene

Bloemfontein

(Ref:UN1-PH/0161/MLO/ew)

On behalf of Respondent: Mr HF Fourie

Instructed by: Botha & Sutherland

c/o Jacobs Fourie Attorneys

158A Zastron Street

(Ref: BOT3/0006)