- March 28, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PRACTICE – VICARIOUS LIABILITY – PUBLIC POLICY CONSIDERATIONS: EMPLOYER RESPONSIBLE FOR ACTION OF EMPLOYEE EVEN WHEN EMPLOYER WOULD NOT APPROVE ACTION AND HAS NOT COMMITTED WRONG ITSELF
Masshire Equipment Services (Pty) Ltd trading as Coastal High Ongwendiva v Shimbundu NAHCMD (28 March 2023)
The plaintiff is, Masshire Pty (Ltd) trading as Coastal Hire Ondangwa, a private company with limited liability which is incorporated in Namibia. The company is in the business of hiring out tools and equipment. The first defendant is a certain Mr. Mathias Shimbundu who, at the time when the events which gave rise to the plaintiff’s claim arose, was employed by China State Construction Engineering Corporation (Southern Africa) (Pty) Ltd and Kata Investments CC Joint Venture, which is the second defendant in this action.
The third and fourth defendants are a certain Mr. Gong Shuai and a Mr. Zhang Shuang Shuang, respectively. They, like the first defendant, were employed by the joint venture company at the time when the events that gave rise to the plaintiff’s claim arose. The third and fourth respondents are peregrine of this court, and it appears that they relocated to China and although they filed witness statements, they did not participate at the trial of this matter.
During February 2016, the plaintiff commenced proceedings out of the High Court by issuing summons against the four defendants in terms of which it claimed an amount of N$1 903 513,25. Some thirty months later, that is during August 2018, Coastal Hire Ondangwa also issued summons against Mr. Mathias Shimbundu and China State Construction Engineering Corporation (Southern Africa) (Pty) Ltd and Kata Investments CC Joint Venture, in terms of which it also claimed the amount of N$1 903 513,25 from the two defendants. On 3 September 2018, the two cases were consolidated by order of court.
During the year 2015, the second defendant had tendered to construct roads in the Northern part of Namibia. The second defendant, in the execution of its job, required construction tools and equipment. To that end, the second defendant approached Masshire during February 2015 and concluded a ‘Facility Hire’ agreement. In terms of this agreement, the second defendant, on credit, hired tools and equipment from Masshire. Pursuant to the ‘Facility Hire’ agreement, Masshire leased a caterpillar 930K EYE 00486 front-end loader to the second defendant. The allegations of plaintiff were that on 12 July 2015 at approximately 12h30 at a construction site near Onakalunga, Mr. Shimbundu, whilst acting during the course and within the scope of his employment with China State Corporation and in the furtherance of the interests of China State Corporation, negligently allowed a certain Mr. Simeon Ndeunyema to take possession of Coastal’s caterpillar and to operate it, whilst he (Mr. Simeon Ndeunyema) was neither employed by Masshire nor qualified to operate the caterpillar. Mr. Ndeunyema drove the caterpillar to a nearby oshana in order to clean its bucket. Whilst he was in the process of cleaning the caterpillar’s bucket and whilst the caterpillar was unmanned, it moved into the oshana and as a result was covered in water.
Masshire, furthermore alleged that the sole cause of the front-end loader moving into the oshana was the negligence of Mr. Shimbundu in that he gave access and control of the caterpillar to an unqualified person not employed by Masshire. As a result of Mr. Shimbundu’s negligence, Coastal’s caterpillar was damaged beyond economical repair and as a result.
Masshire’s claim against China State Corporation was based on the contention that China State Corporation is vicariously liable, jointly, and severally, with Mr. Shimbundu for the payment of the amount of damages Masshire allegedly suffered. Masshire, in the first alternative, claimed the amount of N$1 903 513,25 from China State Corporation on the basis that China State Corporation, duly represented by Mr. Zhang, allegedly had an arrangement with Mr. Ndeunyema whereby Mr. Ndeunyema, with permission and knowledge of China State Corporation, practiced on and operated Coastal’s caterpillar from time to time, whilst he was neither employed by Masshire nor qualified to operate the caterpillar.
The defendants, however, denied that the cause of the submergence of the caterpillar in water was the negligence of Mr. Shimbundu. The defendants in turn contended that the employee of Masshire, who in his capacity as operator of the caterpillar, appointed by Masshire, was in control of the caterpillar, and negligently left the keys of the caterpillar in the caterpillar. The defendants continued and pleaded that Mr. Ndeunyema, without the authority of anyone of the defendants or its employees, drove the caterpillar to the Oshana where it was submerged in water. The defendants furthermore pleaded that the said Mr. Ndeunyema was an employee of an engineering company known as VKE Engineering which was a subcontractor of China State Corporation on a project for the construction of a tar road east of Eenhana. The defendants thus contended that the person appointed by Masshire, to be in charge of the caterpillar, was negligent in allowing Mr. Ndeunyema to take control of the caterpillar. The defendants further denied the existence of an arrangement whereby Mr Ndeunyema would practise on Coastal’ s caterpillar.
In light of the pleadings and the facts that were not in dispute between the parties as per the pre-trial order, UEITELE J had to determine the issue of whether Mr. Sheepo or Mr. Shimbundu was negligent by allowing Mr. Ndeunyema to operate or drive the caterpillar. In order to answer this question, the court had to consider the evidence presented by the parties and the applicable legal principles.
Having summarized the evidence, the court stated the applicable legal principles that:
The plaintiff’s claim was based on an allegation of negligent conduct on the part of Mr. Shimbundu and Mr. Ndeuyema.
‘[44] It is a well-established principle of our law that the plaintiff always bears the onus to, on a balance of probabilities, prove negligence on the part of the defendant (Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (AD) at 576G). This proposition must, however be clarified as stated by the Supreme Court in Motor Vehicle Accident Fund of Namibia v Lukatezi Kulobone (Case No SA 13/2008, at 16 – 17, para 24) unreported judgment delivered on 09 February 2009, that even where there is no counterclaim but each party alleges negligence on the part of the other, each such party must prove what it alleges.
[47] As our law does not recognize negligence ‘in the air’, it is well established that the issue of wrongfulness must be determined anterior to the question of fault (Rose Lillian Judd v Nelson Mandela Bay Municipality Case No. CA 149/2010). The element of fault is only capable of being legally recognized if the act or omission can be termed as legally wrongful. In the absence of wrongfulness, the issue of fault does not even arise (Administrateur, Transvaal v van der Merwe 1994 (4) SA 347 (A) at 364). These are two separate and distinct elements of the same delict, each requiring its own test and approach, and not to be confused or conflated. (Also see Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 441E – 442B (para 12).
[49] In Kruger v Coetzee 1966 (2) SA 428 (A) at 431, Holmes JA formulated the test for negligence as follows:
‘For the purposes of liability culpa arises if:
(a) A diligens paterfamilias in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.’
[50] In Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 (SCA); [2000] 1 All SA 128 (A) para 21, Scott JA stated that, dividing the issue of negligence into various stages, however useful, was no more than an aid or guideline in resolving the issue: in the final analysis the true criterion for determining negligence was whether in the particular circumstances the conduct complained of fell short of the standard of the reasonable person. There is no universally applicable formula which would prove to be appropriate in every case.
[51] After analysing the authorities on the question of wrongfulness, J R Midgley and J C van der Walt, 15 Lawsa 3 ed at 284 para 155, made the following observation:
‘When assessing negligence, the focus appears to have shifted from the foreseeability and preventability formulation of the test to the actual standard: conduct associated with a reasonable person. The Kruger v Coetzee test, or any modification thereof, has been relegated to a formula or guide that does not require strict adherence. It is merely a method for determining the reasonable person standard, which is why courts are free to assume foreseeability and focus on whether the defendant took the appropriate steps that were expected of him or her.’
[52] In the present matter, both Messrs Van Zyl (who appeared on behalf of Masshire) and Vaatz (who appeared on behalf of Mr. Shimbundu and China State Corporation) agree, and in my view correctly so, that the conduct of Mr. Ndeunyema (by driving Coastal’s caterpillar into the oshana) was wrongful, in that Mr. Ndeunyema ought to have reasonably foreseen that his driving of Coastal’s caterpillar may cause Masshire some harm, but he did not take the appropriate steps that were expected of him to prevent the caterpillar being submerged in water, which ultimately caused Masshire damage (harm) and was therefore negligent. They, however, do not agree on whether Mr. Shimbundu was negligent.
[54] I am of the view that, in view of the fact that Mr. Ndeunyema’ s negligence has been established, the question of whether or not Mr. Shimbundu was negligent is irrelevant and the question that needs to be answered is whether China State Corporation can be held to be vicariously liable for the negligence of Mr. Ndeunyema.’
In respect of vicarious liability that:
‘[55] Vicarious liability is the legal principle that an employer can be responsible for the action of its employee, even when the employee has committed an action that the employer would not approve of, and where the employer has not committed any wrong itself. In these cases, liability can be imputed onto the employer if certain conditions are met. The faultless liability of an employer originates from Roman law and is founded on considerations of public policy (Feldman (Pty) Ltd v Mall 1945 AD 733 at 762).
[57] The test for vicarious liability comprises of two components. First component is, whether there is a relationship between the employer and the wrongdoer (Van der Merwe-Greeff Inc v Martin and Another 2006 (1) NR 72 (HC), and secondly, the key question being “was it a wrongful act authorized by his employer or a wrongful and unauthorized mode of doing some act authorized?” In other words, was there sufficient connection between the wrong committed and the employee’s employment, role and duties such as to make it fair to hold the employer vicariously liable? (Nghihepavali v Ministry of Agriculture Water and Forestry [2016] NAHCNLD 51 (I 26/2014; 30 June 2016).’
The court applied the law to the facts and concluded that:
[62] I am therefore satisfied on a balance of probabilities that the driving of Coastal’s caterpillar by Mr. Ndeunyema at the time of it being submerged under water was sufficiently connected to the purpose of Mr. Zhang’s engagement and the scope of his employment in the service of China State Corporation. I am further satisfied that China State Corporation is vicariously liable for the delict of Mr. Ndeunyema, even though Mr. Ndeunyema was not employed by China State Corporation.
[63] There are no compelling reasons relating to social policy or the tenets of fairness militating against such liability. On the contrary, the circumstances are so compellingly in favour of the conclusion that Mr. Zhang’s instruction on that Sunday, 15 July 2015, is related to the purpose of his employment that, even if it is Mr. Ndeunyema who ended up operating the caterpillar, Mr. Zhang nevertheless continued to act in the interest of China State Corporation’s business at the time.
The court, therefore held that:
- The court is satisfied, on a balance of probabilities, that the second defendant is vicariously liable for the damages caused to the caterpillar.
As a result, the second defendant was ordered to pay to the plaintiff the amount of N$1 903 513, 25 plus interest at the rate of 20% per annum on the above amount reckoned from 29 March 2023 to date of payment. The second defendant was further ordered to pay the plaintiff’s costs of suit, such costs to include the costs of one instruction and one instructed counsel.
Masshire Equipment Services (Pty) Ltd trading as Coastal High Ongwendiva v Shimbundu ((I) 234-2016) 2023 NAHCMD 150 (28 March 2023)