Estate Van der Byl v Swanepoel

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA, Kotzé JA, Wessels JA and Stratford AJA
• Judgment Date: 29 October 1926
• Citation: 1927 AD 141
• Hearing Date: 15 October 1926
• Court: Appellate Division

Wessels, J.A.:

On February 21st, 1925, J. A. Swanepoel, the respondent, and his minor, son were driving with his cart and two horses on the main road from Somerset West to the Strand when a motor car belonging to H. L. N van der Byl bumped into the back of the cart and seriously injured Swanepoel, The motor car was being driven at the time by one Geldenhuys a taxi driver in the employ of van der Byl. Act ions for damages were instituted in the magistrate's court at Somerset West by J. A, Swanepoel and his minor son and these actions were consolidated. The plaintiffs were awarded damages. From this judgment there was an appeal to the Cape Provincial Division where the judgment of the magistrate was upheld We are asked to reverse both these judgments. It is admitted by Mr. Fagan on behalf of the appellant that Geldenhuys' the driver of the motor car was negligent and that Swanepoel sustained damage but he contended that the latter was not entitled to obtain satisfaction from van

Wessels, J.A.

der Byl (or since he has become insolvent from his insolvent estate) because the accident did not occur while Geldenhuys was engaged on the business of van der Byl, but at a time when he was acting outside of his mandate and against the special instructions of van der Byl. It appears from the evidence that van der Byl is the owner of several taxi cars end that he carries on a taxi business at Gordon's Bay but has no licence to run taxi cars in the, adjoining municipality of Somerset Strand. Van der Byl's drivers, however, were ordered to take passengers from the Strand railway station to Gordon's Bay and vice versa. A part of the road from Gordon's Bay to the Strand station runs through the Strand municipality. It appears that the Strand municipality had no objection to van der Byl running his cars over their roads provided he did not ply for hire within the municipality of the Strand. In consequence of this van der Byl gave all his drivers (Geldenhuys therefore included) special instructions that although they might carry passengers between Gordon's Bay and the Strand station, they were on no account to convey passengers from the Strand to the railway station or vice versa or to convey passengers from one point to another within the Strand municipality. It was only in case of a passenger requiring something at the Strand that they could deviate from these instructions. Now on 21st February van der Byl told Geldenhuys to take three passengers from the hotel at Gordon's Bay to the Strand station and there to await the 6.50 p.m. train for return passengers. He did so and whilst waiting at the station a mason named Rhode together with a companion urged him to take them to a place called Halfway within the Strand municipality. He at first refused, but on being told by Rhode that he wanted to get to his house because there was someone ill, he consented. He took the two passengers but at their request stopped before he reached the Halfway. He accepted their fares on behalf of his master, and on his return to the station he collided with Swanepoel's cart, on the main road between the Strand and the station. It wag suggested that Geldenhuys had gone to the Strand for a drink and that the accident occurred upon his return to the station, but there is no proof of this nor is there is any proof that Geldenhuys was drunk at the time.

The Halfway is in the opposite direction to the road leading to Gordon's Bay and both the Halfway and the road thence are in the Strand municipality.

Wessels, J.A.

Mr. Fagan has urged us to set aside the judgment in the lower court on the ground that the learned Judges erred in holding that, in the face of van der Byl's instructions to his taxi drivers, Geldenhuys was acting in the course of or within the scope of his employment. Mr.Fagan's contention is that in as much as Geldenhuys had definite special instructions not to ply for hire within the Strand municipality, and so break the Strand bye-laws, and not to undertake any trips without his (van der Byl's) special permission but when on that route, to confine his activity to driving passengers from Gordon's Bay to the Strand station, therefore Geldenhuys was not on his master's business and was not acting in the course of or within the scope of his employment when the accident occurred. He wants us to hold that a master is only liable for the negligence of his servant so long as tile y latter is acting within his function and that this function can be limited by the master both as regards place, purpose and time, that the master can only be held liable so long as the servant is engaged in doing something which he was expressly or impliedly authorised to do. He asked us not unduly to enlarge the servant's implied authority but to limit it to cases of necessity to those cases where it may reasonably be inferred that the master would have given such authority had he himself been there when the act complained of was done.

(1) There is no doubt that according to our law a master is liable for damage caused to a third party by the negligence of his servant when the servant is clearly acting wholly within the scope of his authority, or in other words when the servant is doing exactly what his master told him to do (Voet 9.4.10.).

(2) It is also quite clear that a master is liable to third parties for damage caused by the negligence of his servant when the latter does something which is reasonably necessary to carry out his master's orders Mkize v Martens (1914 AD 382).

(3) When, however, we come to consider whether a master is liable to third parties for the negligence of his servant when the latter does an act in the course of his employment but not reasonably necessary to carry out his orders, then two divergent views may be considered. We may either adopt the view that the master's liability to third parties must be so narrowed down that he will then and then only be liable for the tortious act of

Wessels, J.A.

his servant when the latter is carrying out the exact instructions of his master, or was engaged in an act which was reasonably necessary to carry out those instructions, or else we may adopt a wider interpretation of a master's liability and hold that the master is liable to a third party whenever the servant does an act which strictly speaking falls outside of the special instructions of the master and also outside of what was absolutely necessary to carry out those instructions but which was done whilst the servant was engaged in the affairs of his master, or in the course of the employment to which the servant was appointed. Admonendi sumus dominos in solidum teneri ex delicitis famulorum quoties...