Feldman (Pty) Ltd v Mall

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Davis AJA and Fischer AJA
• Judgment Date: 07 August 1945
• Hearing Date: 27 March 1945
• Court: Appellate Division

Watermeyer, C.J.:

This is an appeal from a decision of SCHREINER, J. The plaintiffs in her capacity as mother and natural guardian of her minor children, sued the defendant on their behalf in the Witwatersrand Local Division for a sum of £2,500 damages, alleged to have been suffered by them in consequence of the death off their father Mohamed Manack. She alleged that Manack was killed by a motor car negligently driven by one Balovi, defendant's servant, who was driving the car in the curse of his employment.

Baloyi's negligence was admitted and the question which the trial Court was asked to decide was whether the defendant was legally responsible for Manack's death. The learned Judge held that the defendant was legally responsible and made a declaration that the plaintiff was entitled to recover on behalf of her children any loss they might have suffered.

The facts of the case are fully set out in a passage from the reasons of the learned Judge, which is quoted in the judgment of my brother GREENBERG, and it is unnecessary for me to repeat them.

It is clear that the relationship between the defendant and Baloyi was that of a master and servant and the defendant's liability depends upon the extent of a master's vicarious responsibility for the acts of his servants. In several decisions of this Court (e g., Mkize v Martens (1914 AD 382); Estate of van der Byl v Swanepoel (1927 AD 1.41); Colonial Mutual Life Assurance Society v Macdonald (1931 AD 412) and Union Government v Hawkins (1944 AD 556) the general principle has been accepted that a master is liable for harm caused to third parties by the

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wrongful acts of an agent if such agent is a servant and if such acts are done in the exercise of the functions to which the servant has been appointed. It is, therefore unnecessary to discuss the question whether this principle applies in Roman-Dutch Law to masters and servants in general or whether it should have been limited, as some writers contend, to certain specific cases of masters and servants. But, accepting the general principle, the difficulty remains of deciding in each particular case whether the act causing harm was or was not an act which the servant performed in the exercise of the functions to which he was appointed.

In English law a master is legally responsible for the wrongful act of his servant if such act is done "in the course of his employment" or, as the principle is sometimes expressed, if such act is "within the scope of his employment". There are passages in the reasons of all the learned Judges who gave judgment in the case of Mkize v Martens (supra) which, either expressly or impliedly, state that our law on the subject of a master's legal responsibility for the wrongful act of his servant is the same as the English law; but the expression "scope of employment" is apt to be misleading, unless one is alive to the fact that the words "scope of employment" are not equivalent to "scope of authority". One is apt, when using the expression "scope of employment" in relation to the work of a servant, to picture to oneself a particular task or undertaking or piece of work assigned to a servant, which is limited in scope by the express instructions of the master, and, to think that all acts done by the servant outside of or contrary to his master's instructions are outside the scope of his employment; but such a conception of the meaning of "scope of employment" is too narrow. Instructions vary in character, some may define the work to be done by the servant, others may prescribe the manner in which it is to be accomplished; some may indicate the end to be attained and others the means by which it is to be attained. Provided the servant is doing his master's work or pursuing his master's ends he is acting within the scope of his employment even if he disobeys his master's instructions as to the manner of doing the work or as to the means by which the end is to be attained. A servant may even omit to do his master's work, and if such omission constitutes a negligent or improper performance of his master's work and causes damage, the master will be legally responsible for such damage.

Consequently, a servant can act in disobedience of his master's instructions and yet render his master liable for his acts.

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In the case of Estate van der Byl v Swanepoel (1927 AD 141, at p. 151) DE VILLIERS, J.A., pointed this out when he said:

"The English cases are, however, not easy to reconcile, chiefly, I venture to think, because it has not always been clearly realised that no authority, express or implied, for the act complained of is necessary to render the principal liable, provided the agent was acting in the service to which he had been appointed. This statement of the law at once rules out Mr. Fagan's argument that for the principal to be liable the act must have been authorised either expressly or by implication, though it must be admitted there are many expressions in the English cases which lend colour to his argument. Whether the act then was done in the affairs or the business of the master to which the servant had been appointed is a question of fact in every case, and can only be answered by determining what was the business of the master, or viewed from a different angle, what was the servant's employment."

Our law on the subject of a master's liability for his servant's acts is the result of a long historical development. In Roman Law specific cases existed in which, upon the grounds of public policy, the praetor by legislation imposed legal responsibility upon certain types of masters for the wrongful acts of certain types of servants. It followed almost inevitably, from an application of the method of extensive interpretation of a legislative enactment, that is of extending the specific provisions of the law to analogous cases, strictly outside of its provisions but regarded as being within its intendment, that other types of masters and servants should be p brought within the ambit of responsibility. An example can be seen in Dig. (14.3.5), where. UIpian, in dealing with the praetor's edict relating to institores, who are factors or commercial agents, extended the meaning of institor, to cover any one appointed to do any business, e.g., the manager of a block of Hats or a muleteer, and he mentions the fact that Labeo thinks that an action on the lines of the Institorian action, as well as the actio furti and the actio injuriarum, should be given against an undertaker, who has employed a slave to embalm a corpse, if the slave robs the corpse.

These exceptional Roman Law cases were instances of true vicarious liability, not dependent upon any fault of the master, and the master could not escape liability by proving absence of fault. The reason for making a master responsible in the absence of fault was naturally discussed by the juris-consti. Its and there

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are several passages in the corpus Juris dealing with this point.

Some of them (e g., Inst. 4-5-3) say that he is in some sense guilty of culpa (aliquatenus culpae, reus est) for having made use of an incompetent servant. Others do not make a point of any culpa on the part of the master, but merely make him responsible because he employed servants to do his work and it is reasonable that he should be responsible for their acts. For example, Dig. (4-9-7) where Ulpian says (Munro's translation): "The exercitor is bound to answer for the behaviour of all his seamen, whether they be slaves or free, and it is quite reasonable that he should be answerable for their behaviour as he employed them at his own risk."

When we come to Roman-Dutch Law we find that some writers, e.g., Voet (9-4-10), whose views have been accepted by this Court, have generalised the specific Roman Law cases into a general rule that all masters are responsible for the wrongs done by their servants "in officio aut ministerio cui... domino fuerunt praepositi". But the reason why masters should be held to be responsible eludes most of the writers. A number fall back upon the hoary explanation of culpa in eligendo which is not a satisfactory reason, because, if that were the basis of the master's responsibility he should escape liability if be could prove that he had exercised care in the selection of his servants. In some continental systems this is what occurs (see Barlow, Vicarious Liability, Chap. II). Voet is often regarded as one of those who give culpa in eligendo as the reason (see per SOLOMON, J.A., in Mkize v Martens (1914 AD p. 394). But it is not clear to me that Voet, when he uses the words "cum, his imputandum sit quod negligentium aut malignorum operas ministerio certo aut officio addixerint", means that the master is in culpa in entrusting his Work to incompetent servants. Does he not mean simply that the master is responsible because the assignment of the work to an incompetent or untrustworthy servant was his act?

The question as to the real reason why a master, who is not in any way at fault, should be held responsible for the harm done by his servants in the execution of his work, has also been the subject of much discussion in English and American Law Macdonell in appendix A to Chapter 24 of his book on Master and Servant has collected seven different reasons which have been given from time to time. He seems to favour the view that the policy of the law is to make the master absolutely responsible in order.

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to make him careful in the choice of his servants and to make him exercise a proper supervision over the performance of his work. (See also Street, Foundations of Legal Liability, vol. 2, Ch. 43; Pollock, Essays in Jurisprudence No. 5.)

In the English case of Barwick v English Joint Stock Bank (2 Ex. 259), WILLES, J., at p. 265, dealing with a servant's wrongful acts not authorised by his master, said: "In all these cases it may be said, as...