Romansrivier KoöPeratiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd

• Jurisdiction: South Africa
• Judge: van Deventer J
• Judgment Date: 10 March 1992
• Court: Cape Provincial Division

Van Deventer, J.:

The plaintiff claims damages from the defendant in an amount of R122 041,02, alternatively R120 758,62. The claim arises from the damage caused to a Velo filter plant, an installation in the D plaintiff's wine cellar at Wolseley, on 30 March 1988 when a lorry belonging to the defendant was reversed into the cellar and collided with the filter plant.

Particulars of the claim and its compilation will be set out later in the judgment.

Although a number of alternative averments were contained in the E plaintiff's pleadings, the claim was eventually at argument stage founded solely on the averment that the damage to the filter plant was caused by the negligence of an employee of the defendant, one Joseph Mvimbi, acting within the course or scope of his employment when he attempted to facilitate or expedite the off-loading of a lorry load of filter powder in plaintiff's cellar.

F In particular it was contended on behalf of the plaintiff that Mvimbi was negligent in that he allowed the defendant's lorry, with its load of drums with filter powder, to run backwards into the cellar and failed to stop it in time or to take other appropriate action to avoid a collision.

There was no factual dispute between the parties in regard to the G merits. The defendant conceded that the filter was damaged in the manner set out above, that Mvimbi was in its employ and that the damage was due to his negligence.

Defendant pleaded however that Mvimbi at the time of the collision acted outside the authority and scope of his employment and that he 'did not H possess the special skill, knowledge and qualifications necessary to drive the truck'.

The defendant's case was that the scope of Mvimbi's employment was limited to that of a 'truck guard', ie an assistant to the truck driver in loading and off-loading operations.

The undisputed facts were as follows according to the evidence:

I The defendant manufactures filter powder which is packed in drums and sold to customers like the plaintiff who make use of mechanical filters (of which there are various types and makes on the market) in wine-making and fruit juice extraction processes.

The consignment of filter powder on the lorry, as ordered by plaintiff, had to be off-loaded and placed just behind the filter installation, which J was bolted to the concrete floor of the cellar.

Van Deventer J

A Photographs of the filter and the damage thereto were handed in. The Velo filter consisted of a square open container, roughly the size of the body of a one ton bakkie, with a large rotating cylinder above it. The rotating drum, which is covered with filter cloth or gauze, is driven by an electric motor in combination with a speed reducing gearbox and other accessories.

B Mr Joseph Mvimbi had been in the defendant's employ at its Cape Town branch for quite a few years before the accident as a 'truck guard' and he is still so employed. This is the description of his post in a document headed 'Job description' and handed in from defendant's records as exh J.

C According to the 'Job description', his post falls within the defendant's transport department and his duties as a 'truck guard' comprise mainly the loading and off-loading of orders. Specifically in regard to off-loading, the following directions appear in the 'Job description':

D 'Off-loading of orders

'4.1

Ensure that courtesy is shown to customers at all times.

4.2

Off-load orders in area specified by customer.

4.3

Off-load goods as stated by driver.'

Under the heading 'Person specification' the following details appear:

'1.

E Education

Essential: Read, write and count.

Preferred: Std 8.

2.

Experience

Preferred: Be able to drive a fork lift.

3.

Other requirements

Be physically fit and strong, neat appearance and well-spoken.' F

Mvimbi fitted these requirements and also worked as a fork-lift truck driver on defendant's premises. He did not have a heavy vehicle driver's licence and he was therefore not allowed to drive lorries. The operation of a fork-lift truck entails starting, acceleration, braking, steering and positioning but, as it only has a reverse and one forward gear, it is in G this respect easier to drive than a truck, according to Mvimbi's employer.

On the other hand, the driver of a fork-lift truck also has to operate the loading fork, the vertical and horizontal movements of which are controlled with levers in the driver's cabin.

On the day of the accident, Mvimbi accompanied a temporarily hired H driver of the delivery truck, in the absence of the regular driver who was on leave.

They arrived at plaintiff's cellar during the lunch break. The driver reversed the truck into the driveway leading to the cellar door and parked it near the entrance of the cellar with the rear wheels on a down-grade towards the cellar door. I

He then absented himself from the lorry and when the plaintiff's staff returned from lunch shortly before 14:00, they found only Mvimbi, whom they knew well from previous deliveries, near the truck. A member of the plaintiff's staff, Mr Smit, then told Mvimbi that 'they' should bring in the truck and get the off-loading done, whereupon Mvimbi said that he J would go and find the driver.

Van Deventer J

A The usual procedure was to reverse the truck through the door into the cellar and to park it near the filter, as the drums of filter powder were always off-loaded and placed on an area immediately behind the filter plant. However, instead of going off to look for the driver, Mvimbi walked to the truck and climbed in behind the steering wheel. He did not start B the engine, but apparently released the parking brake and/or disengaged the gears, for the truck started to run backwards toward the cellar entrance. Although Mvimbi apparently had no problem with keeping it on course and steering it through the door, he failed for some unknown reason to stop it in time and its rear side collided with the filter plant. The truck then came to a stop, but the force of the collision had pushed the C filter plant off and away from its mountings and severely damaged its driving mechanism and other accessories.

Although Mvimbi is still in the defendant's employ as a fork-lift driver, he was not called to testify in regard to the actual cause of the collision.

D Although there was no evidence that Mvimbi had been specifically forbidden to do what he attempted to do on the day of the accident, there was evidence on behalf of defendant that Mvimbi did not have a heavy vehicle driver's licence and that to his employer's knowledge he had never driven a truck on defendant's premises and would have been well aware of the fact that he was not authorised to drive a truck.

E On these facts, Mr Marais contended, the defendant could not be held liable for the damage done by Mvimbi.

Counsel for defendant relied primarily on cases such as Estate Van der Byl v Swanepoel 1927 AD 141 and South African Railways and Harbours v Albers and Another 1977 (2) SA 341 (D).

F The facts in the latter case were that the delict complained of was committed by an employee who, contrary to a specific prohibition, detached himself from his regular work and took it upon himself to drive a breakdown vehicle used in a specialised division of his employer's business in which he was not employed at all.

G SAR & H v Albers is clearly distinguishable on the facts from the instant matter.

I am fully in agreement with the statement of Greenland J in Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1991 (2) SA 441 (ZH) at 444B that it is apparent from a reading of all the precedents relied on by Leon J in SAR & H v Albers that the Court H

'. . . in each instance, was concerned with a situation where the employee physically leaves what he is actually employed to perform and embarks on a different unauthorised venture or class of endeavours requiring different skills or qualifications'.

I Mr Marais also referred to the following passage in Van der Merwe and Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 5th ed at 516:

'Indien die dienskontrak die pligte van die werknemer tot A beperk, maar laasgenoemde op eie inisiatief besluit om ook taak B ten behoewe van die werkgewer uit te voer, sal die werkgewer nie aanspreeklik...