IN THE HIGH COURT OF LESOTHO
In the matter between:
MS MASHOLOGU APPELLANT
MOSIUOA MOKHOTHO RESPONDENT
Delivered by the Honourable Justice Mr. G. N. Mofolo on the 28th day of November 2001
The facts of this are that vehicle AA562 belonging to and the property of the 1 st defendant (The appellant) got involved in an accident with vehicle A0114 the property of the plaintiff (the respondent). At the time of the accident AP562 was driven by the 2nd defendant at the trial.
In his evidence the 1st defendant (now Appellant), testified that he took his vehicle for repairs to self employed mechanics at the Industrial Area and the 2nd defendant was one of the mechanics. 2nd defendant and one Mpho having failed to fix the vehicle the 1stdefendant has asked 2nd defendant and Mpho to drive the vehicle across the road to Xavi's Auto Electrics and they had done so. 1st defendant had gone to collect the vehicle but the repairers had said it was not ready. According to the 1st defendant.
'On Saturday 2nd defendant come to my residence driving the same vehicle. I told him to take the vehicle to the auto electrician's house because it had not been released by them and I had not paid for it. On Sunday at about 9 a.m. the 2nd defendant phoned my place, telling me that he had had an accident at Ha Thetsane. I asked him what he had been doing at Ha Thetsane when I instructed him to take the vehicle to auto electrics. He said he was on his private business at Thetsane and that he was ready to pay for the repairs on both vehicles' (p.24)
I have no doubt in my mind that the 1st defendant (now appellant) has correctly stated the position both before and after the accident.
In his judgment the learned Chief Magistrate has found:
'Consequently I find that it is possible that the initial act of driving the vehicle by the 2nd defendant may have been authorised but the subsequent driving by him had the tacit approval of the 1st defendant who raised no objection if he felt strongly about the 2nd defendant's actions. In the result the 1st defendant must be held vicariously liable for the delict of the 2nd defendant and ultimately for the damage caused to the plaintiffs vehicle as at this stage he was agent of the 1st defendant to drive the car to the garage:' (p 46).
In this court's view though and having regard to 1st defendant's evidence that 'I told him to take the vehicle to the Auto electricians .......' and 'I asked
him what he had been doing at Thetsane when I instructed him to take the vehicle to auto-electrics' there can be no doubt that even if the vehicle was lawfully in auto electrics custody and command, the 1st defendant broke this chain command by giving a fresh order to 2nd defendant (to take the vehicle to auto electrics'. If 1st defendant did not want to associate himself with the 2nd defendant's wrongful action one would have expected 1st defendant to have said to 2nd defendant: what do you want here in my vehicle, who allowed you to drive it, go away from me or words to that effect. But expecting people in a moment of crisis to be precise is asking too much of human frailty and perhaps 1st defendant can be excused for having said 2nd defendant was to return the vehicle to where he found it. This could well
have meant I am not associating myself with what you have done.
What about 1st defendant asking 2nd defendant what the latter was doing at Thetsane's when the former had instructed the latter to take the vehicle to auto electrics? Surely this cannot but mean that 1st defendant was saying that 2nd defendant had breached his express instructions. As I understood 1st defendant, he says his instruction had been for 2nd defendant to take the vehicle to auto electrics and instead 2nd defendant had gone on his frolic.
I am of the view that this appeal is to be decided on the basis that it was established in the court a quo that 1st defendant gave 2nd defendant authority to drive the vehicle back to auto electrics and that when 2nd defendant drove back after seeing 1st defendant, he was driving under 1St defendant's mandate and that the question to be decided is whether, while driving under a party's agency, the agent goes on a frolic of his own the principal is vicariously liable. On this aspect the court a quo has held that the appellant is liable for 'he merely deviated from the route he was supposed to take,' and did this not put him completely outside the scope of
The Appellant as a result of the learned Chief Magistrate's finding has appealed to this court on the grounds that:
1. The Honourable Chief Magistrate erred by finding on the evidence, that the 2nd defendant was at the time of the accident acting within the course and scope of his employment with the first defendant and
2. The Honourable Chief Magistrate erred in finding, on evidence, that there was sufficient evidence to enable him to make a finding on the quantum and misdirected himself as far as the position of the law in this regard is concerned.
So far as the above is concerned, I got the impression that in arriving at his verdict the learned Chief Magistrate relied on the concept of agency of
master and servant relationship. Mr Grundlingh relying on several
authorities has said that the learned Chief Magistrate misdirected himself for holding that 2nd defendant was, at the time of the accident, an agent of the 1st defendant; that even were 2nd defendant agent of the 1st defendant, if 2nd defendant went on a frolic of his own it could not be said that 1st defendant was liable.
I wish first to refer to exhibit C on page 67 of the record which is a police report to the effect that Morris Mashologu reported case of unlawful borrowing of a motor vehicle; the report being made on 10 September, 1997. Significantly when the report was made the incident had happened on 2 September, 1997 and I fail to appreciate the significance of the report. Exhibit D is a letter to the respondent (plaintiff in the court a quo) by 2nd defendant asking the respondent to pardon him for the collision that occurred between plaintiff's vehicle and AA562 driven by 2nd defendant and offering to repair plaintiff's vehicle. He has also said he drove AA562 without appellant's authority. He further says appellant had asked him to leave the vehicle at Auto Electricians and he had fetched the vehicle without
appellant's permission and went on a frolic of his own until he was involved in the accident.
In the first place, if 2nd defendant surrendered the vehicle to auto electrics as he says when he drove it away the vehicle was in auto electric's control and not appellant's control. 2nd defendant gives the impression that when he met the accident he had not had anything to do with appellant when, in fact, he had met the appellant who had instructed him to return the vehicle to auto electrics. 2nd defendant is deceptive as to what exactly transpired between him and the appellant. I have always insisted that letters in any language but English should be translated and expected this letter of 12 August, 1997 to have been translated when I delivered judgment.
On the second leg of the appeal, exhibit B is said to be a QUOTATION' and I will go into this later.
I have already said that I am deciding this appeal on the basis that it might seem that 2nd defendant was, on the occasion of the collision between AO114
and AA562, appellant's agent and being appellant's agent whether, in 2nd defendant going on a frolic of his own it can be said that on principles of vicarious liability appellant is liable in damages.
Mr Grundling h for the appellant has sought to draw a a distinction between master and servant relationship on the one hand and an independent contractor on the other saying while a master is vicariously liable for the acts of his servant, an independent contractor is not. Mr Grundligh has said facts in this appeal show that the 2nd defendant was an independent contractor. Undoubtedly, there was such a relationship between the appellant and 2nd defendant when the appellant sent his car for repairs by the 2nd defendant. But once the appellant withdrew the mandate from the 2nd defendant the relationship seized being overtaken by the one under which the appellant instructed 2nd defendant to return the vehicle to Auto Electrics. I am inclined to hold that on this occasion in relation to the appellant 2nd defendant, it was no more than 'a person employed on a single occasion to drive sheep to a butcher shop (R v Izaaks 26 S.C 9) though in
2nd defendant's case, there was no consideration for driving back the vehicle
to where 2nd defendant took it so that 2nd defendant was merely an agent without remuneration or reward.
With reference to the 2nd defendant, he was empowered by 1st defendant to return the vehicle to Auto Electrics. Kerr in his, The Law of Agency - 3rd Ed. at p 12 says 'agents, whether empowered or underpowered, who are not under obligation to further their principal's interest, are to this extent 'independent' and it is appropriate to describe them as 'underpowered independent agents.' Of course the 2nd defendant falls into this class for nothing obligated him to carry out 1st defendant's instructions, after-all, in coming to 1st defendant it was not at the behest of the latter. As things stand, a fresh mandate given to 2nd defendant by 1st defendant was to return the vehicle where 2nd defendant found it, but there was no obligation on 2nd defendant to return the vehicle to Auto electrics and put it in another way, it was not mandatory on 2nd defendant to return the vehicle to Auto electrics. If it was mandatory and this flowing from appellant's and 2nd defendant's contract, it stands to reason that appellant would be expected to indemnify
a third party for 2nd defendant's delicts. In this case what may be termed
empowerment pointed in one direction only: take this vehicle back to where you found it.
I take the view that there was an express mandate by the appellant allowing 2nd defendant to drive vehicle back to Auto electrics. If, in driving vehicle to Auto electrics 2nd defendant met an accident, by reason of appellant's mandate, appellant would be vicariously liable for damages. What happened in this case is that 2nd defendant deviated from the express mandate of the appellant. This case has to be distinguished from a case where the mandatory is the principal's or mandator's general courier or driver. A driver charged with the responsibility of delivering articles at point X has general mandate of the principal and if after delivering the articles goes on a frolic of his own, (they do, it's natural, they cannot be expected to go as a crow flies) it is absolutely ridiculous to say if the driver meets an accident away from the given route the mandator is not vicariously liable. But where there are no ties or relationship between the mandator and mandatory as in this case, the relationship existing only for a specific purpose, it is preposterous to say
in such circumstances if a mandatory meets an accident on a frolic of his
own the mandator would be vicariously liable.
It has been said that a mandatory is to act in good faith and as he is in a fiduciary position with his principal, he must conduct the affairs of his principal in the interest of his principal and not for his own benefit (see R v Milne and Eeleigh (7) 1951 (l)SA 791A at 828. 2nd defendant did not act in good faith and in the interest of the appellant by going on a frolic of his own and serving own interests when all that appellant desired of the 2nd defendant was to return the vehicle to Auto electrics. Moreover, this was outside the authority entrusted on 2nd defendant by 1st defendant in respect of space and time. Auto electrics is in town and Thetsane is way out of Maseru City. The learned Chief Magistrate quoting copiously from a number of sources has said that irrespective of the margin of error by the mandatory in space and time, if in carrying out the mandate the mandatory should commit a delict such as the one under consideration, the mandator will be vicariously liable. As I have said above, the case of Feldman v Mall, 1945 AS 733 in which a driver after work went on a frolic of his own is
clearly distinguishable in that the driver's mandate was an ongoing process
and not limited in time and space. In the instant case, 2nd defendant had he delivered the vehicle to Auto electrics his mandate would be at an end. Indeed if the 2nd defendant whilst driving along the route to Auto electrics had en route entered a cafe, a bar or ablutions and returning there from had met an accident, it could hardly be said that the appellant was not liable.
In Eksteen v Van Schalkwyk en n Ander, 1991 (2) SA 39 (TPA) it was held both the South African Law and common law did not recognize vicarious liability of a mandator in cases where the mandatory committed a delict in acting for the mandator. In this case a client had asked his lawyer to write a letter cancelling a contract. In writing the letter the recipients had complained that the lawyer had defamed them and as the lawyer was writing under client's instructions, the recipient had claimed against the client on the ground of vicarious liability. The court had rejected the claim saying the defendant had not instructed the lawyer to commit the defamation delict with the result that the client would not be regarded as a co-perpetrator in respect thereof. A clear case is that of a herdboy and employer. An employer's mandate to a herdboy is to take care of his herd. Of course if
the herd trespasses while the herdboy is in course of duty and within the scope of his employment the employer is liable vicariously but certainly not if the herdboy goes to steal for this is outside the employer's mandate, a situation that may be equated with, and is analogous to Eksteen's case above.
While it may be said the instant case does not go that far, I cannot ignore the fact that appellant's mandate was limited and not general. Where a mandate is general, even if a mandatory goes on a frolic of his own, the mandator is liable. But where the mandate is specific and limited and the mandatory goes on a frolic of his own, I cannot see how it can be said that the mandator or principal can be said to be guilty on the principle of vicarious liability. I am aware much has been made of the fact that Auto Electrics should have been called to say whether or not AA562 was surrendered to them for repairs by the appellant. Against this is the fact that both the appellant and 2nd defendant have testified that the vehicle was effectively in Auto Electric's control. I am also aware that in cross-examination the appellant (lid say 2nd defendant said he 'was driving to Ha
Thetsane'. I am satisfied that there was sufficient evidence that AA562 was under the control of Auto electrics and that the appellant discharged the onus in this regard. Consequently, when the appellant said 2nd defendant 'simply said he was driving to Ha Thetsane,' the appellant knew the vehicle to be under Auto Electrics control; that 2nd defendant said he was driving to Ha Thetsane is not something which occupied the appellant's mind and would disagree that the appellant tacitly authorized 2nd defendant to drive to Thetsane afterall, it was appellant's and 2nd defendant's testimony that the latter had no authority from the appellant to go via Thetsane's.
As to quantum, it would appear the respondent relied on a quotation which was handed in allegedly by consent. I say allegedly because in his evidence-in-chief the respondent merely says 'I have the quotation for the penal beating.' The total of the quotation is M10,371. I paid the quotation and I tender it in evidence - it is marked exhibit A'. Quite significantly defence counsel was not asked by the court whether he had any objection the quotation being handed in presumably because the court must have thought there would be no such objection. In any event, the defence counsel could
well have allowed the matter pass reserving himself for later challenge as he did in his address to court when he put the quotation in issue to the effect that the plaintiff has not proved the quantum of his damages.' see p 41 -Despite the misunderstanding, Mr Khasipe has said the quotation is not in issue. Mr. Grundlingh had disagreed saying it does not follow that where a quotation is admitted that settles the matter.
The court a quo in its judgment has expressed the view that as far as it is concerned the quotation was common cause for it was never disputed or put in issue after-all, the respondent was entitled to assume that what is not denied is admitted according to the rules of pleading. With respect, 1 have already said that appellant's counsel was not asked whether he objected to the quotation being handed in and that even if he was silent he reserved the right to put it in issue he has done in his address to court. We are not concerned here with the admissibility or otherwise of evidence but legal requirements for admission of certain classes of evidence. Effectively, against this finding by the court a quo, Mr Grundlingh has raised a point of
law namely: costs of repair have to be proved and the quotation standing
alone is no proof. So far as quantum of damages is concerned regarding measure of damage to a motor vehicle, it would appear this can be adverted to by employing two methods namely:
by proving the vehicle's pre-collision and post-collision value;
by proving the cost of repairing it
The reason (a) has to be proved is to ensure the vehicle is not a hulk and is worthy of repair; (b) has also be proved so that the owner is not given an unfair advantage over the party liable for repairs.
It would also seem, neither the failure to object to a quotation being placed before court nor failure to cross-examine on it gets the plaintiff anywhere for as was said in Scrooby v Engelbrecht, 1940 TPD p100 where the appellant had been misled into thinking that the amount of damages was not disputed since he was not cross-examined on the point, the court had found this cannot be maintained for the amount being put in issue in the pleadings, the plaintiff was to prove his case.
In passing, I might mention that apparently the plaintiff was not cross- examined on the quotation and hence amount claimed because the defendant might well have thought that the person who had done the repairs would be called. I might also add that it is a rule of law that damages have to be proved. Also, according to Cooper above, repairs can best be proved by calling a person who effected the repairs or the person in charge of the work providing he has necessary expertise to testify and is an expert in the issues (see Cooper above at p 263). Also, according to the judgment in Scrooby v Englebrecht above at p. 100, there has to be evidence that the charges are reasonable and proper production of the account in no way proves that it would be necessary to spend the amount in order to repair the damage. Of course in the instant case I do not see how the quotation alone proves that it would be necessary to spend the money reflected in the quotation in order to repair the damage. It was further said in Scrooby's case above at p 103 that the defendant's liability to pay is the true cost of the repairs and not what the plaintiff has paid or is willing to pay. It was also said if the amount of damages is put in issue and the damages are proved by the production of an
account, a plaintiff might be awarded considerably more than was necessary to repair the damage-.
And according to the judgment in Hanos vs. Barnett 1972 (1) SA 334 (T), quotations have been taken as hearsay evidence and valueless, since no one in the trade was called as a witness to express a supporting opinion. Further in Heath v Le Grange, 1974 (2) SA 262 at 263, the court has held in order to help establish what repairs were necessary and what reasonable costs of repair were, it was necessary to call one or more experts witnesses like engineers or motor mechanics of training and experience or some other person with special knowledge qualifying them to speak on the requirements of labour and skill and spare parts in the job plus of course ruling rates of the labour and price of materials involved. It has been said such evidence is necessary to assist the court to form own opinion as to the correct damages to be awarded. Needless to say no such evidence was led in the instant appeal. On the same page in Heath's case above Theron J said:
'Indeed without hearing expert evidence of the kind discussed above it would be impossible for the ordinary court of law to make a proper assessment of the quantum of damages.'
By the same token, it stands to reason that the court a quo without hearing expert evidence as to costs of the repairs it was well-neigh impossible for the court to make a proper assessment of the quantum of damages.
Theron J having said at p 266 in Le Grange's case above that if on the pleadings the onus to establish damages is placed on the plaintiff and if he 'chooses to attempt to prove the patrimonial loss sustained by him by reason of the collision not by producing appraisements of the pre-collision and post-collision values of his vehicle, but by producing evidence of what it cost to have repairs done to it, he cannot discharge the onus resting upon him save by proving both that the repairs effected were necessary and that the cost thereof was fair and reasonable.
This court is not satisfied that the respondent discharged the onus which rested on him in the court a quo to prove that the costs effected to repair his
vehicle were in the circumstances necessary and the cost thereof was fair and reasonable.
In the result while this court upholds the appeal to the effect that appellant is not vicariously liable to the respondent, as to quantum of damages, the appellant is absolved from the instance. Respondent will bear costs of this appeal.
G.N. MOFOLO J UDGE
16th November, 2001.
For the Appellant: Mr J J Grundlingh For the Respondent: Mr Khasipe