Court name
High Court of eSwatini
Case number
4719 of 2008

Mthethwa v Steffen (4719 of 2008) [2011] SZHC 93 (25 March 2011);

Law report citations
Media neutral citation
[2011] SZHC 93













IN
THE HIGH COURT OF SWAZILAND







HELD
AT MBABANE
:







CASE
NO.4719/2008







In the matter
between:







PETROS MTHETHWA
….............................................................
PLAINTIFF











And











OSCAR HANS
STEFFEN
….......................................................DEFENDANT















CORAM: OTA, J



For Applicant



For Defendant
Mr. K. Motsa











JUDGMENT



The
antecedents of this case is that the Plaintiff sued out Combined
Summons against the Defendant, claiming
inter
alia
,the
following reliefs:



1. Payment of the
sum of E55,750-00



2. Costs of suit



3. Further and/or
alternative relief.







It is on record
that after delivering a Notice of Intention to Defend, the Defendant
raised a special plea to the Plaintiffs claim in the following terms
:-



1. The vehicle
cited in paragraph 4 of Plaintiffs Particulars of Claim as
ZN,CCZ0550053 SPK-X belongs to a company called Swazi Express (PTY)
Limited as appears in a copy of a lease agreement annexed "Ml"



2. Consequently,
either Swazi Express (PTY) Limited or its liquidator, Mr. Paul Taylor
should have been joined as a (sic) parties to the action as they have
a direct and substantial interest in the matter, and hence action has
to fail due to non-joinder of the above parties.



3.
Secondly, Defendant was driving vehicle on (7
th
December 2006) in
his capacity as an employee of Swazi Express (PTY) Limited and in
cause of his duties.















Consequently, in
law



3.1. Swazi Express
(PTY) Limited should be a party and be held vicariously liable and



3.2. Hans Steffen
cannot in law be held to be personally liable for such a civil wrong.











When
this matter served before me for argument on the 22
nd
of March 2011, Mr.
K. Motsa appeared for the Defendant. There was no representation for
the Plaintiff.











Mr.
Motsa informed the court that he had caused a Notice of Set Down to
be served on Plaintiffs counsel. That he got a call from Plaintiffs
counsel the previous day, intimating him that he will be travelling
out of the country, but will send another counsel to represent him.
However, no counsel showed up for the Plaintiff, in spite of the fact
that the Notice of Set Down clearly stated that the matter was to
proceed at 9.30 a.m. Mr. Motsa applied to
proceed
with the case. I proceeded with this case due to the fact that
absolutely no reason served before me to warrant a postponement of
same.



In his oral
submissions in court, Mr. Motsa urged the court to uphold the special
plea on the premises that the vehicle which was driven by the
Defendant at the time of the accident subject matter of the
Plaintiffs claim was leased to Swazi Express by the First National
Bank (FNB), therefore, since the Defendant was driving the vehicle in
the course of his employment with Swazi Express, Swazi Express is
vicariously liable and should be joined as a Defendant in these
proceedings.



In
furtherance of this contention, Mr. Motsa called in aid a lease
agreement dated the 13
th
of June 2003,
which appears on page 13 of the book of pleadings.











It is clear from a
close reading of the lease agreement, that by it FNB, leased the
vehicle in question to Swazi Express Airways (Proprietary) Limited.
This fact is not challenged or controverted throughout the tenure of
these proceedings, it therefore stands established. Established in
the same vein, is the contention of Mr. Motsa that the Defendant is
employed for Swazi Express and



was driving the
said vehicle in the course of the said employment when the accident
occurred.



The question here
is, do the mere existence of the foregoing facts warrant the joinder
of Swazi Express (PTY) Ltd or its liquidator Mr. Paul Taylor, as a
party to this proceedings? It is trite learning, that there are
circumstances in which it is necessary to join a party because of the
interest that he has in the matter. When such an interest becomes
apparent, the court has no discretion and will not allow the matter
to proceed without joinder.











The reason for the
joinder of parties to action which has already begun is that the
court is enabled to ensure that persons interested in the subject
matter of the dispute, and whose rights may be affected by the
judgment of the court are before the court, and this also enables the
court to avoid wastage of costs. The possibility of such an interest
is sufficient and it is not necessary for the court to establish that
it in fact exists.











See
Amalgamated
Engineering Union vs Minister of Labour 1949 (3) SA 637 (A)
,
Herbstein and Van Win sen, Civil Practice of the Supreme Court of
South Africa (4
th
Edition) 165 to
177.



Abrahamse
&
Others vs Cape Town City Council 1953 (3) SA 855 fC)

at 859.











In
casu,
the
allegation is that the vehicle in question which was driven by the
Defendant at the material time of the accident, was leased to Swazi
Express (PTY) Ltd, and was driven by the Defendant at the material
time of the accident, in the ordinary course of his employment with
Swazi Express (PTY) Ltd. The foregoing facts to my mind raise the
question of the vicarious liability of Swazi Express (PTY) Ltd for
the acts of its employer, the Defendant. This question demonstrates
that Swazi Express (PTY) Ltd, has a direct and substantial interest
in the subject matter of the suit, due to the fact that it stands to
be affected by the judgment of the court.



I
say this because, the doctrine of vicarious liability is that a
master is held liable for acts done by his servant within the course
or scope of his employment.
Greenberg,JA
demonstrated
this position of the law in the case of
Feldman
(PTY) Ltd vs Mall 1945
AD
733
at 774
in
the following language,



"a
master...is liable even for acts which he has not authorised provided
that they are so connected with acts which he has authorised that
they may rightly be regarded as modes...although improper modes...of
doing them..."
Furthermore,
in the same case of
Feldman
(PTY) Ltd vs Mall (supra) at 741
,
Watermeyer, CJ
declared
thus:-



"...a master
who does his work by the hand of a servant creates a risk of harm to
others if the servant should prove to be negligent or inefficient or
untrustworthy; that, because he has created this risk for his own
ends he is under a duty to ensure that no one is injured by the
servant's improper conduct or negligence in carrying on his work..."



See
The
Minister of Police vs Rabie 1986 (1) SA 117 (A) at
134.







It is by reason of
the totality of the foregoing, that I find that the special plea has
merits, it is accordingly upheld. The Plaintiff is at liberty to
repair the irregularity in the process by joining the liquidator of
Swazi Express (PTY) Limited, Mr. Paul Taylor, as a Defendant in these
proceedings and to deliver an amended process within fourteen (14)
days hereof. Costs to the Defendant.



DELIVERED
IN OPEN COURT IN MBABANE ON THIS THE 25
th
DAY OF March
2011











OTA J.



JUDGE OF THE
HIGH COURT