CIV/T/557/96
IN THE HIGH COURT OF LESOTHO

In the matter between:-

LESOTHO NATIONAL GENERAL

INSURANCE COMPANY LIMITED PLAINTIFF

and

MR
SANKUNYANE MABITSA 1ST DEFENDANT

MR.
POLOKO TSEKO 2ND DEFENDANT

JUDGMENT

Delivered by the Honourable Mrs. Justice K.J. Guni on
the 18th day of May 1999

An application for the absolution from the instance was
made at the close of plaintiff s case. That application was granted
on the
30th April 1999 and I indicated that the reasons will follow
later. These are the reasons.

On the 1st of September 1990 - 1st defendant's motor

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vehicle bearing registration letter and numbers C5591 -
driven by 2nd defendant left the road and overturned along the
Pitseng Road.
The accident happened at SEBOTHOANE HA MPHUTHING - near
LERIBE GOVERNMENT Garage.

The following are in the common cause.

1 - The motor vehicle described above is owned by 1st
defendant. On that particular date, at that particular time when it
left the
road and overturned 2nd defendant was driving it. 2nd
defendant is an employee of the 1st defendant. He is employed as a
conductor.
The accident was caused by the sole negligence of 2nd
defendant in the driving of the said motor vehicle. Plaintiff in
terms of the
provisions of the Motor Vehicle Insurance Order No 26 of
1989, being the insurer of the said motor vehicle, was legally
obliged to
pay and did in fact pay the various claims amounting to a
total of M71,047-92 plus a further sum of M4,750-00 in respect of the
costs.

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"In terms of Section 17 of the said Order, the
First Defendant as owner, and the Second Defendant as driver of
vehicle C5591
were obliged to inform the Plaintiff as the insurer, of
the said vehicle with registration number C5591, of the occurrence
and of
the place and time of the occurrence and also the name and
address (if known) of any person who was killed or injured and of
every
person who was upon the vehicle in question at the time of the
occurrence with the description of any other vehicle involved in the
occurrence, with the name and address (if known) of the driver of
every such other vehicle and of any person who witnessed the
occurrence
and with any other reasonable information at their
disposal within 14 (FOURTEEN) days of the said collision, if
reasonably possible,
but failed or neglected or refused to do so"

After settling the matter between the insurer Lesotho
National General Insurance and those various claimants, Lesotho
National General
Insurance proceeded to claim as it did in this
action against 1st and 2nd defendants as owner and driver of the said
motor vehicle
respectively. The insurer of the motor vehicle, in this
case Lesotho National General Insurance, is entitled to claim against
the
owner and

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the driver of the motor vehicle involved, in an accident
in terms of section 15 (2) (c) of Motor Vehicle Insurance Order No.26
of
1989.

The only issue which the parties agreed that it is the
only one which must be determined by this court is whether or not 2nd
defendant
was acting within the scope of his employment with 1st
defendant at the time he was driving that motor vehicle owned by 1st
defendant
and - which was involved in an accident on 1st of September
1990.

For the master to be vicariously liable for the delicts
committed by his servant two essential elements must be established:

Firstly a master and servant relationship between the
employer and the employee; and

Secondly the delict committed by the employee must have
occurred while the employee was acting within the course of his
employment.

5 Mkhize vs Martens 1914 AD at page 383. These

elements are recognised and accepted by our law.

It is accepted by both parties that 2nd defendant was at
that time of the accident an employee of the 1st defendant. The 1st
defendant
however denies that the 2nd defendant was at that
particular time acting within the scope of his employment. Evidence
shows that
2nd Defendant was engaged at all times prior to that
accident as a conductor of that bus or coaster. He was not engaged as
a driver.
At the time 2nd defendant was driving the said motor
vehicle he was engaged in the frolics of his own as suggested by Mr.
Matooane
for 1st defendant. 2nd Defendant was hired as a conductor
and not a driver (See 1st defendant's pleas page 9 of the record). On
that
particular day 1st September 1990, 2nd defendant engaged himself
as a driver without 1st defendant's knowledge and/or permission.
(See
1st defendant's plea page 10 of the record) . There is no evidence
that 1st defendant knew and permitted 2nd defendant to drive
that
motor vehicle. There is no evidence that what he did and

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resulted in that accident, was what he was hired to

do. The burden of proof rests on the plaintiff to show
that it was within the scope of 2nd defendant's employment to drive
as he did.
This, the plaintiff did not do.

In order to succeed in his claim plaintiff must
discharge the burden of proof on both - not just one of the two
requirements mentioned
above. Evidence led on behalf of the plaintiff
shows that 2nd defendant was employed as a conductor. PW1 had known
this conductor
for some time. She travels on that coaster/bus
regularly as she is the hawker who travels between her village
Khanyane and Hlotse
town. 2nd defendant cannot be said to have been
carrying on his job because what he did and caused the motor to
overturn was not
his job. There is no evidence to show this court
that what 2nd defendant was doing was within the scope of his
employment. It is
not within the scope of the employment of the
conductor to act as a driver. There is no evidence that his employer
knew and permitted
him to drive the said motor

7 vehicle. THABO JUSTICE LETS'ABA v COMMISSIONER OF

POLICE and Another CIV/T/403/94 [unreported].

It was for these reasons that absolution was granted
with costs.

K.J.GUNI JUDGE

18th May, 1999.

For Plaintiff: Mr. Grundlingh
For Defendants: Mr.
Matooane