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