THE COURT OF APPEAL OF LESOTHO
OF A (CIV) 6/08
the matter between:
(PTY) LTD APPELLANT
: 8 October 2008
Delivered : 17
claim – negligence – vicarious liability – quantum.
defendant’s truck colliding with business premises leased by
plaintiff – whether second defendant (first defendant’s
employee) in allowing third defendant (a stranger to first defendant)
to drive amounted to negligence on the part of second defendant
whether vicarious liability proved.
– admission by first defendant’s manageress –whether
binding on first defendant.
– Second defendant negligent but vicarious liability not
proved, nor any binding admission.
 This is an
appeal against an award of damages by Monapathi J in the High Court.
For convenience I shall refer to the parties
as they were at the
 The first
defendant’s truck collided with a building in Mokhotlong
Township which the plaintiff leased and in which he
business of a butchery and café. As a result the plaintiff
sustained damages. He instituted a claim to recover
citing the third defendant as the driver of the truck, the second
defendant as the first defendant’s employee
permitted the third defendant to drive, and first defendant as the
party vicariously liable for such negligence.
The first defendant
company is the sole appellant. It carries on business at Mokhotlong
as Lesotho Cash and Carry and employed
the second defendant as a
 The salient
allegation in the declaration is this:
On or about the
November 1994 and at Mokhotlong Township 2nd
Defendant negligently and in breach of the duty of care that he owes
Defendant under the employment contract, permitted 3rd
Defendant to drive the said 1st
defendant’s vehicle knowing that he had no authority to do so.’
 The plea by
the first and second defendants contains the following paragraph in
answer to the plaintiff’s paragraph 4:
Save to admit
that on or about 20 November 1994 and at Mokhotlong Township, Third
Defendant in fact drove the vehicle . . .
Defendants deny each and
every averment contained in this paragraph.
and in the event of the above Honourable Court finding that Second
Defendant permitted Third Defendant to drive
the said vehicle First
Defendant avers as follows:
Defendant had no authority to do so;
Defendant, in doing so, conducted a frolic of his own;
Defendant, in doing so, was not acting in the course and scope of his
employment with First Defendant, alternatively
was not acting under
the control of First Defendant, alternatively was not engaged upon
First Defendant’s business, alternatively
was not doing First
Defendant’s work or pursuing First Defendant’s aims’.
allegations in paragraph 4.2 of the plea seem to me to invite the
question whether it was proper for the same legal representatives
appear for both the first and second defendants. The potential for a
conflict of interest appears self – evident. Because
question did not arise at any stage of the litigation it requires no
further attention in this judgment.
preliminary observation is this. The declaration alleges a negligent
breach of the second defendant’s employment
contract. That, of
course, is a basis for possible liability of the second defendant to
the first. It is not a basis for the
first defendant’s being
liable to the plaintiff. The first and second defendants did not
except to the claim but conceivably
an appropriate amendment of the
declaration would have followed.
 At the trial
the plaintiff testified and called Police Officer Ramoholi, who was
stationed at Mokhotlong. The third defendant
took no part in the
proceedings. The first and second defendants closed their case
without leading evidence.
 The plaintiff
testified that he was at the scene of the collision when Ramoholi
arrived with the second and third defendants.
While the policeman
took measurements the second defendant went to call the person
Ramoholi referred to as the first defendant’s
evidence shows clearly enough that the manager was a woman and I
shall hereafter refer to ‘the manageress’).
manageress arrived. The plaintiff’s evidence then reads:
he came he asked me to release the truck because it was still on
duty. And we agreed that I could assess the damage and
send it to
Later in his
evidence this passage appears:
‘PC: And you
said you agreed with the Manager to asses the damage?
PW: To release the
truck, and to assess the damage and sent it to her officer for
PC: The Manager of
Mokrafs was agreeing to pay for the damage?
PC: Did they pay?
Pw1: They did not
PC: What happened?
PW1: At the later
stage they said they had referred the matter to their Insurance and
the Insurance was not willing to pay so they
PW1: And because I
had already withdrawn the case from the police I decided to sue them
PC: Why did you
withdraw the case from the police?
PW1: Because they
were agreeing to pay’.
cross-examination the plaintiff said:
asking the policeman to confiscate the vehicle until things have been
settled. And in the presence of the policeman we agreed
 In Ramoholi’s
evidence -in- chief he said that the second and third defendants were
at the scene. The report to him was
that the second defendant had
lent the truck to the third defendant. The witness observed that the
third defendant’s right
arm had been amputated above the elbow.
When the first defendant’s manageress arrived the plaintiff
suggested that the lorry
be impounded at the police station. His
evidence then reads:
what was the response of the manager of Mokgrafs?
PW2: He said to
the plaintiff that he should make an estimation of the damages . . .
PC: And then?
PW2: And that
after making those estimations he should submit then to Mokrafs . . .
PC: What for?
PW2: So that they
could pay him . . And that he should not impound his truck and should
. . .
PC: And when she
spoke . . . according to your observation in what capacity was she
saying all that?
PW2: She was
saying that in her capacity as a Manager and she was the person who
. . .
PC: In your
presence Mokrafs through [the manageress] did it address itself to
the conduct of [the second and third defendants]
as far as driving
this vehicle was concerned?
PW2: She said
about the matter concerning the driving of the truck that was between
(the second and third defendants) that would
be dealt at the business
PC: Whose business
PW2: That of
by saying that following on the plaintiff and the manageress’
agreement he allowed the truck to be removed.
cross-examination the following passage appears in Ramoholi’s
‘DC :I am
putting it to you that it is not correct that the second defendant
had allowed the third defendant to drive this vehicle?
PW2 :I disagree
because this was said in his presence and he never denied that’.
(On a close study
of the evidence, this answer indicates that the report to him was
made by the third defendant in the second defendant’s
and the latter did not deny it). Later in cross-examination it was
put to Ramoholi that the manageress had not undertaken
to pay for the
damage, she said she would refer the damage estimate to her
employer’s insurer. He said insurance was never
 The foregoing
resumé of the evidence shows that a substantial amount of
attention was given at the trial to the alleged
admission by the
manageress that the first defendant would pay the plaintiff’s
damages. The plaintiff’s counsel sought
to rely on the
evidence in that regard as well as on the evidence that the second
respondent tacitly admitted having allowed third
defendant to drive.
 The third
defendant’s having been the driver at the time of the collision
was admitted on the pleadings. Nothing in
the evidence suggests that
he stole the truck. He can only have got possession from the second
defendant. Accordingly the alleged
admission by the latter rings
entirely true. He gave no evidence in response.
 To allow a
man with one functioning arm to drive the truck was, absent any other
considerations, negligence on the second defendant’s
Again, his absence from the witness box serves to strengthen the
plaintiff’s case on that point.
 The crucial
issue, therefore, is whether the second defendant’s negligence,
assuming it was causative, saddles the first
defendant with liability
for such damages as the plaintiff suffered.
 The denial in
the plea of facts which, if proved, would tend to establish vicarious
liability attracted no onus to the defendants.
It remained for the
plaintiff to prove that element of his case. Nor did it assist the
plaintiff that no defendant testified.
Scraps of evidence appear on
record to the effect, for example, that the collision occurred before
lunchtime on a Saturday and
that the vehicle was being used in the
first defendant’s service (‘on duty’) that day.
However, it was the
second defendant who was employed to drive it and
nothing in the evidence lays the slightest foundation for the
permitting the third defendant to drive was within the
course and scope of the second defendant’s work as the first
employee. That the first defendant would have
approved of the third defendant being allowed to drive the truck is
Not surprisingly the plaintiff himself alleges in
the claim that the second defendant had no authority to allow it.
 Faced with
all these difficulties the plaintiff was driven to fall back on the
argument that the first defendant’s manageress
admitted her employer’s liability.
 That argument
has its own crop of difficulties. The contention amounts to saying
that even if vicarious liability was not
shown by way of evidence as
to the second defendant’s duties and as to how they could or
could not be carried out and how
it came about that he let the third
defendant drive, the first defendant’s liability was in any
event admitted by its manageress.
That alternative line of attack
should have been pleaded. Had it been, it would have been for the
plaintiff to allege and prove
the manageress’ authority to make
such an admission, either generally or in the particular
circumstances. No such allegation
was pleaded and no witness was
subpoenaed to prove the scope of her powers and duties.
 Assuming that
the manageress did have authority to make admissions relating to her
duties, that is a far cry from making admissions
financial implications without sufficient knowledge of the relevant
facts. The evidence of Ramoholi was that she
indicated that the
matter of who was driving the truck would be sorted out at the office
and that her prime concern was the release
of the truck. To ensure
that result, she asked that the damage estimate be sent to her.
There seems to be a considerable subjective
overlay in the evidence
of both the plaintiff and Ramoholi as to what she meant. Both
appeared zealous to give her words the interpretation
to the plaintiff’s case. It is inherently unlikely that she
meant more than that the estimate would be considered
in due course.
Why would she have undertaken in advance, to pay an amount that was
merely an estimate and without having seen
or studied it?
denied that insurance was mentioned at the scene but the plaintiff
says it was raised at a stage when, subsequently,
the first defendant
declined to pay. If the defendant indeed had insurance cover it is
even more unlikely that an outright undertaking
to pay was given.
 What to my
mind counts even more strongly against the plantiff is that if, as
Ramoholi said, the manageress had still to sort
out the question how
the third defendant came to be driving, she obviously had no such
knowledge as enabled her to give an informed
undertaking. If the
third defendant was driving without the second defendant’s
permission there was no basis at all for
conceding liability. And
even if the second defendant had permitted him to drive she could not
yet have known the circumstances
in which that occurred.
 Finally, it
seems to me that the real reason why the manageress agreed at all to
say that the plaintiff should submit his estimate
of the damage was
that the truck was on the point of being impounded and she wanted to
prevent that happening so that it could
continue in service that day.
That is the real thrust of what the evidence reveals.
 The plaintiff
accordingly failed to prove that the first defendant was vicariously
liable for the second defendant’s
negligence. Therefore it is
unnecessary to express any view as to the other elements of the
claim. The appeal must accordingly
 It remains to
say that the plaintiff’s heads of argument were filed extremely
late. An application was made for condonation
but it was not
supported by an affidavit. We know that the pressures of practice
sometimes induce errors but this was an elementary
one which one does
not expect from experienced practitioners. We permitted the heads
to be used and the litigant did not sustain
disadvantage as regards
the presentation of his case. The costs of the application are to be
paid by the plaintiff.
 The Court’s
order is as follows:
appeal succeeds, with costs.
2. The order of
the High Court is set aside and substituted for it is the following –
is dismissed, with costs’.
3. The respondent
is ordered to pay the costs of the application for condonation of
the late filing of his heads of argument.
JUSTICE OF APPEAL
OF THE COURT OF APPEAL
the Appellant : Adv. S. Malebanye
the Respondent : Adv. J. T. Molefi
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