Mike Belinsky v Tonderayi Chipere

### Preamble
1
HH 173-13
HC 3349/08
MIKE BELINSKY
versus
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============================== MIKE BELINSKY
versus
TONDERAYI CHIPERE

HIGH COURT OF ZIMBABWE
HUNGWE J
HARARE, 12, 13 & 15 July 2009 & 5 June 2013

Civil Trial

PC Paul, for the plaintiff
D Kufaruwenga, for the defendant

Introduction

HUNGWE J: Plaintiff, Mike Belinsky, (“Belinsky”) was driving his Cherokee Jeep in the inner lane eastwards along Paisley Road towards ZBC complex in Mbare. Two lanes are on each side of this road. Beside him was a commuter omnibus belonging to Tonderayi Chipere, (“Chipere”) the defendant. There appeared ahead both of them a road block manned by officers of the Vehicle Inspection Department. Suddenly the commuter omnibus driver swung to his right colliding into Belinsky’s Jeep. Belinsky holds Chipere liable as owner of thus bus for the cost of repairs to his Jeep. Chipere denies liability on the basis that the driver responsible for the collision was on a frolic of his own.

The parties agreed that the cost of repairs for the Grand Cherokee Jeep was US$3 550, 00. The only matter referred to trial was the issue of liability. Both the plaintiff and the defendant gave evidence and called one witness each.

The Evidence

The evidence given for Belinsky was fairly straight-forward. It was that as he was driving on the inner lane there was a commuter omnibus in the outer lane. It suddenly without notice, swung into his motor vehicle causing the damages which are subject of the suit. This accident occurred around mid-morning on a clear day. Ahead of the two motor vehicles was a road block manned by officers from the vehicle inspection department. Police Mbare attended the accident and caused both the omnibus and the Jeep to proceed to Mbare Police Station. The driver of the omnibus supplied the contact numbers for Chipere who was summoned to report at the police station. He did. Woman Constable Talent Kamonere interviewed both vehicles’ drivers. In court her evidence confirmed the version given by Belinsky. The omnibus driver apologized to Belinsky. She charged Betwell Mudiwa, the commuter omnibus driver under the appropriate section of the Road Traffic Act, [Cap 13: 11]. The driver paid an admission of guilt deposit fine at the police station on the same day. Both plaintiff and defendant met at the police station on the day of the accident and exchanged relevant particulars.

From the evidence led in court, the following facts are common cause. After the accident, police attended the scene. Police established that the person driving the commuter omnibus had hit into the Jeep driven by Belinsky. This person paid a deposit fine assessed at the police station. At that point no suggestion was made by either the defendant or anyone on his behalf that the person who was driving the motor vehicle assessed to be at fault that day by the police was not authorized to do so.

The defendant raised the defence that since the person who was driving his omnibus at the time of the collision was not authorized to do so, therefore he is not liable for the damages arising out of the collision. In order for this defence to succeed the defendant must satisfy the defendant on a balance that the person found by the police to be at fault was not authorized to drive that omnibus. In court the defendant said that after he arrived at the police station in response to a call from the plaintiff. Upon arrival at Mbare police station, he could not locate his driver. He proceeded to Mbare looking for him. Upon locating him, he learnt from his driver one Winfred Ziswa, that a tout or a rank going by the name Masimba had taken the motor vehicle without his permission after which he was involved in an accident. He and his driver went out in search of Masimba. They found him. Masimba, according to the defendant, blamed plaintiff for the accident. Masimba had explained the deposit fine he paid at Mbare soon after the accident by saying that this was issued against him for the omnibus vehicle defects. He had not paid attention to the exact details appearing on the face of the ticket. As for the different name in which the ticket was issued, Masimba stated to the defendant that he had simply asked for a passenger to bail him out with a driver’s licence as he is a non-holder.


Under cross examination the defendant indicated that he did not keep any records of his business transactions be they wages, PAYE, NEC contributions or who is employed as what. He was unable to explain why his conductor allowed Masimba to drive the motor vehicle away. He was unable to explain why a report of unauthorized use of the omnibus was never at any stage made to the police. He was hard put to explain why, when he apprehended the offending “driver” he did not take him to Mbare and explain the new evidence implicating this unauthorized “driver”. I must say that the defendant was a poor witness for the defence.

Findings

The facts of the matter in my assessment were given to this court by the plaintiff and the police officer who attended the scene. I say this for the following reasons. If it were true that plaintiff was to blame for the accident, the driver who had a bus load of passengers to vouch for him would have given that version which shows that the plaintiff was in the wrong. He had the presence of mind to have been correctly on the road. It is highly unlikely that such a driver, even though unlicensed, would have failed to state his case. He would have the passengers in his bus to support him. In the very least, the passenger who volunteered the use of his driver’s licence would be at hand to vouch for the correctness of the version which supported the driver against the plaintiff. If the driver was truly not authorized to drive this bus, the defendant soon thereafter apprehended the offending culprit. He knew that an offence had been committed, either in respect of driving a motor vehicle without the owner’s consent or driving without a driver’s licence or both, the defendant would have brought this fact to the attention of the police at Mbare. He did not. A reasonable vehicle owner would have done this especially in light of the fact that an accident had occurred in the process. The fact that he did not bring to police attention his “driver’s” version of how the accident occurred, that the person driving was on a frolic of his own and so forth to my mind highlights the lie in the defendant’s version during trial. As an example, why upon apprehending Masimba, did it not occur to him to have sight of the admission of guilt ticket just to familiarise himself with the events surrounding the accident? It is not a coincidence to my mind that this elusive “driver” called Masimba was only available to the defendant to give him his version of how the accident occurred but suddenly unavailable as a witness for the defendant at the hearing of the matter. The fact that the defendant offered to plaintiff places where repairs could be effected at a lower cost suggests strongly that the defendant knew that his driver was responsible for the collision. He had seen the admission of guilt deposit payment slip and was taking steps to mitigate his loss. I therefore reject the defendant’s version that the driver at the time of the collision was not authorized to drive the omnibus. I prefer the version given by the plaintiff and corroborated by the police that it was defendant’s driver who suddenly swung to the right and hit into plaintiff’s motor vehicle during the course of his employment as a commuter omnibus driver and acting within the scope of his employment as such.

The law

The doctrine of vicarious liability of a master for such delictual acts of his servant as are committed in the course of the servant's employment is part of our law. In *South British Insurance Company v Du Toit* 1952 SR 239; 1952 (4) SA 313 (SR) TREDGOLD CJ, at 315 G-H, accepted that "The general principle upon which the liability of a master for the delicts of his servants" is, as was stated in *Mkize v Martens* 1914 AD 382 at 390,

"... that a master is answerable for the torts of his servant committed in the course of his employment, bearing in mind that an act done by a servant solely for his own interests and purposes, and outside his authority, is not done in the course of his employment, even though it may have been done during his employment. Such an act cannot be said to have taken place 'in the exercise of the functions to which he (the servant) is appointed.' " The application of that general principle to the facts in the present case is that the defendant is liable for any damage caused by his driver in the course of his employment as such by the defendant. In the present case, Betwell Mudyiwa admitted his fault in the accident and apologised for it to the plaintiff.

Disposition

The damage caused in the collision is US$3 550, 00. The defendant is liable to the plaintiff in that sum. In the result I make the following order:

Defendant pays plaintiff the sum of US$3 550, 00 being the cost of repairs to plaintiff’s motor vehicle together with costs of suit.


Wintertons, plaintiff’s legal practitioners
Dzimba, Jaravaza & Associates, defendant’s legal practitioners
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