Case No  87/98
REPORTABLE
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between
THE MINISTER OF SAFETY
AND SECURITY
APPELLANT
and
ANDRé   JORDAAN
RESPONDENT
CORAM
:
VIVIER, SCOTT JJA  et   MTHIYANE AJA
HEARD
:
8 MAY 2000
DELIVERED
:
26 MAY 2000
Motor collision - whether policeman driving in the course and scope of his
employment.
J U D G M E N T

SCOTT JA/....
SCOTT JA:
[1] The respondent sued the appellant for damages in the Cape of Good
Hope Provincial Division arising out of a motor collision which occurred at about
8.35 pm on Sunday, 5 February 1995, near Kraaifontein on the N1 highway
between Cape Town and Paarl.   One of the vehicles involved in the collision was
owned by the appellant and was being driven at the time by  detective sergeant
Madden who was employed by the appellant. It appears that the appellant’s vehicle,
which was travelling from north to south, i e in the direction from Paarl to Cape
Town, suddenly crossed over the island separating the north- and southbound
carriageways and collided with a vehicle in which the respondent had an interest and
which was then travelling in the opposite direction. Both Madden and the sole
passenger in his vehicle were killed in the collision. In its particulars of claim the

respondent alleged that at the time Madden “was acting within the course and scope
of his employment with [the appellant], alternatively, ... was acting as an agent of
and was furthering the aims and interest of [the appellant]”. The allegation was
denied by the appellant. At a pre-trial conference it was agreed between the parties
that this issue be decided first and an appropriate order was made in terms of Rule
33(4).    After hearing evidence Ngcobo J found in favour of the respondent and
ruled that Madden was acting within the course and scope of his employment with
the appellant at the time of the collision. Leave to appeal was refused by the Court
a quo but subsequently granted by this Court.
[2] The events preceding the collision are largely common cause. Madden
was stationed at Fish Hoek.   On the day in question,  Sunday 5 February 1995, he
was on what was known as “stand-by” duty.   This had begun at 7.30 pm on
Friday, 3 February, and was due to end at 7.30 am on Monday, 6 February. It
meant that he, together with a fellow detective, warrant officer Pamplin, had to be

available to deal with all in-coming cases during that period.  It appears that
previously in about September 1994 Madden had been entrusted with the
investigation of a death by drowning. The victim’s body was discovered on the
west coast of the Cape Peninsula near Kommetjie by  Dr Haywood who lived and
practised at Franschhoek. In order to complete the investigation a formal  statement
was required from Dr Haywood. According to captain Smit, who was in charge of
the detective branch at Fish Hoek, some difficulty had been experienced in
obtaining a statement from Dr Haywood “telephonically”, by which he meant
presumably by telefax. On 18 January 1995 he accordingly instructed Madden to
go to Franschhoek to obtain the statement. This instruction was recorded in the
investigation diary.   By 27 January, Madden had not yet done so and Smit
requested him to expedite the matter. The investigation diary records that on 31
January Madden undertook to go to Franschhoek to obtain the statement while he
was on stand-by duty on the 4th or 5th February. On Friday morning, 3 February,

Pamplin, too, spoke to Madden about the outstanding statement. Pamplin was
Madden’s superior and one of his duties was to check the progress being made in
the investigations carried out by detectives under his control. Madden undertook
to obtain the statement in the course of the forthcoming weekend. On Sunday
morning, 5 February, Madden asked Pamplin, who was also on stand-by duty, to
“cover” for him between 6 and 8 pm that afternoon while he went to Franschhoek
to obtain the statement from Dr Haywood. The arrangement which Pamplin and
Madden had previously made was that the former would handle the cases coming
in from Ocean View   while the latter would deal with the Fish Hoek and Simon’s
Town cases.
[3] At the time a constable stationed at Fish Hoek, one Theron, was
attending a detective training course at a police college in Paarl. Transport to and
from Paarl was provided for trainees at the beginning and end of the course but
they were not provided with transport to enable them to go home for  weekends

during the course unless the trip was specifically authorised by a policeman of
appropriate rank.    Madden must have known that Theron was coming home for
the weekend commencing Friday, 3 February, because during the preceding week
he asked Smit for permission to give Theron a lift back to the college on Sunday
afternoon when he, Madden, went to Franschhoek.   Paarl and Franschhoek are
relatively close by and driving to Franschhoek via Paarl would not have involved
many additional kilometres. Smit thought there would be no problem and
telephoned the district commissioner for confirmation. The latter unexpectedly
refused to grant permission. As anticipated, Theron came home to Fish Hoek for
the weekend. He brought with him a fellow trainee from Natal. They had been
driven to Fish Hoek in a police vehicle with the necessary permission. That night
Madden visited Theron at his house. According to Theron he asked Madden if he
could arrange to have him and his colleague transported back to Paarl in time for
their evening meal at 5 pm. Madden did not commit himself but indicated that it

may be possible. Nonetheless, he arrived at about 3 pm on Sunday, 5 February, at
Theron’s house in a police vehicle and conveyed Theron and his fellow trainee
back to Paarl, arriving there shortly before 5 pm. He explained that he was, in any
event, going in that direction in order to investigate a case. A member of Madden’s
family, who presumably came for the ride, travelled with them. According to
Theron this was not permitted.
[4] What happened between 5 pm and 8.35 pm when the accident
occurred, is unknown. Madden did not see Dr Haywood. The latter testified that
he had been telephoned the previous day,  Saturday 4 February, by Madden who
had asked him to write his own statement, obtaining assistance at the local police
station if required, and then telefax the statement to Madden that same day.  He said
he had undertaken to telefax the statement that day but in fact had not done so. He
testified further that although Madden did not know his address in Franschhoek, as
a general practitioner in Franschhoek he was well known in the village and Madden

would have had no difficulty in finding him.
[5] The standard test for vicarious liability is of course whether the delict
in question was committed by an employee while acting in the course and scope of
his employment. The inquiry is frequently said to be whether at the time the
employee was about the affairs or business or doing the work of the employer (see
for eg Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) at 827 B; Minister
of Police v Rabie 1986 (1) SA 117 (A) at 132 G). This is no doubt true, but it
should not be overlooked that the affairs or business or work of the employer in
question must relate to what the employee was generally employed or specifically
instructed to do. Provided the employee was engaged in activity reasonably
necessary to achieve either objective, the employer will be liable (see Estate Van
der Byl v Swanepoel 1927 AD 141 at 145 - 146, 151 - 152). The difficulty of
course is that while the general approach to be adopted may be easy enough to
formulate, its lack of exactitude is such that problems inevitably arise in its

application. This is particularly so in the so-called “deviation” cases. What is clear
is that not every act of an employee committed during the time of his employment
which is in the advancement of his personal interests or for the achievement of his
own goals necessarily falls outside the course and scope of his employment.
(Viljoen v Smith 1997 (1) SA 309 (A) at 315 F - G.) In each case, whether the
employer is to be held liable or not must depend on the nature and extent of the
deviation. Once the deviation is such that it cannot be reasonably held that the
employee is still exercising the functions to which he was appointed, or still carrying
out some instruction of his employer, the latter will cease to be liable. Whether that
stage has been reached is essentially a question of degree. (See Feldman (Pty) Ltd
v Mall 1945 AD 733 at 756 - 7;    Union Government v Hawkins 1944 AD 556 at
563;    Viljoen v Smith, supra, at 316 E - 317 A.) The answer in each case will
depend upon a close consideration of the facts. The same is true of the inquiry as
to whether the deviation has ceased and the employee has resumed the business of

his employer.
[6] Against this background, I turn to the only question in issue, namely
whether on the facts set out above the Court a quo was correct in concluding that
at the time of the accident Madden was driving the vehicle in question in the course
and scope of his employment. Counsel for the appellant submitted that the correct
inference to be drawn was that the sole purpose of the journey was to deliver
Theron and his fellow trainee to Paarl and that this fell beyond the scope of
Madden’s employment.
[7] Had this indeed been the sole purpose of the journey I am satisfied that
the appellant would not be vicariously liable for any damage that the respondent
may have suffered. It is true that in conveying the trainees to their college in Paarl
Madden was in a sense engaged in the affairs of the appellant. But Madden was
employed as a detective;  not as a driver. He had no instructions to take the trainees
to Paarl. On the contrary, his request for permission to do so had been expressly

refused. Had this been the sole object of the journey Madden would therefore not
have been acting in the course and scope of his employment.
[8] In support of his submission that Madden’s sole objective had been
to take the trainees to Paarl, counsel for the appellant relied essentially on two facts
which emerged from the evidence: the first was Madden’s telephone conversation
with Dr Haywood on the previous day,  Saturday 4 May 1995; the second was
Madden’s failure to make contact with Dr Haywood on the Sunday evening. These
facts, he argued, indicated that prior to setting out for Paarl Madden had already
abandoned any notion of travelling to Franschhoek to obtain the statement from Dr
Haywood.
[9] In seeking to draw the proper inference from the facts it goes without
saying that the telephone conversation and Madden’s failure to make contact with
Dr Haywood must be considered against the background of what had passed
before. Initially it had been sought to obtain the statement from Dr Haywood by

telefax. Only when this proved unsuccessful was Madden instructed to travel to
Franschhoek and obtain it himself. Madden’s superiors were obviously anxious to
see the investigation completed and he was urged to expedite the matter. The
statement was, however, something of a formality. In these circumstances it is not
surprising that before travelling all the way to Franschhoek Madden should have
made one last attempt to procure it by telefax. This he did on the Saturday by
telephoning Dr Haywood. He had, of course, given the undertaking to his superiors
that he would obtain the statement by not later than the weekend. What is significant
is that in the course of the telephone conversation he requested Dr Haywood to
telefax the statement that same day. Once Dr Haywood failed to do so Madden
would really have had no option but to go and take the statement himself. The
telephone call does not therefore justify the inference that Madden had abandoned
any intention of going to Franschhoek; it is merely indicative of an intention to
avoid the trip if at all possible. It is true of course that during the preceding week

Madden had sought permission to take Theron to Paarl in the event of him going
to Franschhoek, but what is of significance is that on Friday evening Madden was
not prepared to finally commit himself to taking Theron to Paarl. It was only on
Sunday morning, by which time it was apparent that Dr Haywood had not telefaxed
the statement as agreed, that Madden confirmed with Pamplin that he would indeed
be going to Franschhoek that afternoon and requested Pamplin to “cover” for him
in his absence. That afternoon Madden collected Theron and his fellow trainee at
the former’s house. Madden mentioned to Theron that there was no problem with
giving them a lift as, in any event, he had to go to someplace in the vicinity of Paarl
to investigate a case. In these circumstances the most natural or acceptable
inference (cf Govan v Skidmore 1952 (1) SA 732 (N) at 734 A - D; A A Onderlinge
Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A) at 614 in fine - 615B)
is that Madden set out with the object of going to Franschhoek to collect the
statement and dropping off the trainees at Paarl on the way. The deviation to Paarl

was, of course, contrary to instructions but by the time the accident had occurred
the deviation had long since  been completed.
[10] In arriving at this conclusion I have not overlooked the fact that in the
event Madden did not see Dr Haywood to take the statement from him. Why he did
not do so, one simply does not know. But anything could have happened. He may,
for example, have had a mechanical break-down. The most likely inference is that
something untoward must have occurred. Madden was a detective sergeant with
nine years’ experience in the police service. There is nothing to suggest that he was
an irresponsible policeman. It is true that he did not have permission to drop off the
trainees at Paarl, but having regard to the minimal extra distance involved, even Smit
was surprised that permission had been refused. Once having reached Paarl it
would have been the easiest thing to go to Franschhoek to collect the statement
even if he had been intent on going for a joyride or on some “frolic” of his own.
Having regard to what had gone before, his failure to produce the statement, in the

absence of some good reason, would have caused him considerable
embarrassment, if not landed him in trouble with his superiors.
Indeed, Pamplin was doing Madden’s work so that the latter could collect the
statement. But even if after dropping off the trainees Madden had decided to
abandon his earlier intention of obtaining the statement and had embarked upon
some activity in pursuance of his own interests (which would seem unlikely) the
probabilities are that by the time the accident occurred he would have completed
whatever it was he had been doing in the intervening period and would have been
driving back to the police station to continue his stand-by duty. In these
circumstances he would by then have resumed driving within the course and scope
of his employment. Indeed, counsel for the appellant did not contend the contrary.
[11] It follows that in my view the respondent succeeded in discharging the
onus of proving that at the time of the accident the appellant was acting within the
course and scope of his employment.

[12] The appeal is accordingly dismissed with costs.
D G SCOTT  JA
Concur:
VIVIER
JA
MTHIYANE AJA