REPUBLIC OF SOUTH AFRICA

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
Case Number  :  486 / 01

In the matter between

COSTA DA OURA RESTAURANT (PROPRIETARY)
LIMITED t/a UMDLOTI BUSH TAVERN                             Appellant

and

ANTHONY REDDY                                                          Respondent

Composition of the Court :
OLIVIER,
SCOTT,
ZULMAN,
CAMERON and NAVSA  JJA

Date of hearing :
21 FEBRUARY 2003

Date of delivery :
7 MARCH 2003

SUMMARY

Delict - vicarious liability of employer for assault perpetrated by employee barman on
customer.   Usefulness of agreed statement of facts after trial for purposes of appeal
highlighted.

________________________________________________________________

J U D G M E N T
________________________________________________________________

P J J  OLIVIER  JA

[1] During November 1999 the respondent instituted action in the
Durban and Coast Local Division of the High Court against the
Appellant for payment of the amount of R122 536,00.   The
respondent alleged that he, accompanied by his girlfriend, were
patrons at the defendant's tavern, comprising a restaurant and bar,
during the early evening of 31 October 1997.   He further alleged that
he was then unlawfully assaulted by one Goldie, who was employed
by the appellant as a part time barman.   He suffered injuries and
alleged that the appellant, is vicariously liable for the latter's conduct.
[2] A trial on the merits took place before Pillay J.   On 20 July
2001 the learned judge ruled in favour of the respondent, declaring
that the appellant was liable to the respondent for payment of such

damages as may be proved or agreed upon.   It was also ordered
that the appellant was liable for the respondent's costs.   Pillay J later
granted leave to the appellant to appeal to this Court.
[3] Pending the appeal, the parties had agreed on a statement of
facts which would replace the record of the trial proceedings and
serve as the exclusive basis on which the appeal should be
adjudicated.   This was a commendable course of action agreed
upon by the legal representatives of both parties.   It made the task of
this Court much easier, and also contributed to the hearing of this
matter in this Court taking place a mere seven months after the
lodging of the appeal record.   It is a course of action that should be
followed in more cases.
[4] The agreed facts are the following:
'THE FACTS:

(a)
The Respondent is a 38 year old computer network
technician.
(b)
The Appellant is a duly registered company with limited
liability, which conducts business as the Umdloti Bush
Tavern.

The Umdloti Bush Tavern is a family restaurant and bar.   It is
situated on the first floor of a building situated in Umdloti.
Entrance to the building is gained on the ground floor, as
demonstrated by photo 1 of the photographs annexed hereto.
Steps lead from the ground floor entrance into a corridor shown in
photo 3.   The first floor entrance to the Umdloti Beach Tavern is
shown in photographs 5 and 6.

The Umdloti Bush Tavern consists of a restaurant area and a bar
area shaped in a horseshoe with seating available around the bar.

Seating for about 200 people is available.

The Umdloti Bush Tavern employed five managers, twelve kitchen
staff members and about twenty waiters and barmen.

It is frequented by people of all races, ages and gender.   It stays
open until late at night.

Periodically people abuse alcohol in circumstances which could
lead to confrontation.   When that happens, the management
members endeavour to identify potential problems in advance and
try to resolve them.

The Umdloti Bush Tavern does not employ bouncers.   In terms of
its policy, staff members involved in situations of potential conflict
are required to obtain the assistance of management, on the basis
that a manager will attend to the problem.

At all times material the Umdloti Bush Tavern had a training
programme in place, in terms of which it informally trained its
employees inter alia on how to treat customers.

At the time of the incident Goldie had been employed at the
Umdloti Bush Tavern for about a year.   He was employed as a
casual hourly paid barman.   (No written contract was concluded.)

Goldie's duties in terms of his employment, included the following:
(a)
he was specifically required to treat customers with courtesy;
(b)
he had to serve drinks or food (from behind the bar), as the
case may be, stock the bar (when required) and offer help
where required;
(c)
he was instructed not to get involved in any incidents and, in
the event of a potential situation developing, required to
report the matter to management;
(d)
where possible, he had to serve customers without keeping
them waiting;

(e)
he had to refrain from engaging in any situation that could
result in an altercation.

On the evening of 31st October 1997 the Respondent and his
girlfriend went to the Umdloti Bush Tavern and seated themselves
at the horseshoe shaped bar.

Goldie was on duty from 18h00 until 03h00 the following morning.

Upon the arrival of the Respondent and his girlfriend, Goldie was
stationed behind the bar.

The Respondent and his girlfriend waited at the bar for service.   It
appeared to them that Goldie was serving everyone else besides
the Respondent and his girlfriend.

After some time the Respondent was served by another barman.
While he was being served, the Respondent mentioned to the other
barman that Goldie could take a few lessons from him on how to
serve customers.

This was stated within earshot of Goldie, who, in response, glared
at the Respondent.

Thereafter Goldie came over to the Respondent and, from behind
the bar, beckoned him to come closer with his right forefinger.

The Respondent responded by saying words to the effect that he
"did not come for people like that".

This agitated Goldie who, thereafter, occasionally glared at the
Respondent and appeared to be aggressive.   He was visibly upset
and, whilst glaring at the Respondent, nodded his head as if to
convey something.

Goldie resented being criticised for lack of service in circumstances
where, in his view, he tried to serve everyone as quickly as
possible.   He agreed that he was upset but denied that he
intended to intimidate the Respondent.

At some stage Goldie reported the incident to a member of
management, who told him not to get involved with the Respondent
and to allow another barman to served the Respondent.

When the Respondent and his girlfriend decided to leave, the
Respondent generously tipped the other barman.

Goldie noticed this.

As they were about to leave, Goldie left the bar area and quickly
exited through the main entrance to the premises.

The Respondent and his girlfriend met up with Goldie in the
corridor immediately outside of the glass door on the premises, as
shown on photographs 2, 5, 6, 7 and 8.

There Goldie immediately commenced punching the Respondent
and, when he fell to the ground, repeatedly kicked him with booted
feet, in particular, on his right leg.   As a result of the attack the
Respondent sustained injuries including the fractures referred to
supra.

During the attack Goldie did not say anything.   Goldie then left the
area.

The attack took place in the immediate vicinity of the bar and within
a minute of the Respondent and his girlfriend leaving the bar.

Immediately after the incident the manager of the Umdloti Bush
Tavern found Goldie downstairs, summarily dismissed Goldie
because he had broken the rules that regulated how he should
perform his basic duties.   Under cross-examination the manager
made the following concession:

'I think it must follow, Mr Connor, that that is why you
fired him, because in the course of his work he didn't
comply with the basic duties that you expected him to
comply with, hence you were well within your rights to
terminate his employment.   Doesn't that follow?
It would appear so.'

The diagram and photographs incorporated in the appeal record
correctly reflect the layout of the premises and the corridor
immediately outside of the door giving entrance to the Umdloti
Bush Tavern.

THE LEGAL ISSUE:
It is agreed, against this background, that the only issue for
determination by the above Honourable Court is whether the
Appellant is vicariously liable for the actions of Goldie.

THE CONTENTIONS OF THE PARTIES:
The Respondent contends that, for the reasons which follow, the
actions of Goldie were sufficiently closely connected with his duties
to render the Appellant liable:
(a)
the incident occurred whilst:

(i)
Goldie was employed by the Appellant;
(ii)
Goldie was on duty;

(ii)
Goldie was required to serve the Respondent;
(iv)
Goldie was obliged to comply with his duties and the
abovementioned instructions regulating the treatment
of customers;

(v)
the Respondent and Goldie were upon or within the
immediate vicinity of the premises of the Appellant;
(b)
The attack followed within a short space of time after the
incident in the bar;
(c)
the attack arose because Goldie felt provoked by the
Respondent whilst he was in the process of exercising his
functions;
(d)
Goldie failed to comply with the instructions of his employer;
(e)
in time, space and nexus, Goldie's actions were sufficiently
closely connected with his duties, to render the Appellant
liable;
(f)
it would be artificial to break the events into separate
compartments
in
terms
of
cause
and
effect,
in
circumstances where the incident commenced at the bar,
whilst Goldie was in the process of serving customers, and
culminated shortly thereafter, and as a direct result thereof,
immediately outside the premises.

The Appellant contends that it is not vicariously liable for the
actions of Goldie, on the basis that:
(a)
the incident occurred after the Respondent and his girlfriend
had left the restaurant, after consuming two or three drinks;
(b)
Goldie's actions arose from an act of personal vengeance;
(c)
instead of devoting his time to the Appellant's business,
Goldie, acting in pursuit of his own, abandoned the
Appellant's premises in order to pursue his act of assault.
(d)
the act was a deliberate one put into operation by Goldie
after he had abandoned his duties with the Appellant;
(e)
it cannot be said that, at the time of the assault, Goldie was
still exercising any function to which he was appointed, nor

can it be suggested that Goldie was acting in the furtherance
of the interests of the Appellant.

CONCLUSION:
In the event of the above honourable court finding in favour of the
Appellant, the appeal should be upheld, with costs and the finding
of the Court a quo should be set aside and replaced with a finding
dismissing the Respondent's action, with costs.

In the event of the above Honourable Court finding in favour of the
Respondent, the appeal should be dismissed, with costs, and the
matter referred tot he Court a quo for the determination of
quantum.'

[5] As was to be expected, appellant's counsel described the
assaults perpetrated by Goldie on the respondent as occurring during
a frolic of his own, for which the appellant is not liable.   It is perhaps
necessary to repeat what Watermeyer CJ said in Feldman (Pty) Ltd v
Mall 1945 AD 731 at 743 - 744:
'Another form in which the law is sometimes stated is that a master
is liable for those wrongful acts of a servant which are done while
he is on his master's business but not for those which are done

while he is on a frolic of his own.   This statement of the principle is
misleading.   The question is not whether the servant was on a
frolic of his own at the time when the wrongful act was done but
whether the act causing damage was an act done by the servant in
his capacity as servant and not as an independent individual.   The
phrase "frolic of his own" comes from the judgment of Baron Parke
in Joel v Morrison (6 C. & P., at p. 503), but Baron Parke carefully
qualified the phrase.   He said: "If he be going on a frolic of his own
without being at all on his master's business the master will not be
liable."   This qualification is necessary because the servant, while
on his frolic may at the same time be doing his master's work and
also because a servant's indulgence in a frolic may in itself
constitute a neglect to perform his master's work properly, and may
be the cause of the damage.'

This qualification was repeated, inter alia, in Minister of Law
and Order v Ngobo 1992 (4) SA 822 (A) at 827 B, where Kumleben
JA stated:
'The critical consideration is therefore whether the wrongdoer was
engaged in the affairs of business of his employer.   (I shall refer to
it as the 'standard test' or 'general principle?)   It has been
consistently recognised and applied, though - since it lacks
exactitude - with difficulty when the facts are close to the
borderline.'   (My emphasis)

In the court a quo Pillay J referred to a number of reported cases, in
particular to the judgment by Schreiner J of Moosa v Duma and the
Vereeniging Municipality 1944 TPD 30, and quoted from p 39 of the
report as follows:
'I have had considerable difficulty in deciding whether in the
circumstances of this case the incidents were part of the
performance by the first respondent of his function of explanation,
or whether, though the quarrel arose out of the work he was
employed to do, his tortious acts were merely personal and
capricious, so as not to fix the municipality with liability.   Where a
servant having had a quarrel with a member of the public as a
result of an interview arising out of the servant's work assaults or
defames the other party as a distinct act  -  doing it perhaps,
elsewhere than at his place of employment or after a considerable
interval, one would not be disposed to hold the employer liable
simply because the quarrel arose out of a matter falling within the
servant's functions.   But where the quarrel arises at once out of the
servant's performance of his work and is followed there and then by
the tortious act it seems to me that the proper interpretation of the
servant's behaviour is that he is improperly carrying out what he
was employed to do and not that he was acting out of personal
malice or caprice.'  (My emphasis)

Pillay J continued:

'In casu, it was not a grudge which Goldie harboured against the
Plaintiff independently of his work situation.   It was a grudge which
arose directly out of Goldie's performance of his duties as a
barman.   The digression or deviation, if any, from what Goldie was
employed to do, and what he in fact did was so close in terms of
space and time that it can reasonably be held that he was still
acting within the course and scope of his employment.'

[6] I disagree with the conclusion reached by PillayJ.   There are
many cases illustrating the application of the principle of vicarious
liability, here and overseas.   The case that I find particularly
instructive is Deatons (Pty) Ltd v Flew which was heard by the High
Court of Australia.   The judgment is reported in (1949) 79
Commonwealth Law Reports 370.   The facts were that the plaintiff
went into a public bar.   He was under the influence of liquor.   While
making his way through the customers at the bar, he upset a number
of glasses of beer.   The barmaid then asked him to leave.   He then
used bad language and struck her on the side of her face.   She

responded by throwing the glass of beer that she was holding into his
face, but the glass slipped out of her hand and struck his face, as a
result of which he lost an eye.   The High Court held that on these
findings the defendant, the owner of the bar, could not be held
vicariously liable for the delict committed by the barmaid.   Dixon J
encapsulated his conclusion as follows at 381 - 382 of the report:
'The truth is that it was an act of passion and resentment done
neither in furtherance of the master's interests nor under his
express or implied authority nor as an incident to or in
consequence of anything the barmaid was employed to do.   It was
a spontaneous act of retributive justice.   The occasion for
administering it and the form it took may have arisen from the fact
that she was a barmaid but retribution was not within the course of
her employment as a barmaid.'

[7] If one applies the basic principles of our law relating to the
vicarious liability of an employer for the wrongs committed by an
employee (see Minister van Veiligheid en Sekuriteit v Phoebus Apollo
Aviation Bpk 2002 (5) SA 475 (SCA) for an overview of the latest

decisions), the conclusion so elegantly worded by Dixon J in
Deaton's case, is also particularly applicable to the appeal now under
consideration.   The assault by Goldie on the respondent outside the
tavern occurred after he had abandoned his duties.   It was a
personal act of aggression done neither in furtherance of his
employer's interests, nor under his express or implied authority, nor
as an incident to or in consequence of anything Goldie was employed
to do.   The reasons for and the circumstances leading up to the
assault may have arisen from the fact that Goldie was employed by
the appellant as a barman, but personal vindictiveness leading to the
assaults on patrons does not render the employer liable.
[8] In the result the appeal succeeds with costs.   The order of the
court a quo is set aside and replaced by the following order:

'The plaintiff's claim is dismissed with costs.'

P J J  OLIVIER  JA
CONCURRING:
SCOTT  JA
ZULMAN  JA
CAMERON  JA
NAVSA  JA