THE
HIGH COURT OF SWAZILAND
MPHIKELELI
MAMBA
Plaintiff
And
VUSIMANDLA
DLAMINI
Defendant
Civil
Case No. 2294/2003
Coram
S.B. MAPHALALA – J
For
the Plaintiff MR. SHABANGU
For
the Defendant MR. K. MOTSA
JUDGMENT
(21/07/2004)
The
Plaintiff instituted proceedings by way of summons against the
Defendant for an order that the Defendant pay to the Plaintiff an
amount in the sum of E8, 000-00 (eight thousand Emalangeni) being in
respect of a loss that the Plaintiff sustained as a consequence of
the plaintiff's alleged negligence.
On
the 5th December 2003, an award of judgment by default was granted in
the plaintiff's favour. Subsequently the Defendant successfully
applied for a rescission of
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the
said judgment. In his Founding affidavit in support of the
application for rescission the Defendant clearly stated that he
performed the acts complained of his capacity as Branch Manager of
Cargo Carriers and as such should be sued vicariously with Cargo
Carriers. The Plaintiff did not oppose the application for
rescission.
The
issue before the court presently is a special plea based on the
contention made by the Defendant that this action is totally
defective for non-joinder of Cargo Carriers (Pty) Ltd as the
Defendant performed the act complained of in his capacity as Branch
Manager of Cargo Carriers (Pty) Ltd and which duties were within the
course and scope of his employment.
In
support of the special plea the court was referred to the legal
authorities in the case of Mkhize vs Marten 1914 A.D. 382 to the
proposition of the law that masters are liable in solidium for the
delicts of their servants whenever they inflict injury or damage in
the duty or service (in officio out minesterio) set them by their
masters. The court was further referred to the case of Stadraad Van
Pretoria vs Pretoria Pools 1990 (1) S.A. 1005 at 1007 in support of
the Defendant's case in this regard.
On
the aspect of non-joinder the court was referred to the celebrated
South African case of Amalgamated Engineering Union vs Minister of
Labour 1949 (3) S.A. 637 (A) and that of Abrahamse & others vs
Cape Town City Council 1953 (3) S.A. 855 ( c) at 859.
The
Plaintiff on the other hand has taken the view that the Defendant is
not entitled to demand the joinder of Cargo Carriers (Pty) Ltd as of
right in these proceedings since the latter is not a necessary party
in the proceedings but merely a party that Plaintiff is entitled to
join. For this proposition I was again referred to the case of
Amalgamated Engineering Union (supra) and that of Henri Viljoen (Pty)
Ltd vs Awerbuch Brothers 1953 (2) S.A. 151 at 166 E).
It
appears to me that the Defendant's main defence to the plaintiff's
claim is that Cargo Carriers is vicariously liable as he performed
such acts during the scope of employment. It has become common cause
that this is so. It follows therefore that Cargo Carriers is a
necessary party to the proceedings and will have a direct and
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substantial
interest in any order that the court will make in this matter.
According to the dictum in the case of Amalgamated Engineering Union
(supra) if a third party has, or may have, a direct and substantial
interest in any order the court might make in proceedings or if such
order cannot be sustained or carried into effect without prejudging
that party, he is a necessary party and should be joined in the
proceedings, unless the court is satisfied that he has waived his
right to be joined.
On
the basis of the above reasons I have come to the conclusion that
Cargo Carriers (Pty) Ltd is a necessary party to the proceedings and
would therefore order that the proceedings be stayed until Cargo
Carriers (Pty) Ltd has been joined in the plaintiff's action; and it
is so ordered.
Costs
to be costs in the cause
S.B.MAPHALALA
JUDGE
