The MEC for Department of Public Works (Eastern Cape) v Thamsanqa Faltein

The respondent, an employee of the Department of Public Works in the Eastern Cape stationed at Grahamstown, sustained serious injuries on 16 November 1996 in a collision near Whittlesea. He was a passenger in a departmental bus travelling to attend a colleague's funeral at Cala. The department had a policy of making buses available to employees to attend funerals of deceased colleagues as a goodwill gesture. Employees attending would nominate a driver from amongst themselves who was employed as a driver, and management would provide written authority. For this funeral, Mr Magadla was authorized to drive. However, after the funeral, Mr Belwana (also a departmental driver) took over driving without authorization from management. The collision occurred while Belwana was driving the bus back to Grahamstown. The respondent sued the appellant (MEC for Public Works) for R1,364,000, being the difference between actual damages and R25,000 recoverable from the Multilateral Motor Vehicle Accident Fund. It was alleged the collision was caused solely by Belwana's negligent driving while acting in the course and scope of his employment.

• Whether Belwana was acting in the course and scope of his employment with the appellant at the time of the collision, despite not being authorized to drive on that specific journey
• The nature of the agreement concluded between the appellant and the passengers in the bus
• Whether the respondent had indemnified the appellant against injury or loss suffered as a result of his conveyance on the bus
• Whether the respondent is precluded by Section 40 of the Public Service Act 1994 from claiming compensation from the appellant

The appeal was dismissed with costs.

An employer is vicariously liable for the negligent acts of an employee who is acting in the course and scope of employment, even where the employee was not specifically authorized for that particular task, provided: (1) the employee was employed to perform that type of work generally; (2) the employee was engaged in the employer's business and not for personal purposes; and (3) the employer retained the right of control over the manner in which the work was performed. The phrase 'in, or in the interest of, the performance of the functions of the State' in Section 40 of the Public Service Act 1994 must be read disjunctively, with the latter concept being wider than the former. Industrial relations activities undertaken by the State to maintain good relations with workers fall within the interest of the performance of State functions.

The court observed that all witnesses appeared to be striving to be honest but made no specific credibility findings on the disputed issue of whether drivers were paid for driving to funerals. The court noted that even if payment could not be established, this would not by itself prove that drivers were not acting within the course and scope of employment. The court also commented that the resident engineer, Smit, testified he would have had no objection to Belwana driving if something had happened to Magadla, and that 'something did happen' - the passengers did not want Magadla to drive back. The court observed that it was unclear on the evidence whether only non-workers or also employees of the department had to sign indemnity forms, but this uncertainty worked against the appellant who bore the onus of proof.

This case is significant in South African law for its interpretation of vicarious liability in the employment context, particularly where an employee acts without specific authorization but within the general scope of their employment. It clarifies that payment for services is not determinative of whether an employee is acting within the course and scope of employment. The judgment also provides important interpretation of Section 40 of the Public Service Act 1994, establishing that the exception to State liability applies broadly to conveyance 'in the interest of' State functions, not just conveyance directly 'in' the performance of State functions. The case demonstrates that industrial relations activities, such as providing transport to employees for funerals as a goodwill gesture, fall within the interest of State functions. It reinforces the principle that an employer cannot escape vicarious liability simply because an employee exceeded specific instructions, where the employee was still engaged in the employer's business.