MSIPHA v.

NDLOVU AND ANOTHER 1991 BLR 365 (HC)

Citation1991 BLR 365 (HC)

Court High Court, Lobatse

Judgment November 18, 1991

Judge Martin Horwitz Ag J

CounselDr. Lever and John Griffith for the plaintiff.

Armstrong Marumo for the defendants.

Annotations None

[zFNz]Flynote

Master and servant - Assault committed by servant - Liability of master - Football match - Players of
defendant club H losing match - Dissatisfaction with refereeing - Players assaulting referee - Referee
sustaining serious injuries - Action by referee against club and its official - Whether official and club
vicariously liable for assault.

[zHNz]Headnote

The plaintiff refereed a match at the National Stadium in Gaborone between Township Rollers and
Geofrey's Transport Tafic Football Club. At the end of the match, Tafic Football Club, having lost the
match was dissatisfied with the

1991 BLR p366

refereeing of the game and gave vent to their feeling by assaulting the referee, the plaintiff, who was A
seriously injured.

In an action by the plaintiff against an official of the club and the club,

Held: (1) where a servant commits a wrong while about the business of his master, he renders the
master vicariously liable for the wrongs of his servant acting in the course and scope of his duties. The
master would also be liable for an omission if the law imposes a duty and there is a failure to act on the
part of his servant. Nkumbi v. Minister of Law and Order 1991 (3) S.A. 29 at p.35d applied. B
(2) A master is liable for harm caused to third parties by the wrongful acts of an agent if such agent is a
servant and if such acts are done in the exercise of the functions to which the servant has been
appointed. Feldman (Pty.) Ltd. v. Mall 1945 A.D. 733 at p.736 applied.

(3) In the instant case, the first defendant was acting as an official of Geofrey's Transport Tafic C
Football Club and therefore within the course and scope of his employment with the club, the second
defendant. It was the duty of the officials of the club to ensure the referee's safety. This they failed to
do. There was evidence that neither the club officials nor its members attempted to safeguard the
plaintiff or prevent or even attempt to prevent the assault. Consequently the first defendant was clearly
liable in his personal capacity and his conduct attracts liability in damages to his employer-the club. The
club was also liable for the omission or commission of its other officials. D

Cases referred to:

(1) Nkumbi v. Minister of Law and Order 1991 (3) S.A. 29.

(2) Feldman (Pty.) Ltd. v. Mall 1945 A.D. 733.

[zCIz]Case Information

Action for damages for assault against the defendants. The facts are sufficiently stated in the E
judgment.

Dr. Lever and John Griffith for the plaintiff.

Armstrong Marumo for the defendants.

[zJDz]Judgment

Martin Horwitz Ag. J. This is an action by the plaintiff for damages sustained by him as a result of F an
assault. The plaintiff has acted over a number of years as a referee of football matches and on 30 July
1988 he refereed a match held at the National Stadium Gaborone between Township Rollers and
Geofrey's Transport Tafic Football Club (Tafic). The first defendant, although employed as a player by
Tafic had on this occasion acted as an official for and of that club and sat on its officials' bench. At the
end of the match, Tafic, having lost the match was as is not unusual in these G circumstances
dissatisfied with the refereeing of the game and gave vent to their feelings by assaulting the plaintiff. In
the assault the first defendant was prominent.

The assault was a particularly vicious one, the plaintiff being rendered unconscious and admitted to
hospital. He suffered soft tissue injuries to his face, neck and shoulders and a severe blow to the H right
side of his head where there was bruising and a possible tear of the capsule and intra-articular cartilage
of the right tempero-madibular joint. Blows to the front and side of his face loosened the upper right
first molar tooth and displaced the lower front central incisor teeth. He was concussed and lost
consciousness for a period between 10-15 minutes.
1991 BLR p367

MARTIN HORWITZ AG J

A Where a servant commits a wrong while about the business of his master, he renders the master
vicariously liable for the wrongs of his servant acting in the course and scope of his duties. The master
would also be liable for an omission if the law imposes a duty and there is a failure to act on the part of
his servant. Nkumbi v. Minister of Law and Order 1991 (3) S.A. 29 at p.35d.

The general principle has been accepted that a master is liable for harm caused to third parties by B the
wrongful acts of an agent if such agent is a servant and if such acts are done in the exercise of the
functions to which the servant has been appointed. In Feldman (Pty.) Ltd. v. Mall 1945 A.D. 733 at p.736,
Watermeyer C.J. said:

"Provided the servant is doing his master's work or pursuing his master's ends he is acting within
the scope of his C employment even if he disobeys his master's instructions as to the manner of doing
the work or as to the means by which the end is to be attained. A servant may even omit to do his
master's work, and if such omission constitutes a negligent or improper performance of his master's
work and causes damage, the master will be legally responsible for such damage. Consequently, a
servant can act in disobedience of his master's instructions D and yet render his master liable for his
acts."

The first defendant was acting as an official and therefore within the course and scope of his
employment with the second defendant. The evidence is also that it was the duty of Tafic officials to
ensure the referee's safety. This they failed to do. There is no evidence that Tafic officials and/or E
members attempted to safeguard the plaintiff or prevent or even to attempt to prevent the assault. I
have said the first defendant clearly is liable in his personal capacity and his conduct attracts liability in
damages to his employer - Tafic. Tafic is also liable for the omission and commission of its other officials.

The plaintiff was 55 years old and apart from quite severe pain in his head and neck he had suffered
further pain and discomfort because of the instability of the right tempero-mandibular joint which F
makes mastication of food difficult. He will require surgical treatment to the jaw, and will suffer various
aches and pains over the next few years. He also however, suffered a great deal of embarrassment, in
that the crowd watching the match consisted of a large number of students and ex-students. It
obviously was most humiliating for this man of 55 suddenly to be knocked down and in full view of the
public subjected to an undignifying battering.

G The first defendant was in default throughout the trial. The second defendant was represented
during the first hearing but not thereafter.

After the evidence had been led Mr. Lever gave notice that he was increasing his claim from P27000 to
P60000 and I granted the amendment.
 H The plaintiff was playing an important part in a popular sport in Botswana. The fact that he was paid
for refereeing and he enjoyed doing it serve in my opinion to increase the damages he suffered since he
can no longer officiate as a referee. The essence of a sport is to behave as a sportsman and not indulge
in this type of hooliganism. I shall award a global amount to cover all aspects of the plaintiff's claim.

I award the plaintiff the sum of P25000 to be paid jointly and severally by the first and second
defendants.

1991 BLR p368

I therefore give judgment against the first and second defendants jointly and severally the one paying A
the other to be absolved in the sum of P25000 with costs.

Judgment for the

plaintiff.

E.K.T. B