Tshwane woman wants law to regard e-hailing app drivers as employees

A Tshwane woman who was allegedly assaulted by a Bolt driver in 2019 wants the common law to be developed by imputing liability upon e-hailing application providers like Bolt. 

“The existing jurisprudence in which application providers like [Bolt] are not liable for its employees’ actions is a defect which needs to be rectified,” Noluthando Ndala's lawyers said in a notice to the Pretoria high court in terms of rule 16A of the rules of the court.

The rule requires a party raising a constitutional issue to prepare a rule 16A notice containing a clear and succinct description of the constitutional issue raised. The notice was filed on May 26.

Ndlala said in addition to assault, she alleges her phone worth R20,000 was damaged. 

In her particulars of claim filed last year, she wants the company to be held liable for her delictual claim against the driver, Aaron Baloyi.

Ndala said without provocation or reason, Baloyi unlawfully assaulted her by punching and dragging her out of a motor vehicle in August 2021. She said she suffered damages in the amount of R2.1m, including R500,000 for future medical and psychological treatment, and R1m for future loss of income.

Ndala alleged Bolt was vicariously liable for damages she suffered as a result of assault to her and her property by Baloyi.  

She further alleged that at all times, she was a passenger in an e-hailing motor vehicle driven by Baloyi who was an app-based driver, using Bolt’s e-hailing-app to transport passengers under the control and supervision of Bolt. 

In its plea, Bolt alleged it has never employed Baloyi and said he could not have acted within the course and scope of the averred employment, and was thus self-employed 

Bolt denied that e-hailing app providers have control or supervision over drivers such as Baloyi and thus denied being vicariously liable for the wrongful acts of Baloyi.

It said in addition to being self-employed, Baloyi used his own vehicle to transport passengers. It also said many drivers who made use of e-hailing app made use of various service providers at the same time to find passengers.

In her rule 16A notice, her lawyers cited the case of Carmichele v Minister of Safety and Security, decided by the Constitutional Court in 2001, which they said dealt with the responsibility that state organ employees have to members of the public when fulfilling their duties. 

“These responsibilities cannot only be in the hands of the organs of state but must be extended to private companies whose business profits involve service to members of the public such as e-hailing companies.” 

She said Bolt has was made aware through complaints and social media about instances where women have felt unsafe and have been attacked/violated while using its e-hailing services. 

Her lawyers also relied on a case of Kavita S v Uber India, decided at the Thane District Consumer Forum in November last year, where Uber was held liable for the actions of its drivers without deciding whether the app-based transport workers are employed or not. 

“The decision to impute liability on app-based providers was despite the argument by Uber that drivers are 'independent contractors' and they merely offer technological and algorithm-based solutions to connect the supply and demand in the market. 

“It was decided based on the degree of control that it has over the drivers as more than just a facilitator,” her lawyers said.

Interested parties have been invited to give notice to be admitted to these proceedings. 

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