AN aggrieved Bolt passenger, who is suing the e-hailing service for more than R2 million after allegedly being assaulted by one of its drivers, wants the law changed to allow them to be declared employees.
Noluthando Dorah Ndala has filed papers in the Gauteng High Court, Pretoria, demanding more than R2m in damages from Bolt after she was allegedly assaulted by a driver, identified as Aaron Baloyi, without provocation in August 2019.
She lost an earlier lawsuit on a technicality in March this year, in which she wanted Bolt to make a proper discovery of documents, including a contract entered into between the e-hailing service and Baloyi, clearly describing their relationship, including with passengers such as Ndala.
Ndala also wanted proof that Baloyi’s profile was blocked, as well as the video/audio recording of the disciplinary hearing between him and Bolt and the minutes recorded during the hearing.
She further demanded access to documents pertaining to how her trip was monitored, financial statements and/or invoices indicating how much she was charged, Bolt’s profit for the trip and how much Baloyi was paid for from the ride.
Other documents she wanted are proof of Bolt and Baloyi’s vehicle inspection report, evidence that the driver has a clean criminal record, that a proper background was conducted, and proof of possession of a professional driving permit and trip insurance.
During proceedings, Ndala also wanted additional documents she had not initially requested, such as electronic details or information connecting her request for transportation with Baloyi through the Bolt App (application), details of the contract (oral or written) between the service and the passengers using its App.
However, acting judge Mncube declared the move improper and that it rendered his application to compel Bolt to produce the documents fatally flawed.
The court found that the door is not shut on Ndala as she can still request the documents during the trial if the evidence proves on a balance of probabilities the existence of the requested documents.
”At the very least, whether or not there exists an employment relationship between the respondents (Baloyi and Bolt) is, in my view, a matter for the trial court to determine using the trite legal principles on vicarious liabilities,” reads the judgment handed down on March 9, 2023.
Bolt denied that it was ever in possession of any documents relating to the matter save for the documents set out in the schedules.
In her latest lawsuit, Ndala states that existing jurisprudence in which App providers like Bolt are not liable for its employee’s actions is a defect which needs to be rectified.
”Bolt Services Pty (Ltd) has been made it publicly known that it is aware, through complaints and social media, about instances where women have felt safe and have been attacked/violated whilst using their e-hailing services,” reads Ndala’s court papers filed on May 29.
She maintains that e-hailing companies have a duty of care in that they operate the same as public transportation systems; the safety of passengers is of paramount importance.
According to Ndala, this can be achieved by applying section 233 of the Constitution, which deals with the application of international law, to develop the common law definition of “employee” to include e-hailing providers such as Bolt vicariously liable for the unlawful and wrongful actions of their drivers like Baloyi.
Ndala wants section 233 of the Constitution to be applied to the effect that the court prefers a reasonable interpretation of the Labour Relations Act (LRA) to include e-hailing drivers.
She cited international case law involving another e-hailing App, Uber, which states that drivers have been declared employees based on the aspect of control, such as how they instruct drivers to do their work, the performance of their duties, the fact that drivers are rated through a rating system amounting to a performance management and/or disciplinary procedures.
In another case in India, Uber was found to be liable for the actions of its drivers without deciding whether they were employees or not ,despite its claim that they were independent contractors merely offering technological and algorithm-based solutions to connect the supply and demand in the market.
”Therefore, the court can even impute vicarious liability on the second respondent (Bolt) without determining whether the first respondent (Baloyi) is an employee or not,” Ndala insisted.
She said in California, a court of appeal found that Uber and Lyft drivers perform services for these companies in the usual scope of business for it to be successful and declared that they should, in fact, be deemed to be employees.
Although the ruling was later overturned, Ndala maintained the basis used in finding that they are, in fact, employees can be used to develop South African legislation.
In 2017, the CCMA (Commission for Conciliation, Mediation and Arbitration) ruled that it had jurisdiction to determine a dismissal dispute referred brought by a group of Uber drivers as they were its employees for the purposes of the LRA.
Ndala’s lawyers, Ramapuputla Attorneys Inc., told the Sunday Independent that Bolt’s legal representatives had undertaken to send their amended plea by this past Thursday (March 22) and indicate whether or not they were opposing her lawsuit.