African Guarantee & Indemnity Co Ltd v Minister of Justice

• Jurisdiction: South Africa
• Judge: Fagan CJ, Schreiner JA, Hoexter JA, Ramsbottom JA and A B Beyers JA
• Judgment Date: 26 March 1959
• Hearing Date: 20 March 1959
• Court: Appellate Division

H Ramsbottom, J.A.:

This is an appeal from the judgment of STEYN, A.J., in the Witwatersrand Local Division. The material facts are not in dispute.

At about 8 p.m. on 5th April, 1957, a collision occurred between a motor-car which belonged to the appellant and which was being driven by a Mr. Wright, and a radio-van the property of the Government which was being driven by one Liebenberg, a constable in the

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South African Police. The collision took place at a spot near the Johannesburg end of the Pretoria-Johannesburg main road. At that place road construction work was in progress, and a newly constructed piece of road, on the west side, was closed to the public. This closed portion A was cordoned off and was demarcated by a row of large oildrums that had been painted white. To the south of the closed portion the road was open to its full width. For traffic going from south to north, therefore, the road became narrower where the closed portion began; the commencement of the closed portion was marked by a row of white drums placed diagonally. B Immediately before the accident Mr. Wright was driving the appellant's car from north to south along the narrow portion of the road; he was driving well to the left, i.e. the east side of the road. At the same time the radio-van was being driven from south to north along the western side of the wide portion to the south of the place where the white drums marked the place where that part of the road was C closed. The radio-van was being driven at a very high speed - at 70 or 80 miles per hour - and the driver of the radio-van did not see the white drums until a late stage. When he saw the drums he swerved to his right and jammed on his brakes. He lost control of the van which swung across to the east side of the narrower open portion of the road where it collided with the appellant's car, causing damage in the amount of £475.

D Although Liebenberg was driving the van at the time of the collision, he was not the authorised driver. There was evidence that he had been forbidden to drive because, although he was a licensed driver, he had been involved in an accident while driving a police vehicle. The E authorised driver of the radio-van was Constable Fouche, a member of the South African Police. Fouche had allowed Liebenberg to drive, and at the time of the accident Fouche was in the van sitting next to Liebenberg.

The plaintiff's case as originally pleaded was that at the time and place of the collision the van was 'being driven on the business of the F South African Police' by Liebenberg, under the direction and control of Fouche 'the duly authorised driver thereof who was then and there acting in his capacity as a servant of the Crown and within the scope of his authority as such servant' and that the collision was caused by the negligence of Fouche. The negligence alleged was that Fouche deputed to G Liebenberg the driving of the van when he knew that he was a reckless, dangerous and incompetent driver, and that he failed to exercise proper control over Liebenberg but allowed him to drive in a reckless and negligent manner.

By an amendment to the declaration the plaintiff alleged in the alternative that at the time of the collision Liebenberg was a servant H of the Crown who was acting in the course and within the scope of his employment as such, and that the collision was caused by Liebenberg's negligence.

The defendant in his plea denied that at the time of the collision the van was being driven on the business of the South African Police. He denied that at the time of the accident Fouche was acting in his capacity as a servant of the Crown or within the scope of his authority

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as such servant and he denied that Fouche was negligent as alleged or at all. Alternatively, he denied that the collision was caused by the negligence of Fouche, and in the further alternative he denied that he was responsible for the negligence of Fouche. In reply to the A plaintiff's alternative allegation, the defendant denied that Liebenberg, when driving, was acting within the scope of his employment. He denied that Liebenberg had been negligent or that Liebenberg's negligence was the cause of the accident.

The learned Judge in the Court below found that Liebenberg had been B negligent, and that his negligence was the cause of the accident. Those points, indeed, were no longer in dispute. But he held that at the time of the collision Fouche and Liebenberg were on a 'frolic of their own' and were not acting in the course of their employment. He held, therefore, that the defendant was not responsible for their negligent C acts and gave judgment accordingly. From that judgment the appellant has appealed.

The facts which are relevant to the question of the respondent's liability are as follows:

At 2 p.m. on the day of the accident the radio-van was sent out on patrol duty. It had a complement of three; Constable Fouche who was the D driver of the van and who was in command, Constable Liebenberg and Native-Constable Bernard. The tour of duty was from 2 p.m. to 10 p.m. The van was fitted with a two-way radio set so that the constables were able to communicate with the control station and also to receive instructions. The duty of the constables was to patrol the northern E suburbs of Johannesburg, to make such reports as might be necessary, and to carry out such instructions as they might receive from the control station. They were also under the duty to take such police action as might be necessary, from their own observation, during the course of the patrol. It was Liebenberg's duty to carry out such police action with the assistance of the Native constable. No routes were F ...