British South Africa Co v Crickmore

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA and Juta JA
• Judgment Date: 19 February 1921
• Hearing Date: 24 November 1920
• Court: Appellate Division

Solomon, J.A.:

This appeal from the High Court of Southern Rhodesia raises the question whether the British South Africa Company is liable in damages to the plaintiff, who complained that he had been wrongfully arrested by one of its police constables. In the court below it was held that it was liable, and judgment was given against it for the sum of £50 with costs. The appeal against this decision was based mainly upon two grounds. The first was that the appellant Company was protected from liability by the doctrine that "the King can do no wrong" and the second was that the constable was acting in discharge of a statutory duty and not on behalf of the Company. On the first point a very interesting and exhaustive argument was addressed to us, which, however, I do not find it necessary to examine, inasmuch as I am satisfied that the appeal should be allowed on the second ground 'raised on behalf of the appellant Company.

Under sec. 10 of its Charter, it is provided that the British South Africa Company "shall preserve peace and order . . . and may with that object make ordinances . . and may establish and maintain a force of police." In 1903 Ordinance No. 21 of that year was passed "for the organisation and regulation of a police force for Southern Rhodesia." By sec. 2 "all laws repugnant to or inconsistent with the provisions of this Ordinance are hereby repealed." It was under this Ordinance that the constable in question was appointed, and it is to it mainly that we must look in determining what are his rights and duties and what are his relations to the Company. By sec. 12 it is provided that the force shall serve as a police force for preserving the peace, preventing crimes and apprehending offenders." Under sec. 15 "every member of the force shall obey and execute all lawful summonses, warrants, executions and other process of any Court or Justice of the Peace, to him directed and delivered, and any summons, warrant or other process directed or given to any member of the force shall and may be executed and enforced by any other member of the same or any other force . . . . "It was under this section that in this case the constable purported to act; he had no warrant himself to arrest the plaintiff, but he knew that a warrant for his arrest had been issued, and it was on that ground that the arrest was made.

Solomon, J.A.

Now, in a sense, no doubt the police are the servants of the Company, by whom they are appointed and paid, and by whom they may he discharged. But in respect of such an act as the arrest of a person for the commission of a crime they are performing a duty imposed upon them not by the Administration but by Statute. In the discharge of that duty the Administration has no control over them and has no power to interfere with them. When, therefore, a constable is effecting an arrest he is not acting as a servant of or on behalf of the Company, but is carrying out a duty entrusted to him by the Legislature. The distinction is one which is recognised in it number of decided cases, but nowhere more clearly than in the well-known case of Tobin v The Queen (16 C.B.N.S, 310), where a petition of right was presented to recover compensation for the loss of a ship, The facts were that a commander of a Queen's ship employed in the suppression of the slave trade on the coast of Africa seized a schooner belonging to the suppliant, which he suspected of being engaged in slave-traffic, and, it being inconvenient to take her to a port for condemnation of a Vice-Admiralty Court, caused her to be burned. In his judgment dismissing the petition EARLE, C.J., said: "The liability of a master for the act of his servant attaches in the case where the will of the master directs 'both the act to be done and the agent who is to do it. The act of the servant is then held to be the act of the master. . . . . The master is held to be responsible upon the ground that he has put the servant in his place to perform a service ordered by himself and over which he has absolute control at all times . . . . But when the duty to be performed is imposed by law and not by the will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment." There observations are absolutely in point in the present appeal. The arrest by a policeman of an offender' against whom' a *arrant has been issued is not a service ordered by the Company and over which it has absolute control, but is a duty imposed by statute, in the discharge of which the Company has no power of interference. This principle was applied by the Natal Provincial Division in the case of Lawford v Minister of Justice (1914, N.L.R. 284). That was an action against the Minister of Justice for wrongful arrest and malicious prosecution by one Sergeant Wilson, a rifleman, carrying out police duties

Solomon, J.A.

under Act 13 of 1912. To the declaration exception was taken that no cause of action was disclosed. In his judgment allowing the exception BROOME, J., said: "Can it be said that the Crown is liable for his wrongful acts in the same manner as a master would be liable for the acts of one who is his servant in the usual sense of the term? The answer to that is to be found in the fact that the public duties of a policeman are entirely different from those of a servant acting within the scope of his duties and subject to the specific directions and control of his master . . . . His appointment was to perform police duties which have been determined by the Legislature'. . . . In performing these public duties he is acting not by virtue of the authority of the Government but by virtue of something imposed as a public obligation to be done not by the Government but by himself in terms of the Ordinance." In the court below this statement of the law was adversely criticised by RUSSELL, J.: "With all deference," he says, "I should prefer to ask whether the obligation imposed on the officer was...