Masikane v Smit and Another

• Jurisdiction: South Africa
• Citation: 1965 (4) SA 293 (W)

Masikane v Smit and Another
1965 (4) SA 293 (W)

1965 (4) SA p293

Citation	1965 (4) SA 293 (W)
Court	Witwatersrand Local Division
Judge	Viljoen J
Heard	February 18, 1965
Judgment	March 9, 1965

Flynote : Sleutelwoorde

State — Actions against — Barring of under sec. 32 of Police C Act, 7 of 1958 — 'Anything done in pursuance of the Act' — Meaning of in section — Wrongful acts intended — All normal duties of policeman included in the expression — Whether expression co-extensive with 'in the course and within the scope of his D employment' — Stage at which Court should determine whether act done in pursuance of Act.

Headnote : Kopnota

In referring to anything done 'in pursuance of the Act' in section 32 of the Police Act, 7 of 1958, of which acts the policeman and the State must in terms of the section have notice, the Legislature contemplated wrongful acts.

It is difficult to conceive of any duty normally assumed by the Police E Force to be a policeman's duty which would fall outside the expression 'anything done in pursuance of the Act' in section 32 of the Police Act, 7 of 1958.

Whether or not the term 'in pursuance of the Act' is exactly co-extensive with the term 'in the course and within the scope of his employment', the two notions certainly overlap.

In an action for damages against a policeman and the Minister the defendants had filed a special plea that the wrongful acts complained of F were acts done in pursuance of the Police Act, 7 of 1958, as amended, and that in terms of section 32 the plaintiff was barred. Having decided on the evidence of the plaintiff alone that the policeman had not acted in pursuance of the Act, the Court nevertheless declined to dismiss the plea until all the evidence had been led, and merely ordered the defendants to pay the wasted costs occasioned by the premature argument on the special plea at that stage. G

Case Information

Argument on a special plea. The nature of the pleadings appears from the reasons for judgment.

P. M. Wulfsohn, for the plaintiff.

C. Rosenthal, for the defendants.

Cur adv vult.

Postea (March 9th). H

Judgment

Viljoen, J.:

This is a decision on a special plea filed by the two defendants. The plaintiff claims damages from the first defendant, a policeman, and from the second defendant, the Minister of Justice. It is alleged in the declaration that the wrongs complained of were committed

1965 (4) SA p294

Viljoen J

by the first defendant while in the employment and under the control of the State which acts through its lawful agent, the second defendant. It is further alleged that the first defendant was at all material times A acting in the course and within the scope of his employment by the State. This latter allegation was denied in the defendant's plea as first drawn. However, in the course of the proceedings before me, the defendants applied for an amendment of their plea, which was granted, to the following effect:

'The defendants say that at all times material hereto the first defendant was under the control of the State which acts through its B lawful agent, the second defendant, and the first defendant was at all material times acting in the course and within the scope of his employment as a Police officer, by the State.'

It is therefore common cause on the pleadings that the first defendant was at all times material to the action acting under control of the State which acts through its lawful agent, the second defendant, and that he (first defendant) acted in the course and within the scope of C his employment.

Whether this allegation and admission will have a bearing on the special plea, or whether they accord with the evidence led thus far, I shall have occasion to discuss below.

The wrongs complained of are malicious arrest, false imprisonment, D assault and malicious prosecution. It is alleged that these wrongs were committed on 16th January, 1962.

A special plea has been filed by the defendants alleging that the wrongful acts complained of were acts done in pursuance of the Police Act, 7 of 1958, as amended; that in terms of sec. 32 of the said Act the E plaintiff was obliged to commence his action for relief, claimed in his declaration, within six months after his cause of action had arisen and was obliged to give notice, in writing, of such action to the defendants one month at least before the commencement of such action; that the plaintiff did not institute his action within the period of six months F as required nor did he give notice within the period required and, by reasons of these facts, the plaintiff is precluded from seeking the relief claimed.

In his replication to the special plea the plaintiff denies that the acts complained of and in respect of which he claims damages, as set forth in his declaration, were acts done in pursuance of the Police Act but admits that he did not institute his action within a period of six G months and that he did not give notice as required by the Act.

At the commencement of the trial I raised the question as to whether the special plea should not be disposed of first. Mr. Rosenthal, for the defendants, domini litis as far as the special plea is concerned, took up the attitude that the merits of the special plea were so interwoven with the merits of the action that there was no justification for a H separation. He intimated that he might at some stage in the course of the main action raise the question of the special plea and argue it.

The plaintiff's evidence was then led and after conclusion of his evidence, in chief as well as cross-examination, Mr. Rosenthal elected to argue the special plea, intimating that at that stage he was in as good a position as he would be at any later stage to rely on his special plea. As argument was based to a very large extent on the evidence given by the plaintiff it is necessary for me to summarise his evidence.

1965 (4) SA p295

Viljoen J

According to the plaintiff's evidence, on 16th January, 1962, he was sent by his employers, a firm of accountants in Johannesburg, on an errand, this errand being to buy stamps at the Fox Street Post Office. He purchased the stamps and proceeded on his way back to his place of A employment. On the way he met a certain Abel Sithole with whom he stood conversing for a while at the...