McKenzie v Van der Merwe

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and Juta AJA
• Judgment Date: 17 January 1917
• Citation: 1917 AD 41
• Hearing Date: 01 November 1916
• Court: Appellate Division

Innes, C.J.:

This is an appeal against an order of absolution made by the Free State Provincial Division in an action in which the appellant claimed compensation for stock taken and for damage done to property by rebels during the period October-December, 1914. The respondent, who has since been convicted of rebellion by the Special Court, was about the time in question at the head, as assistant commandant, of about 70 insurgents operating in the district of Heilbron, and in the neighbourhood of appellant's farm. Another band, whose strength does not appear, was also stationed in that neighbourhood, under the orders of a commandant named Cremer. It was shown that bodies of men, some of whom wore rebel badges, and were not Government troops, did from time to time remove stock from appellant's farm and cut the fences, thereby causing considerable damage. The claim made in consequence was £329 12s. 6d.., the value of the animals taken, and £119 10s. for general damage. This was ultimately narrowed down to £150, which was the only amount at issue either at the trial or on appeal. The particulars of that sum were given in a document which was withdrawn at the trial, but strangely enough was printed in the record. It is common cause, however, that it is made up of £117 12s. 6d.., being for three horses, two head of cattle, and three sheep, and £32 7s. 6d. being for damages. The question is whether the respondent is liable for the whole or any part of those amounts.

Having regard to the circumstances which prevailed at the time, one can quite understand that the appellant was at some disadvantage in procuring evidence. But, making every allowance for that, I cannot help thinking that some aspects of the matter might have been more fully investigated. The fact is that the appellant relied mainly upon the broad contention that every rebel was liable for acts such as those complained of, done by every other rebel in furtherance of the common purpose. It was upon that point that the controversy in the Trial Court turned. The dissenting judgment of WARD, J., was based upon an acceptance of the general proposition contended for. And the first question which awaits decision is the one embodied in that proposition. It may be thus stated: Where a rebellion has taken place, is every rebel liable for the delict of every other rebel if done in furtherance of the common purpose, and not foreign to it, in the absence of any other connection by way of command, instigation, advice, assistance or participation of any kind in the particular delict itself? For the appellant the matter was put in this way: Every person who joins

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in rebellion is party to a common unlawful purpose; the taking of stock and the cutting of wires are incidents which may be taken as likely to happen during the execution of that purpose; and therefore every rebel is liable for all acts of that kind committed by other rebels in prosecution of the rebellion. The delicts sued upon, if brought home to the respondent, would involve criminal as well as civil liability. Now a man may be guilty of a crime in which he took no physical part and rendered no assistance, if the perpetrator was in law his agent for the purpose. Speaking generally, principal and agent in crime are equally guilty (Matthaeus, de Crim. C. 1, par 12; and see R v Bird and Stewart and R v Shapiro and Saltman, 1904, T.S., pp. 260 and 355). But then a mandatum sceleris must be established. That may be done either by express proof or by inference, but in the latter case the inference must follow clearly and necessarily from the facts. The presumption of innocence must be borne in mind, even though the object of the inquiry is only to establish civil liability for the consequences of the crime. The misdeeds with which we are concerned were the wrongful taking of stock and the cutting of wire fences. I think that occurrences of that kind might reasonably be anticipated in connection with a rebellion. But that would not in my opinion justify the inference that every person who went into rebellion thereby authorised every other rebel, at every other place, to seize horses and stock or to destroy property in furtherance of his operations. Acts of that nature by one insurgent could not properly be regarded as the acts of every other person who might happen to have been in rebellion at the same time. To establish liability for delicts which the person concerned neither instigated, perpetrated, aided nor abetted, facts must be shown from which it follows without doubt that he authorised them; and the mere fact that the perpetrator was a co-rebel does not, in my opinion, warrant that inference. Were it otherwise, some remarkable results would follow. Every rebel would be liable to be punished for theft in respect of every sheep taken, or for attempt to murder in respect of every shot fired anywhere in furtherance of the rebellion, whether he had any authority over the perpetrator or not, and whether he knew or approved of the particular act or not. No such doctrine has been laid down, so far as I am aware, by any South African Court. In Steenkamp v Kyd (15 S.C., 221), it was said that a conspirator in a rebellion who joined in electing a leader was

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responsible for damage done by the orders of such leader, if they might reasonably have been anticipated as a consequence of the conspiracy. The facts of that case, if I may say so, entirely justified the decision, because the persons whose liability was being investigated were all present and assisting directly or indirectly in the commission of the delict. And the judgment carefully stipulated that the rule enunciated should be read in the light of the facts. I am relieved of the task of considering that rule, because the elements upon which it was mainly based, viz., the joint election of a leader, and his express orders, are absent in the present case. I desire, therefore, to say no more than that the decision is no authority for the wide proposition advanced by the appellant.

Reliance was placed upon the well-known rule of English criminal law to the effect that those who take part in the execution of a common criminal purpose are individually liable in respect of every crime committed by any one of them in the execution of that purpose, and not foreign to it (see Stephen's Dig. Crim. Law, par. 39). Now that rule has not been deduced from general principles, but rests upon certain old decisions. The terms in which it is expressed and the limitations to which it is subject would seem to indicate that the principle which underlies it is that of agency. However that may be, its place in our law must be that of an application of the doctrine of implied mandate. There is none other upon which it can be grounded; and its operation in our practice must be confined within the limits of that doctrine. Indeed, a reference to the old English decisions shows that they were cases in which the person convicted was present, in pursuance of the common purpose, at The commission of the crime charged. Under such circumstances the inference of authority to do the deed would probably not be a strained one. But it is a far cry from such a position to the one which the appellant here seeks to establish. Some of the dicta in Spies v People (3 Am. State Rep., 320) were very widely expressed; but the decision itself, read in the light of the facts, is not an authority for the wide proposition we are asked to accept. The appellants were all members of an illegal association which convened a meeting at a time of great popular excitement with the express object of precipitating a conflict with the police. A policeman was killed by a bomb thrown during the meeting by some person unknown. Evidence was led in great detail connecting each of the appellants who were leaders of the association with the

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actual crime by way of incitement, assistance, or preparation. And it was because of the sufficiency of that evidence that the conviction was sustained. The result is that I find myself unable to agree with the broad doctrine accepted by WARD, J., and rejected by the majority of the Provincial Division.

The mere fact of participation in the rebellion being insufficient, it remains to consider whether the respondent can be held liable on narrower grounds. It is suggested that all the rebels operating in the neighbourhood of appellant's farm should be regarded as a single body of men acting in concert as one unit: and that, on the principle suggested by MAASDORP, C.J., every member of the unit should be held liable for the acts of every other member "reasonably falling within the scope of the objects of the rebellion." I do not feel able to adopt that view. In the first place I do not feel justified in regarding the rebel forces in that vicinity as one body, so as to bring them within the, principle. It was never suggested either in cross-examination or in argument that they were; and the only direct evidence recorded is to the effect that they were not. That they consisted of two bands, the one commanded by respondent and the other by Cremer. The respondent stated that he was for the most part stationed at De Molen, about two hours from Petrus Steyn, the township which adjoined appellant's farm; Cremer's headquarters were not specified. It is clear that individuals or small parties from the two commandos met from time to time, but there is not sufficient proof that they acted in concert as one body. The evidence, indeed, was not directed to that point. In the second Place I am not prepared to hold that every member of a commando is, by the mere fact of such membership, liable for the acts of every other member "within the scope of the objects of the rebellion." The term "commando" is an elastic one, and the members which compose it may sometimes be engaged in wholly distinct and different operations. I do not...