Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport

• Jurisdiction: South Africa
• Judge: Vivier JA, Scott JA, Mthiyane AJA
• Judgment Date: 26 May 2000
• Citation: 2000 (4) SA 21 (SCA)
• Docket Number: 87/98
• Hearing Date: 08 May 2000
• Counsel: H G McLachlan for the appellant. A C Oosthuizen for the respondent.
• Court: Supreme Court of Appeal

Scott JA:

[1] The respondent sued the appellant for damages in the Cape of Good Hope Provincial Division arising out of a motor collision which occurred at about 8.35 pm on Sunday, 5 February 1995, near I Kraaifontein on the N1 highway between Cape Town and Paarl. One of the vehicles involved in the collision was owned by the appellant and was being driven at the time by Detective Sergeant Madden who was employed by the appellant. It appears that the appellant's vehicle, which was travelling from north to south, ie in the direction from Paarl to Cape Town, suddenly crossed J

Scott JA

over the island separating the north- and southbound carriageways and collided with a vehicle in which the A respondent had an interest and which was then travelling in the opposite direction. Both Madden and the sole passenger in his vehicle were killed in the collision. In its particulars of claim the respondent alleged that at the time Madden

'was acting within the course and scope of his employment with B (the appellant), alternatively, . . . was acting as an agent of and was furthering the aims and interest of (the appellant)'.

The allegation was denied by the appellant. At a pre-trial conference it was agreed between the parties that this issue be decided first and an appropriate order was made in terms of Rule 33(4) of the Uniform Rules of Court. After hearing evidence Ngcobo J found in favour of the C respondent and ruled that Madden was acting within the course and scope of his employment with the appellant at the time of the collision. Leave to appeal was refused by the Court a quo but subsequently granted by this Court.

[2] The events preceding the collision are largely common cause. D Madden was stationed at Fish Hoek. On the day in question, Sunday, 5 February 1995, he was on what was known as 'stand-by' duty. This had begun at 7:30 pm on Friday, 3 February, and was due to end at 7:30 am on Monday, 6 February. It meant that he, together with a fellow detective, Warrant Officer Pamplin, had to be available E to deal with all in-coming cases during that period. It appears that previously in about September 1994 Madden had been entrusted with the investigation of a death by drowning. The victim's body was discovered on the west coast of the Cape Peninsula near Kommetjie by Dr Haywood, who lived and practised at Franschhoek. In order to complete the investigation a formal statement was required from Dr Haywood. F According to Captain Smit, who was in charge of the detective branch at Fish Hoek, some difficulty had been experienced in obtaining a statement from Dr Haywood 'telephonically', by which he meant presumably by telefax. On 18 January 1995 he accordingly instructed Madden to go to Franschhoek to obtain the statement. This G instruction was recorded in the investigation diary. By 27 January, Madden had not yet done so and Smit requested him to expedite the matter. The investigation diary records that on 31 January Madden undertook to go to Franschhoek to obtain the statement while he was on stand-by duty on 4 or 5 February. On Friday morning, 3 February, Pamplin, too, spoke to Madden about the outstanding H statement. Pamplin was Madden's superior and one of his duties was to check the progress being made in the investigations carried out by detectives under his control. Madden undertook to obtain the statement in the course of the forthcoming weekend. On Sunday morning, 5 February, Madden asked Pamplin, who was also on stand-by duty, to I 'cover' for him between 6 and 8 pm that afternoon while he went to Franschhoek to obtain the statement from Dr Haywood. The arrangement which Pamplin and...