Mkize v Martens

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Innes JA, Solomon JA, CG Maasdorp AJA and J De Villiers AJA
• Judgment Date: 23 May 1914
• Citation: 1914 AD 382
• Hearing Date: 05 May 1914
• Court: Appellate Division

Lord De Villiers, C.J.:

The facts of this case have been fully stated in the judgment of Judge-President DE VILLIERS, which I have had the opportunity of reading, and with which I generally concur. I confess, however, that I do not attach the same importance as he does to the time of day at which the defendant's servants are supposed to have started cooking their midday meal, because, in the first place, we do not know whether they were in the habit of taking a midday meal at all, and in the next place, we do not know the precise time when the fire originated. We do know that at some time in the forenoon the defendant, who was a transport driver, left his son and nephew, who were employed on

Lord De Villiers, C.J.

his transport service, and were fed by him, in charge of his wagon and mules while he went in search of a missing mule. His instructions to them were to drive to the Xupu Outspan, two miles distant from where he left them, and there to outspan the mules, and wait for him. They did so outspan, and, following the ordinary custom of travellers in South Africa, they lit a fire on the common. Owing to their carelessness, the fire spread to the surrounding grass, and from there to the plaintiff's land, where it did a considerable amount of damage to his herbage and wattle trees. The defendant, in his evidence at the trial, stated that early in the morning he had cooked the morning meal at another outspan, and given the boys their breakfast, that before he left the wagon be said nothing to them about their food, that the boys do not "usually" make a fire as they are small, and would waste a box of matches over it, that he "generally" makes his own fire, that it was not the boys' duty to cook for him when out with his wagon, and that no person had authority to make a fire at Xupu Drift that morning. The boys were not called as witnesses at all, and we may fairly take it, without impeaching the defendant's credibility, that although the boys did not "usually" make a fire, and he gave them no express authority to do so at the outspan, and although no duty was specially imposed on them to cook food for him when out with his wagon, it was not outside the ordinary scope of their employment, if be was absent and they felt hungry, to light a fire for the purpose of cooking their own food. Holding, as I do, that in preparing their food when they required it, the boys were as much engaged in their master's transport business as when they prepared fodder for his mules, I considers it unnecessary to discuss, at any length, the law applicable to the case. The Dutch authorities, hampered as they were by the Roman Law relating to noxal action, were in hopeless conflict with each other. Under the Roman Law, the master was allowed to elect whether he would pay the damages occasioned by the noxa, i.e., the slave who did the harm (nocuit) or surrender the wrongdoer, for according to Justinian's Institutes (4, 8, 2) it was considered unjust, when a slave had done a wrongful act, to make the master liable to lose anything more than the slave himself. According to Grotius (Intro., 3, 1, 34) masters are not bound by the acts of their servants except where otherwise provided by local statutes, and in another passage (3, 38, 8) he says that masters and mistresses are not, in

Innes, J.A.

general, liable for wrongs committed by their servants beyond the amount of their unpaid wages. Groenewegen (ad Dig. 15, 1, 1) approves of Grotius' statement of the law, adding that in his time and country free men were employed for services formerly done by slaves. Voet, in his title on Noxal Actions (9, 4, 10), says that those who think that the surrender of the noxa had gone out of use are entirely mistaken. Later on he explains that where a servant had, through his default, caused damage to others in a matter outside the scope of his employment, the proper remedy was the payment by the master to the injured person of the wages due to the servant, who was left to suffer for his own misdeeds. In regard, however, to the wrongs committed by servants in the performance of the services entrusted to them, he expresses a clear opinion that, even although no wages may be due by the master, he is liable in solidum for the ensuing damages. Strangely enough, Van der Keessel, who is one of the latest recognised Dutch authorities, confines the liability of the master to those cases in which he has been enriched by the culpable act of his servant (Thes., 477). In his Dictata (ad Grot., 3, 38, 8), Van der Keessel denies the correctness of Voet's statement that the master is liable in solidum for damage done by the servant in the course of his service, and expresses his own decided opinion that the law, as laid down by Grotius and Groenewegen, was still the law in his time. In regard to the law of South Africa, we may fairly assume that the right to surrender the servant as a noxa or to hand over his wages by way of compensation is as obsolete as the right of the owner of an animal to surrender it as compensation for damages done by it has been held to be (see Parker v Reed, 21 S.C. 496). As to the conflict upon the question whether the master is liable to a third person for more than the wages due by him to a servant who, in the course of his employment has by his negligence occasioned damage, the matter is no longer res integra, for in every case that has arisen the courts have acted upon the opinion of Voet, notwithstanding its divergence from the views of so many other Dutch writers of eminence. The result is that the appeal from the judgment of the Natal Provincial Division, by which the defendant was held liable for the damage done to the plaintiff's land must be dismissed with costs.

Judgment

Innes, J.A.:

On the 27th July last the defendant was travelling with a wagon and mules through the Greytown district of Natal.

Innes, J.A.

During his temporary absence, and while the wagon and team were in charge of two young boys in his employ, a fire originated at the outspan where they had halted, and, spreading to the plaintiff's land, destroyed a portion of his wattle plantations. The damage thereby caused, is alleged to have been due to the negligence of the defendant's servants, and the object of the present action is to recover compensation for the resulting loss. The magistrate before whom the case in the first instance came was of opinion that the making of a fire at the outspan by the boys was not an act for which the defendant in the circumstances was liable. He further held that the plaintiff had been guilty of contributory negligence in not making fire breaks round his plantations. He, therefore, dismissed the claim. The Provincial Division, where the matter was next taken, arrived at a different conclusion. Being satisfied that that conflagration was due to a fire negligently lit by the defendant's servants at a time when, and at a place where the boys were in the employ of the defendant, that court held that the onus of establishing that the act done was not part of the functions to which they had been appointed rested upon him and had not been discharged. And the defence of contributory negligence being disallowed, judgment was entered in favour of the plaintiff for the amount claimed. The question submitted for our decision is whether that was a correct order.

In an inquiry of this nature an accurate settlement of the facts is of vital importance; but that task is in the present instance by no means an easy one. During the first day of the hearing the defendant, a native, was without legal assistance; and though at a later stage he was represented by counsel, no evidence other than his own was produced in regard to the scope of the boys' employment or the circumstances which led to their being in charge of the wagon on the occasion in question. The boys themselves were not called, though one of them at least seems to have been present at the opening of the proceedings. The result is that certain aspects of the matter have not been thoroughly investigated. The failure of the defendant to produce testimony which was clearly available leads me to accept as conclusive, upon such points as the origin of the fire, evidence not very strong in itself but deliberately allowed to remain uncontradicted. So far as the defendant himself is concerned, however, I do not feel justified in discarding, or even in materially discrediting, his testimony. The magistrate

Innes, J.A.

before whom it was given considered it to be reliable, save in one respect; he thought that the version of the conversation with his boys was incorrect, and was given with the object of cloaking their acts so as to avoid possible trouble in the future. But that portion of his evidence would in any event have to be disregarded as hearsay; and in other respects I gather that the magistrate believed him. Moreover, his testimony was accepted by the]Provincial Division, and his veracity was not questioned by counsel for the respondent at the hearing of the appeal. I propose, therefore, to regard his statements in all relevant respects as substantially correct, and to consider the facts from that standpoint. So considered, the material points may be shortly summarised. Early on the morning of the 27th July - the hour does not appear, but it must have been some time before seven - the wagon was outspanned at a location about...