Saunders v Union Government

• Jurisdiction: South Africa

Saunders v Union Government
1947 (1) SA 100 (W)

1947 (1) SA p100

Citation	1947 (1) SA 100 (W)
Court	Witwatersrand Local Division
Judge	Clayden J
Heard	November 11-13, 1946; November 14, 1946
Judgment	November 27, 1946

Flynote : Sleutelwoorde

Crown — Liability for acts of servant — Negligence of member of the Active Citizen Force — Act 13 of 1912.

Headnote : Kopnota

A member of the National Volunteer Brigade, which was established as a volunteer unit of the Active Citizen Force is prima facie a servant of the Crown and consequently the Crown is prima facie liable for wrongful acts committed by such a member in the course of his duty. In order to escape liability the

1947 (1) SA p101

Crown must prove that a statutory provision exists which imposes upon its servant a duty to act in a particular way and that such duty has the effect of depriving the Crown of the power to control such servant.

Case Information

Action for damages based on negligence. The facts appear from the judgment.

A. C. Thompson (with him H. N. Macdonald), for the plaintiff: The test of the Crown's liability is control. See British South Africa Co v Crickmore (1921 AD 107); see also Union Government v Thorne (1930 AD 47). The Crown had control in the present case. The point was considered in Union Government v Hawkins (1944 AD 556).

J v Brink, K.C. (with him S. Frank), for the defendant: The officer himself would not be responsible for the act alleged. See Halsbury Laws of England (Hailsham, Vol. 26, paras. 579 — 581). The Crown in any case is not liable: see Tobin v The Queen (143 E.R. 1,162); B.S.A. Co v Crickmore (supra); Thorne's case (supra); de Villiers v Minister of Justice (1916 TPD 463); see also Act 13 of 1912, secs. 1, 7, 10, 12, 17, 29/41, 76/83, and 124. Further on the facts.

Thompson, in reply, referred to the Police Act 14 of 1912.

Cur. adv. vult.

Postea (November 27th).

Judgment

Clayden, J.:

The National Volunteer Brigade (N.V.B.) was established with effect from the 1st October, 1940, as a volunteer unit of the Active Citizen Force (A.C.F.) under sec. 28 (3) (b) of the Defence Act, 13 of 1912, by the Governor-General on the 8th January, 1941. Prior to this formal establishment under the Act the Adjutant-General of the Union Defence Force notified the Commissioner of the SA Police, on the 18th October, 1940, that steps were being taken to establish the N.V.B. with effect from the 1st October as a unit of the A.C.F., a unit consisting of Brigade Headquarters and twelve battalions, of which the 1st to 5th battalions were to be located on the Witwatersrand. The Adjutant-General also stated that 'the operational control of the Brigade will devolve on the Commissioner of Police or his Deputy'. Members of the N.V.B. attested for service with it, at first for service within the area in which they lived and later, in 1941, for the service

1947 (1) SA p102

Clayden J

whether within or outside the limits of South Africa. The Commissioner of Police for the Witwatersrand in 1942 has testified that he was deputed to act for the Commissioner of Police in regard to the Witwatersrand battalions of the N.V.B. He has also said that he regarded the operational control which thus became his function, not as conferring upon him command of those battalions, but as enabling him to make use of the services of the battalions after consultation with the Brigade Commander.

In January and February, 1942, acts of sabotage were being committed in the Witwatersrand area, particularly by the cutting of power and telephone wires. The Commissioner of Police for the Witwatersrand and the Brigade Major of the N.V.B., Major Jones, in consultation then decided to use the N.V.B. to guard telephone lines. The plan evolved was to take a particular sector of the line, to establish at each end of the sector control posts and along the line telephone posts in co-operation with Post Office officials, to allocate men to each post, to provide for periodic calls from control posts to each post so as to ensure that the line between them was still intact, and, in case of a cutting of the line, to arrange for the men at each post to converge to the point of trouble.

On the 14th February, 1942, D Company of the 1st Battalion N.V.B., under command of Captain Roos, had been allotted the task of guarding a sector of line from the City Deep plantation, where Control Post No. 1 was situated, to Meyerton, where Post No. 5 was situated. Intermediate posts were Nos. 2, 3, 4 and 4a. The party detailed to Post No. 1 consisted of Sergeant Nussbaum with under his command Privates Bergheim, Conradie and Kronheim, all attested members of the N.V.B., and a telephone official, McCann, was attached to the post to operate the field telephone. The entire sector, on the night in question, was under the command of Lieutenant Jacobson with Sergeant-Major Martin to assist him.

Post No. 1 lay in a plantation to the north of the junction between a road running north-east to Rosherville and the main road from Johannesburg to Heidelberg, which runs from west to east. The main road was tarred and ten paces in width. On either side of and across the Rosherville road junction the main road was wider, and in the centre of that part of the road there lay an island about 20 feet in diameter and so placed that a car coming from Heidelberg to Johannesburg, on the south side of the road, had to swerve to the south to negotiate the island. On either side of the island, and overhanging the south side of the road, were electric lights.

1947 (1) SA p103

Clayden J

The island itself carried a flashing red light to warn approaching traffic of its presence.

On the night of the 14th February, and near this island, a rifle shot was fired by Nussbaum at a motor-car driven by one Smith. This shot wounded the plaintiff, a passenger in Smith's car, in both feet. The circumstances in which the shot was fired will be considered later. The claim of the plaintiff arises from the injuries she sustained in this manner.

The plaintiff's claim is put upon an alternative basis. She alleges that Nussbaum unlawfully assaulted her by firing the shot, or negligently fired the shot. She claims that the defendant, the Union Government, is liable because when Nussbaum committed the assault or negligent act 'he was acting in the course of and in the scope of his duties as a member of the National Volunteer Brigade which was a portion of the Union Defence Force, raised and controlled by defendant in terms of Act 13 of 1912'.

The plea, too, is in the alternative. The assault is denied, because it is pleaded that Nussbaum fired lawfully in discharge of his duties as a member of the N.V.B., and negligence is denied. It is admitted, however, that Nussbaum was acting in the course of his duties as a member of the N.V.B. The alternative plea is that Nussbaum, in carrying out his duties as a member of the N.V.B., was carrying out a duty imposed upon him by Statute, the Defence Act, 13 of 1912. (Reliance on the Police Act, 14 of 1912, though pleaded, is not persisted in.) Therefore, says the defendant, it is not legally liable for a wrongful or negligent act of Nussbaum.

Assuming Nussbaum to have committed an assault, or to have been negligent, the defendant can only be liable by reason of the provisions of sec. 2 of the Crown Liabilities Act, 1 of 1910. That section places the Crown in the position of a subject of the Crown and allows a claim against the Crown arising out of 'any wrong committed by any servant of the Crown acting in his capacity and within the scope of his authority as such servant'. The declaration does not in actual terms allege that Nussbaum was a servant of the Crown, so acting, but the allegation that he acted as a member of the N.V.B. controlled by the defendant, taken with the fact that the action is against the...