South African Railways and Harbours v Edwards

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA and Curlewis JA
• Judgment Date: 22 October 1929
• Citation: 1930 AD 3
• Hearing Date: 08 October 1929
• Court: Appellate Division

De Villiers, C.J.:

This is an appeal against a judgment delivered by TINDALL, J in the, Witwatersrand Local Division. The respondent, plaintiff in the court below, a machine-minder or printer by trade, claimed damages from the appellant for an injury sustained by him through the kick of a mule belonging to appellant in the declaration the liability of defendant was placed on the ground of the ownership of the mule. It was alleged that the mule was owned by the defendant and that it "viciously and contrary to the nature of its kind" kicked the plaintiff. The declaration is therefore based upon the actio de pauperie. In the alternative negligence was alleged on the part of the driver of the trolley to which the mule was harnessed. Here, then, the action was based on the lex Aquilia. The Court found against the plaintiff on the issue of negligence, but held defendant liable in the actio de pauperie and gave judgment for plaintiff with costs. No award of damages was made as it had been agreed between the

De Villiers, C.J.

parties that the question of liability should he decided first, and failing an agreement as to the amount of damages, evidence on that issue should be heard later. On appeal it was argued that the actio de pauperie does not lie against the Crown because such in action is not covered by the Crown liabilities Act No. 1 of 1910. It was not questioned that the defendant in this case was in reality the Crown - Winter v South African Railways (1929, A.D.) If any doubt exist as to that, it would be set at rest by the express mention in sec. 4 of actions against the Minister of Railways and Harbours as falling under the Act. The question therefore is whether a claim of this nature against the Crown falls within claims against the Crown contemplated in sec. 2. Mr. Millin, on freely admits that if the first portion of the behalf of appellant section stood alone that question would have to be answered in the affirmative. "Any claim against His Majesty in his Government of the Union which would, if that claim had arisen against a subject, be the ground of an action in any competent Court, shall be cognizable by such Court." As, in the recent case of O'Callaghan v Chaplin (1927 AD 310) the actio de pauperie was held to he against a subjects if clearly falls within the above words. But it is pointed out that the section goes on to say "whether the claim arises or has arisen out of any contract lawfully entered into an behalf of the Crown or 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," and it is argued that the." words qualify the generality of the first portion and exclude the action in question, which, is based upon ownership. Confirmation of this view is sought in the long title of the Act, which is stated to be an Act "to impose liabilities upon the Crown in respect of acts of its servants." This argument is to some, extent supported by what was said by DE VILLIERS, C.J in Minister of Finance v Barberton Municipality (1914 AD 335). In that case the claim was for a declaration of rights against the Minister to pay all moneys received by him in respect of stands in a Government township into a special account to be used for the benefit of the Municipality concerned. It was held that there was an unqualified and direct duty owing by the Minister to the Municipality and that the neglect of such duty was a wrong

De Villiers, C.J.

within the meaning of sec. 2 of the Act. In dealing with this aspect of the matter Lord DE VILLIERS, C.J is reported as follows (at p. 345): -

"Then it is...