Union Government (Minister of Justice) v Thorne

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA, Curlewis JA and Stratford JA
• Judgment Date: 05 November 1929
• Citation: 1930 AD 47
• Hearing Date: 09 October 1929
• Court: Appellate Division

De Villiers, C.J.:

The question in this appeal is whether the Government is liable in damages for an injury sustained by respondent in collision with a native constable under the following circumstances. Respondent was proceeding along the main road to Benoni from Brakpan at night on his motor cycle at from 15 to 18 miles per hour, and a trolley drawn by mules was proceeding in the opposite direction. At a point where there is a branch road leading to the van Ryn compound the respondent collided with, the trolley. The magistrate found the driver of the trolley

De Villiers, C.J.

was to blame because he turned suddenly off to his right to take the van Ryn road without giving due warning or taking proper precautions. The driver was a native constable, Paul, a member of the police force, engaged at the time on official duty. In view of the defence it is important to state exactly the nature of the duty the constable was performing at the time. It appears that the sergeant on duty at the Charge Office, Benoni, who had received a report that a native had been knocked down by a cyclist and had received a serious would on the head, instructed Paul to proceed to the spot with the trolley and mules and bring the injured person to the Charge Office. Paul, accompanied by another native constable, Joseph, set out on the trolley and on the way collided with respondent. The defence material to the present appeal was that the Government was not liable for the wrongful acts of the driver, a native constable in the South African Police, who was then engaged as such constable in carrying out his statutory duties as such member. The Court found against this contention, and gave judgment for an amount of £161 8s. 0d damages. An appeal to the Transvaal Provincial Division having proved unsuccessful, special leave to appeal was obtained from this Court. It was argued that not every person who is appointed, employed and paid by Government is necessarily a servant of the Crown. All duties a policeman performs qua policeman are statutory duties. Where a statute imposes a duty upon a person, the Crown cannot be said to be the master of such person. In the performance of such duty the person is the servant of Parliament, not of the Crown. He cannot be said to be under the control of the Minister. To prove that the constable was carrying out a statutory duty at the time reliance was placed upon sec. 7 (1) of Act 14, 1912, upon the South African...