Union Government v Hawkins

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Centlivres JA, Feetham JA and Davis AJA
• Judgment Date: 02 June 1944
• Court: Appellate Division

Centlivres, J.A.:

In this case the Minister of Defence was sued in the Transvaal Provincial Division for damages by Mrs. Hawkins in her personal capacity and also in her capacity as mother and natural guardian of her three minor children. In her declaration Mrs. Hawkins alleged that on 30th October, 1942, "one Simon Qhayi, acting within the scope of his authority as a servant of the defendant, drove a troop carrier, the property of the defendant, in Cordelfos Road, Pretoria, and through the negligence of the said Simon Qhayi the troop carrier collided with and killed" her husband. Particulars of the negligence were given.

The defendant in his plea admitted the allegations in the declaration save that he denied negligence on the part of Simon Qhayi and denied that "at the time of the collision the said Simon Qhayi was acting within the scope of his authority or in the course of his employment as a servant of the defendant".

The trial Court awarded damages against the defendant who now appeals to this Court. The amount of damages was agreed upon in the trial Court in the event of the defendant being held liable.

Mr. Findlay, who appeared for the defendant on appeal, took a point that was not raised in the trial Court. This point was that Simon Qhayi, being a soldier, cannot be regarded as a servant of the defendant and that consequently he was not "a servant of the

Centlivres, J.A.

Crown" within the meaning of the Crown Liabilities Act, 1910. Mr. Findlay admitted that the point now raised was not relied on in the defendant's plea in a ground of defence and he asked for leave to amend the plea so as to raise the point. Mr. Findlay based his contention on a note in the Journal of Comparative Legislation and International Law (vol. 21, parts 3 and 4, p. 73), which refers to certain Canadian cases in which it was held that the Crown was not liable for the tortious acts of members of the Active Militia. In another Canadian case referred to in the note the Court apparently held that the Crown was liable for the tortious acts of a member of the Permanent Force. In the American case of Goldstein v State of New York (129 A.L.R. 905), which is also referred to in the note, it was held that the State was not liable for damages arising from the death of a person while serving in the State Militia through negligence of other members of the Militia. The point raised by Mr. Findlay would have to be decided on the provisions of our own statute, which differs materially from the Canadian and American statutes, but it is unnecessary for me to consider whether the point has any substance in it, for, in my view, the amendment sought by Mr. Findlay cannot be allowed. Had the point been properly raised in the defendant's plea there would naturally have been more evidence as to the position occupied by Simon Qhayi. The only relevant evidence on the record is that he "joined the army in August, 1941". As INNES, J.A. (as he then was) said in UCole v Government of the Union of South Africa (1910 AD at p. 273):

"Where a new law point involves the decision of questions of fact, the evidence with regard to which has not been exhausted, or where it is possible that if the point had been taken earlier it might have been met by the production of further evidence, then a Court of Appeal will not allow the point to prevail. Because it would be manifestly unfair to the other litigant to do so." See, too, Marks Ltd. v Laughton (1920 AD at p. 22), Weinberg v Oliver (1943 AD at p. 189) and Owners of S.S. "Pleiades" v Page (1891, A.C. 259).

It was urged on appeal that when the troop carrier came into collision with the deceased the driver, Simon Qhayi, was not acting in the course of his employment. The facts on this point are not in dispute. On the day when the collision occurred it was Simon a duty to drive from Voortrekkerhoogte to Quaggapoort,

Centlivres, J.A.

to pick up certain guards at the latter place and to convey them to their points of duty in Pretoria, and then to return to Voortrekkerhoogte the total distance, according to a rough estimate made by one of the witnesses, being about twelve miles. He, had to follow a route which had been shown him and which he knew perfectly well and, unless circumstances made a deviation necessary, to deviate from that route was a breach of duty for which he was liable to be punished by his commanding officer. He did, however, deviate from the prescribed route. On his way to Quaggapoort a staff-sergeant, who has remained unidentified, stopped the troop carrier and asked Simon for a lift to a place some two miles off the prescribed route. Simon complied with this request and in so complying contravened the standing orders which governed his employment as a driver of a troop carrier. For under those standing orders, with which Simon was acquainted, no soldier lower in rank than a commissioned officer had the right to stop a military vehicle for the purpose of getting a lift. If a commissioned officer stopped a military vehicle for this purpose he had to sign the log book and enter details giving reasons why he wanted a lift. The point of deviation is marked as "E" on the plan put in, that point being half a mile from Quaggapoort - Simon's authorised destination. The place where the staff-sergeant was dropped is marked on the plan as "B" and is two miles from "E". Although Simon could have turned the troop carrier at "B" he did not do so and took a longer route (3.1 miles from "B" to "E". He may have done this because it was safer and easier to proceed onwards than to turn the carrier. The result of taking this longer route was that he re-entered the road which he had taken from "E" to "B" at a point more than a mile from "E". While he was travelling on this route Simon collided with the deceased at a point marked "C" which was .2 mile from "B". Simon, who said that he was unaware of the accident, did not stop his troop carrier but proceeded on his way. On reaching Quaggapoort he duly picked up the guards and conveyed them to Pretoria.

Coming to the law, it is clear that Voet 's view as to the liability of a master for the negligence of his servants has now been definitely accepted as the law of South Africa. See Mkize v Martens (1914 AD 382) and Estate van der Byl v Swanepoel (1927 AD 141). Voet states his view as follows (9.4.10):

Centlivres, J.A.

"Admonendi sumus dominos ac patres in solidum teneri ex delictis famulorum ac filiorum quoties illi deliguerunt in officio aut ministerio cui a patre dominove fuerunt praepositi; cum his imputandum sit, quod negligentium aut malignorum...