Union Government v Rosenberg (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 30 October 1945
• Citation: 1946 AD 120
• Hearing Date: 12 October 1945
• Court: Appellate Division

Davis, A.J.A.:

This is an appeal from a judgment of the Transvaal Provincial Division. The facts leading to an appeal to that Court from a decision of a magistrate's court are thus stated by MALAN, J.:

"This is an appeal from the decision of the magistrate of upholding an objection raised to an action for damages instituted by the appellant against the Minister of Justice as representing the Union Government.

The action was based upon the allegation that a motor vehicle, the property of the Union Government and driven by Constable du Toit, a In ember of the South African Police Force, in the course of his employment and within the scope of his authority, collided with a vehicle belonging to the appellant as a result of which the appellant sustained damage. A number of grounds of negligence were set out in the summons, but they are to the decision of this appeal.

Objection was taken to the summons on the ground that in terms of sec. 30 of Act 14 of 1912 the action against the respondent was barred by reason of the failure of the appellant to commence the action within four months calculated from the date on which the cause of action arose.

Evidence was led from which it appeared that Constable du Toit, on instructions of his superior, Sergeant Steenkamp of the South African Police, was driving a pick-up van on patrol duty, and it was in the course of so driving that the collision occurred.

The magistrate upheld the objection."

The Transvaal Provincial Division reversed the decision of the

Davis, A.J.A.

magistrate and, perhaps a little surprisingly, especially as the claim was one for over £150, refused leave to appeal. Leave to appeal was, however, sought from and granted by this Court.

The appeal to the Provincial Division was brought upon two grounds:-

"1. That the judgment is bad in law in that 'any person' referred to in sec. 30 of Act 14 of 1912 does not include the Government of the Union of South Africa, and

"2. That judgment is against the evidence because at the time the constable in question was not acting in pursuance of Act 14 of 1912 (as amended)."

The matter was argued before us in relation to those grounds, the Provincial Division having found in favour of the present respondent on the second. An application was also made to us for the admission of further evidence as to the nature of the duties upon which Constable du Toit was engaged, as shown by the Standing Orders. I shall have occasion, however, to deal only with the first ground of appeal.

Sec. 30 of Act 14 of 1912 is as follows: -

"For the protection of persons acting in the execution of this Act every civil action against any person in respect of anything done in pursuance of this Act or the regulations, shall be commenced within four months after the cause of action has arisen, and notice in writing of any civil action and the cause thereof shall be given to the defendant one month at least before the commencement thereof."

The first ground of appeal was, as will have been seen, based on the contention that the words "any person" in the section do not include the Government. It has been held in certain cases that they do; I shall take them in their order of date. The first was van der Merwe v Minister of Defence (1916 OPD 47), dealing with sec. 115 of the Defence Act, No. 13 of 1912, which may, for the present purposes, be taken as being identical with the section in question, save that the period fixed is six months. The judgment relied largely on sec. 2 of the Crown Liabilities Act, No. 1 of 1910. As that section is of importance in the present matter, it should be set out here: -

"2. Any claim against Her Majesty in his Government of the which would, if that claim had arisen against a subject, be the ground of an action in any competent Court, shall be

Davis, A.J.A.

cognisable by any such Court, whether the claim arises or has arisen out of any contract lawfully entered into on 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:

"Provided that nothing herein contained shall be construed as affecting the provisions of any law which limits the liability of the Crown or the Government or any department thereof in respect of any act or omission of its servants or which prescribes specified periods within which a claim shall be made in respect of any such liability or imposes conditions on the institution of any action."

It was held that, under sec. 115 of the Defence Act, no action would lie against the subject (the servant) unless brought within six months, and that, therefore, no action could be brought, in terms of the first part of sec. 2 of Act 1 of 1910, against the Crown (the master). I cannot agree with this reasoning. The "subject" referred to in the section is not the Government servant; it refers to any subject. The section in effect makes the Government liable, whether...