- November 14, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PRACTICE – SPECIAL PLEA OF NON-COMPLIANCE WITH STATUTORY PROVISIONS – JUDGE HEARING SPECIAL PLEA SEPARATELY WITHOUT EVIDENCE AND CONTRARY TO AGREEMENT BY PARTIES
The appellant (plaintiff a quo) instituted action for damages from the first and second respondents (Nghikomenwa and the Minister) jointly and severally, the one paying the other to be absolved. On or about 17 May 2018, in Church Street, Gobabis, the appellant’s vehicle was involved in a collision with a vehicle belonging to Correctional Service, driven by the first respondent. Appellant alleged that the first respondent drove the vehicle, whilst acting in the course and scope of his employment with the second respondent. The appellant further alleged that the sole cause of the collision was the negligent driving of the first respondent. Prior to the issuance of the combined summons on 29 March 2019 the appellant had caused a letter of demand on 22 October 2018 to the Commissioner of Prisons demanding damages in the amount of N$51 487,17 suffered by him.
The respondents among other things raised a special plea stating that in terms of s 133(3) of the Correctional Service Act 9 of 2012 (the Act), when calculated, from the date of collision, the appellant’s claim had become ‘prescribed’. Respondents further admitted that the vehicle was driven by the first respondent whilst acting within the course and scope of his employment with the second respondent and/or in pursuance of the Act (regulation 40 of the Regulations made in terms of the Correctional Service Act 9 of 2012) at the time of the collision. In replication the appellant pleaded that, s 133(3) was not applicable in the circumstances of his case.
In the case management and pre-trial reports, the parties had agreed, and an order was made by the managing judge, that the special plea would not be heard separately, and that evidence should be led on whether the second respondent, at the time of the accident, was acting in pursuance of the Act, specifically regulation 40 and whether the appellant’s claim had expired by virtue of s 133(3). The High Court contrary to the agreement by the parties, heard the special plea separately and upheld the special plea. The appellant appealed against the whole judgment and order.
MAINGA JA (FRANK AJA and LIEBENBERG AJA concurring) considered the appeal and held that:
- Regulation 40 which provides for approval and control of official journeys of officers begs the questions, as it were in this case, who approved first respondent’s journey, was the journey necessary and in the interest of the Correctional Service, which questions can only be ventilated by leading evidence. It was then incumbent upon the respondents to prove that first respondent’s journey was approved, by whom and if the journey was in the interest of Correctional Service in the sense that the journey was in pursuance of the Act.
- The parties were bound by the issues they had agreed upon as contained in the pre-trial order. The court below did not show good cause or special circumstances arising why it departed from the parties’ agreement.
As a result, the proceedings, judgment, and order of the court below were set aside, and the matter was remitted to the High Court for trial to commence de novo before another judge.
FRANK AJA
DISTINCTION BETWEEN ACTING WITHIN THE SCOPE AND COURSE OF EMPLOYMENT AND ACTING IN PURSUANCE OF AN ACT (CORRECTIONAL SERVICE ACT)
Having read the judgment of MAINGA JA and agreeing with the order proposed, FRANK AJA went on to express a prima facie view on the above issue thus:
‘[38] When it comes to members of the correctional service, they have no common law power, nor is there any Act apart from the Correctional Service Act that confers them with powers. This means their powers will exclusively be found in this Act. It thus follows that when they act within the course and scope of their employment, they also act in pursuance with the Correctional Service Act. It thus seems to me that when it comes to the Correctional Service Act, a distinction cannot be drawn between ‘acting within the scope and course’ of employment and acting ‘in pursuance’ of the said Act.
[40] Without the benefit of full argument in relation to the analysis undertaken above, I am not prepared to express such analysis as a final view and thus agree with the main judgment that, on the record and the arguments placed before this court the order made in the main judgment is the correct one in the circumstances of this case.’
Mwaala v Nghikomenwa (SA 100-2020) [2022] NASC (14 November 2022)