John Erasmus v Jan Christian Smuts (as Minister of Defence for the Union of South Africa) (High Court Civil Cause 11 of 1942) [1942] ZMHCNR 6 (31 December 1942)

250 Vol. II] JOHN ERASMUS v. JAN CHRISTIAN SMUTS (as Minister of Defence for the Union of South Africa). High Court Civ il Cause N o. 11 of 1942. Service out of the jurisdiction—discretion o f Court— in cases o f tort the law of the Territory where action instituted applies. In this case, the facts o f which are set ou t in the judgment hereunder, the District Registrar gave leave to the plaintiff to issue the writ o f summons against the defendant and serve it in the Union of South Africa. The defendant applied to the High Court to set aside the order of the District Registrar and the H igh Court acceded to the defendant’s request. Law, C. J. This is an application to set aside a W rit of Summons issued against the defendant out o f the jurisdiction b y leave o f the District Registrar, Ndola, under his Order, dated 26th M ay, 1942. The action in respect of which the writ was issued is one for damages suffered by the plaintiff through the alleged negligent driving o f a m otor lorry by a soldier o f the Union Defence Force o f South A frica. The defendant is sued in his capacity o f Minister o f Defence o f the Government of the Union o f South Africa. The lorry in question is described as the pro­ perty of the defendant, presumably in his above-m entioned capacity. In substance and effect, the action is against the Government of the Union of South Africa, founded on a tort alleged to have been com­ mitted by one o f its servants within the jurisdiction o f this Court (Order 11, Rule 1 (ee) o f the Supreme Court, England). 2. The action being founded on a tort could not have been brought in its present form in this Court against any official o f the Northern Rhodesia Government, had the lorry in question belonged to that Government. It is true that there is legislation in the Union o f South Africa, the Crown Liabilities Act, 1 o f 1940, which perm its such actions being brought in the Courts o f the Union. But the present case must be considered with regard to the law o f Northern Rhodesia, in which Terri­ tory the action has been instituted, and the law o f the Union o f South Africa in this connection can have no application in the matter. 3 4 5 3. On behalf o f the defendant it is argued that this application need only be considered from the point o f view as to whether or not the District Registrar exercised a proper discretion in m aking his Order of the 26th May, 1942. In this connection reference has been made to the following decided cases: 1. The Parlement Belge (1879-80) 5 P ., p. 197. 2. Société Générale de Paris v. Dreyfus Bros. (1885), 29 Ch. D., p. 239. 3. Mighell v. Sultan o f Johore (1894), 1 Q . B ., p. 149. 4. The Hagen (1908) P ., p. 189. 5. Statham v. Statham and H. H. the Gaekwar o f Baroda (1912) P., p. 192. [Vol. II Mighell’s and Statham’s cases were decided against the plaintiffs on con­ siderations o f international law by reason of the status of the foreign defendants. In the former case the writ was set aside and in the latter the foreign defendant’s name was struck out. Without the necessity of deciding the same points in the present case, it would seem that the defendant’s position savours o f similar immunity as that of the foreign defendants in the two cases referred to. The same considerations as in those two cases were involved in the case of the Parlement Beige. As regards the cases o f the Société Générale de Paris and the Hagen, observa­ tions were made by the learned Judges concerned of the great caution and discretion which should be exercised before giving leave to issue a writ out o f the jurisdiction. In my view the learned District Registrar did not exercise a proper discretion in the present case. 4. It is not proposed to discuss the other points of objection taken on behalf o f the defendant, such as there being no cause of action disclosed in the writ or the absence of allegation o f the defendant’s responsibility for the alleged negligence o f the soldier in question. Those matters can doubtless be taken into consideration when exercising discretion in giving leave to issue a writ out o f the jurisdiction (see the Société Générale de Paris case). It is sufficient to decide this matter on the principal ground o f objection which has already been discussed in the preceding paragraph. 5. For the plaintiff it is urged that the cost to and the convenience o f the parties generally should be an important consideration in such cases as this ( Williams v. Cartwright and Others (1895) 1 Q. B., p. 142). This may be so in certain circumstances but not, in my opinion, where the status o f the defendant is the important factor for consideration. 6. For the foregoing reasons the Order o f the 26th May, 1942, the W rit o f Summons issued pursuant thereto, and all subsequent pro­ ceedings are hereby set aside. Plaintiff will pay defendant’s costs in this action and on this application.