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2011
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[2011] ZAGPJHC 140
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Loureiro and Others v Imvula Quality Protection (Pty) Ltd (09/15228) [2011] ZAGPJHC 140 (30 September 2011)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: 09/15228
DATE:30/09/2011
LOUREIRO, LICINO
…..............................................................
FIRST
PLAINTIFF
LOUREIRO, VANESSA
…....................................................
SECOND
PLAINTIFF
LOUREIRO, LUCA-FILIPE
…....................................................
THIRD
PLAINTIFF
LOUREIRO, JEAN-ENRIQUE
…...........................................
FOURTH
PLAINTIFF
IMVULA QUALITY PROTECTION (PTY)
LIMITED
..........................
DEFENDANT
JUDGMENT
SATCHWELL J:
Introduction
This judgment raises, yet again, the
responsibilities of security companies and their employees,
especially persons employed as
security guards, to those who hire
their services. It examines what can be expected by a family in
their home of a security
guard staffing a guardhouse at the entrance
to the family property. I discuss the expectations of security
personnel, including
their attributes, skills and obligations.
The Loureiro family moved into their
new home at 50 Jellicoe Avenue, Melrose on 25th November 2008. On
22nd January 2009 they
were robbed by persons who gained access
thereto posing as members of the South African Police. Arising
therefrom damages are
sought from the security company which was
responsible for providing security services at their home.
The claim of Mr Loureiro (first
plaintiff) is based upon alleged breaches of a security services
agreement with the security company
(defendant) and/or negligence in
regard to such agreement. The claim of Mrs Loureiro (second
plaintiff) is based upon the alleged
failure of the security company
to meet the duty of care owed to her and the children by reason of
negligence including various
failures to meet the standards required
of security service providers.
Conduct of Trial
At commencement of the trial, I was
informed that the parties had reached agreement on separation, (in
terms of Rule 33(4) of
the Rules) of the merits of the claims from
the quantum thereof. However, nothing was simple in this trial and
certainly neither
the pleadings nor this agreement. I was presented,
not once but twice, with a document
1
setting out what the court was “not” to decide by
references to a number of paragraphs in the pleadings. This was
most unhelpful. At the end of the day, I confirmed in court that
what the parties intended was that I was to decide only the
issues
of breach of contract and negligence i.e. the merits and that I
would not decide issues of quantum of specific or general
damages.
Accordingly, this judgment is only concerned whether the defendant
is liable to Mr Loureiro (first plaintiff) in contract
and to Mrs
Loureiro and the two minor children (second to fourth plaintiffs) in
delict.
The task of this court has not been
assisted by the continuing confusion attendant upon the pleadings
prepared on behalf of the
plaintiffs. Clarity in grammar, logic and
hence pleading has certainly not been the draughtsman’s
talent. There have been
several amendments to the particulars of
claim prior, during and after the trial. The replication was
amended during trial.
The latest amendment to the particulars was
presented after the trial was completed but before judgment handed
down. No objection
thereto having been filed, the pleadings have
been amended. It is therefore on that basis that I must decide this
case. This
most recent amendment applies only to claim B –
that of Mrs Loureiro – the claim in delict, claim A being
founded
in contract.
Extra work has been created by reason
of the apparent lack of preparedness on the part of plaintiff’s
counsel – objections
in court to cross examination on the
grounds that an issue raised was not in the pleadings when it
clearly was; failure to
prepare on the legal issues ( such as the
identity of the contracting parties or the validity and effect of
the cession) and
then arguing that it was the defendant which had
failed to prove other contracting parties or simply failing to
deal with
the law on the cession of a portion of a claim arising out
of one cause of action. There was a sense of confusion throughout
the presentation of plaintiffs’ case and argument thereon.
The trial concluded on 11th May 2011
on which day the possibility arose of an amendment to the
Particulars of Claim. The particulars
were amended, the plea was
amended and supplementary heads of argument were filed, dated 19th
July. The last documents were
only received by my chambers in
the third term in mid August. Yet, phone calls were received from
the office of one attorney
querying when the judgment would be
handed down – even before the final pleadings had been
received. As a result my registrar
wrote to the parties on 18th
August advising that my chambers had received the defendant’s
amended plea and supplementary
heads of argument and enquiring
whether the plaintiff wished to file supplementary heads of
argument. In addition was stated
“Satchwell J has further
asked me to advise that it is inappropriate for the plaintiffs
attorney to ascertain when judgment
will be handed down”. This
resulted in profuse apologies. However, it is of some concern that
the first plaintiff himself,
Mr Loureiro, telephoned my registrar on
his cellphone to express his apologies and to stress his anxieties
with regard to this
matter. This is most improper.
Security Measures
Mrs Loureiro and one of her sons had
previously been “held up” (I understand this to mean
robbed at gunpoint) in the
complex in which they previously lived.
They were determined that there would be no such risk in their new
home.
Accordingly, an extremely
comprehensive security system was installed by Mr Barboza involving
multiple alarm systems, beams, electric
fencing, a guardhouse,
intercom systems, closed circuit television.
2
Within the house were a number of safes as also concealed ‘safe
rooms’.
3
The defendant company was employed to provide a twenty four hour
armed guard situated in the guardroom at the entrance to the
premises. There were transmitters (a long range receiver on the
roof) for both silent and audible panic buttons linked to an
armed
response company – ADT.
So concerned were the Loureiros about
security that Mr Loureiro was most unhappy when his brother simply
arrived at the front
door one day without there first having been an
intercom query from the guardhouse before the gate was opened. This
led to an
instruction from Mr Loureiro to Mr Green of the defendant
company (at which conversation Mr Barboza was present) that no one
was to be permitted onto the premises by the security guards before
they had contacted the house via the intercom and permission
obtained. To ensure this instruction was adhered to, the intercom
instrument in the guardroom was partially disabled so that
it could
not be used to open or close the main driveway gates. The result was
that the security guard on duty could not grant
access to any
vehicle wishing to enter the premises. Access could only be granted
from inside the house after the occupants had
been alerted by the
guardhouse.
At the entrance to the premises from
Jellicoe Avenue there are two gates: the first gate, at the centre
of the premises, is a
large full metal with reinforced steel double
doored gate through which vehicles can access. The second gate, to
the left side
of the premises (as one faces) also with a paved path,
is a pedestrian armoured gate.
To the right of the main driveway and
the main gates is the guardhouse. Portion thereof is aligned
parallel to the main driveway.
Along that wall and the corner
thereof are bulletproof glass. This guardhouse window has full view
of the driveway. Accessible
from the driveway, at waist height
(convenient to the driver of a vehicle) is an intercom speaker
attached to a gooseneck which
communicates with an intercom phone
inside the guardhouse. When standing at this internal intercom
phone, which is somewhat
to the rear of the guardhouse
4
,
one can still see through the guardhouse window to Jellicoe Avenue.
However, it is then not possible to see through the guardhouse
window to anyone at the external intercom speaker nor is it possible
to see across the main driveway/gate entrance to the other
side of
the property where the pedestrian gate is to be found.
The intercom phone has four buttons
(one of which had been disabled and so could not control the opening
or closing of the main
gates) which are alarms and panic buttons.
The intercom can communicate to the staff quarters, the kitchen and
the main bedroom
of the house.
Events of 22nd January 2009
The evidence was led of Mr and Mrs
Loureiro (the plaintiffs), Mr Barboza (who installed certain
security equipment including a
CCTV system on the premises and both
inside and outside the house) and Mr Mahlangu (the security guard on
duty on the relevant
evening).
A video was played in court on
several occasions of the events both outside and inside the property
and inside the house. The
video recording was operated by Mr Barboza
and none of the events shown thereon were in dispute. The recording
was created by
the CCTV security system which had cameras installed
throughout. The video recording could (and was) played in court
either as
a series of small screens displaying events at different
places at the same time or as one screen. The time of events shown
on the screen was also displayed.
5
An inspection in loco was held one
morning before court.
Camera 1 recorded (at 19h47 onwards):
A white BMW motor vehicle with a
blue light driving along Jellicoe Avenue and, without hesitation,
driving off the road and
partially onto the driveway where it
stopped.
A man exiting from the front
passenger seat of the BMW. He was wearing dark trousers, a dark
blue top of the type worn by members
of the SAPS, a reflective
vest t marked ‘Police’, a cap with a badge thereon
(similar to that of the SAPS).
This man walking in the direction of
the guardhouse, pulling from his pocket and then extending towards
the guardhouse a card
of some type. He makes no attempt to speak
into the intercom and then walks back to the car and continuing
towards the pedestrian
gate.
Two men exiting the rear seats of
the vehicle and walking to the pedestrian gate.
Camera 7 recorded (at 19h47 onwards)
:
The security guard sitting in the
guardhouse, the television on.
The guard, seeing the BMW drive up
and stop, then leaning forward.
The guard rising up off his chair
and going to the intercom telephone.
He disappears from the screen.
Another camera (outside) records the
guard walking across the driveway towards the pedestrian gate.
He re-emerges into the guardroom
with two men, sits on the floor and talks to one of these men who
is carrying a gun in his
right hand and who is kneeling in the
door.
Mr Mahlangu’s evidence was that
he went to the pedestrian gate and opened it with the key in order
to find out what the
man outside wanted. He was confronted with a
gun, forced into the guardroom and thereafter taken into the house
itself where
he was held captive with the children and the staff
while the robbery took place.
There is a gate between the back door
of the house and the staff quarters (which is supposed to be locked)
but on camera at 19h48
dogs can be seen walking through the gate.
Camera 4 recorded (at 19h58
onwards):
An area inside the house
(identified as an anteroom to the main bedroom suite) containing
two large mirrors (concealing safe
rooms) which provide good
viewing of what takes place in this room and in adjacent rooms.
One intruder wearing a balaclava
enters, followed by two intruders, the security guard with bare
chest, houseman in a T shirt,
eldest son, another intruder, a
domestic worker, second son, domestic worker, youngest son, and
another intruder in balaclava.
There is opening of a box on the
table, one intruder puts on gloves, the mirror concealing a safe
room is opened, a heavy looking
bag is carried, a rifle is on the
table, handbags and luggage are carried through and/or piled up at
the door, Mr Loureiro
is taken through.
Mr and Mrs Loureiro returned home,
parked in the garage and as they were exiting the car were
confronted by intruders. Mrs Loureiro
gave evidence that she did
not press her panic button (in her handbag) because she wanted to
get to her children. Mr Loureiro
was told, at gunpoint, to do
nothing.
Camera 16 recorded (at 20h56):
The scullery off the kitchen which
is accessed from the garage.
An intruder grabs Mrs Loureiro,
removes jewellery, takes a handbag and returns it.
The three Loureiro children and the
staff were escorted at gunpoint to the main bedroom suite. There
they were all, save for the
youngest child ( a toddler) restrained.
Subsequently, both Mr and Mrs Loureiro were also brought upstairs.
The ordeal for the
captives lasted some hours.
Special Plea – insurance cession
Defendant noted a special plea
challenging the locus standi of the first plaintiff
6
.
It relies upon an “agreement of loss”
7
concluded with Insurance Zone Administration Services (“IZAS”)
contained a cession by the first plaintiff to the
IZAS of any claim
which first plaintiff had “against any party arising from the
loss referred to (being those items listed
in Annexure ‘B’).
8
Defendant pleaded that the first plaintiff had divested himself of
all rights to claim the losses in the particulars of claim.
To
this special plea, first plaintiff replicated.
9
According to the witnesses, the
‘Agreement of Loss’ document was an agreement only in
respect of the loss for which
IZAS would provide cover/compensation.
Mr Loureiro understood that he was covered, in respect of jewellery,
for “first
loss” only. Mr Johnston, Director of IZAS,
had provided cover
10
for Mr Loureiro only in respect of “first loss for jewellery”.
Mr Johnston had ‘contracted [Loureiro] out
of the standard
clause in all policies limiting jewellery to one/third of the sum
insured”. This was done by making specific
mention of the
jewellery. The cover was not in intended to be in respect of
specified items but to a maximum within the home.
Mr Turner, appearing on behalf of the
defendant, submitted that any claim which the plaintiff has against
the defendant is a ‘single
and indivisible claim that could
[only] be pursued in one action’. The first plaintiff having
ceded ‘all rights’
to IZAS, the ‘once and for all
rule’ precluded him from pursuing the defendant; the rights
are now vested in the
cessionary.
However, the first plaintiff did not
and has not ceded “all rights” in respect of the total
loss allegedly sustained
by him and his family on the night of 22nd
January 2011 – which are set out in Annexure B as being in
the region of R
11 million (eleven million rand). IZAS has not taken
cession of the right to claim from the defendant company (or anyone
else)
this full amount of some R 11 million.
The cession in paragraph E of the
Agreement of Loss - “I hereby cede, assign and transfer to and
in favour of Insurance
Zone all rights which I might have against
any other party arising from the loss referred to above” was,
said Mr Johnston
in respect of “all we want to recover is the
value we paid out”. The cession by first plaintiff is
limited to
“the loss referred to above”. That
reference is spelt out in the preamble to the Agreement of Loss as
“
the loss which occurred on 22
January 2009, as a result of Theft, in respect of claim number
IZIP4150/1 in respect of
Jewellery
….............................
R
1 500 000,00
General All
Risks
.....................
R 300
000,00
Household Contents
................
R
256 672,43
Less
Excess
.............................
R
250,00
Less Interim Payment
..............
R
500 000,00
…
...............................................
______________
…
..........................................
R 1 556 ,422,43”
That which was ceded by first
plaintiff to IZAS was limited to and no more than the loss set out
in the document, namely R 1 555
442, 43 (to which the interim
payment may also be added). The balance of Mr Loureiro’s claim
(which on his arithmetic and
the document setting out the value of
the total loss sustained in the robbery) is R 11 678, 059 (Eleven
million six hundred and
seventy eight thousand and fifty nine
Rand).
11
It certainly cannot be the case that
IZAS (cessionary of a claim in re R 1.5 million) could proceed to
claim the full R 11 million
alleged loss and equally so it would be
most unjust if Loureiro were precluded from pursuing his total loss.
It certainly appears that the cession
contained in this Agreement of Loss does amount to “a
splitting of one cause of action
between two creditors” (i.e.
claim based on the robbery against the security company by both IZAS
and Loureiro –
IZAS having a claim for some R 1.5 million and
Loureiro for some R 9.5 million) (see Van der Merwe v Nedcor Bank
BPK 2003(1)
SA 169 headnote). This cession is struck by the
prohibition against the splitting of claims.
12
I am in agreement with Mr Turner,
appearing for defendant, who conceded in argument that this cession
may be legally invalid.
This issue was neither properly researched
nor argued by counsel appearing for the plaintiff and the
cessionary, IZAS, was not
heard on this issue. However, the
plaintiff knew the contents of the Special Plea and the cessionary
had been consulted by the
plaintiff’s legal representatives
and Mr Johnston gave evidence.
In the result, I take the view that
this cession is invalid. Accordingly, Mr Loureiro has locus standi
to bring this action and
the special plea must fail.
The Contract
First plaintiff (Mr Loureiro) pleaded
that he, “represented by Ricardo Loureiro” (his nephew),
“entered into
an oral agreement (‘the guarding service
agreement’)” on 1st December 2008 with the defendant
which agreement
was amended orally by the first plaintiff on 10
December 2008.
13
Defendant’s plea disputed the agreement as pleaded
14
.
Both Mr Loureiro and his nephew,
Ricardo, gave evidence to the effect that Mr Loureiro asked Ricardo
to contact the security company
because he had previously dealt with
them on behalf of other family members and their business. Ricardo
approached the regional
manager, Mr Gumede, to make the security
arrangements and passed on Mr Loureiro’s cellphone to make
contact. Mr Loureiro
met with Mr Green of the defendant at his home
on one occasion to give instructions that security would have no
control over
the main gate and have a key to the pedestrian gate for
change of shift only. The defendant’s representatives did not
give evidence and the Loureiro evidence was not disputed.
No written contract was produced in
evidence. A series of invoices from the defendant
15
addressed to “Rick 4 Beryl Street Cyrildene Johannesburg”
are understood to be invoices to Ricardo Loureiro (1st
Plaintiff’s
nephew) at the business address of one of the family businesses. The
invoice purports to “ship”
services to “5 Jellico
Rd Melrose” which is the obviously intended to refer to the
home of the Plaintiffs
16
and the services are the provision of “armed grade D security
officers”.
There can be no dispute (in view of
the invoice and the evidence of Mr July Mahlangu) that guarding
services were provided to
the Loureiro home. The only issue is
whether arrangement of and payment for such services by Ricardo
Loureiro and the family
business means that the contract was not
concluded between the first plaintiff and the defendant?
Mr Loureiro gave evidence that “I
paid” for the service. The invoice and Ricardo confirm that
the payment was made
out of the family business. It was described
as “a perk” of working in the family business. Since
the evidence
is that the family business debited this expense to
“security services”, it is unlikely that this amount was
actually
debited to Mr Loureiro’s drawings from the business.
There can be no doubt that, at all
times, Mr Loureiro (first plaintiff) was extremely hands-on, active,
involved and in control
of the specification of security needs,
installation, arrangements, changes and ensuring it worked. This was
in every sense
‘his baby’. When Ricardo was asked by his
uncle to find a security company to provide a guarding service, he
did
so and informed them that armed security was required at the
Jellicoe Avenue address and passed the company on to his uncle. Mr
Loureiro took over. There is no evidence Ricardo played any further
part in these arrangements (or in any other part of the house),
Ricardo was indeed Mr Loureiro’s representative or agent in
sourcing the security company.
It is trite that the obligations of
one contracting party can be discharged by another (non-contracting)
party; in this case the
family business
17
.
It is clear that Mr Loureiro and the family business had agreed that
payment would be made to Defendant Company to meet Mr Loureiro’s
debt.
I am satisfied that the first
plaintiff, Mr Loureiro, concluded the contract with the defendant
company, initially through his
nephew, Ricardo, and subsequently in
person.
Company and security guard conduct
At the end of the day, the liability
of defendant (whether on claim A in contract or claim B in delict)
essentially boils down
to the question of negligence. Did the
company fail to carry out its obligations in terms of the contract?
Did the company fail
to enable its security guard to meet the terms
of the contract? Did the company enable its security guard to meet
the standard
reasonably required of a security guard? Did the
security guard meet the standard reasonably required of a security
guard? What
was the ‘duty of care’, if any, expected of
the security company and its servant and was there a failure to meet
such standard?
The Plaintiffs pleadings have been
amended several times, including during the course of trial and
after evidence had been concluded
and argument completed
18
.
The amendment post trial was most substantial (so as to introduce
the vicarious liability of the company for the actions of
its
employee) and the plaintiff is certainly most indebted to
defendant’s counsel, Mr Turner, who was, at all times, aware
of the defect in the plaintiffs pleadings and anticipated the need
for an amendment and presented his argument as though the
plaintiff
had raised all essential averments. The court is grateful to Mr
Turner and his attorneys for their attitude and helpfulness
in
finalising this matter rather than pursuing technicalities.
The most recent pleadings upon which
this court must decide this action
19
rely (as to both the contractual claim and the delictual claim)
upon the same allegations. Some of the averments are couched
in the
positive and others in the negative; they are frequently repetitive;
often are not couched in clear language.
At close of the trial, Mr Smit
appearing for the plaintiffs stated that he relied only on
paragraphs 6.10
20
,
6.14
21
and 6.15
22
of the Particulars of Claim. Unfortunately, these paragraphs refer
only to the averred contents/terms of the guarding services
agreement and not to the alleged breaches or acts of negligence.
The breaches and acts of negligence are set out in paragraphs
8. 15
and 16A of the Particulars of Claim. For purposes of this judgment,
I need only deal with those averments which are relevant
to a
decision
23
.
Firstly, there is no dispute that an
“armed” guard was requested and invoiced. Mr Mahlangu’s
evidence is that
he was not armed although he is trained in the use
of firearms and holds a firearm licence. However, I see no causal
connection
between this lack of firepower and what happened on the
evening in question. If Mr Mahlangu had had a gun, there is no
evidence
that he would have been able to or would have used it and
that there might have been a different outcome.
Secondly, Mr Mahlangu’ evidence
was that he is a Grade A security guard, has completed a number of
courses and sometimes
trains others. Notwithstanding his
qualifications and experience, this does not relieve the security
company employing him from
providing him with instructions
concerning this particular posting. Such instructions, whether
written or oral, would necessarily
have to be clear, understandable
and accessible. Such were provided to him at his other postings.
However, Mr Mahlangu evidence
was that no directions were given to
him concerning this posting at 50 Jellicoe Avenue. For instance, he
was not told why he
had no control over opening and closing the main
gate; he was not told that the single key given to defendant company
for the
pedestrian gate was to be used only to enable shift changes
of security guards; he was not clearly instructed that no one could
enter the property without authorization from the occupants of the
house or staff; he was not instructed to check the operation
of the
intercom at the beginning of every shift.
24
Thirdly, the defendant company holds
itself out as providing specialist services of a security nature
and, in this particular
instance, guarding of residential premises.
The invoice is in respect of only a “Grade D” armed
guard but nonetheless
this is an employee who could be expected to
have been trained (not only as regards specific duties) in the
nature of criminal
trends in the relevant area and the appropriate
security response thereto. Accordingly, one would expect the
security company
to have updated all employees on the possibility of
unauthorized persons attempting to gain access under the guise of
being
plumbers, electricians, electricity meter readers, friends and
relatives and even members of the SAPS such as the notorious members
of the ‘Blue Light Gang’ which had received much media
publicity.
25
Fourth, there is a dispute as to
whether or not Mr Mahlangu had been provided with a panic button. Mr
Loureiro and Mr Barboza
gave evidence that this had been handed
over. Mr Mahlangu testified that he had never received same. There
is no reference in
the Occurrence Book to receipt of a panic button.
I do not need to decide this dispute because there is no suggestion
that there
was ever any panic in response to which Mr Mahlangu would
have wished or been able to press the button. He did not anticipate
any crisis when he went to and opened the pedestrian gate;
thereafter he was confronted with a firearm and under great
pressure.
26
Fifth, in any occupation, employees
require advice, guidance and instruction. For this clear lines of
communication are needed.
Mr Mahlangu’s evidence was that the
company, his employer, had provided him with no means of contacting
his supervisor,
Mr Jehosephat Ndlovu. He was effectively out of
touch with any supervisor or guidance and unable to call for backup
throughout
his twelve hour shift
27
.
That Mr Mahlangu happened to have a personal cellphone is of no
consequence since the ability to use this cell depended, as
he
pointed out, on his ability to purchase airtime.
28
Sixth, the security guard, Mr
Mahlangu, accepted without questioning or consideration or need for
verification that the intruders
were members of the South African
Police Services. Throughout his evidence he referred to them as the
“police”.
Mr Mahlangu was presented with a
white BMW displaying a blue light. From the front passenger seat
emerged a man wearing dark
blue clothing, a reflective vest marked
‘Police’ and blue cap with a bade thereon. To all
intents and purposes
this was an SAPS vehicle and a member of the
SAPS emerging therefrom.
When the man approached the
guardhouse, he gave Mr Mahlangu no opportunity to read or inspect
the card presented. Mr Mahlangu’s
evidence was that this man
left the guardhouse window just as or before Mr Mahlangu reached
the intercom. Mr Mahlangu did
not gesture to this man or the
driver of the vehicle that he wished to read/see the card.
Mr Mahlangu went to the intercom -
obviously intending to find out what was wanted. However, the man
was not at the intercom
(having already left that portion of the
driveway). Mr Mahlangu heard no response. He did not return to the
window and gesture
to the man or the driver of the vehicle to
return to the window and the intercom to explain who they were,
where they were
from, why they had come, what they wanted.
At the inspection in loco both the
occupants of the guardhouse and anyone on the driveway could hear
each other through the
intercom. Mr Mahlangu did not say that he
knew the intercom was not working – he simply said that he
assumed it was
not working because there was not response from the
man no longer at the intercom. He did not try to use the intercom
to contact
the occupants of the house which would have confirmed
whether or not the intercom worked.
29
Mr Mahlangu did not contact the main
house to ask the staff if anything had happened to them or the
children, whether they had
contacted the SAPS, what assistance was
required. He made no attempt to establish if these were members of
the SAPS, were
they at the correct address and what they wanted. He
did not seek authorization to let anyone into the property.
Mr Mahlangu’s evidence was
that he “took out the key… when I realized he was no
longer at the window…
my intention was to open the small
gate….so I can hear what he wanted”. He left the
guardhouse, walked across
the interior of the property to the
pedestrian gate and opened it. He did not speak through the
peephole or through the gate.
At the inspection in loco it was
easily possible to do so. Mr Mahlangu said that he opened the door
because “maybe they
want information from me” and
“maybe I can help them”. “I was not intending to
open the gate and let
someone in, [I wanted] to find out the story
first”.
Once the pedestrian gate had been
opened, Mr Mahlangu was overpowered and some of the robbers went to
the main house. There can
be no doubt that Mr Mahlangu’s
action in opening the gate (and thereby in failing to disallow
access to the premises) enabled
the robbers to reach the house. It
serves little purpose to speculate on the manner in which the
robbers would have attempted
to access the interior of the house –
perhaps they would have knocked on the front door, perhaps they
would have climbed
over the security gate between the staff quarters
and the back door. As it was, the security gate (of no great height)
was not
locked
30
and the robbers did not have to storm the staff quarters to obtain
access. Once the pedestrian gate had been opened and the robbers
had
gained access to the premises, no further significant obstacle
existed to prevent their robbery.
The Security Industry
The standard required of a reasonable
security guard in the circumstances of guarding the Loureiro house
have previously received
consideration.
In Probe Security CC v The Security
Officers Board
31
,
I had occasion to say:
‘
[Security service providers]
are granted access to private dwellings, industrial premises, retail
complexes, vehicles and a host
of otherwise private or off-limits
areas. The service is rendered for reward. It is without doubt and
extremely public undertaking…
Those persons who render such security
services “by their very nature carry an air of authority
vis-à-vis the public.
They wear uniforms. They bear arms. They
have all the outward appearances of having authority over lay
people”. Not only
on premise to which security officers have
been granted access but in the public sphere generally, society as a
whole is vulnerable
to any abuses which may be perpetrated by such
persons.
Without doubt, society at large and
the clients of the [security business] have an interest in the
control [of] such a large private
force and rely upon [the Security
Officers Board to do so] by inter alia, ensuring that these armed men
have training in the use
of weaponry, are licensed to carry firearms,
are not convicted felons, are register a s security officer[s] and
subject to the
discipline and occupational standards imposed by [the
Security Officers Board]. The hazards to the public if the standards
applicable
to security officers are not maintained and the practices
of security officers are not regulated are considerable; indeed
life-threatening
.” (Quoted with approval in Union of Refugee
Women v Director: Security Industry Authority 2007(4) SA 395 CC).’
The Constitutional Court has had
occasion
32
to comment on “the very particular environment” of the
private security industry which is large and powerful and
“plays
a vital role in complementing those [State security services]”.
There is a need for both “regulation
and adherence to
appropriate standards”.
33
The Supreme Court of Appeal
34
stressed the public interest in control of the “large and
enormously powerful private security industry” so as to
“ensure… that security officers have no links to
criminal activities, are properly trained and are subject to proper
disciplinary and regulatory standards…”
Security officers have been called
“the first line of defence”
35
in protection against crime. They were certainly so perceived by the
Loureiro family at their home.
All occupations demand certain
requirements of the persons who fill them. These range over
personal qualities, physical and mental
attributes, levels of
training and skills. The security industry is no different. After
all, provision is made for compulsory
training as also grading of
security officers. Mr Mahlangu is, for instance, a Grade A guard who
was employed in a Grade D position.
Amongst the requirements of a
security guard, in the position of Mr Mahlangu, are: firstly,
honesty, integrity and loyalty to
both employer and the persons and
property being guarded. Secondly, the ability to receive instruction
and act in accordance
therewith. Thirdly, wakefulness and alertness
during the hours of a shift. Fourth, mindfulness of the
responsibilities of guarding
the post which entails watchfulness,
wariness and lack of gullibility. Fifth, physical mobility and the
ability to respond appropriately.
Sixth, visibility.
It is accepted that not all employees
adhere to the standards which their employees expect of them.
Similarly, not all employers
meet the employment standards which are
required of them. The security industry has been notorious for the
random recruiting
of employees, lack of training and skills of
employees, absence of support structures for employees, low salaries
and appalling
working conditions. Hence the many instances of
litigation involving employers of persons employed as security
guards and the
regulatory authority. In this judgment, I trust that
I do not behave as an armchair critic expecting perfection from the
security
company and employee – I do not expect them to be
perfect employer and employee but merely the reasonable employer
and employee.
Mr Mahlangu gave evidence that he saw
“my job to make sure the property and building and people
[are] safe” which
is a clear and precise definition of what
was expected of him.
Negligence
In considering the conduct of both
the defendant company and its employee, I must obviously have
regard to the context within
which such conduct did or did not
happen – a residential home where the occupants fear crime and
have installed extensive
security systems to protect themselves; a
company specialising in the provision of guarding services who
contracted to provide
graded and therefore trained guards for both
day and night shifts; a security guard who is trained and graded
and has experience.
I find that the reasonable security
company would reasonably have foreseen the possibility inter alia:
firstly, of unlawful
intruders attempting to gain access to the
premises; secondly, that such intruders might use disguise and guile
to facilitate
such unlawful access; thirdly, that the only point of
access to the premises over which the company and its employee
exercised
control was the pedestrian gate which therefore required
particular surveillance and management; fourth, the only means of
communication
from the guardhouse to the family home, the company
and the outside world was through the intercom in the guardhouse
which functionality
required to be checked; fifth, that clear,
understandable or accessible instructions must be given and remain
available from
the company to the employee; sixth, that the
employee in the guardhouse would require means to contact a
supervisor for guidance
or backup. In all these instances the
company failed to take the reasonably appropriate steps to eliminate
or ameliorate problems
arising therefrom and were therefore in
breach of their contract with the first plaintiff, negligent in
failing to meet the standards
required of a security company and the
duty of care which they had assumed.
I find that a reasonable security
guard should have been vigilant for intruders attempting to gain
access under the guise of a
legitimate occupation. In this instance,
Mr Mahlangu was presented with an apparent SAPS vehicle and an
apparent member of the
SAPS who came to the guardhouse. It is my
view that he cannot be criticised for assuming that this was a
police patrol and a
policeman.
However, a reasonable security guard
in these circumstances should have ensured that he had sight of the
card presented; gestured
back the policeman when he left the window
without giving the guard the opportunity to read the card; gestured
back the policeman
or the driver when the guard realised the
policeman had left the intercom and was not responding (or even
attempting to respond)
through the intercom; perhaps gone to the
pedestrian gate to enquire (through the gate without opening it)
which station the
SAPS had come from, which address they wanted and
for what purpose; attempted to contact the main house through the
intercom
to enquire whether the SAPS had been called and for what
purpose and seeking authorisation to let them in. I find that Mr
Mahlangu,
in opening the pedestrian gate, failed to take reasonably
appropriate steps to prevent the anticipated harm from happening. By
opening the pedestrian gate the security guard let down the
drawbridge and allowed the intruders to enter the Loureiro castle.
This was negligence.
I find that the acts identified above
constitute, individually and together, breaches of contract, failure
to meet the duty of
care expected, failure to meet the standards
required of both security company and security employee and
therefore negligence.
These acts and omissions are, as
discussed above, causally connected to the harm which followed:
entry into the house, apprehension
of the family and staff; robbery
of valuable items; captivity and trauma of the family and staff.
Conclusion
In the result:
The defendant is liable in contract
to the first plaintiff for the loss/damages he suffered as a result
of the robbery on 22nd
January 2009.
The defendant is liable in delict to
the second to fourth plaintiffs for the loss/damages they suffered
as a result of the robbery
on 22nd January 2009.
The defendant shall pay the costs to
date.
DATED AT JOHANNESBURG THIS 28th DAY OF
SEPTEMBER 2011
___________________
SATCHWELL J
Date of hearing: 5 May, 6 May, 9 May,
10 May, 11 May
Pleadings closed: 19th July 2011
(received mid August)
Date of judgment: 30th September 2011
Plaintiff’s counsel: Adv. JG
Smit
Plaintiff’s attorneys: DLA
Cliffe Dekker Hofmeyr
Defendant’s counsel: Adv. D
Turner
Defendant’s attorneys: Webber
Wentzel
1
Ex A1 and A2
2
For instance, in the course of the inspection
in loco
I
observed that a television screen was attached to the wall of the
driveway so that occupants of any vehicle would be able to
view the
exterior of the premises, the driveway and the public road.
3
These were seen on the video recording of the interior of the house
during the theft as also during the inspection in loco –
extremely large mirrors with gold frames concealing safe rooms.
4
Post these events it is now in a different placement.
5
This CCTV Recording was handed in as Exhibit C.
6
“
1.
During 2009, the first
plaintiff concluded a written “agreement of loss” with
Insurance Zone Administration Services.
2.
In terms of the agreement of loss:
2.1.
the first plaintiff accepted that the loss which he had suffered
was-
2.1.1.
in respect of jewellery – R1.5, million;
2.1.2.
in respect of general risk items – R300,00.00; and
2.1.3.
in respect of household contents – R257, 672.00.
2.2.
the items alleged to have been lost by the first plaintiff and for
which the first plaintiff receiving an indemnity payment
from
Insurance Zone Administration Services, are those listed in annexure
“B” to the agreement of loss;
2.3.
the first plaintiff ceded, assigned and transferred to and in favour
of Insurance Zone Administration Services all the rights
which it
had against any party arising from the loss referred to (being the
loss of those items listed in annexure “B”
to the
agreement of loss).
3.
In the circumstances, the first plaintiff has divested himself of
all rights to claim the losses referred to in paragraphs
9.3 and
11.1 of the particulars of claim, prayer 1.1.1 and as set out in the
schedule attached to the particulars of claim marked
annexure “B”.
4.
The first plaintiff lacks
locus standi
to make a claim for those items listed in “Annexure B”
to the particulars of claim.
7
Document at page 1 of Bundle.
8
It is noted that the Special Plea quotes the cession as being a
cession by “it” had against any party arising from
the
loss. The special plea may then be read to refer to any claims which
IZAS had against any party but it is obviously meant
to refer to the
first plaintiff. – “he”.
9
“
AD paragraph 2.2
:
3.1 All allegations are denied as if specifically
traversed. It is denied that the agreement of loss included an
“annexure
B” as contended fro by the defendant.
3.2 It is denied that the first plaintiff accepted the
loss which he had suffered was that as described herein by the
defendant.
The first plaintiff pleads that the agreement of loss was
entered into to cover the extent of the first plaintiff’s loss
for which the first plaintiff was to be compensated in accordance
with the express provisions of the policy of insurance and
the
insurer’s obligations thereunder.
4.
Ad paragraph 2.3
4.1. These allegations are denied as if specifically
traversed. In particular it is denied that the loss that is
described herein
by the defendant and the allegations contained in
3.2 and 3.3. above are repeated herein
mutatis
mutandi.”
10
Policy Schedule NO IZIP4150 underwritten by Hollard Insurance
Company Limited
11
Annexure B to Agreement of Loss.
12
“Except with the consent of the debtor, a right
can be ceded only in its entirety; a cession of part of a debt
otherwise
capable of partition or a cession purporting to apportion
the debt among several cessionaries is invalid (LAWSA Vol. 2 Pt 2
para 40 - quoted with approval in
Van der
Merwe supra
175B-C).”
13
The terms of the guarding service agreement are pleaded in
paragraphs 6.1 – 6.15 of the Particulars of Claim. The orally
inserted term is set out in para 6.8 of the Particulars.
14
Para 4.1 of the Defendants plea.
15
For the period 5th December to 11
th
February 2009.
16
50 Jellicoe Avenue, Melrose.
17
See the discussion at pages 520 to 523 of AJ Kerr, ‘The
Principles of the Law of Contract’.
18
Argument concluded at the end of the trial on 11
th
May
2011. This was followed by a Notice of Intention to Amend the
Particulars of Claim (23
rd
May) , the amended particulars
(13
th
June), an amended Plea (14
th
July) ,
supplementary Heads of Argument - the last of which was filed on
19
th
July 2011.
19
Claim A
:
8. The defendant breached the guarding service
agreement in one or more or all of the following respects in that
the defendant
failed and/or neglected to:
8.1. provide guarding services at the plaintiffs’
residence; and/or
8.2. deploy an armed guard and/or armed Grade “D”
guard on day shift; and/or
8.3. deploy an armed guard and/or an armed Grade “D”
guard in night shift; and/or
8.4. take all reasonable steps to:
8.4.1. prevent persons gaining unauthorised access
and/or entry to the plaintiffs’ premises; and
8.4.2. protect the persons and property of the
plaintiffs and/or the first plaintiff and his family and/or any
other persons lawfully
present at the plaintiffs’ premises;
and/or
8.5 patrol, monitor and guard the premises, 24 hours a
day 7 days a week; and/or
8.6. take all reasonable steps to ensure that no
persons gained unlawful access to the plaintiffs’ premises;
and/or
8.7. permit any person to gain access to the
plaintiffs’ residence other that the plaintiffs’ and
their two minor
sons, unless the defendant had obtained prior
authorisation from the first plaintiff alternatively the second
plaintiff to allow
such persons access to the plaintiffs’
residence; and/or
8.8. utilize,
inter alia
,
the panic button furnished [by] the first plaintiff in the event
when reasonably necessary and/or in the event of any unauthorised
persons attempting to gain access and/or gaining access to the
plaintiffs’ premises; and/or
8.9. ensure that the security guards deployed at the
plaintiffs’ premises were suitably trained and competent to
perform
the learned obligations of the defendant at the plaintiffs’
premises in terms of the guarding services agreement ; and/or
8.10. maintain an up to date occurrence book at the
premises; and or
8.11. ensure that the plaintiffs had reasonable access
to a supervisor of the security guards deployed by the defendant at
the
plaintiffs’ premises during business hours and the
defendant would provide the plaintiffs with the contract details of
a supervisor and/or manager of the defendant in the event of
emergencies; and/or
8.12. at all times act in compliance with the Private
Security Industry Regulation Act, 56 of 2001 (“the Act”)
as
well as the code of conduct accompanying the Act and to provide
the guarding services with due care and in accordance with the
general standards prevailing in the private security industry at the
time.
Claim B
14. In the circumstances, the defendant owed the second
plaintiff and the plaintiffs’ two minor sons a duty of care in
terms
of which the defendant was obliged to:
the defendant would provide guarding services at the
plaintiffs’ residence;
the guarding service agreement would commence 2
December 2008 and would endure indefinitely until terminated by
the first
plaintiff, or the defendant, on reasonable notice;
14.3. the defendant would deploy one armed Grade “D”
guard on day
14.4. the defendant would deploy an armed guard and/or
an armed Grade “D” guard in night shift;
14.5. the defendant would take all reasonable steps to:
14.5.1. prevent persons gaining unauthorised access
and/or entry to the plaintiffs’ premises; and
14.5.2. protect the persons and property of the
plaintiffs and/or the first plaintiff and his family and/or any
other persons
lawfully present at the plaintiffs’ premises;
14.6. the armed guards deployed at the plaintiffs’
residence as aforesaid would patrol, monitor and guard the premises,
24 hours a day 7 days a week;
14.7. the defendant would take all reasonable steps to
ensure that no persons gained unlawful access to the plaintiffs’
premises;
14.8. the defendant was not entitled to permit any
person to gain access to the plaintiffs’ residence other that
the plaintiffs’
and their two minor sons, unless the defendant
had obtained prior authorisation from the first plaintiff
alternatively the second
plaintiff to allow such persons access to
the plaintiffs’ residence;
14.9. the guards deployed by the defendant at the
plaintiffs’ premises will be furnished with,
inter
alia
, a panic button furnished [by] the
first plaintiff in the event when reasonably necessary and/or in the
event of any unauthorised
persons attempting to gain access and/or
gaining access to the plaintiffs’ premises;
14.10. the defendant would ensure that the security
guards deployed at the plaintiffs’ premises were suitably
trained and
competent to perform the learned obligations of the
defendant at the plaintiffs’ premises in terms of the guarding
services
agreement ;
14.11. the defendant would maintain an up to date
occurrence book at the premises;
14.12. the defendant would ensure that the plaintiffs
had reasonable access to a supervisor of the security guards
deployed by
the defendant at the plaintiffs’ premises during
business hours and the defendant would provide the plaintiffs with
the
contract details of a supervisor and/or manager of the defendant
in the event of emergencies;
14.13. the plaintiff will pay the defendant an amount
of R14 320.68 (including VAT) per month;
14.14. the defendant would at all times act in
compliance with the Private Security Industry Regulation Act, 56 of
2001 (“the
Act”) as well as the code of conduct
accompanying the Act.
14.15. the defendant would, in providing the guarding
services, act with due care and not act negligently. In particular
the Defendant
would not act carelessly in the execution of its
mandate and observe the required standards as measured against the
general standards
prevailing in the private security industry at the
time.
15. On or about 22 January 2009 the defendant
unlawfully and wrongfully breached the aforesaid legal duty in one
or more or all
of the following respects in that the defendant
failed and/or refused and/or neglected to:
15.1. provide guarding services at the plaintiffs’
residence; and/or
15.2. deploy an armed guard and/or armed Grade “D”
guard on day shift; and/or
15.3. deploy an armed guard and/or an armed Grade “D”
guard in night shift; and/or
15.4. take all reasonable steps to:
15.4.1. prevent persons gaining unauthorised access
and/or entry to the plaintiffs’ premises; and
15.4.2. protect the persons and property of the
plaintiffs and/or the first plaintiff and his family and/or any
other persons
lawfully present at the plaintiffs’ premises;
and/or
15.5 patrol, monitor and guard the premises, 24 hours a
day 7 days a week; and/or
15.6. take all reasonable steps to ensure that no
persons gained unlawful access to the plaintiffs’ premises;
and/or
15.7. permit any person to gain access to the
plaintiffs’ residence other that the plaintiffs’ and
their two minor
sons, unless the defendant had obtained prior
authorisation from the first plaintiff alternatively the second
plaintiff to allow
such persons access to the plaintiffs’
residence; and/or
15.8. utilize,
inter alia
,
the panic button furnished [by] the first plaintiff in the event
when reasonably necessary and/or in the event of any unauthorised
persons attempting to gain access and/or gaining access to the
plaintiffs’ premises; and/or
15.9. ensure that the security guards deployed at the
plaintiffs’ premises were suitably trained and competent to
perform
the learned obligations of the defendant at the plaintiffs’
premises in terms of the guarding services agreement ; and/or
15.10. maintain an up to date occurrence book at the
premises; and or
15.11. ensure that the plaintiffs had reasonable access
to a supervisor of the security guards deployed by the defendant at
the
plaintiffs’ premises during business hours and the
defendant would provide the plaintiffs with the contract details of
a supervisor and/or manager of the defendant in the event of
emergencies; and/or
15.12. at all times act in compliance with the Private
Security Industry Regulation Act, 56 of 2001 (“the Act”)
as
well as the code of conduct accompanying the Act and to provide
the guarding services with due care and in accordance with the
general standards prevailing in the private security industry at the
time.
Amended particulars
13. At all material times hereto:
13.3. July Kleinbooi Mahlangu (“Mahlangu”)
was employed by the defendant at 50 Jellicoe Avenue, Melrose on the
evening
of 22 January 2009 as a guard
13.4. Mahlangu at all times acted in the course and
scope of his employment with the defendant
16A. Mahlangu in capacity aforesaid acted negligently
in that he opened the pedestrian gate of 50 Jellicoe Avenue, Melrose
(”the
premises”) to intruders at approximately 19h55 on
22 January 2009 in circumstances where:
16A.1. He could and should have reasonably foreseen the
intruders could pose as policeman in order to gain unlawful entry to
the
premises;
16A.2. He could and should have first satisfied himself
that the intruders were in fact members of the South African police
Services
but failed to do so;
16A.3. He could and should have first enquired of the
intruders and satisfied himself what their business was but failed
to do
so.
16A.4. He could and should have foreseen that in
opening the pedestrian gate there was a reasonable possibility that
the intruders
would gain entry to the premises and cause harm to the
plaintiffs.
20
Defendant “would ensure that the security guards deployed at
the plaintiff’s premises were suitably trained and competent
to perform the obligations of the defendant at the plaintiff’s
premises in terms of the guarding services agreement”.
21
Defendant “would at all times act in compliance act in
compliance with the Private Security Industry Regulation Act, 56
of
2001, as well as the Code of Conduct accompanying the Act”.
22
Defendant “would, in providing the guarding services, act with
due care and not act negligently. In particular, the defendant
would
not act carelessly in the execution of its mandate and observe the
required standard as measured against the general standards
prevailing in the private security industry at the time.”
23
The complaints in paragraphs 8.1, 8.5, 8.10, 8.11 have no relevance
to the decision which must be made.
24
See complaints in paragraphs 8.4.1, 8.6, 8.7, 8.9.
25
See complaint 8.9.
26
See complaint 8.8.
27
See Chapter 3, clause 5(b) of the Code of Conduct promulgated in
terms of the Security Services Regulation Act.
28
The
complaint in paragraph 8.11 refers to plaintiff being able to make
contact with the defendant, not the security guard.
29
The evidence is that the intercom was in working order that very
day. Mr Mahlangu supposition is merely because no one of the
robbers spoke to him and he could not hear the engine of the BMW
motor vehicle.
30
On the CCTV dogs were seen moving through this area and the gate was
not locked.
31
Case no 98/13942, 17 August 1998, unreported.
32
In
Union of Refugee Women supra
33
Bertie van Zyl vs Minister for Safety and Security 2010(2) SA
181 CC
34
Private Security Industry Regulatory Authority and Another v
Anglo Platinum Management Services and others 2007[All SA] 154 SCA
35
Bertie van Zyl supra