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[2013] ZAGPJHC 123
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G4S International UK Ltd v Minister of Safety & Security (12735/07) [2013] ZAGPJHC 123 (22 March 2013)
IN THE SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE NO
: 12735/07
DATE
: 22/03/2013
In the matter between
G4S
INTERNATIONAL UK LTD
PLAINTIFF
and
MINISTER
OF SAFETY & SECURITY
5
TH
DEFENDANT
J U D G M E N T
WILLIS J
:
[1] The plaintiff, which
was at all material times a consigner as defined in terms of the 1929
Convention for the Unification of
Certain Rules relating to
International carriage by air as amended by the 1955 Haig Protocol,
was the consigner of currencies by
way of airway bills issued at
Heathrow Airport in the United Kingdom. These notes had been
dispatched to the plaintiff as
the consigner by the Royal Bank of
Scotland PLC. The persons to whom the notes were destined were the
Standard Bank of South Africa
Ltd, FirstRand Bank Ltd and Barclays
Bank of Tanzania. The notes were intended for allocation to
banks within the African
continent.
[2] The consignment
consisted of batches of US $11 350 000.00,
R1 600 000.00 and €20
000.00, as separate currencies, respectively. There was a heist
at the Oliver Tambo International
Airport on 25 March 2006, during
which, this consignment of notes was ‘hijacked’.
‘
Knap speurwerk
’ by one Mr John Pearson, an
international loss adjuster who had previously worked for the British
South Africa Police resulted
in arrests being made within a matter of
hours at Beitbridge. These arrests at Beitbridge led to further
information and
further arrests.
[3] The money recovered
by the South African Police Services was kept in a safe at the police
station in Benoni. An audit
was to be done on either 25 or 26
May 2006 (it does not really matter). On the night before the audit
took place there was a break-in
at the Benoni Police Station. There
has been evidence to suggest that it was a simulated break-in because
the evidence did not
tally as precisely as it should. The damage
inflicted by the break-in was inconsistent with what would have been
necessary to remove
the moneys recovered.
[4] Be that as it may,
all the money that had been recovered by the police from that which
was stolen in the heist, had disappeared
from the safe. It is quite
clear that this money could only have been taken by police officers.
The defendant has raised the question
of whether the theft could have
been perpetrated by police in the course and scope of their
employment as such. I shall deal with
that later.
[5] The evidence is
overwhelming that the access to the safe in order to remove the sums
of money could only have been achieved
through the inside knowledge
and insider activity of police officers. The critical question, of
course, is how much was recovered
by the
South African Police in
the course of their investigations and then stolen by them such that
they were unable to hand it over to
the plaintiff. This is the
issue of the quantum of the loss.
[6] It is common cause
that one Erica Gibbons, who was employed by Rennies Bank, counted a
number of US Dollars and a number of
South Africa Rand using counting
machines in the presence of police officers. The amount of US
Dollars so counted by Erica
Gibbons amounted to $1 174 300.00 and, in
South African Rand, to R1 599 950.00. Insofar as US Dollars are
concerned, the plaintiff
claims a further $77 000.00 described, for
ease of reference, as the so-called ‘Billings notes’ and
a further $450
000.00 as the so-called ‘Beitbridge’ notes
and a further $100 000.00 as the so-called ‘Booysens notes’.
[7] The Booysens notes,
although they were not common cause at the beginning of the trial,
were later accepted by Lieutenant Colonel
Joubert, a police officer
who testified for the defendant, as indeed having been seized in the
so-called Booysens incident and
sent through to Benoni.
Therefore, in summary, insofar as the United States dollars are
concerned all that remains in contention
is the $77 000.00, the
so-called ‘Billings notes’ and the $450 000.00 as the
so-called ‘Beitbridge notes’.
[8] Of the rand amounts
there was, as I have already indicated, an amount of R1 599 950.00
which was counted by Erica Gibbons and
was put in the safe in
Benoni. There is no debate about that. Furthermore, there
is a claim for R8 700.00, being the
so-called ‘Booysens rand’.
Lieutenant Colonel Joubert conceded this amount. That has been
accepted. All
that remains in contention insofar as the rand
are concerned is an amount of R502 700.00 the so-called ‘Inyanga
notes’.
[9] I, therefore, in
terms of quantum, need merely to analyse the evidence and the issues
with regard to the Billings notes, the
Beitbridge notes, (US Dollars
items) and the Inyanga notes, (rand amounts). If one adds together
the US Dollars counted by Erica
Gibbons, the claim for the Billings
notes, the Beitbridge notes and the Booysens notes one gets to a
figure of $1 801 300.00.
At the rate of exchange prevailing at
the time of the so-called break-in at the Benoni Police Station on 25
May 2006 being of the
order of 6.6, the dollar amount translates into
around R11 888 580.00. If one adds together the Rand amounts of
around R1
599 950.00 counted by Gibbons, the R8 700.00 in the
Booysens incident and the R502 700.00 in the so-called Inyanga notes
incident
one comes to a total of just under R14 million. The
significance of this figure of R14 million will appear later but it
is
indeed a highly significant figure.
[10] There is much to
suggest that the break-in at the Benoni Police Station on 25 May 2006
was simulated. It took place precisely
because police officers
knew that an audit was going to take place on either the 25
th
or the 26
th
and that the missing amounts would be
discovered. Be that as it may, I need simply to point out at
this stage that the plaintiff
accepts 25 May 2006 as a date from
which interest should run and has not attempted to recover from an
earlier date even though
the date giving rise to the claim for
interest may have been earlier.
[11] I should also point
out that although the consignment from Heathrow Airport consisted of
R1 600 000.00, rather more than R1
600 000.00 was recovered by the
police and put into the safe at the Benoni Police Station. The
amount is just over some R2
million. The reason for this is
that there was unchallenged evidence that those participating in the
heist had converted
foreign currency into rand. This is perfectly
plausible in all the circumstances of the matter. Therefore,
although there
was only R1 600 000.00 consigned from Heathrow
and the plaintiff says more than R2 million was recovered ,one should
not
be misled into drawing erroneous conclusions by reason of this
discrepancy.
[12] Before dealing with
the quantification of the amount, I need briefly to deal with the
question of the liability of the Minister.
I have been referred
to the very helpful case of
Commissioner of South African Revenue
Service and another v TFN Diamond Cutting Works (Pty) Ltd
2005
(5) SA 113
(SCA) where the facts it bear a remarkable similarity to
the present ones. It was held that the State was vicariously
liable
for the delictual acts of an employee. Goods have been
detained by the state for safekeeping in State custody. An
employee
of the State, whose duty it was to keep the goods safe, had
stolen the goods. It was held in that case that the State was
liable. The goods had been seized in terms of the Customs and
Excise Act 91 of 1964 and stored in a state warehouse.
[13] Another case that
has a helpful similarity with the present one is the judgement of
Giesecke and Devrient Southern Africa [Pty] Ltd v The Minister of
Safety and Security
2012 (2) 137 (SCA). This was a
unanimous judgment of the Supreme Court of Appeal written by Brand
JA. At paragraph
[39] he held that the Minister was liable
where police had failed to account for money which they had recovered
from robbers.
In that judgment Brand JA referred to the case of
Minister van Veiligheid en Sekuriteit v Japmoco Bpk H/A Status
Motors
2002 (5) SA 649
(SCA) in paragraph [16] and also
Minister
van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK
2002
(5) SA 475
(SCA) in paragraph [15].
[14] There are two
Constitutional Court cases which put the issue beyond any doubt
whatsoever. The first is
K v Minister of Safety and Security
2005 (6) 419 (CC);
[2005 (8) BCLR 749
(CC)], where it was held that
the Minister was liable where a police officer perpetrated rape.
But the position becomes mortised
beyond any doubt, in my respectful
submission, in the case of
F v Minister of Safety and Security and
another (Institute for Security Studies and others as amici curiae)
2012 (3) BCLR 244
(CC).
This
concerned a case where a police officer who was not on duty and was
in civilian dress at the time also perpetrated a rape and
it was held
that the Minister was liable for the rape perpetrated by the police
officer. This being the case,
a fortiori
, how much more
strongly is the case established where police officers must, by
virtue of their acting as police officers, have
had information and
access and the opportunity to steal money which it was their duty
having recovered from criminals to keep in
safekeeping for handing
over to the rightful owners. I, therefore, have no difficulty in
finding that there was negligence on the
part of police officers,
that the police officers acted in the course and scope of their
employment and accordingly that the Minister
is liable.
[15] All that therefore
remains to be considered is the computation of quantum in respect of
so-called Billings notes, the Beitbridge
notes and the Inyanga
notes. The Billings notes are contested by the defendant on the
basis that the affidavit of Erica Gibbons
records, in paragraph 11
thereof, that a sealed evidence bag FSD-372679 brought to her was
counted in her presence and contained
$77 000.00. Mr
Khoza
submitted accordingly that the amount of $77 000.00 was already part
of the amount of $1 174 300.00
,
which,
it is common cause, Gibbons counted.
[16] The essential
difficulty for the defendant is the following. There were two
separate amounts of $77 000.00 recovered.
The amount which
Erica Gibbons counted was the amount recovered from so-called
beskuldigde 6
where the money was in the presence of one
Hilda. It was recovered by an officer named Paulse and that
money was put into
the sealed bag FSD-372679. This money does
not constitute the so-called Billings notes which were recovered in a
separate
incident. Furthermore, the handwritten notes of Inspector
Viljoen that were handed in as evidence also record two separate
amounts
of
$77 000.00, the first $77 000.00 being recovered
indeed from Chris Billings and the second $77 000.00 from one
Ananias.
[17] Accordingly, it is
clear that the $77 000.00, which the plaintiff wishes to recover as
the so-called Billings notes, were not
included in the account by
Gibbons. In other words, one must accept, lest the point be
lost, that although Gibbons counted
sums of money there were further
sums over and above the Gibbons count that were put into the safe in
Benoni.
[18] I turn now to
consider the Beitbridge notes. As I have already indicated, the
Beitbridge notes were the first that were
recovered as a result of
knap speurwerk
of John Pearson. There is a trail of evidence
that indicates that notes were seized by one police officer,
and/or
Paulse, they were moved to the Police Station at Maizina, placed in a
evidence bag, then moved to the S and VC Unit in Pretoria
under the
control of Superintendent Coetzee and that Superintendent Coetzee in
turn handed over the bag containing these notes
to one Joubert on 5
April 2006 who, in turn, handed it to Steyn in Benoni who on the same
day put it in the Benoni safe.
[19] Lieutenant Colonel
Joubert testified that he did not know how much was in the bag and
could not confirm the amount. He
was, however, clear that this
money or the evidence bag which would have contained the money was
handed over to Steyn on 5 April
2006 - in other words, after Gibbons
had done her first count on 28 March 2006. Steyn, who could
have been called as a witness,
was not called by the defendant.
De Klerk as well as Paulse and Coetzee were not called.
[20] In the face of
evidence directly implicating police officers that there was some
R450 000.00 seized at Beitbridge which found
its way into the safe at
Benoni, one cannot hold it against the plaintiff that there is
insufficient further precision on this
aspect. After all, as I have
said, there was evidence directly implicating various police officers
who were not called.
[21] Furthermore, the
total sum claimed by the plaintiff amounts to an amount of, in round
figures, R14 million. There has been
abundant evidence in this case
that this figure was bandied about in discussions among the police at
the time. Also, in the applications
resisting bail, this figure of
R14 million that had been recovered as a result of excellent police
work and which was no longer
available in the safe when it was due to
be audited in May 2006. Accordingly, I accept therefore that
the plaintiff’s
claim of $450 000.00 as part of the Beitbridge
notes as being sufficiently proven according to the well-recognised
standard set
out in the
Stellenbosch Farmers’ Winery Group
Ltd and Another v Martell et Cie
2003 (1) SA
(SCA) at paragraph [5].
[22] Lastly, in terms of
the evidence, there needs to be considered the question of the
so-called Inyanga notes claim for R502 700.00.
There is
evidence that bank notes were seized on 1 April 2006 by Captain
Claasen, that they were placed in evidence bag FSC-187952,
that
Claasen handed this evidence bag over to Inspector Mthembi of the S
and BC Unit Northrand. There is also evidence that
Mthembi
claimed that he entrusted the bag to Steyn and on Steyn’s
instructions placed in the Benoni safe. There is
a record that
Steyn himself claimed to have placed this money in the Benoni safe.
[23] An application was
made by the plaintiff to lead evidence of a hearsay nature in terms
of the Law of Evidence Amendment Act.
That application in the
end was correctly not opposed by the defendant. If one has
regard to this evidence and the fact that
Claasen Mthembi and Steyn
were not called as witnesses plus the mathematics of the matter -
namely that the total of the
plaintiff’s claim is in round
figures
R14 million, which coincides with the figure that had
been repeatedly bandied about among the police themselves and also by
persons
such as the Loss Adjuster Pearson and Captain Manoj
Bhawanibheekh it can, safely be accepted that the claim for the
Inyanga notes
of R502 700.00 has been proven satisfactorily
according to the civil standard that prevails.
[23] In the case of
Skilya Property Investments [Pty] Ltd v Lloyds of London
Underwriting
2002 (3) SA 765
(T) Southwood J, in my respectful
opinion, helpfully set out how an order should be cast in a matter
such as this. I need
simply to summarise the reasoning that
lies behind the order that I have asked the attorneys acting for the
plaintiff to prepare.
The claim is clearly a liquidated one
even though a trial might have been necessary in order to determine
the extent of the plaintiff’s
loss on 25 May 2006 but,
par
excellence
, notes in a safe that go missing constitute a
liquidated amount in money. Accordingly, interest would run on
that liquidated
sum (as found by the Court) from the relevant date,
namely 25 May 2006.
[24 An order given in a
South African Court in a foreign currency must always allow the
option of the debt being paid in the rand
equivalent of the foreign
debt and the exchange rate that would prevail in the event that the
defendant pays in rand would be the
rate prevailing on the date of
the payment of the Court’s order.
[25] The amount that is
reflected in my order is an amount of
$1 801 300.00 which, for the
sake of completeness I repeat, is made up as follows: (i) Gibbons
notes,$1 174 300.00; (ii) Billings
notes, $77 000.00; (iii)
Beitbridge notes,
$450 000.00 and Booysens notes, $100 000.00
which give total $1 801 300.00.
[26] The rand amount is
R2 111 350.00 made up as follows: (i) Gibbons count, R1 599 950.00;
(ii) Booysens recovery R8 700.00; (iii)
Inyanga notes R502 000.00,
giving a total of R2 111 350.00.
[27] There is an order
made in terms of the draft marked ‘X’. For the sake
of completeness and to avoid any problems
that might occur later on I
shall read the draft into the record. The order of the Court is
that the defendant, (The Minister
of Safety and Security), is to pay
the plaintiff as follows:
Payment of the sum of $1
801 300.00 or the rand equivalent thereof as at the date of
payment.
Interest thereon [on the
sum of $1 801 300.00] at 15,5% from 25 May 2006 to date of payment.
Payment of the sum of R2
111 350.00.
Interest thereon [on the
sum of R2 111 350.00] at 15,5% on 25 May 2006 to date of payment.
Costs of the action,
including the costs of senior counsel.
Counsel for Plaintiff:
Adv
M A Kriegler
SC
Attorneys for Plaintiff:
Norton Rose South Africa
Counsel for Defendant:
Adv
M Khoza
SC ( with him Adv
E Lushaba
)
Attorneys for Defendant:
The State Attorney
Dates of Hearing:
13, 14, 15, 18, 20, 22 March 2013
Date of Judgment: 22
March 2013