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[2013] ZASCA 12
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Imvula Quality Protection (Pty) Ltd v Loureiro and Others (130/12) [2013] ZASCA 12; 2013 (3) SA 407 (SCA); [2013] 2 All SA 659 (SCA) (15 March 2013)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 130/12
In the matter
between:
IMVULA QUALITY
PROTECTION (PTY) LTD
.................................
Appellant
and
LICINIO LOUREIRO
...................................................................
First
Respondent
VANESSA
LOUREIRO
.............................................................
Second
Respondent
LUCA-FILIP
LOUREIRO
..........................................................................
Third
Respondent
JEAN-ENRIQUE
LOUREIRO
.................................................
Fourth
Respondent
Neutral citation
:
Imvula Quality Protection (Pty) Ltd v Licinio Loureiro &
others
(130/12)
[2012] ZASCA 12
(15 March 2013)
Coram:
Mthiyane DP, Cloete, Mhlantla and Bosielo JJA and Mbha AJA
Heard:
21
Nov 2012
Delivered: 15
March 2013
Summary:
Contract
─ Delict ─ contract concluded by appellant and first
respondent for guarding services for first respondent’s
property and family ─ invalidity of limited cession ─
conduct of the guard not negligent ─ respondents failed
to
prove breach of contractual terms and legal duty owed to them.
______________________________________________________________
ORDER
________________________________________________________________________________
On appeal from:
South
Gauteng High Court, Johannesburg (Satchwell J sitting as court of
first instance):
1 The appeal is
upheld with costs, including the costs of two counsel.
2 The order of the
court below is set aside and replaced with the following:
‘
The
plaintiffs’ claims are dismissed with costs.’
JUDGMENT
MHLANTLA JA
(Mthiyane DP, Bosielo JA and Mbha AJA concurring):
Introduction
[1] This is an
appeal from a judgment of the South Gauteng High Court, Johannesburg
(Satchwell J) in which Imvula Quality Protection
(Pty) Ltd (the
appellant) was found liable to Mr Licinio Loureiro (the first
respondent) in contract, and to Mrs Vanessa Loureiro
and their two
minor sons (the second to fourth respondents respectively) in delict
for the loss they allegedly suffered in a robbery
which occurred at
their home on 22 January 2009. It is that incident which gave rise to
the above claims.
Background
[2] The incident can
be best understood by reference to the following background facts. On
25 November 2008, the first respondent
and his family moved into
their house at 50 Jellicoe Avenue, Melrose, Johannesburg. He arranged
with Mr Barbosa of Sky Leah Sales
to install a comprehensive security
system at the house. This involved electric fencing, perimeter
protection, beams, multiple
alarm systems, guard house, intercom and
closed circuit television. There was a safe room concealed by large
mirrors inside the
house. The first respondent, his nephew (Ricardo
Loureiro) and Ricardo’s father were members of Combined
Ceilings and Partitions
CC (CC&P). The first respondent requested
Ricardo to arrange a 24-hour service of armed guards to be placed at
his house. The
appellant, a private security firm, was employed for
this purpose. The guards were placed at the entrance of the
respondents’
home with effect from 2 December 2008.
[3] The first
respondent became concerned about the conduct of the guards who
allowed access to visitors without his prior authorisation.
On 10
December 2008 he instructed Barbosa to partially disable the intercom
so that the guards would not be able to open and close
the main
driveway gate. This arrangement, however, affected the movement of
the guards during their change of shifts. To alleviate
this problem
,
the first respondent provided the guards with a key to open the
pedestrian gate during the shift change only. He prohibited them
from
using the key to open the gate
to allow
access to anyone without his prior authorisation.
[4] On 22 January
2009, the first and second respondents left their home at about 19h45
to attend a school function. They left their
children in the care of
the domestic workers and the houseman Francis. Mr July Mahlangu
(Mahlangu), a grade A security guard and
instructor, was on duty. He
was at the guard house when he saw a white BMW vehicle flashing a
police blue light approaching. It
drove past and stopped partially on
the driveway near the guard house. A passenger alighted from the
front seat. He was wearing
dark blue clothing, a reflective vest
marked “Police” and a police cap. The man walked towards
the thick bullet-proof
glass of the guard house and produced a card.
He showed Mahlangu a police identity card. Mahlangu did not have
sufficient opportunity
to inspect the card and thus could not see the
photo thereon in order to compare it to the man before him. Mahlangu
was adamant
that the card was a valid police identity card as it had
a police emblem on it. After seeing the card, he went to the intercom
and tried to speak to the policeman. There was no response from the
latter. He could not hear anything through the intercom and
could not
hear the sound of the car. He realised that the intercom was not
working. He looked and realised that the policeman was
no longer
waiting in front of the window. He decided to open the gate and go
outside in order to establish what the police officer
wanted as he
was obliged to co-operate with the police and members of other
security services.
[5] He took the key
to the pedestrian gate and opened the gate. He found the policeman
standing about two metres from him. Mahlangu
was startled when this
‘policeman’ immediately produced a firearm and pointed it
at his head. Other armed intruders
joined this ‘policeman’.
It was then that Mahlangu realised that he had been duped by a person
posing as a police officer.
The intruders forced him into the
premises. They ordered him to lead them to the main house where they
accosted the occupants and
waited for the owners to return.
[6]
The first and second respondents returned at approximately 21h00 and
were accosted by the intruders as they entered the garage.
The
intruders robbed them and stole their
belongings,
mostly jewellery which had been stored in the safe room. The total
value of the items stolen was in excess of R11 million.
After the
robbery, the first respondent,
who
had concluded an
“Agreement of Loss” with Insurance Zone Administration
Services (IZAS), submitted an insurance claim
for the first loss in
terms of his insurance policy. This agreement contained a clause
relating to a cession of the claim. I shall
return to the details of
the agreement in due course. The first respondent was paid an amount
of R1 556 442.43.
[7]
The respondents subsequently instituted an action against the
appellant, based both in contract and delict, for damages for
the
loss they had suffered.
1
The appellant raised
a special plea that the first respondent had no
locus
standi
as
he had ceded all of his rights and remedies arising from the incident
to IZAS. In its plea, the appellant pleaded that the contract
for the
guarding services had been concluded with CC&P and not with the
first respondent. Consequently, the appellant alleged,
the first
respondent had no claim against it. Regarding the delictual claim,
the appellant pleaded that the second to fourth respondents
had
failed to prove any blameworthy conduct on the part of the appellant
and/or the guard.
[8]
The matter came before Satchwell J. The learned judge granted an
order separating the issues and proceeded to determine the
merits.
Regarding the special plea, the judge held that the cession related
to the loss set out in the document and was limited
to the amount
paid to the first respondent. She declared the cession between the
first respondent and IZAS invalid as it amounted
to a splitting of
one cause of action between two creditors. In so far as the question
relating to the contract was concerned,
the judge held that the first
respondent had concluded a contract for armed guards with the
appellant. On the issue of the vehicle
and the passenger, she held
that Mahlangu had been ‘presented with an apparent SAPS [South
African Police
Services]
vehicle and an apparent member of the SAPS who came to the guard
house and that he could not be criticised for assuming
that this was
a police patrol and a policeman’. She however found that
Mahlangu was negligent as he had failed to take reasonable
steps to
prevent the anticipated harm from happening and that his conduct in
opening the pedestrian gate caused the intruders to
enter the
premises and rob the family. The judge then concluded that the
appellant was liable for the loss and/or damages suffered
by the
respondents.
Issues on appeal
[9] This appeal,
with leave of the court a quo, is against that ruling and four issues
arise for consideration by this court. The
first is whether on a
proper interpretation of the written ‘agreement of loss’,
the first respondent had ceded his
right to claim from the appellant
to IZAS. The second is whether the first respondent was the party
that concluded the agreement
for guarding services with the
appellant. The third is whether the appellant and/or its employee
breached the terms of the contract.
And the fourth is whether the
conduct of the guard in opening the pedestrian gate constituted
negligence and is causally linked
to the damages sustained by the
respondents.
[10] I shall
consider the issues in turn.
The cession
[11] It is common
cause that IZAS and the first respondent concluded an “Agreement
of Loss” which contained a cession,
the details of which are as
follows:
‘
It
is hereby mutually agreed between INSURANCE ZONE ADMINISTRATION
SERVICES and L. LOUREIRO (policy IZIP4150) without admission
of, or
denial of any liability whatsoever, that the loss which occurred on
22 January 2009, as a result of THEFT, in respect of
claim number
IZP4150/1
In respect of
Jewellery R1 500 000.00
General All Risks R
300 000.00
Household Contents R
256 672.00
LESS EXCESS R 250.00
LESS INTERIM PAYMENT
R 500 000.00
R 1 556 422.43
ONE MILLION FIVE
HUNDRED AND FIFTY SIX THOUSAND FOUR HUNDRED AND TWENTY TWO RAND AND
FORTY THREE CENTS
A
Re-imbursement of above goods by Insurance Zone Administration
Services is considered full and final settlement of all and any
claims whatsoever which the insured as owner has or may have against
Insurance Zone. I/We hereby authorize Insurance Zone irrevocably
and
in
rem suam
in my/our name to
dispose of the salvage of the property and to retain any proceeds for
its sole and absolute benefit.
B I/We warrant and
declare that the property is fully paid for and is not subject to any
Hire Purchase, Lease, Rental or any other
agreement affecting or
limiting any rights of ownership and/or possession of the property.
C Should the
property or any part thereof be located after replacement of the
above items, I/ we undertake to render all reasonable
assistance in
the identification and physical recovery of the property if called
upon to do so by Insurance Zone provided all reasonable
expenses in
rendering such assistance shall be reimbursed by Insurance Zone.
Failure to comply with this condition will render
me/us liable to
repay upon demand all amounts paid pursuant to this agreement.
D I/We declare that
there is no other insurance in force covering the property.
E
I/We
hereby cede, assign and transfer to and in favour of Insurance Zone
all rights which I/we might have against any other party
arising from
the loss referred to above.
’
(My
emphasis.)
[12]
Counsel for the appellant submitted that on a proper interpretation
of the agreement of loss, the cession had to be taken to
include the
entire loss allegedly sustained by the first respondent on 22 January
2009 and consequently that the first respondent
had ceded away his
rights and had no
locus
standi
.
I do not agree. In its plain and ordinary meaning the word ‘loss’
in the agreement expresses a cession of the claim
in relation to a
limited loss and not the full loss. The amount paid out to the first
respondent was only in respect of the insured
items in the categories
listed. The cover was limited and did not include all the items lost
in the armed robbery. It is accordingly
evident that the cession was
limited to the loss set out and that it was subject to four
qualifiers, namely:
(a) The loss that
occurred on 22 January 2009;
(b) as a result of
theft;
(c) in respect of
claim no. IZIP4150/1; and
(d) in respect of
the items listed and up to the amount set out in the document.
In the circumstances
the submission that the cession was in relation to the entire loss
falls to be rejected.
[13]
In
Scottish
Union & National Insurance Co Ltd v Native Recruiting Corporation
Ltd
,
2
a case involving the
construction of an insurance policy, Wessels CJ said:
‘
We
must gather the intention of the parties from the language of the
contract itself, and if that language is clear, we must give
effect
to what the parties themselves have said; and we must presume that
they knew the meaning of the words they used. It has
been repeatedly
decided in our Courts that in construing every kind of written
contract the Court must give effect to the grammatical
and ordinary
meaning of the words used therein. In ascertaining this meaning, we
must give to the words used by the parties their
plain, ordinary and
popular meaning, unless it appears clearly from the context that both
the parties intended them to bear a different
meaning.’
[14] In
the result
,
the first respondent is not precluded from claiming the
difference between the total value of the alleged loss and what was
paid
out by IZAS. Similarly, IZAS would have no right to claim the
full R11 million of the alleged loss. In this regard, Mr Allen
Johnston,
a managing director of IZAS and the first respondent’s
insurance broker testified that IZAS only sought to recover the
amount
it had paid out. The cession accordingly related to the
limited indemnity. It follows that the conclusion of the court below
cannot
be faulted. The special plea was correctly dismissed. The
appeal on this ground fails.
The identity of
the contracting parties
[15] I turn now to
consider the next issue, which is the identity of the contracting
parties. It was argued on behalf of the appellant
that the first
respondent had failed to prove that he was a party to the contract
and that this contract had been concluded between
the appellant and
CC&P. On the evidence this argument is without merit. The first
respondent and Ricardo testified about the
circumstances relating to
the conclusion of the contract. The first respondent had requested
Ricardo to arrange the guard service
since the latter already knew
the relevant persons in the industry. Ricardo was adamant that he
acted in his capacity as a family
member and not as a member of CC&P.
The services order form was issued in the name of the first
respondent and the invoices
were addressed to ‘Rick’, (a
clear reference to Ricardo) and not CC&P. These invoices referred
to the first respondent.
The appellant did not adduce any evidence to
contradict Ricardo’s evidence. Furthermore, when the contract
was amended at
some point it was the first respondent and not CC&P
who did so, clearly indicating that the first respondent was accepted
as
a party to the contract. It is therefore clear that the parties to
the contract were the appellant and the
first
respondent. Any argument to the contrary is without merit.
Accordingly, the first respondent’s version relating to the
conclusion of the contract must be accepted.
Breach of
contract
[16] I turn now to
consider whether the first respondent has established the breach of
the contractual terms relied upon. Counsel
for the respondents
submitted that the appellant breached the contract, that is the
guarding service agreement, in that its employee
had opened the
pedestrian gate to the premises notwithstanding express instructions
given by the first respondent to Mr Green,
employed by the appellant
as a supervisor of the security guards, not to do so. In my view, the
evidence of what happened at the
gate is crucial to the determination
of the alleged breach and the alleged liability in delict. This is
because this court is required
to consider the reasonableness of the
conduct of the security guard in both legs of the respondents’
claims. That, too, is
the approach adopted by the first respondent in
the heads of argument and in the pleadings. Counsel for the first
respondent averred
in paragraph
18
of the heads that:
‘
[The]
appellant was contractually obliged to take all
reasonable
steps
to prevent unauthorised access and/or entry to the premises and to
protect the persons and property of the respondents at
the Loureiro
home.
’
(My
underlining.)
[17]
In response to questions from the bench during argument counsel
sought to distance himself from this proposition. In my view
this was
a futile attempt to wriggle out of a conundrum in which the first
respondent found himself because the position adopted
in the heads is
precisely how the first respondent’s case was pleaded. In
paragraphs 6.1 and 6.7 of the particulars of claim
it is alleged that
the agreement, properly construed, was that the appellant ‘would
provide guarding services’ at the
first respondent’s
residence and ‘would take reasonable steps to ensure that no
persons gained unlawful access to the
plaintiff’s [the first
respondent’s] premises’. During argument counsel for the
first respondent sought to place
sole reliance on paragraph 6.8 of
the particulars of claim for the proposition that the appellant ‘was
not entitled to permit
any
person
to gain access to
the residence’ without the prior authorisation of the first
respondent, as if this stood alone (emphasis
added). But this
argument ignores paragraph 6.7 of the particulars of claim in which
it is alleged that the appellant (and therefore
the security guard)
was required to take
reasonable
steps in deciding
whether or not to permit access to the premises. The first
respondent’s part of the claim based on negligence
also
required of the security guard to conduct himself as the
bonus
paterfamilias
(reasonable person)
would do in the circumstances.
[18]
The construction of the contract to mean that the guard was not
permitted to allow any person into the premises is not sustainable.
In so far as this contractual term is concerned, one must read it in
such a way as to provide for a tacit term that excludes the
police
from the group of people who are not allowed access to the premises,
otherwise the prohibition will for instance be in contravention
of
the provisions of section 25(3)
3
of the Criminal
Procedure Act 51 of 1977. (See
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A)
at 531A-532A.)
[19] It is
accordingly critical to consider the actions of the security guard on
the night of the incident and establish whether
he acted reasonably.
But before doing so, it is apposite at this stage to comment on the
remarks made by the judge and the doctrine
of judicial notice she
invoked.
Mahlangu’s
qualifications
[20]
Regarding Mahlangu’s qualifications, the judge remarked as
follows:
‘
[T]he
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.’
[21] This criticism
is totally unjustified. The evidence showed that Mahlangu was
qualified as a Grade A security guard and was
in addition a training
instructor. His qualifications were not challenged during the trial.
He was accordingly properly trained
in accordance with the security
industry standards. According to his testimony he knew that he had to
‘make sure that the
property and the people [were] safe’.
Mahlangu explained further that he had to apply common sense. It was
not necessary
for the appellant to rebut any evidence of what the
training of a Grade A or D guard entailed and whether that was
adequate. No
evidence was adduced of the standard of training applied
in the security industry to establish what could reasonably be
expected
or that Mahlangu’s qualifications were inadequate.
Application of
the doctrine of judicial notice
[22] The judge
accorded undue weight to the existence of the notorious members of
the ‘blue light gang’ which had received
media publicity.
These allegations were never pleaded nor proved in court. It was
never suggested to Mahlangu that there was a
blue light gang
operating in the area and that their nefarious activities were of
such public knowledge that Mahlangu should have
been aware of them.
No statistics were provided to show the number of offences committed
in the area by such persons. There was
no scope for the judge to take
judicial notice of the scourge of criminals in police uniforms. In my
view the judge incorrectly
invoked the doctrine and accordingly erred
in this regard.
[23] It follows that
the first respondent has failed to establish that the appellant
breached the contract.
Negligence
[24]
I turn now to that part of the first respondent’s claim based
on negligence on the part of the appellant. This necessarily
involves
a consideration of Mahlangu’s actions on the night in question.
The classic test for negligence was articulated
by Holmes JA in
Kruger
v Coetzee
4
as follows:
‘
For
the purposes of liability
culpa
arises
if−
a
diligens
paterfamilias
in the position of the defendant−
would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
would take
reasonable steps to guard against such occurrence; and
the defendant
failed to take such steps.
... Whether a
diligens paterfamilias
in the position of the person concerned
would take any guarding steps at all and, if so, what steps would be
reasonable, must always
depend upon the particular circumstances of
each case. No hard and fast basis can be laid down.’
[25]
Van den Heever JA elaborated this in
Herschel
v Mrupe
5
where he said:
‘
The
concept of the
bonus
paterfamilias
is
not that of a timorous faint-heart always in trepidation lest he or
others suffer some injury; on the contrary, he ventures out
into the
world, engages in affairs and takes reasonable chances. He takes
reasonable precautions to protect his person and property
and expects
others to do likewise
.’
[26]
On the element of foreseeability, Scott JA expressed himself as
follows in
Sea
Harvest
Corporation
(Pty) Ltd & another v Duncan Dock Cold Storage (Pty) Ltd &
another
:
6
‘
It
is probably so that there can be no universally applicable formula
which will prove to be
appropriate
in every case. ... Notwithstanding the wide nature of the inquiry
postulated in para
(a)
(i)
of Holmes JA’s formula
–
and
which has earned the tag of the absolute or abstract theory of
negligence – this Court has both prior and subsequent to
the
decision in
Kruger
v Coetzee
acknowledged
the need for various limitations to the broadness of the inquiry
where the circumstances have so demanded. For example,
it has been
recognised that, while the precise or exact manner in which the harm
occurs need not be foreseeable, the general manner
of its occurrence
must indeed be reasonably foreseeable.’
[27] Turning to the
facts of this case, this court is required to determine whether a
reasonable person in Mahlangu’s position
would have foreseen
the reasonable possibility that the person or persons who approached
him at the gate were not genuine policemen,
and having so realised
failed to prevent them from gaining access to the premises. The judge
alluded to what Mahlangu should have
done before deciding to open the
pedestrian gate. She said:
‘
He
did not try to use the intercom to contact the occupants of the house
which could have confirmed whether or not the intercom
worked. …
He made no attempt to establish if these were members of the SAPS,
[whether they were] at the correct address
and what they wanted. …
He did not speak through the peephole or through the gate
.’
[28]
This is an unjustified criticism especially given the finding by the
judge that Mahlangu could not be faulted for assuming
that the person
who alighted from the vehicle was a policeman. The evidence was that
the persons concerned came in a vehicle flashing
a blue light which
itself is indicative of an emergency and the need to act urgently.
There was some suggestion that there was
a peephole in the vicinity
of the guard house. But that is a neutral fact as even the second
respondent did not think that one
could talk through the peephole. So
the guard had to step out of the guard house and approach the person
to find out the purpose
of his visit. In a case such as this there is
a temptation to be wise after the fact. It must be borne in mind that
the court cannot
approach the case as an arm-chair critic with the
benefit of hindsight.
Ex
post facto
knowledge is
irrelevant. In
S
v Bochris Investments (Pty) Ltd & another
,
7
Nicholas AJA said:
‘
In
considering this question, one must guard against what Williamson JA
called “the insidious subconscious influence of
ex
post facto
knowledge”
(in
S
v Mini
1963
(3) SA 188
(A) at 196E-F). Negligence is not established by showing
merely that the occurrence happened (unless the case is one where
res
ipsa loquitur
),
or by showing after it happened how it could have been prevented. The
diligens
paterfamilias
does
not have “prophetic foresight”. … In
Overseas
Tankship
(UK)
Ltd v Morts Dock & Engineering Co Ltd
(The
Wagon Mound)
1961AC
388 (PC) ([1961]
[1961] UKPC 1
;
1 All ER 404)
Viscount Simonds said at 424 (AC) and
at 414G-H (in All ER):
“
After
the event, even a fool is wise. But it is not the hindsight of a
fool; it is the foresight of
the
reasonable man which alone can determine responsibility.”’
[29]
Mahlangu was a candid and honest witness. No adverse findings were
made against him. He stated that he intended to open the
gate to find
out what the policeman wanted, not to allow access to anyone. He
thought he could help the police officer and believed
that the police
officer wanted something. He did not invite the intruders into the
premises, they forced their way in after pointing
a firearm at him.
There was nothing suspicious about the person that could and should
have put Mahlangu on his guard. Mahlangu
was not unreasonable in
believing that the individual, who was for all intents and purposes
dressed like a genuine police officer,
was a policeman. It follows
that he was not negligent in opening the gate to establish what the
police officer wanted. In my view
Mahlangu was also a victim as he
was duped by what appeared to him to be a police officer. That it
later transpired that he was
a member of a gang of robbers is
irrelevant. There was no time to push the panic button or draw a
firearm because he did not anticipate
any crisis when he went to open
the pedestrian gate. There was equally no reason to call his
superior, Mr Green. A
bonus paterfamilias
would not have foreseen that he was opening
the gate to robbers and that he would be overpowered.
[30] I agree with
the court below that Mahlangu cannot be criticised for assuming that
he was dealing with a policeman engaged in
official patrol. However,
I do not agree with its subsequent finding that Mahlangu was
negligent in opening the gate. That finding
is not supported by the
evidence. In my view, no reasonable person in Mahlangu’s
position could have believed that he was
not dealing with a genuine
policeman. Mahlangu was not negligent in being duped by the robbers.
It follows therefore that no blameworthy
conduct on the part of the
guard has been proved. In the result, the first respondent has failed
to prove the alleged breach of
the contractual term; the express
prohibition outlined in paragraph 6.8 of the particulars of claim
could not have been intended
to apply to police officers performing
official duties.
The second to
fourth respondents’ claims
[31]
The second to fourth respondents rely on the conduct of the guard and
the vicarious liability of the employer for their delictual
claims.
Regarding the element of unlawfulness, the respondents can only
succeed if they can prove that by opening the
gate Mahlangu
acted unlawfully and breached the legal duty he owed to them.
The
circumstances under which he opened the gate must be assessed in
order to establish whether Mahlangu’s conduct was unlawful
or
not. The same considerations relating to negligence as discussed
earlier apply to the determination of these claims.
[32]
Harms JA articulated the principle of the law of delict in
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
8
as follows:
‘
The
first principle of the law of delict, which is so easily forgotten
and hardly appears in any local text on the subject, is,
as the Dutch
author
Asser
points
out, that everyone has to bear the loss he or she suffers. The
Afrikaans aphorism is that ‘skade rus waar dit val’.
Aquilian liability provides for an exception to the rule and, in
order to be liable for the loss of someone else, the act or omission
of the defendant must have been wrongful and negligent and have
caused the loss. But the fact that an act is negligent does not
make
it wrongful although foreseeability of damage may be a factor in
establishing whether or not a particular act was wrongful….
‘
[C]onduct
is wrongful if public policy considerations demand that in the
circumstances the plaintiff has to be compensated for the
loss caused
by the negligent act or omission of the defendant. It is then that it
can be said that the legal convictions of society
regard the conduct
as wrongful….’
[33]
Consideration has to be given to the legal convictions or the
boni
mores
of
the community.
9
It must also be
borne in mind that private industry security officers have a duty to
act in accordance with the provisions of the
Code of Conduct for
Security Service Providers, 2003. The Code includes an obligation to
co-operate with the members of State security
services. Clauses 7(1)
to (3) thereof read:
General Obligations
towards the Security Services and organs of State:
‘
(1)
A security service provider must, within his or her ability, render
all reasonable assistance and co-operation to the members
and
employees of the Security Services to enable them to perform any
function which they may lawfully perform.
(2) A security
service provider may not interfere with, resist, obstruct, hinder or
delay a member or an employee of a Security
Service or an organ of
State in the performance of a function which such person may lawfully
perform.
(3) A security
service provider must, without undue delay, furnish all the
information and documentation to a member or employee
of a Security
Service or an organ of State which such member or employee may
lawfully require.’
[34] Having regard
to the facts of this matter, Mahlangu’s conduct finds resonance
in clause 7 of the Code. He could not lawfully
resist opening the
gate to a policeman’s demand for entry to the premises if he
had legitimate grounds for doing so. It was
never suggested to
Mahlangu that he should have ignored the policeman. He, at all times,
acted in good faith under the impression
that he was assisting the
police. He tried to communicate with the policeman through the
intercom. He could not speak through the
armoured gate. In this
regard, the second respondent did not think that one could talk
through the gate. This aspect was only established
during the
inspection in loco that persons could hear each other when the gate
was closed. It follows that Mahlangu cannot be held
to have acted
unlawfully when he opened the gate to speak to the policeman. The
second to fourth respondents have therefore failed
to prove a breach
of the legal duty owed to them. Accordingly the appellant is not
vicariously liable for the loss and/or damages
they suffered as a
result of the armed robbery. The appeal must therefore succeed.
[35] In the result,
I make the following order:
1 The appeal is
upheld with costs, including the costs of two counsel.
2 The order of the
court below is set aside and replaced with the following:
‘
The
plaintiffs’ claims are dismissed with costs.’
_____________________
N Z MHLANTLA
JUDGE OF APPEAL
CLOETE JA:
[36] I have had the
advantage of reading the judgment of my learned colleague Mhlantla
JA. I agree with the conclusion reached on
the identity of the
contracting parties. I also agree with the conclusion (in para 13)
that the cession by the first respondent
to the insurance company was
limited and did not extend to all the items stolen in the robbery.
The consequence is that the cession
constituted an attempt to split
one cause of action between two creditors (the first respondent and
the insurance company) and
since there was no question of consent by
the debtor (the appellant), the cession was invalid for the reasons
given in
Van der Merwe
v
Nedcor Bank Bpk
2003 (1) SA
169
(SCA) para 6. But in my view the appeal should nevertheless be
dismissed.
[37] In the
particulars of claim, the respondents alleged:
‘
5.
On or about 1 December 2008 and at Cyrildene, the first plaintiff,
represented by RICARDO LOIREIRO, and the defendant, represented
by a
duly authorised representative, entered into an oral agreement (“the
guarding service agreement”) which was amended
orally on 10
December 2008 by the addition of the terms set out in paragraph 6.8
below when the first plaintiff represented himself
and the defendant
was represented by a duly authorised representative.
6. The express,
alternatively, implied, alternatively tacit terms of the guarding
services agreement included the following terms,
further
alternatively, the guarding service agreement properly constructed
and interpreted provided inter alia that:
. . .
6.5 The defendant
would take all reasonable steps to:
. . .
6.5.2 protect the
persons and property of the plaintiffs and/or the first plaintiff and
his family . . .
. . .
6.8 the defendant
was not entitled to permit any person to gain access to the
plaintiffs’ residence other than 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.’
[38] This court has
confirmed the finding of the high court that the appellant contracted
with the first respondent. The first respondent
therefore has an
action in contract against the appellant for patrimonial loss
suffered by himself, his wife and their children
in consequence of a
breach of the contract ─ if it was breached.
[39] The evidence of
the first respondent was that on 7 December 2008 he was hosting a
family get-together at his home. His brother
arrived at the front
door. That upset him because he did not want the security guard to
admit anyone. The first respondent then
caused the button in the
guardroom that enabled the guard to open the main gate, to be
disconnected. This caused a problem because
the appellant’s
security staff could not gain access to the premises. The problem was
explained to the first respondent by
Mr Green, the area manager of
the appellant, who requested a key to the smaller (pedestrian) gate
next to the main gate. The first
respondent’s response, in his
own words, was:
‘
I
said look, I have got a problem giving you the key because I do not
want nobody in my property, I do not want you guys to open
the door
for nobody because we have had an incident of you guys opening the
doors for people and you know, I am being surprised
at the door by
family members that you opened the door for and it is an issue for
me. I said to him I will give you the key, the
shift key under one
condition, under one condition, it is only for shift change and
nothing else and Mr Green can verify that I
did say that. I said this
key is only for shift change and nothing else.’
After the robbery,
Green came to see the first respondent again and according to the
first respondent, he said to Green:
‘
What
was my instructions on 8 December or 10 December saying to you that
you do not open the door for nobody. I did tell them, well
what
happened here? . . . My instructions were to you when you came to see
me when you came asked me for that key and you promised
you know,
when I said to you this key is only for shift change, what happened
after that?’
None of this
evidence was controverted.
[40] It was
therefore an express term of the agreement that the key to the small
gate would not be used except to enable the guard
on duty to admit
his colleague who was relieving him, and to leave the premises
himself, when the shift changed. As is clear from
the evidence just
quoted the prohibition was not merely against using the key to allow
access to someone without prior authorisation,
as my colleague
suggests in para 3; although it was obviously a tacit term (as
pleaded in para 6.8 of the particulars of claim)
that the standing
instruction could be relaxed on specific occasions by the first
respondent or a person authorised by him, and
the evidence
establishes that it was. The guard’s evidence was:
‘
Now
if somebody comes to the gate and tells you at the intercom that they
want to visit inside, what will you do? -- If he is a
visitor I
cannot just open for that person. What can I do? I can tell him to
stand there so that I can confirm with the people
inside.
How do you do that?
-- There are many way because of if it is during the course of the
day the people, especially the garden boy
was just around most of the
day and it was simple to go to his, the place where he is staying you
see, to tell him that there is
a person there, can he talk to
somebody maybe inside, maybe that guy is visiting someone inside the
house or himself. Then if he
is allowing me to open the gate I would
open the gate for that person with his instructions.
. . .
Why will you not
phone through to the house? -- Then if ever, because there was an
intercom there, if the intercom is working for
the house I could also
use it to confirm to the intercom.
Who will you speak
to on the intercom? -- It depends who is going to be visited.’
The evidence of the
first respondent was to the same effect, as appears from the
following passage in his evidence, which also describes
the status of
the man called Francis to whom the guard referred as ‘the
garden boy’:
‘
Francis
is . . . actually my right hand man . . . he does everything for me
basically. If there is ever a query or anything to ask,
there was an
intercom system, the guard could come and ask me or when he wanted to
get hold of me. Francis was there just for me,
to assist me in
anything that I needed to get done or said or whatever, that is
basically what Francis’ duties are, it is
to assist me.
I understand. You
have a busy business life. -- Correct.
And management areas
around the house you delegated to Francis. -- Correct.’
[41] When the
robbers arrived on the night in question, the first respondent was
not there; but we know that Francis was because
he was tied up by the
robbers. The only permitted purpose (absent an authorisation to admit
someone) for which the key could be
used, was to change shifts. The
guard obtained no authorisation to admit anybody. It is an undeniable
fact that he used the key
for a purpose other than to change shifts.
He thereby breached the contract. That breach was undoubtedly the
cause of the loss.
[42] The appellant’s
counsel advanced two arguments as to why there was no breach. The
first was based on a tacit term and
the other was what I shall, for
want of a better term, call compulsion of law.
[43] The tacit term
for which counsel contended was that the obligation not to use the
key save for the purpose for which it was
given, had to be subject to
a qualification that imported reasonableness. To use the hypothetical
bystander test, this would mean
that if the parties were asked ‘Could
the guard use the key for a purpose other than admitting a colleague
when the shift
changed, if such use would be reasonable?’ they
would both have answered in the affirmative. I have no doubt that the
first
respondent, in view of his emphatic evidence that I have quoted
above, would have given exactly the opposite answer. He would never
have agreed to vest a discretion in the guard. Therefore on the facts
of this case, the guard was not entitled to open the gate
to speak to
the person he thought was a policeman, no matter how reasonable that
belief or his conduct might have been.
[44] I turn to deal
with counsel’s second argument effectively upheld by my
colleague in para 18. Obviously if a policeman,
who was entitled to
do so, demanded entry to the premises, the guard would be obliged in
law to comply with that demand, irrespective
of the express term of
the contract to which I have referred. But if the demand was not made
by a policeman entitled to make it
(and I emphasise that a policeman
is not, without more, entitled to demand access to private property),
the admission of the person
making the demand would not be justified
and the guard would breach the contract in using the key to open the
gate. Negligence
does not arise for consideration. The guard would
only be entitled to disregard the contract if he was in fact obeying
the lawful
command of a policeman ─ not if he reasonably
thought that he was doing so. The position is reinforced by
regulation 7(1)
in the Code of Conduct for Security Service
Providers, 2003 made under s 35 of the Private Security Industry
Regulation Act 56
of 2001. The regulation reads:
‘
A
security service provider must, within his or her ability, render all
reasonable assistance and co-operation to the members and
employees
of the Security Services to enable them to perform any function which
they may lawfully perform.’
(‘Security
Services’ are defined as meaning the South African Police
Service, the South African National Defence Force,
the Directorate of
Special Operations, the National Intelligence Agency, the South
African Secret Service, the Department of Correctional
Services and
any other official law enforcement agency or service established by
law, irrespective of whether such an agency or
service resorts at
national, provincial or local government level.)
In terms of the
regulation not only does the person to whom the assistance and
co-operation has to be rendered, have to be a member
or employee of
the security services, but the assistance must be to enable that
person to perform any function he or she ‘may
lawfully
perform’.
[45] In view of the
approach adopted by my colleague (in paras 16 and 17) to the
pleadings and argument, and her statement (in para
16) that it is
‘crucial’ to the determination of inter alia the alleged
breach of contract to consider whether the
security guard acted
reasonably, there are two points that require emphasis. The first
relates to the terms of the contract. The
second relates to the
function of pleadings and the effect of argument.
[46] As to the first
point: I have set out the relevant terms of the contract pleaded, in
para 37 above. The obligation to take
reasonable steps pleaded in
para 6.5 that qualifies the obligation in para 6.5.2 simply does not,
as a matter of linguistic interpretation,
qualify the obligation in
para 6.8 viz the prohibition against allowing persons to gain access
─ however counsel argued the
matter. Nor, more importantly, did
it qualify the express prohibition against using the key to the
smaller gate for any purpose
other than to effect shift changes ─
the term that was established on the uncontradicted evidence quoted
in para 39 above.
The reasonableness of the guard’s actions,
far from being crucial, is entirely irrelevant to the claim in
contract based
on a breach of that term.
[47] As
to the second point: cases are decided on the evidence, not on the
pleadings or counsel’s argument. Of course, if
the case is
formulated in the pleadings in such a way that the opposite party is
prejudiced, the position is different ─
but that is not the
general rule. As Innes CJ said in
Robinson
v
Randfontein Estates GM Co Ltd
1925 AD 173
at 198:
‘
The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause
prejudice or
would prevent full enquiry. But within those limits the Court has a
wide discretion. For pleadings are made for the
Court, not the Court
for pleadings.’
Furthermore,
argument advanced by counsel (absent some special feature, such as an
admission of fact that is not permitted to be
withdrawn) does not
bind the client, much less the court. That is trite. Lastly on this
point, I record that there was no suggestion
of any prejudice
whatever when the argument that the appellant is liable for breach of
the express term of the contract established
by the evidence, was put
to the appellant’s counsel ─ nor could there have been;
and counsel for the respondents, in
terms, adopted the argument as
correct.
[48] I would
therefore dismiss the appeal on these grounds. I would do the same in
regard to the claim based in delict.
[49] I share the
view of the high court that the guard was negligent ─
particularly because he was a trained security guard
and he was
stationed at the entrance of the property for the very purpose of
keeping out unauthorised persons, because of the ease
with which
precautions could have been taken and the serious consequences that
could ensue if they were not ─ for the following
reasons
appearing from the judgment of Satchwell J:
‘
[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 him in.
I find that Mr Mahlangu, in opening the
pedestrian gate, failed to
take reasonable 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.’
[50] It only remains
for me to record my respectful dissent from the conclusion reached by
my colleague (in para 34) that the second
to fourth respondents
should be non-suited in their delictual claim because the guard did
not act unlawfully, and they did not
establish that they were owed a
legal duty. (I prefer to use the term ‘wrongfully’ which,
although a synonym for ‘unlawfully’
in this context ─
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking
v
Advertising
Standards Authority SA
2006 (1) SA 461
(SCA) para 13 ─
conveys lack of justification without necessarily conveying
illegality.)
[51] Of course, as
my colleague postulates, the guard could not lawfully resist opening
the gate to a policeman’s demand for
entry to the premises if
the latter was lawfully entitled to make that demand. But the person
outside the gate was no policeman
and he made no lawful demand.
Justification for the guard’s actions on this basis was
therefore absent.
[52] The guard’s
subjective state of mind and his actions described by my colleague
are not relevant to the question of wrongfulness
─ which is
whether it would be reasonable, taking into account considerations of
public policy, to impose legal liability
on the appellant for harm
resulting from the guard’s conduct; but to the question of
negligence ─ which is whether
the guard’s conduct was
reasonable, judged in accordance with the test in
Kruger
v
Coetzee
1966 (2) SA 428
(A) at 430E-F. The test for
reasonableness in each case is entirely different. In
Roux
v
Hattingh
2012 (6) SA 428
(SCA) para 33 Brand JA quoted the
following passage in the majority judgment he gave as Brand AJ in the
Constitutional Court in
Le Roux
v
Dey
(
Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae
)
2011 (3) SA 274
(CC) para 122, with the addition of the words in
parenthesis:
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict: (a) the criterion
of
wrongfulness ultimately depends on a judicial determination of
whether ─ assuming all the other elements of delictual
liability to be present ─ it would be reasonable to impose
liability on a defendant for the damages flowing from specific
conduct; and (b) that the judicial determination of that
reasonableness would in turn depend on considerations of public and
legal
policy in accordance with constitutional norms. Incidentally,
to avoid confusion it should be borne in mind that, what is meant
by
reasonableness in the context of wrongfulness has nothing to do with
the reasonableness of the defendant’s conduct [which
is part of
the element of negligence], but it concerns the reasonableness of
imposing liability on the defendant for the harm resulting
from that
conduct.’
[53] As the courts
have repeatedly emphasised for over 30 years, wrongfulness and
negligence are discrete elements of the modern
Aquilian action. In my
view, both were established by the second to fourth respondents. I
have already dealt with the element of
negligence. And I have no
hesitation in concluding that public policy requires the guard’s
employer, the appellant, to be
held liable for the guard’s
negligence, and that a legal duty was therefore owed to the second to
fourth respondents: The
guard opened the small gate. That was a
positive act and the cause of the loss. The loss was not pure
economic loss (the criticism
by Prof Neethling, ‘Delictual
liability of a security firm for the theft of a vehicle guarded by
its employee’
(2011) 74 THRHR 169
at 170, of
Viv’s
Tippers (Edms) Bpk
v
Pha Phama Staff Services (Edms) Bpk h/a
Pha Phama Security
2010 (4) SA 455
(SCA) para 5, is in my
respectful view well founded ─ cf
AB Ventures Ltd
v
Siemens Ltd
2011 (4) SA 614
(SCA) para 6, n 6). There is
therefore a presumption that the action by the guard was wrongful:
see eg
Trustees
,
Two Oceans Aquarium
Trust
v
Kantey & Templer (Pty) Ltd
2006 (3) SA 138
(SCA) para 10;
Roux para 32 and authorities there cited. The presumption was not
rebutted.
[54] Either way,
therefore, whether in contract or delict, the respondents should in
my view succeed.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES
For Appellant W H G
Van der Linde SC (with him D A Turner)
Instructed by:
Norton Rose South
Africa, Johannesburg
Webbers,
Bloemfontein
For Respondent: T W
Beckerling SC (with him J G Smit)
Instructed:
Cliffe Dekker
Hofmeyr, Sandton
Naudés,
Bloemfontein
1
In
their particulars of claim they inter alia alleged:
‘
5. On or
about 1 December 2008 and at Cyrildene, the first plaintiff,
represented by
RICARDO
LOUREIRO
,
and the defendant, represented by a duly authorised representative,
entered into an oral agreement (“the guarding service
agreement”) which was amended orally on 10 December 2008 by
the addition of the terms set out in paragraph 6.8 below when
the
first plaintiff represented himself and the defendant was
represented by a duly authorised representative.
6. The express,
alternatively
, implied,
alternatively
tacit terms of
the guarding services agreement included the following terms,
further alternatively
, the guarding service agreement
properly constructed and interpreted provided inter alia that:
6.1 …
6.2 …
6.3 …
6.4 …
6.5 The defendant
would take all reasonable steps to:
6.5.1 prevent
persons gaining unauthorised access and/or entry to the plaintiffs’
premises; and
6.5.2 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;
6.6 …
6.7 …
6.8 the defendant
was not entitled to permit any person to gain access to the
plaintiff’s residence other than 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.’
2
Scottish
Union & National Insurance Co Ltd v Native Recruiting
Corporation Ltd
1934 AD 458
at 465.
3
Section
25(3) reads:
‘
(3)
A police official may without warrant act under subparagraphs (i),
(ii) and (iii) of subsection (1) if he on reasonable grounds
believes−
(a)
that a
warrant will be issued to him under paragraph
(a)
or
(b)
of subsection
(1) if he applies for such warrant; and
(b)
that the
delay in obtaining such warrant would defeat the object thereof.’
4
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-G.
5
Herschel
v Mrupe
1954 (3) SA 464
(A) at 490E-F.
6
Sea
Harvest Corporation (Pty) Ltd & another v Duncan Dock Cold
Storage (Pty) Ltd & another
2000 (1) SA 827
(SCA) para 22.
7
S.v
Bochris
Investments
(
Pty
)
Ltd
&
another
1988 (1) SA 861
(A) at 866J-867B.
8
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) paras 12-13.
9
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA)
para 17.