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[2023] ZAGPJHC 754
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Devland Cash and Carry (Pty) Ltd v G4S Cash Solutions SA (Pty) Ltd (2020/16910) [2023] ZAGPJHC 754 (3 July 2023)

FLYNOTE:
CIVIL
LAW – Delict –
Contractual
obligations
–
Contract
for cash management and security – Cash lost in robbery of
armed vehicle – That G4S failed to get first collection
of cash
to safety before going back for second does not mean that it was no
longer acting in fulfilment of the contract –
Concurrence of
contractual and delictual remedies – Case law discussed –
In this case Devland’s loss occurred
in the performance of the
contract and G4S cannot be held liable in delict as pleaded.
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2020/16910
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
DEVLAND
CASH AND CARRY (PTY) LTD
Plaintiff
and
G4S
CASH SOLUTIONS SA (PTY) LTD
Defendant
JUDGMENT
MOORCROFT
AJ:
Summary
A
loss causally connected to a contract and arising from the
performance of the contract may give rise to a claim for contractual

damages.
A
loss causally connected to a contract but not arising from the
performance of the contract but rather from additional or
complementary
duties may give rise to a claim for delictual damages,
subject to qualifications.
Order
[1]
In this matter I make the following order:
1.
I
declare that the defendant can not be held delictually liable to the
plaintiff in respect of the services that were performed
pursuant to
the contract between the parties, as pleaded in paragraphs 10.3 to 17
of the plaintiff’s particulars of claim;
paragraphs 10 to 17 of
the defendant’s plea; and paragraph 4.2, 5.12 and 10 of the
plaintiff’s replication
2.
The
action and the issue separated in terms of paragraph 1.2 of the order
of 23 May 2023 are both postponed sine die;
3.
The
plaintiff shall, if so advised, to apply for leave to amend the
particulars of claim in terms of Rule 28 within fifteen days
of this
order.
4.
The
plaintiff is ordered to pay the defendant’s costs to date,
including the reserved costs of the application for separation

instituted on 21 October 2022 and in terms of which the order of 23
May 2023 was granted.
[2]
The reasons for the order follow below.
Introduction
[3]
Devland instituted a claim against G4S for money lost during an
cash-in-transit heist that took place at a time when the
cash was in
the custody of G4S.
[4]
On 23 May 2023 Coppin J ordered that two questions arising from
the pleadings be separated and decided before the
remaining issues in
dispute.
[5]
These questions are whether:
“
1.1
The Applicant/Defendant can be held delictually liable to the
Respondent/Plaintiff in respect of the services that
were performed
pursuant to a contract between the parties, as pleaded in paragraphs
10.3 to 17 of the Respondent/Plaintiff’s
Particulars of Claim;
paragraphs 10 to 17 of the Applicant/Defendant’s plea; and
paragraph 4.2, 5.12 and 10 of the
Respondent/Applicant’s
[1]
replication;
and
1.2
The Applicant/Defendant’s conduct would constitute reckless,
grossly negligent and negligent conduct, and whether,
in the
circumstances, the Respondent/Plaintiff’s claim is subject to
the limitation of liability clause contained in clause
9.1 of the
contract between the parties, as pleaded in paragraphs 5.4, 6.5 and
11 of the Respondent/Plaintiff’s Particulars
of claim; and
paragraphs 4.2.1, 6.3.2 and 11 of the Applicant/Defendant’s
plea.”
[6]
The matter was set down for trial in terms of Rule 33(4) but before
the hearing date the parties agreed that subject to
the consent of
the Court, which is hereby granted, the question in paragraph 1.2
above be reserved for later deliberation to the
extent necessary, and
that the Court now deal only with the question in paragraph 1.1.
The
merits
[7]
The parties entered into a written contract whereby G4S would provide
cash management and security services to Devland,
more specifically
the collection, storage and delivery of money in accordance with
G4S’s operating methods.
[8]
On 9 September 2019 G4S made two collections of cash from
Devland’s premises. The first occurred before noon
and the
second in the afternoon. The two cash collections were both in G4S’s
armed vehicle when it was robbed later on the
same afternoon.
[9]  Devland’s
claim is for the amount of the first collection. It alleges that
G4S’s failure to timeously
deliver the first collection to
G4S’s branch office at Crown Mines or alternatively deposit the
first collection into Devland’s
two nominated bank accounts
before it could be robbed was wrongful and negligent, and in breach
of a duty of care,
[2]
and
therefore renders G4S liable to Devland in delict for the loss of the
money in accordance with the
actio
lex Aquilia
.
No claim is made (in contract or in delict) in respect of the loss of
the second collection.
[10]
The loss of both collections arose out of the performance of the
contract. S4S’s staff went the Devland premises
to collect cash
twice on the same day. They did so in fulfilment of S4S’s
contractual obligations. G4S’s duty was to
collect money and
then to safeguard the money until it was deposited. The robbery
occurred after the collection of the money but
before it could be
deposited.
[11]
The delictual claim now pursued by Devland arose therefore pursuant
to and during the performance of G4S’s contractual
obligations.
I find that Devland’s loss occurred in the performance of the
contract and that G4S can not be held liable in
delict.
[12]
If S4S were under a contractual obligation to deliver the cash before
going back for the second collection and it failed
in that duty,
Devland’s potential claim would have been a claim for
contractual damages. However, the fact that G4S failed
to get the
first collection to safety before going back for the second does not
mean that it was no longer acting in fulfilment
of the contract.
[13]  The
concurrence of contractual and delictual remedies has given rise to
uncertainty.
[3]
[14]  It
is not controversial that the existence of a contractual relationship
does not without more preclude a claim
in delict.
[4]
The
Aquilian action is, for instance, available to an employer confronted
by unlawful competition by an employee.
[5]
An
employee may not misappropriate confidential information and trade
secrets of the employer. The authors of
Unlawful
Competition
wrote:
[6]
“…
the
same act may therefore in principle render the employee liable ex
contractu as well as ex delicto. This is so because apart
from breach
of contract, the conduct complained of also wrongfully and culpably
infringes a legally protected interest (trade secret)
which exists
independently of the contract.”
[15]
Similarly, the Aquilian action is available in the event of a breach
of a fiduciary duty independently from contractual
duties owed to the
company by a company director.
[16]  However,
a delictual remedy can not be made available merely because the
contracting parties could have provided
for a contractual remedy but
failed to do so, or the parties excluded the contractual remedy in
the contract that govern the relationship
between the parties.
[7]
The
time to negotiate adequate contractual remedies is, after all, when
the contract is being negotiated.
[8]
[17]  Contractual
autonomy must be respected. When parties enter in a contract, their
rights and obligations must be found
in the contract subject of
course to obligations imposed and rights created by law.
[9]
The
contract and its terms must be lawful. A contract that limits the
obligations of a party or grants rights contrary to
law will not be
enforced.
[18]  In
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
,
[10]
Grosskopf AJA said that -
“…
the
Aquilian action does not fit comfortably in a contractual setting
like the present. When parties enter into such a contract,
they
normally regulate those features which they consider important for
the purpose of the relationship which they are creating.
This does
not of course mean that the law may not impose additional obligations
by way of naturalia arising by implication
of law, or, as I
have indicated above, those arising ex delicto independently of the
contract. However, in general, contracting
parties contemplate that
their contract should lay down the ambit of their reciprocal rights
and obligations. To that end they
would define, expressly or tacitly,
the nature and quality of the performance required from each party.
If the Aquilian action
were generally available for defective
performance of contractual obligations, a party's performance would
presumably have to be
tested not only against the definition of his
duties in the contract, but also by applying the standard of
the bonus paterfamilias.
How is the latter standard to be
determined? Could it conceivably be higher or lower than the
contractual one? If the standard
imposed by law differed in theory
from the contractual one, the result must surely be that the
parties agreed to be bound
by a particular standard of care and
thereby excluded any standard other than the contractual one. If, on
the other hand, it were
to be argued that the bonus paterfamilias
would always comply with the standards laid down by a contract to
which he is a party,
one would in effect be saying that the law of
delict can be invoked to reinforce the law of contract. I can think
of no policy
consideration to justify such a conclusion. See in this
regard the dissenting speech of Lord BRANDON in the Junior Books
case
supra at 551E - 552E with which Lord KEITH of Kinkel agreed at
536G - 537D of the report. In the present case, the respondent
repeatedly
emphasized in its pleadings that it was its detailed
requirements, as laid down in the contract between the parties, which

defined the ambit of the appellant's obligations. It is these
requirements which, according to the respondent, set the standard
by
which negligence falls to be determined. See para 4 (b) of
the respondent's amended particulars of claim read with
para 1 (a) of
the respondent's further particulars dated 19 August 1981, as
also paras 5, 6 and 7 of the particulars
of claim and para 10 (d) of
the said further particulars. It seems anomalous that the delictual
standard of culpa or
fault should be governed by what was
contractually agreed upon by the parties.
Apart
from defining the parties' respective duties (including the standard
of performance required) a contract may regulate other
aspects of the
relationship between the parties. Thus, for instance, it may limit or
extend liability, impose penalties or grant
indemnities, provide
special methods of settling disputes (eg by arbitration) etc. A Court
should therefore in my view be loath
to extend the law of delict into
this area and thereby eliminate provisions which the parties
considered necessary or desirable
for their own protection. The
possible counter to this argument, viz that the parties are in
general entitled to couch their contract
in such terms that delictual
liability is also excluded or qualified, does not in my view carry
conviction. Contracts are for the
most part concluded by businessmen.
Why should the law of delict introduce an unwanted liability which,
unless excluded, could
provide a trap for the unwary?”
[19]  It
is also alleged that G4S made a ‘material misrepresentation’
that caused harm to Devland. It is not
alleged that the
misrepresentation (whether innocent, negligent, or fraudulent)
induced Devland to enter into the contract
[11]
nor
is it apparent what the misrepresentation actually was.
[12]
[20]  The
distinction between a loss that occurs pursuant to or in the
performance of a contract for which the remedy
is a claim for
contractual damages, and a claim that arises between parties to a
contract but independently and from additional
or complementary
duties for which the remedy is a claim for delictual damages, is
illustrated by the judgment of the Full Court
[13]
of
the Gauteng Division in Johannesburg in
G4S
Cash Solutions SA (Pty) Ltd v Zandspruit Cash & Carry (Pty) Ltd
and another,
[14]
(“the
Zandspruit matter.”) Devland was the second respondent on
appeal in the Zandspruit matter.
[21]  As
in the present matter, G4S provided cash management services to
Zandspruit and Devland in terms of contracts.
These two related firms
suffered losses due to crimes committed by third parties and there
was a causal
[15]
connection
between the losses and the contracts, but the crucial difference is
that the losses did not arise out of the performance
of the
contracts.
[22]
Zandspruit and Devland fell victim to fraud perpetrated by third
parties who, using information and items such as identification
cards
stolen from G4S arrived at the gates and identified themselves as
employees of G4S there to make a collection. They absconded
with bags
of cash.
[23]
In the Court
a quo
Matojane J held that the
loss suffered by the two firms originated from the services that G4S
was contracted to provide, but
that the delictual claims did not
arise pursuant to or during the services rendered by G4S. He granted
an order for damages in
delict. G4S’ duties arose because of
the business relationship evinced by the contracts (i.e.,  there
was a casual connection)
but the losses occurred independently. The
losses therefore did not occur in the performance of the contract but
were causally
related. G4S had in breach of a duty of care failed to
advise the two firms that uniforms and official identification cards
had
been lost or stolen, that its vehicles were occasionally used
without authority, or that imposters had converted vehicles to look

identical or similar to those of G4S, and that cash collection bosses
and keys have been lost or stolen or that they could be duplicated.
[24]
The appeal against the order granted in favour of Devland was
dismissed with costs; the Court partially upheld the appeal
against
the order granted in favour of Zandspruit on the basis of
contributory negligence but did not upset the finding that Zandspruit

(and Devland) were entitled to damages in delict.
[25]
The present matter and the
Zandspruit
case are
therefore clearly distinguishable on the facts, as in the present
matter the loss arose directly out of the services rendered
in terms
of the contract whereas in the
Zandspruit
matter G4S
was held liable in delict under circumstances where it breached a
duty of care to advise the two appellants of cardinal
facts and third
party imposters were as a result able to defraud the two appellants.
[26]
Trio
Engineered Products Inc v Pilot Crushtec International (Pty)
Ltd
[16]
is
similarly distinguishable from the facts in the present matter. Pilot
counter-claimed
[17]
against
Trio on the basis of a contractual claim for breach of an exclusive
strategic distribution agreement, alleging that
Trio had usurped a
commercial opportunity by entering into an agreement directly with a
client of Pilot. It also instituted a second
counterclaim for
contractual damages arising from a repudiation of the distribution
agreement, and in the alternative
[18]
a
claim for delictual damages.
[27]
Pilot alleged that by reason of the contractual relationship, Trio
had obtained knowledge of and access to Pilot’s
confidential
information and customer connections. This alternative claim grounded
in delict was based on unlawful competition
and specifically the
usurpation of goodwill and business opportunities.
[28]  Unterhalter
J dismissed an exception to the second counterclaim and the
alternative second counterclaim. He said
that the law occupies a
middle ground between the two extremes of recognising a delictual
duty that co-exists with every contractual
duty, and the equally
unpalatable approach of refusing to recognise a duty in delict
whenever a contractual duty is found to exist.
Duties that complement
or are not repugnant to contractual obligations may give rise to
concurrent contractual and delictual claims
[19]
framed
in the alternative.
[29]
He said:
“
[29]
The position in our law may, I think, be summarised as follows:
(a)
A breach of contract is not, without more, a delict.
(b)
Where parties have chosen to regulate their relationship under
a contract, the contractual rights and obligations undertaken
will
not ordinarily permit of the recognition of a delictual duty at
variance with the contract.
(c)
Parties to a contract may have additional or complementary duties
that arise independently in delict.
(d)
…”
[20]
The
scope of the order
[30]
Counsel had widely different views on what would be a proper order if
I found that plaintiff did not have a claim in
delict. Mr van
Nieuwenhuizen for the plaintiff argued that the matter should be
dealt with as an exception, and that the plaintiff
be granted leave
to amend the particulars of claim. Mr Herholdt for the defendant
submitted that the action itself be dismissed.
[31]  To
my mind the answer is to be found in the order of 23 May 2023. The
issue separated is a very narrow one. I am
called upon to determine
only if the defendant is liable in delict on the pleadings, with the
contract as the basis for the delictual
liability.
[21]
[32]
I am not called upon to determine whether, as Mr van Nieuwenhuizen
argues, the necessary facts are pleaded (however ineptly
and
confusingly) to also sustain a contractual claim.
[33]
I conclude that I am neither permitted to grant the plaintiff leave
to amend the particulars of claim, nor to dismiss
the action. The
plaintiff is of course entitled to apply for leave to amend in terms
of Rule 28, and should do so within a reasonable
time so that the
finalisation of the litigation is not unduly delayed.
[34]  It
is so that the present dispute could perhaps have been dealt with by
way of exception on the basis that the particulars
of claim were
vague and embarrassing, alternatively did not disclose a cause of
action.
[22]
Having
considered the costs aspect I am nevertheless of the view that the
plaintiff should bear the costs, and that the cost
order not be
limited to costs on exception.
Conclusion
[35]
I therefore make the order as set out above.
J
MOORCROFT
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
JOHANNESBURG
Electronically
submitted
Delivered:
This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be
3 JULY 2023
.
COUNSEL
FOR PLAINTIFF:
H VAN NIEUWENHUIZEN
INSTRUCTED
BY:
ZIYAAD PATEL ATTORNEYS
COUNSEL FOR DEFENDANT:
G
HERHOLDT
INSTRUCTED
BY:
EVERSHEDS SUTHEROLAND
SA INC
DATE
OF THE TRIAL:
5 JUNE 2023
DATE
OF JUDGMENT:
3
JULY 2023
[1]
This
is clearly intended to be a reference to the plaintiff’s
replication.
[2]
Breach
of duty of care encompasses two elements, negligence and
wrongfulness. My sentence can be construed as tautologous.
[3]
Trio
Engineered Products Inc v Pilot Crushtec International (Pty)
Ltd
2019
(3) SA 580
(GJ)
para 20.
[4]
Ibid
para 21;
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
(A).
[5]
Atlas
Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd and
Others
1981
(2) SA 173
(T).
[6]
See
van Heerden and Neethling
Unlawful
Competition
1
st
ed.
1995 p 234 to 239, and specifically footnote 79 on page 235.
[7]
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd
2006 (3) SA 138 (SCA)
para 18. Brand JA said: “
The
point underlying the decision in Lillicrap was that the existence of
a contractual relationship enables the parties to regulate
their
relationship themselves, including provisions as to their respective
remedies. There is thus no policy imperative for the
law to
superimpose a further remedy. Consequently, the mere absence of a
contractual remedy in the present case does not by itself

distinguish it materially from Lillicrap.”
”
[8]
Compare
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd
2006 (3) SA 138 (SCA)
para 24.
[9]
The
National
Credit Act, 34 of 2005
comes
to mind. So does the Private Security Industry Regulation Act, 56 of
2001 and Code of Conduct. It is not alleged in
this matter that the
contract was in conflict with obligations imposed by law.
[10]
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
(A)
500F to 501H. See also
Country
Cloud Trading CC v MEC, Department of Infrastructure
Development
2015
(1) SA 1
(CC)
paras 63 to 65 and
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd
2006 (3) SA 138 (SCA)
paras 21 to 24.
[11]
Cf
Novick
and Another v Comair Holdings Ltd and Others
1979
(2) SA 116 (W) 149C,
[12]
Cf paras 5.5.2 and 15 of the particulars of claim and para 5.7 of
the replication.
[13]
Dippenaar J, Mudau J and Adams J concurring.
[14]
G4S
Cash Solutions SA (Pty) Ltd v Zandspruit Cash & Carry (Pty) Ltd
and another
[2022]
ZAGPJHC 7. This judgment must be distinguished from the judgment by
the Supreme Court of Appeal in
G4S
Cash Solutions (SA) (Pty) Ltd v Zandspruit Cash & Carry (Pty)
Ltd and Another
2017 (2) SA 24 (SCA).
[15]
Cf
Van
Wyk v Lewis
1924
AD 438
p
443 (Innes CJ) and 455 to 456 (Wessels JA), and the analysis of
these
dicta
by
Grosskopf AJA  in
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
(A)
501H to 502G.
[16]
Trio
Engineered Products Inc v Pilot Crushtec International (Pty)
Ltd
2019
(3) SA 580
(GJ).
[17]
Ibid paras 1 to 5.
[18]
Ibid para 34.
[19]
Ibid para 27.
[20]
Para (d) is not relevant to the present matter. It addressed the
position of a third party who sues a party to a
contract.
[21]
See para 14 of the particulars of claim.
[22]
Compare
Edward
L Bateman Ltd v C a Brand Projects (Pty) Ltd
1995
(4) SA 128
(T)
141