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[2011] ZAECPEHC 13
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SBV Services Ltd v Kogana and Another (2722/2007) [2011] ZAECPEHC 13 (1 April 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION: PORT ELIZABETH)
CASE
NUMBER 2722/2007
DATE
DELIVERED 01 APRIL 2011
REPORTABLE
In
the matter between:
SBV
SERVICES LTD
….................................................................................
Plaintiff
And
GLENVILLE
MERVIN KOGANA
…....................................................
1
st
Defendant
THEMBINKOSI
MADLALISA
….....................................................................
2
nd
Defendant
[1]
the plaintiff is a company registered in terms of the company laws
and operates its business as a private security service provider
in
terms of the private security industry regulation act no. 56 of 2001
conducting its business as such with its head office situated
in
Johannesburg, Gauteng Province.
[2]
The evidence that was led did not put a proper picture of the factual
background before the armed robbery of 28 June 2007 which
is the
basis of the plaintiff's claim. Scraping the barrel from the pieces
of evidence, which I also tried to elicit from the witnesses,
I will,
to the best of my ability, try to summarise what I understood to be
the situation.
[3]
Plaintiff has cash centres throughout the country, one of which is
situated at Walmer
,
Port
Elizabeth. The South African banks such as Standard Bank and Nedbank
maintain, at various places such as garages and shopping
malls,
Automatic Teller Machines (ATMs) for the convenience of their clients
to draw and deposit moneys thereat, among other things.
Plaintiff has
cash centres where the money is kept. Whenever banks are in need of
money to refill the ATMs they make orders from
plaintiff to deliver
such sums of money as may be required. Plaintiff then delivers the
cash on behalf of the banks to various
ATMs. For this purpose it
employs registered security officers ranging from the ranks of
Protection Officers, Assistant Senior
Protection Officers, Senior
Protection Officers and Chief Protection Officers.
[4]
During 2007 the first defendant was employed by the plaintiff as a
Senior Protection Officer. On 28 June 2007 the first defendant
together with other security officers were delivering cash to Blue
Water Bay, Port Elizabeth, at the Nedbank ATM. He was in company
of
Wongalethu Alex Dunjwa, (the driver) the second defendant, (the long
gun man referred to as LM 5 man), and Michael Zolani Nozukwa
(the bag
man). Whilst at Blue Water Bay and in the process of offloading the
cash to hand it over to the bank official, referred
to as the
custodian, and at about 7h00 an armed robbery occurred at the scene.
The robbers managed to get away with the money.
This was the first
station for the delivery of the day.
[5]
One Magdalene Viviers, an employee of the plaintiff, testified on
behalf of the plaintiff that on 27 June 2007 she packed a
sum of R5
084 000.00 which was the amount that was to be delivered to various
ATMs including Blue Water Bay.
[6]
The plaintiff issued summons against the first and second defendants
claiming the above amount on the basis that they colluded
with the
robbers, alternatively, they were negligent in the performance of
their duty and thereby caused the loss to the plaintiff.
The amount
was later reduced to R4 834 000.00. It will become clearer later in
this judgment why the amount was reduced. A default
judgment was
granted against the second defendant. I am called upon to determine
the claim against the first defendant only. He
is resisting the
claim.
[7]
On 27 June 2007 Magdalene Viviers, an Assistant Treasury Custodian,
employed by the plaintiff packed twenty three bags of money
amounting
to R5 084 000.00 for the delivery thereof to various ATMs. This was
done after plaintiff had received the money order
from Nedbank. The
bags were sealed after packing. In this process she is assisted by
another employee. There was no serious dispute
that the money that
was packed was the sum mentioned earlier. Sealing of the bags is done
by other two employees.
[8]
Normally security officers responsible for the delivery are not
supposed to know of the destinations prior to the date of delivery.
The money bags are simply handed over to them on the date of delivery
and they do not know how much money is inside the bags.
[9]
On 28 June 2007 the money was handed over to the abovementioned
security officers in the manner already described for delivery
at,
inter
alia,
Blue
Water Bay. They left Walmer shortly before 7h00.
[10]
On arrival at the first station (Blue Water Bay) the LM5 man opened
the gate at the entrance behind Engine Garage where the
ATM was
located. Immediately after entry the first defendant alighted from
the vehicle and directed it to reverse; properly towards
the ATM.
After the vehicle had come to a standstill the first defendant called
Dunjwa who was the driver to come out and see the
spillage of the
diesel at the back as the diesel ;cap was missing. It is common cause
that the missing cap was well known by all
of them as far back as 12
June 2007. Although Mr Van Niekerk, the Chief Protection Officer of
the plaintiff at the time, denied
that he knew about it the witness
for the first defendant who was working at the control room testified
that Van Niekerk was aware.
[11]
According to the guidelines of the plaintiff it is improper for the
driver to alight from the vehicle at the delivery point.
The first
defendant conceded that the driver is not supposed to alight He
testified, however, that he called Dunjwa because the
custodian had
not yet arrived at that stage. His evidence differs in this regard
from that of Dunjwa.and Nozukwa. They both testified
that the
custodian had already arrived and the bag man (Nozukwa) was already
at the cubicle with the bags in the process of handing
over the
money. It was after the bags had been offloaded from the trolley but
before the handing over that the robbers arrived
and demanded the
money, I am satisfied that Dunjwa and Nozukwa were telling the truth
and therefore I find that the custodian had
already arrived when
Dunjwa was called to come out of the vehicle.
[12]
After Dunjwa was called by the first defendant he was instructed to
bring a cable tie to attend to the spilling diesel. When
he brought
one it was said that it was short. He was instructed by the first
defendant to go and look for a long one in the cab
of the vehicle;
The first defendant denied that on the second occasion Dunjwa went
back to the car alone. According to him they
went together.
I
may
mention that, although this does not seem to have had any link with
the robbery, there was a complaint that something called
a pudu
inside the door handle behind the driver was broken.
[13]
Whilst Dunjwa was busy trying attending to the spilling diesel he was
informed by Madlalisa (LM 5 man) that he should not use
the plastic
in covering the cap but should use the money bag. Madlalisa then
left. When Dunjwa turned around to fetch the money
bag in the car, he
saw a guy wearing Magnum uniform carrying a protector (short gun)
which he pointed at him. He was ordered to
take out his gun. He,
Dunjwa, was armed with a 9mm pistol. He was instructed to put it down
which he did. Thereafter two guys came
and one of them took the
pistol. He was instructed to crawl. The first defendant at that stage
was standing next to the wall.
[14]
They were instructed by the robbers to lie down and they obliged. The
custodian came out and ran away. Dunjwa closed his eyes
and after a
short space of time heard a sound of a vehicle moving away. He opened
his eyes and gave chase but could not catch the
robbers. He asked the
first defendant to accompany him in the chase but the first defendant
refused.
[15]
The plaintiffs case at the trial was directed at proving the
negligence of the first defendant as the senior who was in charge
of
the team. It is contended that the policy prohibits a driver to get
out of the vehicle whilst the money is still in the process
of being
offloaded. He was therefore negligent in the performance of his duty
by ordering Dunjwa to get out. It is contended that
he failed to
exercise control and supervision of the team in the manner prescribed
by the guidelines.
[16]
Mr Van Niekerk gave evidence, supported by documents, as to what
should have been done at the scene when the money was being
delivered. These guidelines are not in issue except that it was
argued that they are mere guidelines. To me it is irrelevant whether
or not these were guidelines or rules. The relevant enquiry is how a
reasonable person in the position of the plaintiff, possessing
the
same skills and training, would have acted in the circumstances.
[17]
Mr Van Niekerk testified that he called meetings almost on weekly
basis to emphasize matters of security. He testified that
if the
driver was not ordered to move out of the vehicle the robbery would
have been averted. He testified further that if the
LM 5 man was not
allowed to move from the gate he would have prevented the robbers
from entering the premises. It was therefore
contended that the first
defendant was negligent in the performance of his duties by allowing
the LM5 man to move away from his
point and ordering the driver to
leave the driver's seat,
[18]
The first defendant denies that he was negligent in any manner, His
view is that each member of the team is responsible for
his duties
and it is not for him (first defendant) to cdntrol the members in the
performance of their respective duties. Alternatively,
he argues that
the plaintiff was negligent in not fixing the diesel cap and the
pudu. It was argued on his behalf that if I find
that there was any
other manner of solving the diesel cap problem, he committed an error
of judgment. It was further argued that
the faulty cap had placed the
first defendant in a sudden emergency situation. Accordingly, so the
argument went, even if I were
to find that he was negligent the
employer contributed to his negligence, alternatively, there was an
error of judgment, further
alternatively, he acted on the basis of
sudden emergency,
[19]
The claim against the first defendant is peculiar. The employees of
the plaintiff testified that the amount stolen was covered
by the
insurance. It has since been paid back to the plaintiff by the
insurance. The excess of R250 000.00 was, in terms of the
Service
Level Agreement between the banks and the plaintiff, paid by Nedbank.
This reduced the loss by the plaintiff to the figure
mentioned above.
However, the plaintiffs witnesses testified that since the money has
been recovered by way of insurance, effectively
the plaintiff has
suffered no damages. It has been faintly argued on behalf of the
first defendant that in the circumstances the
plaintiff has suffered
no loss, alternatively, it has failed to establish how much it has
lost.
[20]
In
Erasmus
Ferreira & Ack&rmann v Francis
2010 (2) SA 228
(SCA) para 16
Cachalia
JA
stated
as
follows:
"As
a general rule the patrimonial delictual damages suffered by a
plaintiff is the difference between his patrimony before
and after
the commission of the delict In determining a plaintiffs patrimony
after the commission of the delict advantageous consequences
have to
be taken into account But it has been recognised that there are
exceptions to this general rule. Various attempts to formulate
a
legal principle as to which benefits should be taken into account
have been made. In Standard General Insurance Co Ltd v Dugmore
NO
1997 (1) SA 33
(A) at 41E - 42B Olivier JA referred to these attempts
and concluded;
'Boberg
(The Law of Delict vol 1 at 479) succinctly states:
"The
existence of the collateral source rule can therefore not be
doubted; to what benefit it applies is determined casuisticaliy;
where the rule itself is without logical foundation, it cannot be
expected of logic to circumscribe its ambit It now seems to
be
generally accepted that there is no single test to determine which
benefits are collateral and which are deductible. Both
in our
country (Santam Versekeringsmaatskappy Bpk v Byleveldt (supra at
150F) and in England (Parry v Cleaver
[1969] 1 All ER 555
(HL)
([1970] AC 1) at 14 and 31) it is acknowledged that policy
considerations of fairness ultimately play a determinative role."'
[21]
It is now well settled that the claim itself is in certain instances
sustainable in law. It is based on the so-called "collateral
source rule". In
Santam
Versekeringsmaatskappy Bpk v Byleveldt 1973.(2) SA 146 (A) at 168
it
was stated
"Th&
cross-appeal raises an interesting issue relating to the 'collateral
source rule', i.e., the rule that generally
any compensation fpr
bodily injuries that the injured party receives from a collateral
source, wholly independent of the wrongdoer
or his insurer, does not
operate to reduce the damages recoverable by him."
The
principle is based on the premise that a defendant in the situation
such as the present case is generally not entitled to
rely for his
protection on a contractual arrangement between the plaintiff and a
third party entitling the former to recover
its loss from the
latter.
"Such
right stems from an extraneous source which is regarded as legally
irrelevant; it constitutes a case of res inter alios
acta. According
to Rumpff J A (as he then was), who gave the majority judgment in
ByleveJdt's case
;
the
rule is based on considerations of equity, fairness and the
interests of society, (See at150Fand153B-D."
1
[22]
This
case concerns the application of the abovementioned rule which I
find applicable.
[23]
I turn now to determine whether the plaintiff has discharged the
onus resting on it
"At
the end of the case the court has to decide whether, on all of the
evidence and the probabilities and the inferences,
the plaintiff has
discharged the onus of proof on the pleadings on a preponderance of
probabilities, just as the court would
do in any other case
concerning negligence. In this final analysis, the court does not
adopt the piecemeal approach of (a) first
drawing the inference of
negligence from the occurrence itself, and regarding this as
a
prima
facie case; and then (b) deciding whether this has been rebutted by
the defendant's explanation,'
2
It
was conceded on behalf of the plaintiff that the plaintiff has not
proved that there was any collusion between the first defendant
and
the robbers. It was however contended that the plaintiff has
succeeded in proving that the first defendant was negligent
and
therefore is liable to pay damages.
[24]
The plaintiff's case, in accordance with its pleadings, is premised
on the ground that the first defendant wrongfully and
negligently
failed to carry out his duties as an employee of the plaintiff.
Wrongfulness of the conduct of the first defendant
willdepend on the
policy considerations taking into account the
boni
mores
and
legal convictions of the society. It is a value judgment.
[25]
In order for the plaintiff to establish wrongfulness there must be a
legal duty to prevent the harm suffered.
3
In
determining whether or not a legal duty exists in a particular case,
it must be determined whether or not it is reasonable
to have
expected the first defendant to take positive steps to prevent the
Inarm, by making a value judgment based on the legal
convictions of
the community and policy considerations.
[26]
That generally speaking liability does not arise from an omission,
stricto
sensu,
is
well established. However, liability based on omission where there
is a legal duty to act positively and the person fails to
do so, is
also well established. Such legal duty arises from common law when
the omission invokes moral indignation and the legal
convictions of
the community demand that such omission be regarded as unlawful and
that the person who omitted to act positively
is required to be held
liable to make good the loss suffered by the victim.
4
[27]
In
Donoghue
v Stevenson
5
Lord
Artkin said
"The
liability for (delict) ,.,is no doubt based upon a general public
sentiment of moral wrongdoing for which the offender
must pay. But
acts or omissions which any moral code would censure cannot in a
practical world be treated so as to give a right
to every person
injured by them to demand relief,,,. The rule that you are to love
your neighbour becomes law: You must not injure
your neighbour."
[28]
In
casu
the
first defendant was an employee of the plaintiff placed in charge of
the team that delivered the money. He had a duty not
only to adhere
to the guidelines but also to prevent anyone breaching them. In so
doing he would prevent or minimise any harm
to his employer. The
very idea of arming them with weapons points to nothing but that
they have a duty to prevent any robbery
and protect the property of
the employer. The question to be answered is whether he failed to
fulfil his duties and whether his
failure, if any, was causally
linked to the loss. Based on the above
principles
coupled with the conduct of the first defendant! find that his
conduct was wrongful.
[29]
I turn now to consider whether the plaintiff has established
negligence on the part of the first defendant. As pointed out
above
the claim is based on negligence. In this regard ! can do no better
than quote from the well known case of
Kruger
v Coetzee
6
which
sets out the basic test for negligence, where the Learned Judge of
Appeal said:
“
For
the purposes of liability culpa arises if-
(a)
a
diligens paterfamilias in the position of the defendant
(i)
would
foresee the reasonable possibility of his
conduct injuring
another in his person or property
and causing him patrimonial
loss; and
(ii)
would
take reasonable steps to guard against
such occurrence; and
(b)
the
defendant failed to take such steps.
7
[30]
In my view the first defendant had a legal duty to prevent harm. He
knew that it was a breach of his duty to call the driver
to come out
of the vehicle. There was no sudden emergency as claimed by him. The
diesel cap was known by him that it was missing.
The spillage of
diesel was a natural consequence of the absence of the cap. If he
was concerned about the spillage he ought to
have tried to prevent
it at Walmer or Frank Street where they came from. His actions posed
the danger which :he ought reasonably
to have foreseen/The purpose
of leaving the driver at his seat was explained by Dunjwa. He knew
about it. Whilst attending to
the diesel cap he ought to have taken
steps to see to it that a proper look out is carried out both by him
and the LM5 man. He
failed to do so. The possibility of the danger
was foreseeable.
[31]
The spate of cash in transit robberies in the country is such that
any security employees delivering money ought to foresee
that it can
happen at any time to any company. In my view it matters not that
the first defendant might have called the driver
out of the vehicle
before the arrival of the custodian as he claimed. Since the test
for negligence involves a fictitious reasonable
person whose
"conduct must conform to the society's expectations the first
defendant's perception of the situation must
yield for an objective
test of a reasonable man in his situation. Cash in transit robberies
do not only cause loss of property
they pose a serious danger to
life of bystanders as well. Accordingly I find that the plaintiff
has established negligence.
[32]
I turn now to consider whether legal causation has been established
on the facts of this case. It has been held that causation
involves
a two stage enquiry. First, the enquiry is whether the defendant's
wrongful conduct was a cause of the plaintiff's loss.
Second, is
whether the wrongful conduct is sufficiently close or directly
linked to the loss or whether it is too remote.
8
[33]
On the facts of the present case the evidence of the plaintiff was
that but for the conduct of the first defendant the robbery
would
have been averted. When the first defendant called the driver his
conduct shifted the attention of the driver to the diesel
cap. It
was at the stage when he was still busy attending to the diesel cap
that the robbery occurred.
[34]
I am satisfied that both factual and legal causation have been
established by the plaintiff. In my view there: was no emergency.
There was no evidence that the leakage of any diesel hampered the
operation of the vehicle On the contrary the vehicle was moving
and
Dunjwa even chased the robbers with it: A diesel cap has nothing to
do with driving mechanism. Even if I were to find that
the plaintiff
was negligent in failing to replace the missing cap I would still
find that such negligence was too remote to contribute
to the loss.
[35]
Accordingly I find that on a preponderance of probabilities the
plaintiff has discharged the
onus
resting
on it and I therefore make the following order.
1
The first defendant is ordered to pay to the plaintiffs attorneys a
sum of R4 834 000.00 which amount should be paid jointly
and
severally with second defendant as ordered in April 2008, the one
paying the other to be absolved.
2.
Interest on the above amount calculated at the rate of 15,5% from
the date of this judgment to date of payment.
3.
The first defendant is to pay costs of suit.
BR
TOKOTA
ACTING JUDGE OF
THE HIGH COURT
DATE
HEARING: 24 AND 25 March 2011
DATE
JUDGMENT DELIVERED: 1 APRIL 2011.
For
the Plaintiff: Adv R Beaton SC
Instructed
by:
Oosthuizen
Hazell & Wilmot Inc
39A
Pickering Street
Newton
Park, Port Elizabeth
Tel:
041 365 3131
Ref:
Mr. Metelerkamp/lrw/E107
For
the 1
st
Defendant:
Adv Lilla Crouse
Instructed by:
Legal
Aid South Africa
Port
Elizabeth Justice Centre
564
Govan Mbeki Avenue
1
st
Floor
President Centre
North
End
Ref:VNaidu
Tel:
041-408 2800
1
Botha
v Rondalia Versekeritigskorporasie van Suid-Afrika Bpk
1978 (1) SA
996
(T); Lehmbeckers Transport (FTY) Ltd and Another v
Rennies.'Finance (PTY) Ltd
1994 (3.) SA 727
(C)
2
See
Sardi and Others v Standard and General Insurance Co Ltd
1977 (3) SA
776
(A) at 780D - E and C - H. Sec also Arthur v Bczuidcnhout and
Mieny
1962 (2) SA 566
(A) at 574B
3
See:
Van Eeden v Minister of Safety & Security (Women's Legal Centre
Trust as Amicus Curiae)
2003 (1) SA 389
(S.CA) at 395 para 9.
4
See:
Minister van POlisie v Ewels
1975 (3) SA 590
(A) at 59?A; Minister
of Law & Order v Kadir 1995 (1)SA 303 (A) at 320 -
5
[1931] UKHL 3
;
[1932]
AC 562
at 580
6
1966(2)SA428
(A) at 430 E-F
7
See
also: Tsogo Sun Holdmgs^(Pry) Ltd v Qing-He Shan 2006 (6) SA .537
(SCA) at 540 para. 11
8
See:
Intl Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680(A)
at
700E-701F; Napier NO v Collett
[1995] ZASCA 44
;
1995 (3) SA 140
(A) at 148E-I