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[2012] ZASCA 25
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Kogana v SBV Services (Pty) Ltd (384/11) [2012] ZASCA 25 (23 March 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT REPORTABLE
Case No: 384/11
In the matter between:
GLENVILLE MERVIN KOGANA
…...........................................
Appellant
and
SBV SERVICES (PTY) LTD
…..................................................
Respondent
Neutral citation:
Kogana
v SBV Services
(384/11)
[2012] ZASCA 25
(23 March 2012)
Coram:
NAVSA, NUGENT,
CACHALIA and TSHIQI JJA and PETSE AJA
Heard:
5 MARCH 2012
Delivered: 23 MARCH 2012
Summary: Breach of duties by
security employees – robbery – whether causal link
established between breach and the loss.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from: Eastern Cape High
Court, Port Elizabeth (Tokota AJ sitting as court of first instance):
The appeal is upheld with costs.
The order of the court below is set aside and substituted with an
order absolving the first defendant
from the instance with costs.
___________________________________________________________
JUDGMENT
___________________________________________________________
NUGENT JA (NAVSA, CACHALIA and
TSHIQI JJA and PETSE AJA CONCURRING)
[1] The respondent in this
appeal, SBV Services (Pty) Ltd (SBV), is a security company that
delivers cash to automated teller machines
on behalf of banks. It
delivers the money in specially protected vehicles that are manned by
an armed crew.
[2] On 28 June 2007 one of its
vehicles, with a crew of four, set out to deliver cash at the
automatic teller machines of one of
the banks. The appellant, Mr
Kogana was the supervisor of the crew. While they were unloading the
cash at one such machine they
were robbed by an armed gang. SBV sued
Mr Kogana in the High Court at Port Elizabeth for recovery of the
loss, alleging that the
money had been stolen because he had
neglected his duties. The claim succeeded before Tokota AJ and Mr
Kogana now appeals with
the leave of that court.
[3] There is a conflict in the
evidence as to what occurred but I need not resolve that conflict. To
the extent that a conflict
arises I will accept the evidence that was
advanced on behalf of SBV for purposes of this appeal.
[4] The driver of the vehicle at
the relevant time was Mr Dunywa who was armed with a 9 mm pistol
secured in a holster strapped
to his chest. His duty upon arrival at
premises where cash was to be unloaded was to remain in the vehicle,
monitoring the surroundings,
while the other members of the crew left
the vehicle. He was then to remain in the van throughout the
unloading. Mr Mdlalisa was
what was called the ‘long gun man’.
He was armed with an ‘LM5’ firearm, which seems to have
been an automatic
assault rifle. His duty was to leave the vehicle
when it arrived and to take up a strategic position so that he could
fire on attackers
if it became necessary. Mr Nozukwa was the ‘bag’
man. His duty was to unload the cash once Mr Mdlalisa had taken up
his position. Mr Kogana, who was armed with a 9 mm pistol, was
required to ensure that the other crew members properly carried
out
their duties, and in particular to direct Mr Madlalisa to a suitable
position before the money was unloaded.
[5] The ordinary procedure was
that the vehicle would leave the base depot to do a ‘run’,
which entailed driving to
a succession of automatic teller machines.
The crew would be told what run they were doing shortly before they
left but they would
not be told immediately in what order they would
visit the various machines. They would be directed instead to the
various machines
on the radio after they had left. There they would
be met by an official of the bank, referred to as the ‘custodian’,
who would supervise the filling of the machine.
[6] On the day in question the
vehicle with its crew left the base depot at about 06h00 and drove to
another depot where they loaded
23 bags containing R5 084 000
that had been counted out by an employee of SBV the previous day.
Their first destination
was an automatic teller machine situated at a
petrol service station at Bluewater Bay.
[7] Access to the cubicle housing
the machine was through an enclosed yard at the rear of the service
station. On arrival at the
yard at about 07h00 Mr Mdlalisa left the
vehicle to open the gate. Mr Dunywa drove into the yard, leaving Mr
Mdlalisa at the gate,
turned the vehicle around, and reversed it
towards the ATM cubicle, guided by Mr Kogana who had left the
vehicle.
[8] The cap for the diesoline
tank had been missing from the vehicle for some days and the inlet to
the tank was covered with plastic.
When the vehicle came to a halt Mr
Kogana noticed that diesoline had spilled from the tank and he called
Mr Dunywa to the back
of the vehicle. Mr Dunywa then set about
securing the outlet, going back and forth to the cab of the vehicle
to obtain material
to do so. The custodian had meanwhile arrived in
his vehicle and had entered the cubicle. Mr Kogana said that he
accompanied him
to the cubicle and when he was satisfied that all was
well he radioed Mr Nozukwa to take the money into the cubicle. It was
about
then that the robbery occurred.
[9] Mr Nozukwa had just entered
the cubicle with a bag of money when two armed robbers pulled open
the door. At about the same time
Mr Dunywa was alongside the vehicle
when he was confronted by an armed man wearing the uniform of a
security guard. The man demanded
his pistol and forced him to lie on
the ground. Mr Dunywa lay down, closing his eyes, but not before he
had seen two other robbers,
each carrying an ‘R5’, which
I understand is an automatic assault rifle. Meanwhile, Mr Kogana said
that he had taken
up a position alongside the cubicle and found
himself confronted by an armed man who took his pistol and made him
lie on the ground.
Precisely where Mr Mdlalisa was at the time is not
clear, though Mr Kogana said that he was then at the perimeter of the
yard.
[10] The custodian ran out of the
ATM cubicle and fled. Mr Dunywa said that he heard the sound of many
people and of a vehicle drawing
into the premises. The back door of
the armoured vehicle was closed but not locked. Inside the vehicle
was a vault in which the
money was kept and the door of the vault was
also unlocked. The robbers took the bag of money from Mr Nozukwa, and
the bags from
the vehicle, and they fled. By the time Mr Dunywa
looked up they and their vehicle had left the yard. He called his
colleagues
to the vehicle but said that they were ‘sleeping’
(by which I presume that he meant that they were slow to react). Mr
Nozukwa clambered into the vehicle, with a shotgun that had been left
behind by the robbers, and Mr Dunywa sped off in pursuit
of the
robbers. He said that he hailed a passing police vehicle but it
failed to respond and he continued his chase. He said he
saw what he
described as the vehicle that had been used by the robbers, which was
occupied by one person. After a while he called
off the chase and
returned to the yard.
[11] SBV sued both Mr Kogana and
Mr Mdlalisa in delict for the loss of the money. It alleged in its
particulars of claim that they
had conspired with the robbers but
that allegation was not pursued, nor was it suggested to Mr Kogana in
evidence that they had
done so, and I need say no more about it. SBV
alleged in the alternative that the loss was caused by the wrongful
and negligent
performance of their duties and the trial proceeded on
that basis. Mr Mdlalisa did not defend the claim, judgment was taken
against
him by default, and the matter proceeded to trial only on the
claim against Mr Kogana, who had been cited as the first defendant.
[12] By the time the appeal came
before us SBV had changed tack. By then it seems to have occurred to
it that
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd,
1
and
AB
Ventures Ltd v Siemens Ltd
that
followed it,
2
might prove to be a bar to a
delictual claim, and it sought to found its claim instead upon an
alleged breach by Mr Kogana of his
contractual obligations. In answer
to objections by counsel for Mr Kogana against the change of stance
it was submitted on behalf
of SBV that the pleadings were
sufficiently wide to include a contractual claim and that the facts
relevant to such a claim had
been fully canvassed at the trial. He
also referred us to various cases and writers in support of his
submission that an employee
might be liable in damages for failure to
fulfil his or her employment duties.
[13] I do not find it necessary
to go into any of those issues. On the assumption that a contractual
claim is properly before us,
and that Mr Kogana is indeed liable for
damages in contract if he failed properly to perform his duties, it
remains for SBV to
establish a causal link between his failure and
the loss.
[14] The approach to causation is
well established. The question that falls to be answered in this case
is whether SBV has shown
that the money probably would not have been
stolen had Mr Kogana properly performed his duties.
[15] Had the claim been
delictual, which is how it was advanced in the court below, the
question would have been whether the loss
would probably not have
occurred had Mr Kogana acted reasonably,
3
which in the present context
comes to much the same thing. The court below answered that question
in one brief paragraph:
‘
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.
’
In my respectful view the enquiry
called for more than that.
[16] It was submitted on behalf
of SBV that Mr Kogana’s breaches were twofold. First, that he
failed to ensure that Mr Mdlalisa
was strategically placed before the
money was removed from the vehicle. And secondly, that he failed to
ensure that Mr Dunywa did
not leave the vehicle. No doubt it was his
duty to do both but would the theft have been averted had he
fulfilled that duty?
[17] Mr van Niekerk was employed
by SBV as a chief protection officer at the relevant time. He said
that he would have deployed
Mr Mdlalisa to take up position behind
stacks of wood on the outer perimeter of the premises. Had he been
deployed in that way,
so he said, ‘we would have picked up a
few dead robbers’, and the money would not have been stolen.
[18] It was submitted that the
opinion of Mr van Niekerk had not been contested in cross-examination
and is thus decisive but that
is not correct. Whether the money would
have been stolen is a question for the court and not for Mr van
Niekerk. While the opinion
of an expert is always helpful it is for a
court nonetheless to evaluate whether it is properly grounded. No
reasons were advanced
by Mr van Niekerk for his opinion, other than
that Mr Mdlalisa would have been well-placed to shoot down the
robbers had he been
taken up that position.
[19] The opinion suffers at least
two defects. Mr Kogana’s duties called for him to exercise his
judgment as to where Mr Mdlalisa
should be placed. There is no reason
to assume that he would have placed Mr Mdlalisa in the position that
Mr van Niekerk would
have chosen. Indeed, the question where he would
have placed Mr Mdlalisa was not even canvassed with Mr Kogana. Nor
does the opinion
expressed by Mr van Niekerk take account of the
capacity of the robbers to overcome any resistance, and I return to
that later.
[20] As for the second
deficiency, Mr van Niekerk said that if Mr Dunywa had remained in the
vehicle he would have been able to
shoot at the robbers through ports
in the vehicle that are designed for that purpose. Once more, the
question remains what resistance
would he have encountered, which Mr
van Niekerk seems to have left out of account in forming his opinion.
Mr Dunywa said that if
he had been in the vehicle he would have
driven off and averted the theft. Once more, Mr Dunywa was not in a
position to predict
what would have happened had he attempted to do
so: he was on the ground with his eyes closed throughout the robbery
and knew nothing
of what he might have encountered.
[21] The difficulty facing SBV is
that there is simply insufficient evidence to determine what might
have been encountered had the
crew resisted the robbery. The evidence
does not disclose how many robbers there were, nor where they might
have been located,
nor what weapons they might have possessed, nor
what precautions they might have taken to avoid escape through the
gate. I think
it can safely be inferred that they had inside
knowledge of when the vehicle would be arriving and had set a trap.
Unless Mr Kogana
had been a conspirator, of which there was no
suggestion, they must have anticipated that Mr Dunywa would remain in
the vehicle,
and that Mr Mdlalisa would be in a strategic position,
which was what would ordinarily occurred, and it is most doubtful
that they
had not taken account of that when they planned the ambush.
[22] The evidence provides no
basis for finding that their plans would have been thwarted had Mr
Dunywa and Mr Mdlalisa acted as
they were required to do. To predict
what would have occurred in that eventuality would be no more than
unfounded speculation.
SBV bore the onus of establishing that the
theft would have been averted and in my view the evidence does not
discharge that onus.
On that ground the claim ought to have failed
and the appeal must succeed.
[23] The appeal is upheld with
costs. The order of the court below is set aside and substituted with
an order absolving the first
defendant from the instance with costs.
__________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For appellant: Ms L Crouse
Instructed by:
Legal Aid Board, Port Elizabeth
Legal Aid Board, Bloemfontein
For respondents: R G Beaton SC
Instructed by:
Erasmus-Scheepers, Pretoria
Honey & Partners,
Bloemfontein
1
1985
(1) SA 475
(A) at 500H-I.
2
AB
Ventures Ltd v Siemens Ltd
2011 (4) SA 614
(SCA) decided on 31
March 2011, which was the day before judgment in this matter had
been handed down by the court below.
3
International
Shipping Co (Pty) Ltd v Bentley,
1990 (1) SA 680
(A)700F-H.