Viv's Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security (132/09) [2010] ZASCA 26; 2010 (4) SA 455 (SCA) ; [2011] 1 All SA 34 (SCA) (25 March 2010)

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Viv's Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security (132/09) [2010] ZASCA 26; 2010 (4) SA 455 (SCA) ; [2011] 1 All SA 34 (SCA) (25 March 2010)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
132/09
In the
matter between:
VIV’S
TIPPERS (EDMS) BPK Appellant
and
PHA PHAMA STAFF SERVICES (EDMS) BPK
h/a PHA PHAMA SECURITY Respondent
Neutral citation:
Viv’s Tippers v Pha Phama Staff
Services (132/09)
[2010] ZASCA 26
(25 March 2010)
Coram:
Lewis,
Van Heerden, Cachalia and Tshiqi JJA and Theron AJA
Heard: 08
March 2010
Delivered 25 March 2010
Summary:
Wrongfulness of conduct of security guard in
allowing unauthorized removal of truck from site where security
provider had contract
with owner of site to protect it, but where
contract excluded liability for provider’s services – held
security provider not
liable – owed no duty to owner to prevent
theft of its truck.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North
Gauteng High Court (Pretoria) (Du Plessis J sitting as court of first
instance):
The appeal is dismissed with costs, including those of two counsel.
JUDGMENT
LEWIS JA (VAN HEERDEN, CACHALIA AND TSHIQI JJA and THERON AJA
concurring)
[1]
The primary issue in
this appeal is whether the owner of a vehicle, stolen from premises
protected by a guard employed by a security
firm at the instance of
the owner of the premises, has a claim in delict against the security
firm for the loss, by theft, of its
vehicle. In
Compass
Motors Industries (Pty) Ltd v Callguard (Pty) Ltd
1
the court said, obiter, that in principle such a claim was
recognized. I shall deal more fully with this proposition later in
the
judgment. In
Longueira v Securitas
of South Africa (Pty) Ltd
2
the court found the security company liable in similar circumstances,
but on the basis that the third party had relied on the existence
of
security provided by the owner of the premises protected. The
statement by the court in
Compass Motors
and the decision in
Longueira
have been subjected to considerable criticism.
3
And the high court in this matter considered the statement of the
general principle in
Compass Motors
to be incorrect. This court is thus called upon to deal with the
issue directly.
The facts
[2]
But first, the
facts. The appellant, Viv’s Tippers (Edms) Bpk (Viv’s Tippers)
lets trucks to construction firms. In September
2004 it let several
trucks to Lone Rock Construction (Pty) Ltd (Lone Rock) which was
carrying out construction works on a site at
Kibler Park,
Johannesburg. The site was guarded by security guards employed by the
respondent, Pha Phama Staff Services (Edms) Bpk
h/a Pha Phama
Security (Pha Phama) in terms of a contract between Lone Rock and Pha
Phama. Viv’s Tippers was aware of the security
provided. The
evidence of Mr Viviers, a director of Viv’s Tippers, was that it
was a term of its contract with Lone Rock that the
site should be
secured.
[3]
There was a long
weekend from 23 to 26 September 2004. A Mercedes Benz truck,
belonging to Viv’s Tippers, was parked on the site,
which was
enclosed, and which could be entered only through a locked gate. A
security guard employed by Pha Phama was on duty. Two
men arrived at
the site on Sunday 26 September and presented a letter to the guard,
purporting to be from a firm of truck repairers.
I shall deal with
the terms of the letter more fully when dealing with the question
whether the security guard acted negligently.
In essence it stated
that mechanics would be sent to the site on that date to repair the
diesel pump of the truck in question, for
which the vehicle
registration number was given. The letter also stated that while the
truck would be fixed on site, the mechanics
would test drive it. The
guard allowed the men to drive the truck away from the site – and
it was never seen again.
[4]
Viv’s Tippers
instituted an action in delict against Pha Phama claiming the value
of the truck (which was agreed), contending that
as owner of the
stolen truck it had suffered loss as a result of the theft; that Pha
Phama was vicariously liable for the conduct
of the security guard;
and that Pha Phama owed it a legal duty, rendering it liable for the
loss. Pha Phama denied liability on the
basis that it had no legal
duty and that even if it did have, the guard was not negligent. Du
Plessis J dismissed the claim finding
that there was no legal duty
and that the guard had not been negligent. The appeal to this court
is with his leave.
Wrongfulness
[5]
The first question
before us is therefore whether the security guard’s conduct in
allowing the two men to drive the truck away from
the site was
wrongful (or, to use a synomym, unlawful), rendering Pha Phama
vicariously liable. It is not disputed that the guard’s
conduct
constituted a positive act. The question does not relate, therefore,
to a wrongful omission. But the loss suffered is purely
economic: so
the law does not without more impose a legal duty on the guard to
prevent loss. In
Telematrix (Pty) Ltd
t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
4
Harms JA said that pure economic loss ‘connotes loss that does not
arise directly from damage to the plaintiff’s person or property
but rather in consequence of the negligent act itself, such as a loss
of profit, being put to extra expenses or the diminution in
value of
the property’. The loss, through theft, of property, would also
fall in this class.
Economic loss
[6]
Where loss sustained
is purely economic the question must be asked whether public policy,
or the convictions of the community, require
that there should be
such a duty.
5
That an action does lie for pure economic loss, provided that public
policy requires that it should, is now settled law. It is not
necessary to enumerate the authorities. However, courts have been
circumspect in allowing a remedy because of the possibility of
unlimited liability: the economic consequences of an act may far
exceed its physical effect. There is a spectre of limitless
liability.
6
It is established thus that a court, in deciding to impose liability
on an actor, must consider whether it is legally and socially
desirable to do so, having regard to all relevant policy
considerations, including whether the loss is finite and whether the
number
of potential plaintiffs is limited.
7
Where the success of an action could invite a multitude of claims,
sometimes for incalculable losses, an action will generally be
denied.
8
But in each case the imposition of liability must turn on whether, in
the circumstances, liability should be imposed. That will in
turn
depend on public or legal policy, consistent with constitutional
norms:
Fourway Haulage SA (Pty) Ltd v SA
National Roads Agency Ltd
.
9
To ensure that the question of legal or public policy is not
determined arbitrarily, or unpredictably, a court is not required to
react intuitively, but to have regard to the norms of society that
are identifiable:
Minister of Safety and
Security v Van Duivenboden
10
and
Fourway Haulage.
11
Economic loss in a contractual setting
[7]
Where economic loss
arises from a breach of contract, loss will of course be limited. But
a negligent breach of contract will not
necessarily give rise to
delictual liability. This court has held that where there is a
concurrent action in contract an action in
delict may be precluded:
Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd
.
12
But that case held only that no claim is maintainable in delict when
the negligence relied on consists solely in the breach of the
contract. Where the claim exists independently of the contract (but
would not exist but for the existence of the contract) a delictual
claim for economic loss may certainly lie. This is made clear by
Bayer South Africa (Pty) Ltd v Frost
13
and
Holtzhauzen v Absa Bank Ltd
.
14
[8]
Accordingly it is
possible that the assumption of contractual duties
is capable of giving rise to delictual
liability. The question is whether there are considerations of public
or legal policy that
require the imposition of liability to cover
pure economic loss in the particular case.
15
Public or legal policy on imposing liability
[9]
Viv’s Tippers
argued that liability should be imposed on Pha Phama. It relied, of
course, on the statement in
Compass
Motors
to which I have referred. In
that case Callguard had undertaken to Imperial Motors to provide
security guards at its premises at
night. According to the contract
between the parties the only function of the security service
provided was to minimize the risk
of loss through theft or vandalism.
Callguard expressly did not guarantee that they would succeed in this
endeavour, and also excluded
liability to Imperial Motors or any
third party for loss or damage arising out of the conduct of its
staff, including negligent conduct
or omissions.
[10]
Vehicles belonging
to Compass Motors, lawfully parked at the Imperial Motors premises,
were stolen one night. In an action in delict
for damages caused by
the omission by the guards to protect the premises, Van Zyl J
regarded the contract between Imperial Motors
and Callguard as
irrelevant. The learned judge said:
16
‘
When
considerations of public policy and its concomitants, justice, equity
and reasonableness, are applied to the facts and circumstances
of the
present case, I believe that both these questions [whether a legal
duty was owed by the security firm to the entity whose
vehicles were
stolen, and whether that liability should be restricted] should be
answered in the negative.
The
contractual restriction or limitation of liability is, in my view,
totally irrelevant for purposes of establishing the delictual
liability of one or both contracting parties in respect of a third
person who suffers injury arising from an act or omission pursuant
to
the contract in question
[my
emphasis]. The community's sense of justice, equity and
reasonableness will undoubtedly be offended by strictures placed on
delictual
liability towards third persons, simply because the
contract limits the contractual liability of the
parties
inter
se
.
The same
applies to the nature and ambit of contractual obligations stipulated
in a contract, particularly in a case such as the present,
in which
the contractual liability of the defendant has been considerably
curtailed. It is conceivable that the security procedures
required of
the defendant may be hopelessly inadequate for purposes of protecting
the property of third persons located on the premises.
Should such
persons be aware of the presence of a security system on the
premises, they may be lulled into a false sense of security
in
deciding to leave their property on such premises. They are in fact
relying on the presence of the security guards and they may
justifiably entertain the expectation that reasonable steps will be
taken to protect their property. According to the American
Restatement
of the Law
2d:
Torts S 324A . . . this is one of the grounds on which a contracting
party may, in American law, incur liability to a third person
for the
“negligent performance of undertaking”, namely if “the harm is
suffered because of reliance of the other or the third
person upon
the undertaking”. I would be reluctant, however, to restrict
liability to cases where the third party is aware of the
existence of
security procedures. In the times in which we live it is not
unjustifiable to presume that most businesses of any repute
would
employ some form of security procedure for their own benefit and for
that of their clients. Most clients would be aware of
this and it
should not be necessary to introduce the fact of their awareness as a
prerequisite for
liability.
The case may be different where the clients are aware of the
inadequacy of the security arrangements and nevertheless elect
to
entrust their property to unreliable guardians. For present purposes,
however, it is not necessary to suggest how this may affect
liability.’
[11]
This passage, as I
have said, is obiter, for the court found that the security guard was
not negligent. In
Longueira
,
17
however, the security service was found liable, the court holding
that the terms of the contract between the owner of the premises
and
the security service were not relevant. The fundamental difficulty
that I have with this approach is that it does not explain
why the
liability of the security company to third parties should be more
extensive than it is in contract with the party which hired
it to
provide security services in the first place. For almost invariably,
as in this case, the security company will have excluded
liability
for loss or damage to premises or property which it has been engaged
to protect. How can the contractual arrangement between
the owner of
the premises and the security provider be irrelevant to the question
whether a duty should be imposed on the security
provider to third
parties whose property is stolen? And does the mere fact that the
person who engaged the security services, on
the assumption that
there is no exclusion of liability and there would be a claim in
contract, mean that a third party should have
the same protection?
[12]
Counsel for Viv’s
Tippers did not explain why the third party should be better off
than, or even in the same position as, the other
party to the
contract. The propositions advanced in this regard were that Pha
Phama was in control of the premises and the truck
on the relevant
day; that the foreman of the site (Mr Beukes) was contactable by
telephone and that the guard should have confirmed
with him whether
the truck should be removed; and that the site was in a high risk
area with a high level of crime. None of these
factors, in my view,
is relevant to whether the guard’s conduct was wrongful. They are
all factors that must be taken into account
in determining whether
the guard was negligent – whether he should have foreseen the
possibility of harm and taken steps to guard
against it.
Relevance of terms of the contract
[13]
The question
whether Viv’s Tippers should have a claim – the question as to
wrongfulness – must be determined by whether public
policy dictates
that a claim should be afforded to a third party where the owner of
premises who has arranged for security, and pays
for it, is denied
one. Pha Phama would not have been guarding the premises but for its
contract with Lone Rock. The terms of that
contract must, in my view,
play a role in assessing what the convictions of the community would
be in relation to affording a claim
for compensation to a
non-contracting party.
18
[14]
The relevant
clauses in the contract are as follows:
‘
4. The
Contractor [Viv’s Tippers] shall by its services endeavour to
prevent or minimise possible damages occasioned by theft, burglary,
or illegal disturbance to the best of its ability. This is not to be
construed as a warranty that such damages will be prevented
or
minimised and no guarantee is given in this regard. The Client [Lone
Rock] must not assume these services to be an alternative
to
insurance and hereby agrees that the Contractor cannot be held liable
for any damage or loss incurred.
5
.
The Client hereby indemnifies the Contractor against any claims from
loss or damage or any other claim which may arise out of the
provision of the Contractor’s services in terms of this agreement.’
[15]
Viv’s Tippers
argued first that the exclusion of liability agreed to by Lone Rock
does not affect the obligation imposed on Pha
Phama to compensate it
for the loss of the truck. I have already expressed doubt about the
soundness of that proposition and shall
return to it. It contended,
secondly, that the clauses as phrased do not exclude liability on the
part of Pha Phama for negligent
conduct, even to Lone Rock.
Negligence is not mentioned in terms. Viv’s Tippers relies in this
regard on
Galloon v Modern Burglar
Alarms (Pty) Ltd
19
in which it was held that an exclusion clause in a contract that did
not in express terms exempt a contracting party from liability
for
negligence, and could be interpreted to cover another cause of
action, was not effective to exclude liability for negligent conduct.
[16]
In my view
Galloon
is not helpful. First, it was dependent on the very specific wording
of the contract. And secondly, subsequent cases in this court
have
held quite the contrary.
Dealing with the proper approach to
the interpretation of indemnity clauses, this court said in
Durban’s
Water Wonderland (Pty) Ltd v Botha & another
:
20
‘
The correct approach is well
established. If the language of the disclaimer or exemption clause is
such that it exempts the
proferens
from liability in express and unambiguous terms, effect must be given
to that meaning. If there is ambiguity, the language must be
construed against the
proferens
.
(See
Government of the
Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd
1978 (2) SA 794
(A) at 804C.) But the alternative meaning upon which
reliance is placed to demonstrate the ambiguity must be one to which
the language
is fairly susceptible; it must not be “fanciful” or
“remote” (cf
Canada
Steamship lines Ltd v Regem
[1952] 1 All ER 305
(PC) at 310C-D
[1952 AC 192]).’
[17]
See
also
First National
Bank of SA Ltd v Rosenblum & another,
21
Johannesburg Country Club v
Stott,
22
Afrox Healthcare Bpk
v Strydom
,
23
Van der Westhuizen v
Arnold
24
and
Redhouse v
Walker
.
25
In
First National
Bank
, where the
defendant had raised an argument based on the
Galloon
reasoning Marais JA said the following:
26
‘
Before turning to a
consideration of the term here in question [an exclusion clause
disclaiming liability on the part of the bank
for liability for any
loss or damage], the traditional approach to problems of this kind
needs to be borne in mind. It amounts to
this: In matters of
contract the parties are taken to have intended their legal rights
and obligations to be governed by the common
law unless they have
plainly and unambiguously indicated the contrary. Where one of the
parties wishes to be absolved either wholly
or partially from an
obligation or liability which would or could arise at common law
under a contract of the kind which the parties
intend to conclude, it
is for that party to ensure that the extent to which he, she or it is
to be absolved is plainly spelt out.
This strictness in approach is
exemplified by the cases in which liability for negligence is under
consideration. Thus, even where
an exclusionary clause is couched in
language sufficiently wide to be capable of excluding liability for a
negligent failure to fulfil
a contractual obligation or for a
negligent act or omission, it will not be regarded as doing so if
there is another realistic
and
not fanciful basis of potential liability
to which the clause could apply and so have a field of meaningful
application. (See
SAR
& H v Lyle Shipping Co Ltd
1958 (3) SA 416
(A) at 419D–E) [my emphasis].
It is perhaps necessary to
emphasize that the task is one of interpretation of the particular
clause and that
caveats
regarding the approach to the task are only points of departure. In
the end the answer must be found in the language of the clause
read
in the context of the agreement as a whole in its commercial setting
and against the background of the common law and, now,
with due
regard to any possible constitutional implication.’
[18]
The exclusion
clause in this case is not ambiguous. It says clearly that Pha Phama
gives no guarantee; that the contract is not an
alternative to
insurance; and that it is not liable to Lone Rock for any damage or
loss incurred. Clause 5 makes it even plainer:
Lone Rock indemnifies
Pha Phama against any claim arising out of the provision of its
services, including negligent conduct. But
the argument in any event
assumes that a valid claim exists, and that begs the question whether
Viv’s Tippers has a claim at all.
[19]
That brings me back
to the first issue – wrongfulness. Pha Phama argued that there is
no evidence that it was informed it was responsible
to third parties
whose vehicles were parked on the site. Had Pha Phama known that it
was required to take on additional responsibilities
it may have
contracted with Lone Rock on different terms – at a higher cost at
least. Why should Pha Phama, where it has regulated
its liability to
Lone Rock, be exposed to the problem of indeterminate claims to
unknown plaintiffs? The argument is based on the
very reason for
circumspection in respect of claims for economic loss: unlimited
liability to unknown plaintiffs.
[20]
In commenting on
the problems arising from the general principle expressed in
Compass
Motors
Professors Dale Hutchison and
Belinda van Heerden wrote:
27
‘
Here
[where a breach of contract causes loss not to a contracting party
but within a contractual matrix, as in
Compass
Motors
]
there is no privity of contract between the plaintiff and the
defendant, but each is linked by way of contracts to a middle party
and there is a clear tripartite understanding of where the risk is to
lie . . . . In such a situation there is little danger of
indeterminate
liability . . . .
Even though,
ex
hypothesi
,
the plaintiff here has no contractual remedy against the defendant,
all the parties to the arrangement knew exactly where the respective
risks lay. Therefore, each party, with full knowledge of his risk
exposure, could reasonably have been expected to have protected
himself by other means (for example, through contractual arrangements
with other parties or by taking out appropriate insurance).This
of
course also brings the anti-circumvention argument strongly to the
fore:
to
superimpose on the consensual arrangements a delictual duty of care
would disturb the balance, by allowing a shifting of losses
within
the matrix contrary to the original understanding of the parties.
Unlike the concurrence situation [as was the case in
Lillicrap
above],
it cannot here be argued that the scope of a delictual duty would
necessarily be circumscribed by the specific provisions
of a contract
between plaintiff and defendant – in this type of case there is no
direct contractual link between them’ (my emphasis).
The consideration
of policy and norms
[21]
There are thus a
number of reasons for concluding that the security guard’s conduct
in allowing the men to remove the truck from
the site was not
wrongful. The primary reason is the contract itself, but for which
there would have been no security provided at
the site, and which
precludes a claim by Lone Rock, the other contractant, which paid for
the services. The undertaking given by
Pha Phama that it would
prevent damage or loss to the best of its ability, but that it gave
no guarantees, would be completely undermined
if a claim against it
by third parties were allowed. Community convictions would not, in my
view, permit the undermining of the contract
in such a way.
[22]
In argument during
the hearing of the appeal counsel were asked to consider the
significance of the most recent decision dealing with
a claim in
delict by a person against a party to a contract with another:
Chartaprops 16 (Pty) Ltd v Silberman
.
28
There the claim was for damages for physical injury caused by the
omission of a cleaning service to mop up a spillage of liquid on
the
floor of a shopping mall (there was no evidence as to who had caused
the spillage) which had resulted in Mrs Silberman falling
and
injuring herself. The cleaning service had entered into a contract
with Chartaprops, the owner of the mall, in terms of which
it was
obliged to clean the floors in accordance with an agreed procedure.
[23]
The majority of the
court found that the cleaning service was liable for the damages.
Nugent JA dissented, concluding that it was
Chartaprops that was
negligently in breach of a duty. For the purpose of this judgment
nothing turns on the difference in their respective
approaches. And
of course the questions in that case were who was liable for the
physical injury, and whether there was liability
for a negligent
omission, whereas in this case we are concerned with whether there
should be liability for economic loss in a contractual
matrix, but
not pursuant to a contract.
[24]
The debate centred
on a passage in the majority judgment where Ponnan JA said:
29
‘
N
either
the terms of Advanced Cleaning’s engagement, nor the terms of its
contract with Chartaprops, can operate to discharge it
from a legal
duty to persons who are strangers to those contracts. Nor can they
directly determine what it must do to satisfy its
duty to such
persons. That duty is cast upon it by law, not because it made a
contract, but because it entered upon the work. Nevertheless
its
contract with the building owner is not an irrelevant circumstance,
for it determines the task entered upon.’
[25]
It was submitted,
rather faintly, that the first sentence of the paragraph means that
the terms of the contract between the contracting
parties can have no
bearing on the claim of the third party victim. If that is a correct
reading of the proposition, then it is not
consonant with our law.
But as counsel for Pha Phama submitted, the balance of the passage
indicates the contrary: the terms are
not irrelevant, for they
determine what the ‘task entered upon’ is. In this case, the task
entered upon by Pha Phama was to secure
the site but not to guarantee
success. The passage, in my view, is not inconsistent with the
conclusion that the contract must have
a bearing on the claim of the
third party victim.
[26]
As to other
considerations of public policy, if one were to recognize the general
principle that was expressed in
Compass
Motors
, security services for
particular premises might become unattainable. The spectre of
limitless liability to a multitude of unknown
plaintiffs should
preclude such a claim. One has only to imagine a motor garage where
many expensive vehicles are parked and where
there is no contractual
privity between the security company or the owner of the premises.
Liability could be endless.
[27]
Accordingly I
conclude that the conduct of the guard was not wrongful and that Pha
Phama was not vicariously liable for the loss occasioned
by the theft
of the vehicle. It is therefore not necessary to consider whether the
guard was negligent. But I shall do so briefly
because the high court
found that he was not and Viv’s Tippers argued strenuously that the
guard was negligent.
Negligence
[28]
The evidence on
negligence was sparse. The guard was not called to testify. Mr
Beukes, the Lone Rock foreman in charge of the site,
testified that
he was contactable by the security guard on duty, and said that it
would have been agreed that in the event of a problem
the guard
should contact him. He was not in fact telephoned when the two men
approached the guard on the Sunday afternoon and presented
him with
the letter in question. He said also, however, that repairs were
regularly done on the site over a weekend, but he would
usually be
informed in advance when this was proposed. There was no evidence
that the security guard on duty was aware of this procedure.
[29]
The driver of the
truck also gave evidence and said that when he had left the site
before the weekend he had taken the key of the
truck with him and had
left it at the premises of Viv’s Tippers. When he returned to the
site after the weekend the truck was no
longer there.
[30]
Viv’s Tippers
argued that the guard’s negligence lay in not having questioned the
authenticity of the letter presented by the
two men who arrived
claiming that they had been sent to repair the truck. It is true that
the letter was questionable: it was confused
and confusing. It was on
a letterhead of an entity referred to as ‘Denver Truck Repaires
(sic) and Spares Providers’. Addresses
and telephone numbers were
set out. It was not addressed to Lone Rock or to Pha Phama, but was
signed by a Mr Pretorius who was stated
to be the manager. It was
dated 23 September 2004 – the Friday of the long weekend. The
letter read:
‘
Dear Sir
We will be
sending our mechanics on Sunday 26
th
of September 2004, to look at one of your Mercedes Benz truck that
had a problem on Thursday afternoon.
We will send
to [sic]
guys to look at your diesel pump, then they will fix it on sight
[sic] and test drive the truck to make sure it is fine. The security
will be informed on sight [sic] then asked to sign this document for
us.
The registration of this said
truck is FBX 943 N.
All this will take place at your
site in Kibler Park.
We trust that everything is in
order.
Regards
(signed)
____
_________
V Pretorius
(Mnr) (Manager)
_____________
Security’
[31]
Viv’s Tippers
contended that the contents of the letter should have alerted the
guard to something untoward. It is not literate,
and while it says
all work will be done on site, it also states that the vehicle would
be test-driven. That could not be done on
site. The guard, it argued,
should have realized that the letter was not authentic and should
have foreseen the possibility of theft
and taken steps to guard
against it.
[32] Du Plessis
J in the
high court found that there was simply not enough evidence on which
to make a finding as to negligence and that the onus
of proving
negligence was not discharged by Viv’s Tippers. I agree with that
conclusion. There was nothing to suggest that the
guard was literate
or educated. He was faced with a letter referring expressly to a
Mercedes Benz truck with a particular registration
number. In the
absence of evidence as to how a reasonable person in his position
would have acted, no finding as to negligence can
be made.
[33]
The appeal is
dismissed with costs, including those of two counsel.
_____________
C H Lewis
Judge of Appeal
APPEARANCES
APPELLANTS: J H L Scheepers
Instructed by André Grobler Attorneys, Pretoria;
Symington & De Kok, Bloemfontein.
RESPONDENTS: N van der Walt SC (with him L Malan)
Instructed by Hunts (Ing Borkums) Attorneys c/a Rooth
Wessels, Pretoria;
McIntyre & Van der Post, Bloemfontein.
1
1990
(2) SA 520
(W) at 529G-J.
2
1998 (4) SA 258
(W) at 263E-F.
3
See, for example, J Neethling, J M Potgieter and P J Visser
Law
of Delict
5 ed pp 64-65 and the comments referred to there.
4
2006 (1) SA 461
(SCA) para 1.
5
See in this regard
Aucamp
& others v University of Stellenbosch & others
2002 (4) SA 544
(C) and the authorities cited in paras 63-68;
Telematrix (Pty) Ltd t/a Matrix Vehicle
Trading v Advertising Standards Authority SA
above and
Fourway Haulage SA (Pty) Ltd
v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009
(2) SA 150
(SCA); (653/07)
[2008] ZASCA 131.
6
See
Ultramares v
Touche
(1931) 255 NY 170
, considered
in
Hedley Byrne & Co Ltd v Heller &
Partners Ltd
[1963] UKHL 4
;
[1964] AC 465
(HL).
7
P Q R Boberg
The Law
of Delict
(1984) p 104ff.
8
Op cit p 105, citing
Shell
& BP South African Petroleum Refineries (Pty) Ltd v Osborne
Panama SA
1980 (3) SA 653
(D) and
Franschoekse Wynkelder (Ko-Operatief)
Bpk v SAR & H
1981 (3) SA 36
(C).
9
[2008] ZASCA 134
;
2009 (2) SA 150.
10
2002 (6) SA 431
(SCA) para 21.
11
Above para 22.
12
1985 (1) SA 475
(A). Contrast the decision of the
court below in
Pilkington Brothers (SA)
(Pty) Ltd v Lillicrap, Wassenaar and Partners
1983
(2) SA 157
(W).
13
1991 (4) SA 559 (A).
14
2008 (5) SA 630
(SCA); (280/03)
[2004] ZASCA 79.
15
See
Trustees, Two
Oceans Acquarium Trust v Kantey & Templer (Pty) Ltd
2006 (3) SA 138
(SCA) para 12;
Chartaprops
16 (Pty) Ltd & another v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA); (300/07)
[2008] ZASCA 115
para 22 (the
passage is in the dissenting judgment of Nugent JA but is not in
conflict with the ratio of the majority judgment);
and
Aucamp
v University of Stellenbosch
above.
16
Above at 529H-530F.
17
Above at 263H-J.
18
This was the conclusion of Du Plessis J in the
high court too.
19
1973 (3) SA 647
(C).
20
1999 (1) SA 982
(SCA)
at 989G-J.
21
2001 (4) SA 189
(SCA).
22
2004 (5) SA 511
(SCA).
23
2002 (6) SA 21
(SCA).
24
2002 (6) SA 453
(SCA) paras 13 and 23.
25
2007 (3) SA 514
(SCA).
26
Paras 6 and 7.
27
‘The tort/contract divide seen from the South
African perspective’
1997
Acta
Juridica
97
p114.
28
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA); (300/07)
[2008] ZASCA 115
, referred to above.
And see also
Pienaar & others v Brown & others
(48/2009)
[2009] ZASCA 165
(1 December 2009) where a building
contractor was found to be negligent, but the owner of a house was
held not liable where a balcony,
negligently constructed, collapsed,
resulting in injury to guests who had been standing on the balcony.
29
Para 47.