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[2021] ZAGPJHC 657
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Night Guard CC v Van Den Heever N.O and Others In re: Van Den Heever N.O and Others v Night Guard (2019 / 20886) [2021] ZAGPJHC 657 (24 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNEBSURG
CASE
NO. 2019 / 20886
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
In
the matter between:
NIGHT
GUARD CC
Excipient
and
T
W VAN DEN HEEVER N.O
First Respondent
T
MEDUPE
N.O
Second Respondent
J
S KOKA
N.O
Third Respondent
In
re:
T
W VAN DEN HEEVER N.O
First Plaintiff
T
MEDUPE
N.O
Second Plaintiff
J
S KOKA
N.O
Third Plaintiff
and
Night
Guard
Defendant
JUDGMENT
ALI
AJ
[1]
The first, second and third plaintiffs who are in the process of
liquidating Kappa
Heavy Engineering (Pty) Limited (“Kappa”),
bring an action against Night Guard CC - the defendant. (“Night
Guard”).
[2]
Kappa, in their particulars of claim, have set out that prior to the
liquidation of
Kappa Heavy Engineering (Pty) Limited (In Liquidation)
(“Kappa”), it rented premises from Beec Cranes (Pty) Ltd,
(“Beec”).
Beec and Night Guard entered into an agreement
where Night Guard agreed to guard the premises and provide a security
guard 24 hours
a day at the premises to prevent the loss or damage to
the plant and equipment of Kappa, located on the premises, by theft,
burglary
or vandalism.
[3]
During the period February 2017 to April 2017, the warehouse on the
premises, was
broken into where the plant and equipment was
vandalised and components of the equipment were stolen. Kappa claim
that Night Guard
wrongfully, in breach of their duty of care, and
with negligence failed to take various measures so as to prevent the
aforesaid
crimes from occurring. Kappa is claiming damages resulting
from the theft and vandalism of their plant and equipment from Night
Guard.
[4]
Kappa’s cause of action is for delictual liability. Night Guard
has not filed
its plea and excepts to the amended particulars of
claim. Night Guard filed an exception on the grounds that the
particulars of
claim fail to disclose a cause of action. The notice
of exception contains 3 (three) grounds of exception. Night Guard has
decided
to proceed with only exceptions 1 and 2 and have abandoned
exception 3.
[5]
The exceptions raised by Night Guard, in essence, is that the claim
is one of contractual
liability and as such it fails to comply with
the provisions of Rule 18(6) of the Uniform rules of Court and
therefore fails to
disclose a cause of action. Night Guard says
further that since Kappa was not a party to the contract it cannot
sue Night Guard
in contract. In the alternative, Night Guard says
that Kappa may bring a delictual action, to support its pleadings
that the security
guards had a duty to guard the property of Kappa.
[6]
Night Guard excepts to the manner pleaded by Kappa regarding the
negligent conduct
of the security guards. Night Guard contends that
Kappa pleaded that Night Guard failed to prevent a burglary. This
ground of exception
is abandoned by Night Guard as it excepted to the
paragraphs in the unamended particulars of claim. The notice of
exception was
not amended to properly include the negligence aspect
as raised by Kappa and for this reason I shall not deal with this
ground.
[7]
The issue in the exception turns on the wrongfulness aspect which
shall be dealt with.
Wrongfulness
[8]
Night Guard relies on Viv’s Tippers (Edms) Bpk v Pha Pharma
Staff Services (Edms)
Bpk,
[1]
for its exception that the content of the delictual duty owed by the
security company to the third party is to be informed by the
contract
between the security company and its employer, in
casu
between Night Guard and Beec. Night Guard further contends that when
one determines wrongfulness where a contracting party is required
to
pay a third party for damage to property, the contracting party
should be made aware of the likelihood of such claims against
it as
this would result in indeterminate claims against it. It relies on
the judgment of the Supreme Court of Appeal in the Viv’s
Tippers case. There the Supreme Court of Appeal held that one should
be circumspect when dealing with claims for economic loss
as this
opens the way for unlimited liability to unknown plaintiffs
.
(at para 19). Night Guard contends that Kappa’s claim is one of
economic loss. Hence, it contends that the particulars of
claim fail
to disclose a cause of action.
[9]
The Supreme Court of Appeal in the Viv’s Tippers case further
held it would
be:
“
the terms of
the contract that would 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.”
(at para 13).
[10]
In the Viv’s Tippers case, the security guard saw two men
driving away with the truck and
failed to prevent the theft of the
truck from occurring. The issue before the court was the conduct of
the security guard. The
Supreme Court of Appeal held that:
“
[5] 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 the loss…”
[11]
The Constitutional Court in Loureira and Others v Imvula Quality
Protection (Pty) Ltd,
[2]
upheld
the appeal and overruled the decision of Imvula in the Supreme Court
of Appeal. The Constitutional Court held that the guard’s
conduct was wrongful. It was held that the respondent – a
private security company was vicariously liable in delict because
its
employee acted wrongfully by opening a gate to robbers and by
negligently failing to foresee the reasonable possibility of
harm and
to take the steps a reasonable person in his position would have
taken to guard against it.
[12]
The Constitutional Court in Loureiro upheld the minority judgment of
Cloete JA (where reference
was made to the Viv’s Tippers case),
in the Supreme Court of Appeal,
[3]
where it was held that:
“
[53] …
public policy requires the guard’s employer, 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…”
[13]
In this regard, the Constitutional Court held that:
“
The wrongfulness
enquiry focuses on the conduct and goes to whether the policy and
legal convictions of the community, constitutionally
understood,
regard it as acceptable. It is based on the duty not to cause harm…
Negligence, on the other hand, focuses on
the state of mind of the
defendant and tests his or her conduct against that of a reasonable
person in the same situation in order
to determine fault.”
[4]
[14]
Night Guard have not properly excepted to the theft and negligence
issues raised by Kappa. It
is clear that the particulars of claim
deal with the conduct of the security guards (wrongfulness) and their
negligent conduct.
[5]
[15]
In Van Der Bijl and Another v Featherbrooke Estate Home Owners’
Association (NPC) and Another,
[6]
the plaintiffs (“the Van der Bijls”), framed their cause
of action as one of delictual liability, claimed damages from
both
the Association and the security company. The court held that the
Association who employed Fidelity to provide security for
the Estate
did not establish that the Association, as employer, owed the same
duty to the residents of the Estate as that assumed
by Fidelity. (at
paras 31-35).
[16]
The Constitutional Court in Loureiro has rejected the majority’s
ratio
in the Viv’s Tippers case – the case that
Night Guard relies upon, hence its exception on this ground stands to
be dismissed.
Conclusion
[17]
In the result, the first and second exceptions must be dismissed. The
particulars of claim disclose
a cause of action in that Night Guard
had a duty of care to prevent the theft, burglary, and vandalising of
the property on the
premises. The particulars of claim do make out a
case for wrongfulness and thus this necessary requirement for
Aquilian liability
is present.
Costs
[18]
The costs of the exception should be borne by Night Guard as it was
the unsuccessful party. There
is, however, one further issue on
costs. It concerns a Rule 30 application that was brought by Kappa
against Night Guard. Both
parties have agreed that the Rule 30
application has become moot. The Rule 30 application was linked to
the exception and therefore
in my view it would be just and fair in
the present circumstances to add those costs in the costs of the
exception.
Order
[19]
I accordingly make the following orders:
1.
The exceptions are dismissed.
2.
Night Guard – the excipient is to pay the costs of the
exception as well as the Rule
30 application.
N.
ALI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was prepared and authored by Acting Judge Ali. It is handed
down electronically by circulation to the parties or their
legal
representatives by email and by uploading it to the electronic file
of this matter on Caselines.
DATE
OF HEARING: 26 JULY 2021
DATE
OF JUDGMENT: 24 AUGUST 2021
COUNSEL
FOR THE PLAINTIFFS: P VAN DER BERG SC
INSTRUCTED
BY: VAN VEIJEREN INC
COUNSEL
FOR RESPONDENT: K D ILES
INSTRUCTED
BY: BEMBRIDGE MINNAAR ATTORNEYS
[1]
2010
(4) SA 455
SCA
[2]
2014
(3) SA 394
(CC) at para 67
[3]
Imvula
Quality Protection (Pty) Ltd v Loureiro and Others
2013 (3) SA 407
(SCA).
[4]
Loureiro
supra at para 53
[5]
POC
paras 8-15
[6]
In Re: Featherbrooke Estate Home Owners’ Association (NPC) and
Another
2019 (1) SA 642
(GJ) (23 August 2018)