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[2019] ZANCHC 62
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Top Security Systems (Pty) Ltd v Samy's CC t/a Samy's Wholesalers (236/2013) [2019] ZANCHC 62 (13 March 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case no:
236/2013
Date heard:
05/03/2019
Date delivered: 13/03/2019
In
the application of:
TOP
SECURITY SYSTEMS (PTY)
LTD
Applicant
and
SAMY’S
CC t/a SAMY’S
WHOLESALERS
Respondent
in
re
:
SAMY’S
CC t/a SAMY’S
WHOLESALERS
Plaintiff
and
TOP
SECURITY SYSTEMS (PTY)
LTD
First
Defendant
THE
MINISTER OF
POLICE
Second Defendant
Coram:
O’Brien AJ
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
O’BRIEN
AJ
[1]
The
applicant applies for leave to appeal against my judgment handed down
on 2 August 2019. In that judgment I found the applicant
liable for
damages suffered by the respondent in consequence of a burglary at
the respondent’s premises.
[2]
I
found the wardens of the applicant negligent in their failure to do
an adequate, appropriate and reasonable investigation at the
premises
of the respondent.
[3]
In
its grounds of appeal, the applicant avers that I had erred in
finding that the wardens could have scaled the fence at the premises
to investigate the cause of the alarm activation.
[4]
In
argument, Mr van Niekerk SC, for the applicant, argued that the
palisade fence is an inherently dangerous object created for
the very
purpose to prevent scaling. Also, the wardens were both wearing
bulletproof vests which are cumbersome objects and which
would make
climbing over a fence very difficult.
[5]
Mr
Nankan, for the respondent, submitted that scaling the fence is not
the only basis for finding negligence on the part of the
wardens. The
Court also found the failure to call Pillay to the premises after
four alarms were activated, as negligent. He states
that the wardens
were trained officers whose employment is inherently dangerous;
therefore, they failed to do a proper inspection.
[6]
In
reply, Mr van Niekerk submitted that the failure to call Pillay was
not a basis for finding negligence on the part of the wardens.
[7]
Mr
van Niekerk submitted that there is a reasonable prospect that
another Court might find differently regarding the factual question
on whether the failure by the wardens to scale the fence constitutes
negligence.
[8]
In
deciding the question of the failure of the wardens to scale the
fence, I was well aware of the fact that the palisade fencing
has, as
one of its objectives, to keep intruders out of the premises.
However, to describe it as inherently dangerous and therefore,
a
reason for not scaling the fence appears to me as an
oversimplification of the issue.
[9]
In
my judgment, I referred to the assistance that Leburu could have
offered. I can think of various ways he could have done so:
he could
have kept the vest and firearm of Hapane when the latter scaled the
fence; they could have obtained any object like a
ladder, a table or
a chair to help them scale the fence. It is not helpful to suggest
that it was dangerous to scale the fence.
This loses sight of the
fact that the wardens were trained officers who needed to be reactive
when dealing with situations such
as the present. Their inherent job
description would require them to act reasonably.
[10]
What
is stated in the preceding paragraph must be seen against the
background of four-alarm activations, the removal of the control
panel and the various alarm beams which were activated, indicating
movement within the building?
[11]
In these circumstances,
in my opinion, the wardens’ failure to scale the fence to do a
proper investigation (a factual finding)
would not be susceptible to
another Court coming to a different conclusion.
[12]
Accordingly, the
application for leave to appeal is dismissed with costs.
O’BRIEN
AJ
Northern
Cape High Court, Kimberley
For
the
Applicant:
Adv. J.G. van Niekerk
Instructed
by:
Haarhoffs Inc.
For
the
Respondent:
Adv. Nankan
Instructed
by:
Justin Pillay & Associates