Saayman v Visser (411/2007) [2008] ZASCA 71; [2008] 4 All SA 245 (SCA); 2008 (5) SA 312 (SCA) (30 May 2008)

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[2008] ZASCA 71
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Saayman v Visser (411/2007) [2008] ZASCA 71; [2008] 4 All SA 245 (SCA); 2008 (5) SA 312 (SCA) (30 May 2008)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 411/07
In the
matter between:
JACOBUS
HENDRIK SAAYMAN
...
Appellant
and
CHRISTIAAN ANDREAS VISSER
...
Respondent
_______________________________________________________
Coram
:
Navsa, Ponnan JJA et Snyders AJA
Date of hearing:
16 May 2008
Date of delivery:
30 May 2008
Summary
: Liability
of homeowner in relation to the shooting of a 16 year-old boy by a
security guard stationed at the premises ─ test to
determine
negligence on part of homeowner ─ reliance on expertise of security
company ─ in totality of circumstances homeowner
held not liable.
Neutral citation:
Saayman v Visser
(411/07)
[2008]
ZASCA 71
(30 May 2008).
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA
NAVSA JA:
[1] During the early hours of the morning of Saturday
13 February 1999, in a suburb in Kimberley, events unfolded
that
changed the life of sixteen year-old Gideon Saayman forever. He
was shot in the back and the neck whilst in the immediate vicinity
of
the house of the respondent, Mr Christiaan Visser. Gideon was shot by
a security guard, Mr Sylvester Morebudi, who had been stationed
at
Mr Visser’s house at the latter’s instance by Griekwa
Security CC, a close corporation that provided security services
to
the public. The close corporation traded under the name Barn Owl
Security. Mr Visser was a diamond digger and businessman
who
kept diamonds and other valuables at his home. He was away from home
fairly regularly, sometimes for a month at a time, and required
24-hour protection for his wife and daughter who resided with him in
the house. As a consequence of being shot Gideon sustained serious
injuries. According to the particulars of claim Gideon’s family had
to relocate to Parow in the Western Cape to enable him to obtain
the
necessary medical treatment.
[2] This is an appeal against a judgment of the Kimberley High Court
(Tlaletsi AJP), in terms of which the appellant’s claim
for
damages against the respondent, both in his personal and in his
representative capacity, as the father and the guardian of Gideon,
was dismissed with costs. The other two defendants in the high court,
Griekwa Security CC and Mr Morebudi, chose not to defend
the
action and were held to be jointly and severally liable for the
damages sustained by the appellant but not for the latter’s
costs
in relation to the trial on the merits.
1
The present appeal is before us with the leave of the court below.
[3] This case is a very sad and dramatic illustration of how steps
taken by an increasingly desperate and hapless populace to protect
their lives and homes against the crime wave in this country can have
negative effects, particularly when it involves the use of
firearms ─
in the present case Mr Morebudi used a Norinco 12-bore shotgun. It
demonstrates how far the consequences of rampant
crime extend and how
easily life can be lost in South Africa. It also serves as a warning
to those who advocate a resort to lethal
force (irrespective of
circumstances) to thwart the threat of crime, against the awful
results of such force, that are unfortunately
all too predictable. On
the other hand, it should also serve to prompt government to harness
every available resource, as a matter
of pressing priority, to end
the scourge of crime before confidence in our Constitutional order is
lost or abandoned.
The Background
[4] During the night of Friday 12 February 1999, Gideon and his
friend, Mr Winton Smith, attended a party at Gideon’s
home where they both consumed alcohol, if not copiously, then at
least in substantial quantities. Mr Smith was 19 years
old
at the time. Shortly after midnight, after all the other partygoers
had gone to sleep, the two youngsters went in search of further
entertainment and, to that end, walked to a pub in the vicinity. They
spent approximately half an hour at the pub, just conversing.
There
was however, not much ‘action’ at the pub and the two decided to
return to their homes. As they made their way home, they
passed
Mr Visser’s house and, in their inebriated state, decided to
play a prank. Little did they know how costly this would
prove. The
prank was to consist of overturning a pot-plant located on the lawn
in the front of the premises between the perimeter
fence and the
house. The fence was only partially constructed, the bars between the
pillars not yet having being inserted.
[5] The two would-be pranksters entered the premises but found that
they could not dislodge the heavy pot, with only the top part
giving
way to the force applied. Unsuccessful, they decided to leave. As
they were departing they heard the sound of a firearm being
discharged. They could not tell whence it came. In a panic they ran
out of the premises and onto the public street. As they made
their
way along the pavement, another shot was fired. Gideon was struck and
fell. Mr Smith stopped, turned around and saw Mr Morebudi
at one of the motor gates. The former put his arms up in a gesture of
surrender and Mr Morebudi then motioned him closer. Gideon,
who
was lying on the ground, appeared to be gurgling or choking.
Mr Morebudi handcuffed Mr Smith and made him lie on his
stomach on the ground.
[6] Mr Visser, who had been asleep in his house, was awoken by
the gunshots. He proceeded to the front door of the house where
he
was met by Mr Morebudi. The latter reported to him that he had
wounded one person and arrested another. The police were summoned
and
arrived. Mr Smith was transported to the police station and an
ambulance took Gideon to hospital.
[7] Mr Morebudi had shot Gideon using a licensed shotgun issued
to him by Griekwa Security. At the time of the shooting the
street in
front of the house was well-lit.
[8] It is common cause that in 1998, the year preceding the shooting,
Mr Morebudi had been employed for the first time by Griekwa
Security as a security guard to be deployed where clients required
such a service. At the beginning of 1999, it was apparently agreed
between all the security guards and Griekwa Security that the former
would render services to the latter as independent contractors
─ at
first blush this appears contrived but the result of the appeal is
not affected thereby. This arrangement was in place at
the time of
the shooting.
[9] Griekwa Security had provided Mr Morebudi’s services in
terms of an oral agreement concluded during December 1998 between
itself and Mr Visser. The close corporation had been approached
by Mr Visser with a request that it provide an armed security
guard on a 24-hour basis as protection for himself, his family and
his assets. In terms of the contract Mr Visser did not have
the
right to nominate the particular guard to be deployed, nor did he
have any say about the manner in which the security guard was
to
perform his duties. This was all in the province of Griekwa Security.
In relation to the exercise of their duties, the security
guards were
all instructed to follow only such orders as emanated from the close
corporation. Griekwa Security also required that
any problems that a
homeowner might experience with a security guard be taken up with
them, rather than with the guard directly.
The close corporation had
in the past, without incident, provided Mr Visser with security
services at another location near
the Vaal River.
[10] In Mr Visser’s response to a request for further
particulars for trial he stated that, upon enquiry, he was informed
by Griekwa
Security that the security guards who would be employed at
his home were indeed properly trained and were instructed in the use
of
firearms. Mr Visser testified in the court below that, during
December 1998, when he concluded the agreement for the provision of
security services at his home, he had asked whether the security
guard who would be posted there was qualified. Mr Steven Hansen,
on
behalf of Griekwa Security, told him that the guard had training in
the use of the firearm.
2
He had enquired because he was aware of the danger of a firearm being
employed on his property.
[11] A document issued by an entity calling itself
Advanced
Specialised Security Training
was produced at the trail,
certifying that, on 10 October 1998 Mr Morebudi had received
training in the use of a 9mm pistol
and a Norinco 12-bore shotgun.
Other related training received by Mr Morebudi only took place after
the shooting incident. At the
time of the shooting Griekwa Security
was not registered, as required by legislation, with the then
regulatory Board, nor was Mr Morebudi
then properly qualified to
be a security guard. Mr Visser was unaware of this. It is
uncontested that Griekwa Security operated
in the normal course, as
would any entity that provided security services, and from Mr
Visser’s perspective there was nothing untoward
in the manner in
which it conducted its business.
[12] Mr Visser had no knowledge of the general tenor of the
instructions issued to the guards by Griekwa Security nor of any
specific
instructions concerning the circumstances under which
shooting would be justified. It is common cause that there were no
signs at
Mr Visser’s home warning the public that an armed security
guard was on duty.
[13] At the time of the trial in the court below, the close
corporation had no assets worth mentioning and Mr Morebudi was
serving
a term of imprisonment as a result of his conviction on a
charge of attempted murder flowing from the events set out above.
This
explains, at least partially, why the action against the
respondent was pursued and this appeal persisted with.
[14] The issue in this appeal is whether, in the circumstances set
out above, Mr Visser is liable for what now appears to be accepted
was the unlawful shooting of Gideon.
[15] It was contended on behalf of the appellant that to employ a
security guard with a shotgun and live ammunition in a residential
area is in itself the creation of a dangerous situation of which the
respondent was aware. Counsel for the appellant submitted that
a
reasonable person in the position of Mr Visser would have foreseen
the possibility of trespassers on the property and that they
might be
injured, and such person would have taken the necessary steps to
guard against that eventuality. Counsel argued further
that a
reasonable person would have ensured that members of the public were
alerted, by way of a prominent sign, that an armed security
guard was
present. Furthermore, that the area where the guard was stationed
should have been adequately lit and that Mr Visser
should have
instructed Griekwa Security to ensure that the shotgun would first
discharge at least two blanks and only thereafter,
if circumstances
so demanded, live ammunition. Thus, it was contended, the respondent
should be liable for the injuries suffered
by Gideon, even where, as
here, Griekwa Security had provided security services as an
independent contractor. In this regard the
appellant relied on the
decision in
Langley Fox Building Partnership (Pty) Ltd v De
Valence
1991 (1) SA 1
(A).
[16] The respondent contended that the application of the principles
laid down in
Langley Fox
compelled the contrary conclusion. It
was contended on behalf of Mr Visser that, when the agreement for the
provision for security
services was concluded, the parties could only
have intended that a firearm would be used in circumstances that
justified it and
that he was entitled to assume that the security
guards would act accordingly.
[17] In the court below counsel for the appellant accepted that at
the time of the shooting Griekwa Security had operated as an
independent
contractor at the instance of Mr Visser and had contended
that the latter was liable for the damages sustained on the basis of
his own
negligence. That stance, particularly having regard to
what is set out in para 9 above, rightly, did not change before us.
Conclusions
[18] The general rule of our law is that an employer is not
responsible for the negligence or the wrongdoing of an independent
contractor
utilised by him/her.
3
A recognised exception is where the employer himself/herself has been
negligent in regard to the conduct of the independent contractor
which caused harm to a third party.
4
Such liability is not vicarious.
5
An employer is liable in circumstances where he/she has broken a duty
he/she owed to those injured. In
Langley Fox
the following was
stated:
‘
[I]n every case the answer to the
question whether or not the duty arises must depend on all the
facts.’
6
[19] Under English law one situation in which an employer of an
independent contractor would be liable for the wrongs of the latter
is where the work performed is dangerous.
7
There are dicta in the
Dukes
case which tend to suggest that,
whenever the work entails danger to the public, liability is almost
inevitable. Goldstone AJA, in
Langley Fox
, after examining
English cases on the
subject, and considering the
Dukes
case, stated the following:
‘
In my judgment, the correct
approach to the liability of an employer for the negligence of an
independent contractor is to apply the
fundamental rule of our law
that obliges a person to exercise that degree of care which the
circumstances demand.’
8
[20] Later in
Langley Fox
the following is stated:
‘
Whether the circumstances demand
the exercise of care will depend upon proof that the employer owed
the plaintiff a duty of care and
that the damage suffered was not too
remote.’
9
[21] It is important to note that in our law the fact that the work
was dangerous is only one of the factors to be taken into account
in
determining whether an employer would be personally negligent in
regard to the harm caused to a third party by an independent
contractor. That fact in itself would not invariably lead to
liability.
10
[22] After discussing
Peri-Urban Areas Health Board v Munarin
1965 (3) SA 367
(A), which concerned the liability of the employer of
an independent contractor for damages arising from the death of a
third party
who was injured in consequence of dangerous operations
performed by the contractor, Goldstone AJA, in
Langley Fox
,
came to the following conclusion:
‘
[I]n a case such as the present,
there are three broad questions which must be asked, viz:
(1) would a reasonable man have foreseen the risk of
danger in consequence of the work he employed the contractor to
perform? If so,
(2) would a reasonable man have taken steps to guard
against the danger? If so,
(3) were such steps duly taken in the case in
question?’
11
[23] Only where the answer to the first two questions is in the
affirmative does a legal duty arise, the failure to comply with which
can form the basis of liability.
The following dictum in
Langley Fox
is important:
‘
It follows from the aforegoing
that the existence of a duty upon an employer of an independent
contractor to take steps to prevent
harm to members of the public
will depend in each case upon the facts. It would be relevant to
consider the nature of the danger;
the context in which the danger
may arise; the degree of expertise available to the employer and the
independent contractor respectively;
and the means available to the
employer to avert the danger. This list is in no way meant to be
exhaustive.’
12
[24] In circumstances in which the breach of a duty is established it
is often said that whilst the performance of the duties in
terms of
the contract between the employer and the independent contractor can
be delegated the responsibility for the performance
cannot be. The
expression used is ‘non-delegable duties’.
13
[25] In answer to the first question referred to in para 22 above it
appears to me to be clear that the risk of danger in employing
an
armed security guard on one’s premises was reasonably foreseeable.
[26] In dealing with the second question it is necessary to consider
that Mr Visser turned to a provider of security services
to
protect his family. There is no indication that there was anything in
the manner in which Griekwa Security conducted or projected
itself
that would have put a reasonable person on his/her guard. There was
nothing to indicate that it did not possess the necessary
expertise
or that it did not operate within the law. The following part of Mr
Visser’s testimony is relevant:
‘
Ek voel . . . ek het ‘n
maatskappy gehuur wat geregistreer is by die Raad, dit is, hy ken die
wet en hy ken sy pligte. Ek ken nie
die veiligheidswette en pligte
nie.
Moet [ons] daaruit verstaan dat u u op hulle verlaat?
--- Dit is heeltemal korrek.’
[27] It is clear that, mindful of the danger of firearms and their
use, Mr Visser enquired whether the guards who would be posted
had
the necessary training in firearms. As stated earlier he was
reassured in this regard. Furthermore, Mr Visser had previously
used Griekwa Security’s services at another location without
incident.
[28] At the time immediately prior to the shooting, when the security
guard had to deal with the intruders, he was required to exercise
what in ‘modern’ language would be described as a ‘judgment
call’. Mr Visser was asleep and unaware of the existence
of a
potentially dangerous situation and could therefore not intervene to
prevent the harm that ensued.
[29] In
Veiera v Van Rensburg
1953 (3) SA 647
(T) the court
took into consideration that a reasonable homeowner would foresee
that people might, from time to time come to the
premises, some to
find the way, some to visit and some to sell something. In that case
liability for an attack by a vicious dog,
kept by the owner to
protect his wife and infant child, was in issue. The court had regard
to a notice, warning about the presence
of the dog and found that it
was obscured and not in a place one would expect to find it. The
court held that the notice was quite
insufficient to protect the
plaintiff and that the putting up of the notice was not a proper
exercise of the duty of care. The court
thus held the defendant
liable for the damages suffered by a salesperson who had been
attacked by the dog.
[30] A distinction between
Veiera
and the present case is that
a vicious dog is not in the position of an independent contractor and
is not called upon to exercise
judgment. Griekwa Security was
employed for its specialist knowledge concerning security
arrangements and the protection of persons
and property. The
employment of an armed guard, particularly on the assumption that
he/she is properly trained to deal with any situation
that might
develop is very different to the use of a fierce dog which the owner
knows will attack trespassers as was the case in
Veiera
.
14
[31] It is probably more common for individual households to contract
armed response units rather than to have armed guards permanently
stationed at their homes. Assuming for the moment that it can rightly
be expected of a homeowner who has an armed security guard
permanently on the premises to, at the very least, put up a sign
warning the public at large of the presence of the armed guard,
it is
not at all clear that the harm in the present case would have been
avoided. First, Gideon and Mr Smith were inebriated and
no evidence
was presented which showed that they were in a state to notice and/or
understand any sign that might have been displayed.
Although
testifying that he had seen no warning sign Mr Smith did not say
that, had a sign been displayed, they would definitely
not have
intruded upon the premises. Second, there was no evidence that they
were familiar with the immediate vicinity in which the
shooting took
place or of how recently, if at all, they had previously passed Mr
Visser’s house ─ this would have addressed the
question of
whether the sign, if displayed, might have been noticed by either or
both on a prior occasion. Third, considering that
they were intent on
playing a prank it is more probable than not that their state of mind
was such that the sign might have been
a spur rather than a deterring
factor ─ they were clearly in an uninhibited frame of mind.
[32] Thus, if one were to conclude that Mr Visser was negligent in
not displaying a sign warning the public about the presence of
an
armed guard, the conclusion that the consequences referred to above
would have been avoided is unwarranted. If anything, all the
pointers
are to the contrary.
[33] Furthermore, I am not persuaded that the public should be
informed of where exactly an armed security guard is positioned or
that his position should be well-lit. It appears to me that this
might well put the guard in danger against potential attackers and
also put the occupants of the house at risk. It might simply
encourage entry from another point of the premises. The submission on
behalf of the appellant in this regard is, in my view, fallacious.
[34] The submission that an armed guard expecting to meet danger
should as a matter of course first use blank ammunition before
resorting
to live ammunition is entirely without merit and not
deserving of any further consideration.
[35] In assessing whether or not Mr Visser acted reasonably the
following passage from Grueber’s work on the
Lex Aquilia
,
cited in
Fred Saber (Pty) Ltd v Franks
1949 (1) SA 388
(A) at
405, is important
15
:
‘
[T]he conduct of the
diligens
paterfamilias
implies
only an average standard. No one can reasonably expect from a man
that he should be possessed of qualities which are rarely
to be found
amongst men, or that he should use the utmost strength of which he is
capable, or that he should be as cautious and careful
as a man can
possibly be. The standard is, however, an objective one. It is true
the conduct of a
diligens
paterfamilias
will
vary, but it will vary in accordance with the circumstances of the
case: the amount of the skill, strength, foresight will always
be
determined by the nature of the business or work to be done, and
insofar as the standard is one and the same for everybody under
the
same circumstances.’
[36] In the present case Mr Visser contracted a security company
which he was entitled to assume had the necessary expertise and
that
would operate within the confines of the law. He enquired about the
proficiency of the security guards concerning the use of
firearms. He
was reassured. His past experiences with the close corporation must
have been a further cause for reassurance. To have
expected further
enquiry and steps would be placing too heavy a burden on him and
other homeowners in his position.
[37] The present litigation might have been avoided had Griekwa
Security not been impecunious. Regrettably, what is set out above
and
the conclusion that must follow, does not provide comfort for Gideon
and his parents. However, to land Mr Visser with liability
in
the circumstances of this case would not only be inequitable but
would extend our law beyond sustainable parameters.
[38] For the reasons mentioned the following order is made:
The appeal is dismissed with costs.
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
PONNAN JA
SNYDERS AJA
1
At
the commencement of the trial t
he court below
made an order in terms of Uniform rule 33(4) that the merits first
be determined.
2
The
following is the relevant part of the testimony:
‘
Al wat ek mnr Hansen gevra het, is die man
bevoeg, toe sê hy die man het wel opleiding gehad om hierdie
vuurwapen te hanteer.’
3
See
Colonial Mutual Life Assurance Society Ltd v
Macdonald
1931 AD 412
at 431-432 where
the following appears:
‘
To hold an employer liable in a case where he
has no say and no right of supervision and control would, in my
opinion, be going
further than is warranted by principle or
authority.’
4
See
also
Jonathan Burchell
Principles
of Delict
(1993) p 227.

In
Dukes
v Marthinusen
1937
AD 12
at+ 17 an exception to this rule was discussed, both in
English law and our own. Liability on the part of an employer would
arise
where the employer himself/herself has been negligent in
regard to the conduct of the independent contractor which causes
harm
to the third party. In
Dukes
case, after an examination of English law
on the subject, Stratford ACJ said the following (at 23):
‘
The English law on the subject as I have
stated it to be is in complete accord with our own, both systems
rest the rule as to the
liability of an employer for any damage
caused by work he authorises another to do upon the law of
negligence.’
In relation to the question of determining whether there was a duty
on the employer to take precautions to protect the public the
following was said:
‘
The duty if it is to be inferred must arise
from the nature of the work authorised taking into consideration all
the circumstances
of its execution such as, in particular, the place
of such execution.’
5
As
indicated in the preceding paragraph vicarious liability was not
contended for.
6
At
9H.
7
In
English law the exceptions to the principle that someone who employs
an independent contractor to do work on his behalf is not
in the
ordinary way responsible for any tort committed by the contractor in
the course of the execution of the work are set out
in
Alcock
v Wraith
CA
(1991) 59 BLR 16
as cited
in Hepple, Howarth & Matthews
Tort
Cases & Materials
5 ed (2000) p
1066:
‘
(a) Cases where the employer is under some
statutory duty which he cannot delegate.
(b) Cases involving the withdrawal of support from neighbouring
land.
(c) Cases involving the escape of fire.
(d) Cases involving the escape of substances,
such as explosives which have been brought onto the land and which
are likely to do
damage if they escape; liability will attach under
the rule in
Rylands v Fletcher
(1868)
LR 3 HL 330.
(e) Cases involving operations on the highway which may cause danger
to persons using the highway.
(f) Cases involving non-delegable duties of an employer for the
safety of his employees.
(g) Cases involving extra-hazardous acts.’
8
At
11E. See also Jonathan Burchell
Principles
of Delict
, supra, at 228.
9
At
11I.
10
At
9H-11E.
11
At
12H-J.
12
At
13A-C.
13
See
Langley Fox
at
8A-J.
14
See
654H.
15
This
passage was also referred to by Botha JA in
Langley
Fox
, supra, at 17D-F.