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[2016] ZAKZDHC 50
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Chemalum (Pty) Limited v Servest (Pty) Limited t/a Gremick Security (14348/2009) [2016] ZAKZDHC 50 (9 November 2016)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 14348/2009
In
the matter between:
CHEMALUM
(PTY)
LIMITED
PLAINTIFF
and
SERVEST (PTY) LIMITED t/a GREMICK
SECURITY DEFENDANT
JUDGMENT
Delivered
on : Wednesday, 09 November 2016
OLSEN
J
[1]
This plaintiff in this matter, Chemalum (Pty) Limited, sues the
defendant, Servest (Pty) Limited trading as Gremick Security,
for
damages for breach of a contract in terms of which security services
were provided by the defendant for the plaintiff.
The plaintiff
is a local company of American lineage. It manufactures water
treatment chemicals. It has a site in Richards
Bay where its
plant is situated. It claims that certain equipment was stolen
from a large container used as a storage facility
at that site, and
that this occurred as a result of a breach by the defendant of its
obligation to guard the site.
[2]
The plaintiff called three witnesses to establish its case.
These were its managing director, a citizen of the United
States, Mr
Huckabay; a Mr Chinsamy, the plaintiff’s plant manager; and a
Mr Mabuza, the plaintiff’s maintenance manager.
The
defendant called two witnesses to counter the plaintiff’s
case. They were Mr MacArthur, its branch manager who
was
stationed at Ballito, but responsible for sites at which the
defendant provided guard services in Richards Bay; and Mr Ndlela,
the
defendant’s senior supervisor in the Richards Bay area at the
time. I do not propose to provide a separate account
of the
evidence of each of these witnesses. I prefer to attempt a
coherent account of the facts, mentioning the testimony
of particular
witnesses only where necessary.
[3]
The Erf upon which the plaintiff’s plant is located is some 5
hectares in extent. But only about 1 hectare is used
by the
plaintiff. Access to it is gained along a driveway which
traverses an unused portion of the land. At the point
where
this driveway gives access to the plant area there is a gate through
which vehicles must pass. The hectare upon which
the plant is
situated is fenced. The storage container in question is
situate on the South side of the property close to
the fence, at a
distance of approximately 35 metres from the compressor room at one
corner of the plant; which room, according
to the evidence of Mr
Huckabay, was used as a base by the defendant’s guards.
[4]
The contract to guard this facility was concluded during August
2005. It was written. Initially it obliged the defendant
to provide “D Grade” security officers (“guards”)
24 hours per day, one for the day shift and one for the
night shift.
Subsequently, and apparently after a shooting incident during the
night shift, the agreement was amended orally
to provide for two
guards at night, and one during the day. This oral amendment,
and a similar one extending the period of
the contract indefinitely,
were accepted by the parties as valid, notwithstanding a clause in
the contract which required any amendments
to be written.
[5]
Clause 6 of the contract read as follows.
“
The
sole function of the security officer(s) is to minimise the risk of
loss or damage to Client’s property resulting from
theft,
housebreaking, robbery and/or fire. Gremick, a division of
Servest (Pty) Limited accepts no liability for any loss
or damage of
whatsoever nature which may be suffered by client and/or any of
his/its employees, servants or agents, provided that
same is not
caused by a wilful or negligent act or omission on the part of
Gremick, a division of Servest (Pty) Limited or any
of its
employees/agents.
[6]
On the pleadings, but to a much lesser extent in argument, there was
an issue between the parties as to what precisely the term
“security
officer” meant. It is not defined in the agreement.
The plaintiff pleaded that the defendant
undertook to provide guards
who were capable, properly trained and disciplined, conscientious and
trustworthy and that they would
be provided with a supervisor to
ensure that their duties were carried out. In argument
defendant’s counsel accepted
the proposition that the defendant
was obliged to provide guards that were at least capable and properly
trained and that a supervisor
would be provided. In view of the
manner in which the evidence in this matter unfolded I do not think
that it is necessary
to go beyond the concessions made on behalf of
the defendant.
[7]
The plaintiff pleads that on or about 13 June 2007 thieves got into
the storage container and stole and made off with two pumps,
two mass
meters, 26 pressure gages, 2 computer screens and a bicycle, property
which is claimed to have had a value of around R500 000,00.
It was agreed at the commencement of the trial, and I ordered
accordingly, that all issues in the trial, save for the value of
any
of this property which might be found to have been stolen, would be
dealt with separately and first.
[8]
Counsel for the plaintiff accepted that, in order to succeed, the
plaintiff would have to prove that the guards on duty on the
night of
13 June 2007, in conjunction with their employer (or alone), failed
to minimise the risk of the loss of the stolen property;
and that as
a matter of fact the loss in question was caused by the wilful or
negligent acts or omissions of those persons.
I did not
understand counsel for the defendant to dispute this account of the
onus borne by the plaintiff, although he did point
out that what was
pleaded was negligence, not wilfulness. (Actually, what was
pleaded was that the guards and their supervisor
were “grossly
or wilfully negligent”.)
[9]
Mr Huckabay gave an account of how it came to be that the container
in question was used as a secure storage facility.
In earlier
times equipment and tools were stored elsewhere on the site, and
there were frequent occurrences of theft of such items.
For
that reason important equipment and, as I understood him, tools, came
to be stored in a large secure locked container.
Keys for the
container were kept in the office. The plant ran 24 hours per
day, but only three plant employees were on duty
at night. As
access to the storage facility might be required at night, the night
guards were provided with a bunch of keys,
one of which would give
access to the storage facility. (There is confusion, on the
plaintiff’s case, as to whether
the single day guard also had
such a bunch of keys. That does not seem to me to be
particularly relevant.) The defendant’s
two witnesses
said that as far as they were concerned the guards were not entrusted
with keys at night; but it was clear that they
were unable to assert
that as a fact.
[10]
Mr Chinsamy, the plant manager, was in charge of the office.
There was also a secretary employed as part of the administrative
staff. If any of the plant employees required access to the
secure store during the day they would go to the office where,
ordinarily, Mr Chinsamy would provide the keys to the storage
container. But neither he nor Mr Mabuza, the plaintiff’s
maintenance manager worked on night shifts. The office was
ordinarily closed at night, although for four consecutive nights
prior to 13 June 2007 Mr Huckabay was present on the premises from
about 10pm until the early hours of the morning for the purpose
of
attending to business in the United States over the internet.
(He said that he left for the United States on the day of
the event.)
[11]
Mr Mabuza was responsible for the storage container and its
contents. He regularly went into the container on a weekly
basis to ensure that everything was clean and in order.
Everything was kept in an orderly fashion and he knew what was stored
there.
[12]
Mr Chinsamy’s evidence was that during the day before the
incident (it is not clear whether he meant 12 June or 13 June)
he
opened the store to put his new bicycle in it. He too was
familiar with the contents of the store and he observed that
everything was in order.
[13]
On the morning of 14 June 2007 at about 9am Mr Mabuza found that the
door to the container was unlocked and he reported it
immediately to
Mr Chinsamy. The container has a sliding window. The
sliding pane had been removed. An attempt
had been made to
force the burglar bars on the window clear of the opening, but from
the inside of the container. The container
was in a complete
mess. Mr Chinsamy’s bicycle was gone. So were the
two pumps, very large articles which, like
the bicycle, could not
possibly have been taken out of the container through the window.
Mr Mabuza was tasked with drawing
up a list of what had been taken
and he did so. It reflects the items listed in the particulars
of claim.
[14]
The defendant was notified of the incident and Mr MacArthur attended
the scene at 11am. He found conditions in the container
as they
had been described earlier by Mr Chinsamy and Mr Mabuza in their
evidence. He confirmed that the larger items mentioned
above
could not have been removed through the window.
[15]
The two pumps that were in the storeroom were extremely heavy.
They weighed between 250 and 300 kilograms each.
They had been
carried to and put into the container using a front end loader, still
visible on the site in photographs taken in
the course of Mr
MacArthur’s investigation. Mr MacArthur took numerous
photographs focusing, inevitably, on the poor
condition of some of
the fencing and of the proximity of bush on the outside of the
fence. He expressed the view that none
of these large items
could have been carried out through the bush, and it seems plain that
if the pumps had been stolen on the
night in question, as alleged by
the plaintiff, a vehicle had to have been used to get them off the
premises.
[16]
Mr Ndlela, the defendant’s senior supervisor, who also attended
the scene the morning after the event, had never been
to the
plaintiff’s site at night. It was left to Mr MacArthur to
contradict Mr Huckabay’s claim that the site
was “lit up
like a Christmas tree”, 37 high wattage lamps being on site,
some pointing inwards towards the plant and
others outwards towards
the perimeter (where the storage container was situated).
According to Mr MacArthur the site
was poorly lit. It does not
seem to me that this dispute about the quality of lighting is
material to the outcome of the
case if it is found, as alleged by the
plaintiff, that everything was stolen on the night of 13 June 2007.
[17]
It was common cause between the witnesses that the two night guards
were to be deployed as to one to look after the gate, and
the other
to patrol. I gained the impression from Mr Huckabay that he
expected the patrolling to be more or less continuous.
He said
that it would take about eight minutes to do a walk around the
perimeter of the plant and that he understood that the instruction
was that the guards should patrol once every fifteen minutes.
Mr MacArthur was adamant that the duty of the guards was to
patrol
once per hour, but had no answer to the proposition that it appears
illogical that the two guards should sit together (presumably
observing the gate) for most of each hour. It strikes me that
this issue also is not of particular relevance if it is found
that
the plaintiff established that all of the items were stolen on the
night of 13 June 2007.
[18]
As a result of concern about whether the patrols were being
conducted, the defendant had installed a system on the premises
to
monitor the patrols. A number of sensors were placed at
strategic points around the site. One of them was in fact
placed on the storage container. The patroller was supplied
with a baton-like device (which Mr Huckabay called a wand) with
which
to touch each sensor as he passed by on patrol. This then sent
signals through to the defendant’s control centre
where the
patrol activity of the night before could be assessed each morning.
[19]
Mr MacArthur was involved in the investigation of this event.
The major player in the investigation appears to have been
a Mr
Naude, another employee of the defendant, who was not called.
Neither were the guards called. Counsel for the
defendant
advised from the bar that these witnesses were not called because
they could not be found. Some written reports
generated by the
investigation into the incident by the defendant were discovered.
Mr Naude appears to have been the principal
scribe. However Mr
MacArthur confirmed the finding that the guards on duty that night
had claimed that they could not find
their batons, and that no
security patrols were done that night. He also said that during
the course of the investigation
it had crossed his mind that a
vehicle had to have come on site in order to take the stolen property
away, but the guards had told
him that they did not know. Mr
MacArthur made the point that it rained very heavily on the night in
question, and he pointed
to the pools of water still visible in the
photographs he had taken of the site after 11am on 14 June 2007.
[20]
Counsel for the defendant argued that as no one who had been on the
site on the night in question had been called to give evidence,
if
the storeroom had indeed been broken into on the night in question,
and everything on the list stolen that night, one can only
but
speculate about whether that was a result of any default on the part
of the guards in minimising risk; and, if there was such
default,
about whether there was any negligence on their part causally linked
to the event. In my view there is no merit
in that argument.
[21]
If the theft of all the items took place on the night of 13 June
2007, then it was a very substantial enterprise indeed.
The
gate to the premises is not quite but nearly in line of sight from
the storage container and the compressor room. The
storage
container is only about 35 metres from the compressor room. If
the guards had been out and about they could not but
have seen what
was going on. Mr MacArthur’s concessions, and the report
to which he spoke, make it clear that the guards
were not out and
about. In my view on all the evidence the guards were either
complicit in the nights events, or they spent
the night sheltering
(presumably in the compressor room) from the rain, ignoring their
duties and for that reason only quite oblivious
of what was going
on. The storeroom door was found open in the morning when the
theft was discovered. There was no
suggestion of forced entry.
That means it had to have been opened with a key. That suggests
complicity. I find
it proved that the contractual obligation to
minimise risk was breached. No discourse on legal theory is
required to explain
my further finding, that the breach was
accompanied by negligent or wilful conduct on the part of the guards,
causally linked to
the loss, on the assumption that it all occurred
that night.
[22]
By the time the defendant’s case was closed these difficulties
confronting it in its defence of the claim were quite
obvious.
I assume that it was for that reason that counsel for the defendant
concentrated perhaps rather more on the question
as to whether the
plaintiff had established that it was indeed during the night of 13
June 2007 that these thefts took place.
Counsel argued that
perhaps these thefts could have taken place during the day, in dribs
and drabs, and that the culprits could
presumably be the plaintiff’s
own employees. They could perhaps have dismantled the pumps to
make it easier to carry
them out of the container in smaller pieces.
He suggested that perhaps such items, moved from the container, could
have been
hidden on the rather unkempt site for later removal.
[23]
In particular counsel for the defendant pointed out that the
plaintiff kept no asset register of the items kept in the storeroom.
[24]
In my view all of this ground was adequately canvassed by the
plaintiff’s witnesses. I was particularly impressed
with
the evidence of Mr Mabuza. The storage container was set up as
a secure facility and access to it was tightly controlled.
(That was where Mr Chinsamy chose to store his own new bicycle the
day before the incident.) Mr Mabuza clearly took pride
in his
control over the store facility. He was not shaken on the
proposition that he knew what was in the store. He
went in
every week, to see that all was well. For the four nights immediately
preceding the night of 13 June 2007 Mr Huckabay himself
was there
most of the time. Mr Mabuza was quite confident about the
accuracy of the inventory of stolen items he produced.
It is
clearly established, if only through Mr Chinsamy’s evidence,
that there had to have been a robbery on the night of
13 June 2007 as
the day before the storeroom was not in the state of disarray in
which it was found on the morning of 14 June 2007.
It is
improbable that both Mr Chinsamy and Mr Mashaba would not have been
aware that employees were gaining access to the secure
store during
the day shift, and especially gradually dismantling the pumps, so
that these items could be moved out surreptitiously.
Dismantling a pump takes some 15 hours. And as I understood the
evidence the separated component parts are still of substantial
size. Accepting counsel’s theorem puts the credibility of
Mr Mashaba and Mr Chinsamy at the least in doubt. My
conclusion, however, is that they were both credible and reliable
witnesses.
[25]
I conclude that the plaintiff has established on a balance of
probability that all of the equipment was stolen on the night
of 13
June 2007.
[26]
The plaintiff’s claim was pleaded upon the basis that it was
the owner of all the stolen property. It obviously
did not own
the bicycle. Mr Huckabay revealed in evidence (quite
fortuitously, and as far as I could see not understanding
the
implications of it), that the two pumps in fact did not belong to the
plaintiff but had already become the property of a customer
on whose
premises they were to be installed. He said that as a result of
the theft he had to source and import two new pumps
to replace the
stolen ones. On his version the risk of loss of those items lay
with the plaintiff, but they were not the
property of the plaintiff.
During argument after the close of the defendant’s case,
counsel for the plaintiff moved
an application to amend the
particulars of claim to assert that the two pumps were items in
respect of which the plaintiff bore
the risk of loss. Counsel
for the defendant objected to the amendment. The objection was
sound. His principal
argument was that if the proposed
amendment had been sought timeously (and indeed, it seems to me, if
it had been pleaded originally)
it would have generated an objection
based on clause 8 of the contract. Clause 8 of the contract
reads as follows.
“
If
the client permits any third party to occupy a portion of, or store
any assets on, the premises without agreement in writing
between the
parties to this agreement, Gremick a division of Servest (Pty)
Limited shall incur no liability whatsoever for such
third party.
Client agrees to advise such third party that the occupation and/or
storage is entirely at the risk of such
third party and, client
indemnifies Gremick a division of Servest (Pty) Limited from
liability against all and any claims by such
third party.”
[27]
Recognising this difficulty, counsel for the plaintiff argued that
perhaps I could adopt a more nuanced approach to Mr Huckabay’s
evidence, as he perhaps only intended to say something along the
lines that the pumps had been allocated to the customer, not really
understanding the requirements of our law as to the passing of
ownership. In my view I am not able to adopt that approach.
His evidence was clear that the pumps were the property of the
customer. Counsel for the plaintiff chose not to pursue the
question of why Mr Huckabay said that. Counsel for the
defendant was certainly not going to and did not challenge Mr
Huckabay’s
statement. To the extent that I might not have
made my views concerning the application to amend clear during
argument, I
now formally refuse it.
[28]
My conclusion is that the plaintiff is successful in part.
Counsel agreed that it would not be appropriate to make any
order of
costs at this stage, but that I should record, if I should come to
the conclusions I have, that if the quantum of the
plaintiff’s
claim is proved in due course, there is no reason arising out of the
proceedings to date to make any order but
that the defendant should
pay the plaintiff’s costs.
The
following order is made.
1.
It is declared that the
defendant is liable to pay to the plaintiff such sum as the plaintiff
may in due course prove to be the
value of the lost items listed in
paragraph 8 of the plaintiff’s particulars of claim (as
amended), save for the two pumps
and the bicycle.
2.
The costs to date are
reserved.
___________________
OLSEN
J
Date
of Hearing:
THURSDAY, 20 OCTOBER
2016
Date
of Judgment:
WEDNESDAY, 09 NOVEMBER 2016
For
the Plaintiff :
MR R VAN ROOYEN
Instructed by:
BOTHA’S INCORPORATED
PLAINTIFF’S
ATTORNEYS
KINGFISHER COURT, 7
ADDISON STREET
(TEL.: 035 –
792 2011)
(REF.: J
Coetzee/GK/CHE18/0001)
c/o TEES
ATTORNEYS
45 STEEL ROAD
MORNINGSIDE
DURBAN
(TEL : 031 –
303 8108)
(REF.:
cgs/0455/2011)
For
the Defendant :
MR JA LOURENS
Instructed by:
FULLARD MAYER MORRISON INC
DEFENDANT’S
ATTORNEYS
4 MORRIS STREET
WEST RIVONIA
(TEL.: 011 –
234 3029)
(REF.: Mr A
Lambat/bb/F0390/0136)
c/o BROWNE
BRODIE ATTORNEYS
GROUND FLOOR,
SINEMBA PARK
5 SINEMBE CRESCENT
LA LUCIA RIDGE
OFFICE ESTATE
DURBAN
(REF.: AC
Mackninnin/ol/F0390/0136)