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[2015] ZAGPPHC 288
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Van As v ADT Security (Pty) Ltd (34447/2013) [2015] ZAGPPHC 288 (5 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: 34447/2013
DATES
HEARD: 26/01 – 06/02/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
DATE:
5 MAY 2015
In
the matter between:
EUGENE
VAN
AS
........................................................................................................................
Plaintiff
and
ADT
SECURITY (PTY)
LTD
..................................................................................................
Defendant
JUDGMENT
J
W LOUW, J
[1]
At about 20:15 on Thursday 26 January 2012, the plaintiff, a retired
businessman, and his wife were having supper in the kitchen
of their
house which is situated on the corner of Carlmarie and Third Roads,
Hyde Park, Johannesburg. They had booked and
paid for a holiday
in Antarctica and were due to leave the next morning. While
they were having supper, three armed robbers
entered the kitchen and
held them up at gunpoint. They attacked and badly injured the
plaintiff and his wife and threatened
to rape the plaintiff’s
wife if they weren’t given the code to the safe. They
made off with a substantial number
of valuable items consisting
mainly of electronic equipment, jewellery and clothing. The
plaintiff then pressed the panic
button of the alarm system of the
house. The plaintiff at the time had a contract with the
defendant for monitoring and responding
to alarms (“the service
agreement”). Officials of the defendant arrived shortly
thereafter and the plaintiff
asked them to summon an ambulance to
take his wife to hospital.
[2]
The plaintiff had by that time somehow managed to recover and
wondered why the alarm had not gone off to warn them of the intrusion
as it had been switched on and the control panel inside the house had
indicated that it was on. He found out the next day
that the
system wasn’t working along the northern perimeter wall of the
property which abounds Carlmarie Road, which, according
his
observations and those of other persons, to which observations I will
refer in more detail later, was the most likely place
where the
robbers had entered the property by scaling the wall.
[3]
The plaintiff subsequently sued the defendant for damages arising
from breach of contract. By agreement between the parties,
an
order was made that the quantum of the plaintiff’s claim be
separated from the merits and be postponed
sine die.
The
plaintiff’s claim is not based on a breach of the service
agreement, but of an oral contract of
locatio conductio operis
.
The plaintiff alleges in his particulars of claim that on 19 January
2012 and at Johannesburg, he and the defendant, represented
by Robert
Hood, entered into an oral agreement, the express, alternatively
tacit, alternatively implied terms whereof were that
the defendant
would repair the perimeter movement detection system on the property
and, if necessary, replace any faulty equipment
or wiring; that the
defendant would repair the existing floodlights on the property so
that they would automatically switch on
and a distress signal would
automatically be transmitted to the defendant’s control room
when the perimeter movement detection
system was activated; that the
plaintiff would pay the defendant’s usual rates for the work
done and material supplied; and
that the work would on completion be
fit for the purpose for which it was done. It is further alleged in
the particulars of claim
that the defendant during the period 19 to
26 January 2012 executed certain work to the alarm system, that the
work performed by
the defendant, alternatively the equipment
installed by the defendant was defective in that the perimeter alarm
system was not
activated when the perimeter security line was
breached and that the security system failed to transmit a distress
signal to the
defendant’s control room when the perimeter
security line was breached while the alarm system was active. It is
accordingly
alleged that the defendant breached the oral agreement.
[4]
The defendant in its plea denied the existence of an oral agreement
and pleaded that the plaintiff and the defendant, represented
by one
Irvine Atkins, on 28 November 2008 and at Hyde Park concluded three
written agreements, copies of which are annexed to the
plea.
The first is the service agreement. The second is an addendum to the
service agreement which, so it is alleged, relates
to the provision
of a fitted digi-pad to an electronic pedestrian gate. The
third is an installation agreement which relates
to the installation
of a dipole antenna, a radio and a tele-plug. The defendant
inter alia
pleaded that the express, alternatively implied,
alternatively tacit terms of the agreements were that the defendant
would provide
the plaintiff with security monitoring and armed
response services using the installation that the plaintiff had
previously installed
at the property together with such modifications
thereto as the defendant may recommend; that the plaintiff
would ensure
that the alarm system was installed and maintained in a
proper workmanlike manner; that the plaintiff acknowledged that
the
security services to be supplied by the defendant functioned as a
deterrent and were not a guarantee of safety against or prevention
of
loss, liability, injury or damage of any nature; that the
defendant would not be liable in law to the plaintiff in respect
of
any such loss when arising through the rendering or non-rendering of
the security services or in delict or otherwise if such
loss arises
as a result of any innocent or negligent act or omission on the part
of the defendant, save for gross negligent, fraudulent
or malicious
act or omission on the part of the defendant; that the
plaintiff waived all such claims; that the agreements
constituted the entire agreement between the parties and that no
variation or waiver of rights would have any effect unless in
writing
and signed by the parties; and that the plaintiff was
responsible for the ongoing maintenance of the alarm system
or any
part thereof which had not been installed by the defendant.
[5]
It is further alleged in the plea that the plaintiff breached the
agreement by failing to ensure that the alarm system was installed
in
a proper and workmanlike manner in that the wiring, the conduit
piping and the electrical connections were incorrectly installed
and
that the perimeter beams were not of an industry approved standard
and not installed in an industry approved manner and/or
at an
industry approved distance from each other. It will become
apparent from what follows that these allegations are either
incorrect or bear no relevance to the incident of 26 January 2012.
[6]
The defendant’s reliance on the three written agreements was
clearly misplaced. The service agreement, on its first
page,
lists the service categories which the defendant provides, being
maintenance, telephone monitoring, radio monitoring, armed
response
and “
other
”. Next to each category, there is
a square block which can be ticked to indicate which services have to
be provided
in terms of the agreement. The services which were
ticked by the plaintiff were radio monitoring, telephone monitoring
and
armed response. Maintenance was not ticked by the
plaintiff. The service agreement expressly provides that the
plaintiff
would be responsible for the ongoing maintenance of the
alarm system or any part thereof which had not been installed by the
defendant.
It was common cause that the alarm system had been
installed by a sub-contractor to the builder whom the plaintiff had
employed
to renovate the Hydepark property before he and his wife
moved there at the end of 2008 from Witkoppen where they had
previously
resided, and where the defendant had rendered similar
monitoring and reaction services to the plaintiff. The addendum
to
the service agreement also expressly provides that the plaintiff
will arrange for his own technician to carry out any necessary
modification and/or repairs to the alarm system as may be advised by
the defendant. It was conceded by Mr. Michael Kidson,
the
defendant’s regional managing director, that if any maintenance
was required by the plaintiff, it would have been done
in terms of
different
ad hoc
arrangements and that the aforesaid
agreements and the disclaimer provisions therein did not apply to
maintenance done by the defendant.
[7]
The common cause evidence showed that the plaintiff on numerous
occasions during the period 2010 to 2011 contacted either Mr.
Robert
Hood, who was at the time employed by the defendant as a senior
service manager but whom the plaintiff had come to know
as a
technician while the plaintiff resided in Witkoppen, or Mr. Kidson,
whom the plaintiff had also come to know in the Witkoppen
days and
who was at the time of the incident the defendant’s general
manager for operations, to effect repairs to his perimeter
alarm
system, the house alarm system, the CCTV camera system or the
intercom system. The technician who was invariably dispatched
to attend to the problem at hand was Mr. Michael Jansen Van Rensburg,
whom the plaintiff came to regard as a competent technician.
On
each occasion, the defendant raised an invoice for the work which the
plaintiff then paid. In some instances nothing was
charged.
The invoices were in most instances completed by Van Rensburg himself
after completion of the work. If he
didn’t know the
prices, he phoned the office. The evidence accordingly showed
that on each occasion that repairs were
carried out, it was done
pursuant to an oral
locatio conductio operis
agreement on
terms as pleaded by the plaintiff.
[8]
During January 2011, major repairs were carried out on the perimeter
alarm system. The work included replacing all the
perimeter
movement detection beams which had been installed by the
sub-contractor earlier referred to, and which were often the
cause of
false alarms, with Peritec beams. This was done at the
plaintiff’s insistence as such beams had functioned
well at his
Witkoppen residence. The Peritec beams were not stocked by the
defendant and were supplied by the plaintiff to
Van Rensburg. A
beam consists of two components, a transmitter and a receiver.
The two components are placed a distance
from each other and are
lined up facing each other. If the alarm system is armed and
the security line between the two components
is breached, the alarm
will be activated.
[9]
On 21 December 2011, the plaintiff sent an e-mail to Hood in which he
complained about the service which he had received from
a field line
manager of the defendant, one Eric Gous. The plaintiff listed a
number of problems which needed to be attended
to. Hood
responded by suggesting that a meeting be arranged in the new year.
The meeting was subsequently arranged
for 19 January 2012.
However, before the meeting could take place, the plaintiff’s
perimeter alarm system was struck
by lightning. Van Rensburg
effected certain repairs on 12 January 2012, for which the plaintiff
was invoiced.
[10]
The meeting which had been scheduled for 19 January 2012 took place
as planned. It was attended by Hood, Van Rensburg
and a Mr Van
der Vost on behalf of the defendant. The plaintiff thereafter,
on 24 January 2012, wrote an e-mail to Hood in
which he recorded what
had been agreed at the meeting. The relevant part of the e-mail
reads as follows:
“
We
agreed when you were here that prior to my going away overseas on
Friday we would deal with the urgent items in particular try
and do
the ones which are on the basic security issue and then when I am
back at
(sic)
there is more time, we would tackle the other
items.
…………
..
The
security items which we must get fixed are:
a)
The gate camera which has been struck by lightning
b)
The security beams around the outside of the house in
particular, I understand that the Carlmarie beam is out of order and
needs
to be replaced and of course we have to rewire the beams as
discussed on the West side, that’s Centre West and North West.
We
also have to fix the timer on the security lights which does not come
on, it’s been apparently struck by lightning and
needs to be
replaced.
”
[11]
Hood responded by e-mail that Van Rensburg would be scheduled to do
the work on 25 January, alternatively on 26 January 2012.
The
plaintiff and his wife were due to leave for Antarctica on Friday 27
January 2012.
[12]
It is common cause that Van Rensburg worked on the system on 26
January 2012. The defendant pleaded that Van Rensburg
repaired
the outer perimeter beams along Carlmarie Road, which
inter alia
included the replacement of one outer perimeter beam by a beam
specifically chosen by the plaintiff, against the advice of the
defendant, the alignment of the perimeter beams and the replacement
of the “time-boards” connected to the floodlights
to
switch on automatically when the perimeter beam detection system was
activated. The allegation that Van Rensburg installed
a beam
chosen by the plaintiff against the advice of the defendant is simply
untrue. Counsel for the defendant, Adv Docrat,
attempted to
show during her cross-examination of the plaintiff that the plaintiff
was unreasonable, that he insisted that his
instructions be carried
out by the defendant’s employees and that he refused to follow
the defendant’s advice.
This was obviously done in an
attempt to prove that what had gone wrong on the night in question
was the plaintiff’s own
fault. The attempt was
unsuccessful. It is so that the plaintiff did not follow the
defendant’s advice to rewire
the system where the wiring had
not been installed in conduit piping by the sub-contractor who had
done the installation, but that
played no role in the failure of the
system to activate on the night in question. It is also correct
that the plaintiff insisted
that Peritec beams be used which he
supplied, but the use thereof was not against the advice of any of
the defendant’s employees.
The evidence of the defendant’s
witnesses showed that it was simply a case of the defendant normally
using Optech beams which
it carried as part of its stock. It
had no objection to the installation of the Peritec beams which were
supplied by the
plaintiff.
[13]
The principal issue to be decided in this matter is what caused the
failure of the alarm system on the night in question and
whether such
failure was due to negligent work on the part of the defendant.
[14]
Adv. Ellis SC, who appeared for the plaintiff, stated in his opening
address that the plaintiff’s case was that the perimeter
alarm
system was incorrectly wired by the defendant in that a “
bridge”
had been installed in the control panel inside the house which
created the impression, when looking at the control panel, that
the
system was functional whereas it was not. It was further the
plaintiff’s case that the system had been incorrectly
wired and
not according to the industry standard, it having been wired
“
normally
open” instead of “
normally
closed”.
The submission was that the effect of all
this was that the system did not detect movement across the Carlmarie
wall and therefore
did not set off the alarm or switch on the
floodlights.
[15]
In support of the plaintiff’s contention that the alarm system
had been bridged and to explain the effect of wiring a
system
normally open as opposed to normally closed, the plaintiff called Mr.
Zeyn Khan as an expert witness. Mr. Khan owns
a security
business which provides electronic security systems such as alarm
systems, gate automation, intercoms and CCTV to its
customers.
He has between 6 and 8 years hands-on experience. When his
business became sustainable, he appointed technicians
to do the work
and whom he assists where necessary. He does not regard the
work as highly intricate but as rather simple.
[16]
Mr. Khan explained that the terms “
normally open”
and
“
normally closed”
are used in respect of a device
such as a beam. It was common cause that the industry standard was
that beams should be wired normally
closed. If all the beams in the
system are wired normally closed, the alarm system is ready for
arming. If one of the beams becomes
defective, the alarm system
cannot be armed and the control panel will show that there is a
problem in that specific zone. The
user will therefore be made aware
of a problem in that particular zone. My understanding of his
evidence is that if the beams
are wired normally open, the user will
be able to arm the system without becoming aware of a problem in a
particular zone.
[17]
It was further common cause that the industry standard required that
the resistor, which is a necessary component and whose
purpose it is
to monitor the condition of the alarm system and to have the system
closed, should be fitted inside the beam, which
is referred to as
“
end-of-line
”. In earlier years, resistors used to
be fitted inside the alarm control panel. The evidence of the
defendant’s
technician Mr. Van Rensburg was that if a cable was
broken, it would not show up on the keypad if the resistor was
installed in
the control panel. It follows that the user would
then not be aware of the problem and would be able to arm the alarm.
[18]
Mr. Khan further explained that a user of an alarm system would not
become aware of a defective beam by looking at the keypad
in the
control panel if the beam were physically “
bridged out”.
The bridging out or by-passing of the beam will disable that
particular zone and the user would be able to arm the alarm system
despite the defective beam. The alarm will then not activate if
the security line protected by the beam in question is breached.
He referred to the bridging out of a device as a trick of the trade
which is used to fool a client if there was a problem which
was time
consuming to solve.
[19]
Mr. Khan’s expertise was challenged by Ms. Docrat. In my
view, he was sufficiently experienced in the industry
to be regarded
as an expert. I found him to be a credible witness who stood
his ground despite grueling cross-examination
and I have no
hesitation in accepting his evidence.
[20]
The defendant did not call any expert witness but presented the
evidence of Mr. Van Rensburg who carried out the repair work
on 26
January 2012. Mr. Van Rensburg was an unimpressive witness.
He was evasive in answering many questions and he
clearly lied in
respect of an important aspect to which I will revert. His
evidence was that when he replaced all the existing
beams with
Peritec beams, he left the connections normally open as that was the
way in which the previous beams had been wired.
He said that he
didn’t worry about that because the system would still
function. His concern was to lift the voltage
to the beams
because of the frequent false alarms. If he had done the
original installation, he would have wired the beams
normally closed
and fitted the resistors end-of-line. He was never satisfied
going to the plaintiff’s premises because
there was always
something which broke. Having to go back and forth irritated
him.
[21]
Mr. Hood testified that at the meeting of 19 January 2012, the
plaintiff was informed that the defendant would no longer be
installing equipment supplied by the plaintiff because the defendant
needed guarantees in respect of the equipment it was utilizing.
He said that the plaintiff understood and accepted the position.
[22]
Van Rensburg testified that on 26 January 2012, he replaced the timer
board of the floodlights, rewired the beams on the centre
west and
north-west wall and replaced the LED lights on the intercoms which
had been damaged by the lightning. The invoice
which he wrote
out for the work done does not reflect that he replaced the damaged
beam on Carlmarie road, but he insisted that
he did and said that a
new Peritec beam was brought to him by his field line manager, Mr.
Eric Gous, while he was busy doing the
work at the plaintiff’s
property. The plaintiff’s two gardeners, who had been
working in the garden, denied that
anyone had brought anything to Mr.
Van Rensburg. What they both saw was a motorcar arriving and
park outside the property.
A man got out of the car and spoke
to Van Rensburg while he was on top of the Carlmarie wall. They
both described the person
as having a coffee-coloured skin with an
Afro hairstyle. There were other occupants inside the car, but
they did not get
out. The gardeners did not hear what was
discussed between Van Rensburg and the person with the Afro hairstyle
who drove
away after the discussion. All of this was denied by
Van Rensburg. Van Rensburg gave a description of Mr. Eric Gous,
which was nothing like that of the person described by the two
gardeners. Mr. Gous was not called to confirm that he brought
the Peritec beam to Van Rensburg on that day.
[23]
Despite the aforegoing, Adv. Ellis SC, who appeared for the
plaintiff, indicated that it was not disputed that the Peritec
beam
was brought to Van Rensburg by Eric Gous and that it was common cause
that the Carlmarie beam was replaced with the Peritec
beam by Van
Rensburg on 26 January 2012.
[24]
Mr. Van Rensburg further testified that he was assisted by Maurice
Dineo when carrying out the work on that day. As previously
explained, a beam consists of two parts, being a transmitter and a
receiver. Van Rensburg replaced the part on the eastern
end of
the Carlmarie wall and Dineo replaced the one on the western end of
the wall. They then aligned the two parts of the
beam. On
Peritec beams there are three LED lights which light up once the
beams are aligned.
[25]
After the beam was installed and aligned, Mr. Van Rensburg said that
he tested whether it worked by asking Dineo to go to the
keypad in
the house to see if it showed up when he, Van Rensburg, moved his
body in front of the beam. They communicated
with each other by
two-way radio. After completing all the work, of which the
replacing of the Carlmarie beam was the last,
he spoke to the
plaintiff. He could not remember whether the plaintiff was at
home or whether he spoke to him on the phone,
but he did tell the
plaintiff what work he had done. The plaintiff’s evidence
was that he was at home when Van Rensburg
spoke to him and that Van
Rensburg showed him that the floodlights were working.
[26]
It was common cause that Van Rensburg had, save for the Peritec beam
delivered by Gous, previously replaced all the beams which
had been
installed by the original installer with Peritec beams supplied by
the plaintiff. He confirmed in cross-examination
that he had
wired all of the beams in the same way as the previous beams had been
wired, i.e. normally open. He further repeatedly
stated that
the resistors were connected end-of-line but normally open.
They were not part of the beams, but were installed
inside the beam.
He was asked whether, in view of the fact that the position of the
resistors was a contentious issue, he
had informed defendant’s
counsel that the resistors had been connected end-of-line. His
first answer was that it was
difficult to say and that he told
counsel that it was normally open. When the question was
repeated, he said that he could
not recall telling counsel.
When it was put to him that it had not been disputed by the defendant
that the resistors were
not installed end-of-line, his answer was
that a 5,6 ohm resistor would work whether installed in the control
panel or in the beam,
but repeated that they were installed
end-of-line and normally open.
[27]
Mr. Van Rensburg was then confronted by a written statement made by
Mr. Hood regarding his findings during an inspection he
conducted at
the plaintiff’s premises on 31 January 2012 which was attended
by Van Rensburg and Dineo. The statement
records that the three
of them conducted the required test on all the devices on the
perimeter system. The first of the findings
was that all the
zones on the perimeter system were connected as normally open.
The statement also records what was done
to rectify the findings.
In respect of the first finding, all zones were changed to normally
open and the resistors were
moved to end-of-line. Mr. Van
Rensburg’s answer was that the resistors had been installed
end-of-line in the beams
but that, because of the false alarms they
were getting, he had instructed Dineo to remove the resistors from
the beams and to
install them in the control panel inside the house
in the normally open position. This was done approximately a
year before.
This evidence, which emerged for the first time
during cross-examination, directly contradicted his earlier evidence
that the resistors
were installed end-of-line in the beams. His
earlier evidence was therefore an obvious lie.
[28]
It was put to him that the effect of placing the resistors in the
control panel was to manually by-pass the system so that
the user
would not know if there was a problem. His answer was that it
would show up on the panel if there was a short on
a cable, but not
if a cable was broken. The reason why he had moved the
resistors to the panel was because cables had broken
which he had had
to replace. He agreed that he was acutely aware of the
importance of the position of the resistors.
When asked why he
gave this evidence for the first time on the seventh day of the
trial, he said that it was difficult to explain
how the system works
and that was why he had just said that the system had been wired
normally open. When asked why he did
not mention it during his
evidence in chief after hearing Khan’s evidence, his
nonsensical answer was that the defendant
had not installed the
system and that a lot of things were left as they were.
[29]
Mr. Robert Hood, who at the time of the trial was employed by the
defendant as a technical field line manager, confirmed that
the
industry standard was to install beams normally closed with the
resistor situated end-of-line. The reason was that all circuits
have
to be closed when arming the system. The system cannot be armed
if any circuit is open, unless such circuit is by-passed.
The
purpose of installing the resistor end-of-line is so that it can read
the resistance throughout the entire loop of the panel
and detect any
fault. Although he did not agree with the plaintiff’s
evidence that he was horrified when he found during
his inspection a
few days after the incident that the plaintiff would have been able
to arm the system with the keypad on the control
panel without
knowing that the zone in question was not functioning, it
nevertheless appears from his report that the situation
was
immediately, i.e. on the day of the inspection, rectified by changing
the wiring from normally open to normally closed and
by moving the
resistors from the control panel to end-of line. He had been
unaware that Van Rensburg had moved the resistors
from end-of line to
the control panel and was only told of that by Van Rensburg the day
before he (Hood) gave evidence.
[30]
Another important piece of evidence that surfaced for the first time
during Van Rensburg’s cross-examination was that
when he and
the other officials of the defendant (Hood and Dineo) went back a few
days after the incident to check the system,
they found that the
relay inside the Carlmarie beam was not closing. He presumed
that something had gone wrong with the relay
between him completing
the installation of the beam and the time when the robbery took
place. He said that the relay was
not tested by him because
they are not allowed to open the device to examine the relay.
The beam was, however, sent back
to the supplier for testing.
One would have expected a report to have been produced by the
supplier at the instance of the
defendant, but no such report was
discovered by the defendant.
[31]
No mention is made in Hood’s report of a faulty relay. He
also did not testify about a faulty relay during his
evidence in
chief. During cross-examination he, however, stated that his
observation when checking the system was that the
beam was faulty
because the relay stayed in a static position when the beam was
triggered instead of changing from normally closed
to open or
vice
versa.
He didn’t inspect the relay and didn’t know
what the fault was to cause it to stay in that position. When
asked
by the court how he knew that it stayed in a static position,
he said that he tested the beam the next day with a multi-meter and
the relay didn’t open or close.
[32]
The defendant did its own internal technical investigation into the
malfunction of the system and a report was prepared in
that regard
which was provided to Mr. Michael Kidson. Mr. Kidson confirmed
that the report had been given to the defendant’s
lawyers, but
could not explain why it had not been discovered by the defendant.
Ms Docrat submitted that the report was a
privileged document, but it
was not listed in the schedule of privileged documents annexed to the
defendant’s discovery affidavit.
The evidence indicated
that litigation was not contemplated at the time when the report was
produced and it therefore appears that
it should have been discovered
by the defendant as a non-privileged document. If the report by
the supplier, if there was
one, or the defendant’s internal
investigation report had indicated that a faulty relay had been the
cause of the malfunction,
I have no doubt that it would have been
pleaded by the defendant as a defence to the plaintiff’s claim,
that expert evidence
would have been presented in this regard and
that the defendant would have made sure that those reports were
placed before the
court. A finding that the relay was defective
would have been a complete answer to the plaintiff’s claim.
[33]
This leaves only two probable causes for the malfunctioning of the
alarm system: the wiring of the system normally open
(as
opposed to normally closed) and/or the installation of the resistors
in the control panel (instead of end-of-line), both of
which were
contrary to the accepted industry standard, or the deliberate
bridging or by-passing of the zone in question in the
control panel
as suggested by Mr. Khan. Both instances would constitute a
breach of the oral agreement between the parties
which would render
the defendant liable for the damage which the plaintiff suffered if
such damage was the result of such breach.
It was conceded by
Mr. Kidson that the purpose of a perimeter alarm system is to act as
a deterrent to intruders and to enable
the user to take preventative
action while the intruder was still far enough away. The
plaintiff’s uncontested evidence
was that had the alarm
functioned properly with the siren sounding and the floodlights being
activated, he would have looked to
see if someone was coming across
the lawn as that was the only way, he would have pressed the panic
button and he would have locked
the patio doors. The rest of
the doors of the house were already locked.
[34]
I referred earlier to the observations of the plaintiff and those of
other persons that the Carlmarie wall was the most likely
place where
the robbers had entered the property by scaling the wall. It
was, however, argued by Ms Docrat that there were
other probable ways
in which the robbers could have gained entry and that the plaintiff
had therefore failed to prove that the
probable cause of the damage
which the plaintiff suffered was the result of any negligent conduct
on the part of the defendant.
Various other ways in which the
robbers could have gained entry to the property were put to the
plaintiff during cross-examination,
but the only one which was
ultimately argued my Ms Docrat as a probability was that the robbers
had gained entry to the property
during the time that the alarm was
inactive and that they then hid in the garden until it was dark
before making their attack.
[35]
The plaintiff’s evidence in this regard was that he saw the
following morning that there were footmarks on the inside
and outside
of the Carlmarie wall at the Third Road end. He also saw that a
shelter had been made amongst the agapanthus
plants in the bed next
to the wall. The plant growth on the inside of the wall had
been flattened. He also found human
faeces in the area and saw
that one of the robbers had left a pair of gloves behind in that
area. The gloves had been discovered
by one of his gardeners
and were removed by the police. All three robbers had worn
gloves while the plaintiff and his wife
were being robbed. The
plaintiff showed the scuff marks on the wall to Hood and other
officials of the defendant and to police
officers who came to the
property. No one disputed that that was the most likely place
where the robbers had entered the
property and there was no evidence
that they may have entered anywhere else.
[36]
Hood’s evidence was that when he visited the plaintiff’s
property the day after the incident, he found that the
Carlmarie beam
was not working. He focused on that beam because the
indications were that the intruders had come through
in that area.
He saw the scuff marks on the wall and the plants which had been
flattened. This was also seen by the
defendant’s internal
investigators. In cross-examination he said that it was logical
that it was there where the intruders
had gained entrance and that
this was also indicated by the investigators and the garden staff.
[37]
It was common cause that the alarm was not activated on the day in
question from 17:34 to 18:25 as evidenced by the events
log, also
referred to as the events buffer, produced by the defendant’s
computer system. The plaintiff’s evidence
was that he had
switched the alarm off when it was triggered at 17:34 and had
dispatched his two gardeners to check if it had been
triggered by
overhanging branches. The evidence of the plaintiff’s
gardeners was that their inspection revealed that
it had been
triggered by Hadeda birds at the zone referred to as the rose
garden. The plaintiff then switched it back on
at 18:25.
[38]
It was suggested to the plaintiff by Ms Docrat that there were many
hiding places in the garden and that the intruders could
have entered
the property during the time that the alarm was switched off and that
they could have hidden somewhere until it was
dark before they made
their move, which was at approximately 20:15. It must be
remembered that during the time the alarm
was inactive it was still
daylight. The plaintiff’s response to Ms Docrat’s
suggestion was that it was unlikely
that the intruders would not have
been detected while scaling the wall as they would have had to put up
a ladder against the outside
of the wall, which was 3 metres high,
and would have had to jump down 3 metres on the inside. He
further said that they would
have been detected by his two big dogs
who were in the garden at the time and that the gardeners would also
have seen them when
they investigated the cause of the false alarm as
they look behind the lower shrubs to see if there is anything higher
which could
have triggered the alarm when they do such inspections.
[39]
The evidence of Mr. Boy Tshabalala, one of the plaintiff’s
gardeners who has been working for the plaintiff for 39 years,
was
that when the alarm goes off, they, i.e. the gardeners, have to check
the control panel to see in which zone the alarm was
triggered. He
found that the alarm had been triggered by Hadeda birds in the rose
garden zone. They then did a further investigation.
He denied
that it would be possible for someone to hide and not be seen by
them. The other gardener, Mr. Julius Moyo, testified
that after
the alarm went off that afternoon, he and Tshabalala took off with
the dogs and walked along the perimeter walls of
the property to
check if there were any overhanging tree branches. This was a
standard procedure which they had to follow.
They found that
everything was clear and reported thus to the plaintiff.
[40]
Mr. Moyo testified that when the police were there the day after the
robbery, he saw the signs which indicated where the robbers
had
entered. He saw the gloves, the defecation, the footprints on
the wall and the trampled plants on the inside and the
outside of the
wall. He also referred to a steel pillar against the wall,
about 10 cm from the wall, to which the beam was
fitted and on which
there were footprints. In cross-examination, he said that he
had overheard one of the investigators mentioning
that robbers
believed if they defecated on a property, they would not be caught.
[41]
In view of all of the above evidence, it is in my view extremely
unlikely that the robbers gained entry to the property from
a public
road in broad daylight during the time when the alarm system was not
activated without being seen by anyone or being detected
by the dogs,
that they then managed to hide without being seen by the gardeners or
the dogs during the gardeners’ inspection
and that they then
waited for approximately two hours before making their move.
In my view, the probabilities are much
greater that the robbers
scaled the wall when it was dark and when the alarm system was
activated but not working, that they entered
the house shortly
thereafter and attacked and robbed the plaintiff and his wife.
That they were able to do so, was caused
by the defendant’s
breach of the oral agfreemnt to which I have referred above.
[42]
I accordingly make the following order:
(a)
It is declared that the defendant is liable for such damage as the
plaintiff is able to prove arising from the defendant’s
breach
of the oral agreement concluded between the parties in terms whereof
the defendant effected repairs to the plaintiff’s
perimeter
alarm system on 26 January 2012.
(b)
The defendant is ordered to pay the plaintiff’s costs, such
costs to include the qualifying fees of the plaintiff’s
expert
witness Mr. Zeyd Khan, the costs of the private interpreter employed
by the plaintiff and the costs of senior counsel.
Counsel
for plaintiff: Adv. P. Ellis SC
Instructed
by: Alex Bosman Attorneys, Pretoria
Counsel
for defendant: Adv. F.F. Docrat
Instructed
by: Hogan Lovells (South Africa), Johannesburg