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2015
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[2015] ZAGPPHC 571
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ADT Security Services CC v Brink (A55/15) [2015] ZAGPPHC 571 (11 August 2015)
IN THE
HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
11/8/15
CASE
NO: A55/15
In
the matter between:
ATD
SECURITY
SERVICES
CC
Appellant
and
FREDERIK
JOHANNES
ANTON
BRINK
Respondent
JUDGMENT
Tuchten
J
:
1
This
is an
appeal
against
a
decision
in the
magistrate's
court upholding the
respondent's
claim for
damages
against the
appellant arising from a
written agreement
(the
agreement)
concluded
between the parties. I shall describe the parties as they were in
the court below, ie as
defendant
and
plaintiff
respectively.
2
The agreement provided that the defendant was to supply the
plaintiff, a miner who operated a digging, with two guards to guard
his equipment at his site on the farm Syferfontein in the
Wolmaransstad district. One guard was to be on duty during the day
and
one at night. This case concerns the conduct of the night guard.
3
Clause 2 of the agreement provides:
The
general
duties
of
the
guard/s
shall
be to
monitor
the premises or part of
the
premises
where
he/they
had been placed
and
to
immediately
sound
alarm,
should
he/they notice any crime
or unusual occurrence.
4 The evidence showed that the
night guard was placed to monitor the whole of the plaintiff's
site.
The site was one hectare in extent. No digging or mining operations
took place at night. The night guard was supplied with
a cellphone, a
torch and a firearm. Other than the guard's torch, there was no
source of light.
5 During the night of 25 July
2008 or the early morning of the following day some three tons
(about
75 running metres) of electrical cable belonging to the plaintiff was
stolen from the site. The plaintiff testified that
he arrived at the
site on 26 July 2008 to find the night and day guard both present.
The plaintiff did not say what time he arrived
there but it must have
been early in the morning. The plaintiff discovered the loss. The
cable had been laid on the surface to
connect the plaintiff's
equipment to his electricity supply, which in this case was a
generator.
6 On inspection, the plaintiff
found that the cable had been cut from where it was attached
and then
dragged away to a spot in the veld, some 200 metres from the
plaintiff's site, where the cable was burnt, no doubt to
remove those
components which were of no value to the cable thief or thieves. The
components of the cable which remained after
the cable had been burnt
were then removed by the thief or thieves.
7 A relatively large quantity of
cable such as this was probably removed in a vehicle or vehicles
and
probably was stolen by a gang. No alarm was raised.
8 On these facts the plaintiff
alleged in his summons that the guards neglected to monitor
the
premises or neglected to raise any or any adequate alarm or neglected
to notice the theft in circumstances in which they would
reasonably
have been expected to do so.
9 Neither of the guards (who were
not named in the evidence) was called to give evidence. However,
Mr
de Witt, employed by the defendant as a supervisor, gave evidence. He
confirmed that he was notified at dawn on 26 July 2008
of the theft
by one of the guards. De Witt was understandably unable to shed any
light on the circumstances of the theft. He testified
that the guards
were no longer in the defendant's employ by the time of the trial in
the court below and that he did not know where
to contact them. He
also explained that there was a caravan on the site in which the
guard who was not on duty would sleep.
10
The issue at this level of the case is whether the plaintiff
established, on a balance of
probabilities, that the guards either
were not monitoring the site at the relevant time or, although
monitoring the site, did not
raise the alarm when the theft took
place.
11 The magistrate found that the
plaintiff had proved the breach of the agreement pleaded and
ruled in
favour of the plaintiff and against the defendant on the merits.
Thereafter quantum was determined.
12
On appeal it was submitted by counsel for the defendant that it was a
natural and plausible
inference on the evidence that the guard, while
patrolling the site, simply did not see the cable theft taking place
because
it was
so
dark
and the thieves
were
acting
silently,
that
the thieves could have
stolen
it
by attaching
it
to a bakkie, cutting
it
away from
the
generator
and
speeding
away.
Or,
submitted
counsel,
the thieves
might
have threatened
the
guard
or
his family
with
violence.
13
The
difficulty
with
these
submissions is that
they
ignore the
proven facts. Firstly
it
is
improbable
that in
that isolated
rural
setting,
the thieves
could
have
stolen
the
cable
without
alerting
the
guard,
if
he was
in fact
monitoring the
site. The
noise alone,
produced
by cutting the cable from
the generator
and
dragging
it
to the spot where
it
was burnt, would
be
enough to alert any guard who was
in fact
on watch. If this was
done with the help of a vehicle,
the
noise would
have been even
greater.
Secondly,
the
submission
ignores the
proven fact
that the thieves did not
speed
away
with
the
cable.
They
dragged
it some
200
metres
and then
burnt
it. The flames
of the thieves'
fire
and the smell
of
the
burning plastic
cable
coating
would
have
alerted
any guard
who
was monitoring
the
site
as
required
by
the
agreement. Thirdly, the
guards did not raise the alarm until the next morning. That gives
rise to a strong
inference that the guard
either did not know the theft was taking
place or, knowing of the
theft, decided not to raise the alarm.
14 On any of these bases, there
was a breach by the defendant of its contractual obligations
either
to monitor or to raise the alarm. There was no suggestion in the
evidence that either of the guards had reported that he
was
threatened by the thieves if he reported the theft.
15 The defendant raised a further
defence on the strength of clause 9 of the agreement, which
provides:
It is
recorded
by the
parties
hereto that
the
security
service provided in terms
of this agreement,
are
complimentary
[sic]
to and not an
alternative to insurance cover.
It
shall be incumbent on the
Second Party [ie the plaintiff] to ensure that all of
its property
is adequately
insured.
16 Counsel for the defendant
submitted that clause 9 properly interpreted expressly excluded
liability for damages on the part of the defendant.
17 I cannot agree. Clause 9 in
effect provides that the agreement is not to be read as affording
the
plaintiff an indemnity in relation to any loss or damage to property
of the plaintiff. The plaintiff is not seeking to hold
the defendant
liable on an indemnity. Clause 9 simply does not purport to exclude
any liability that would otherwise attach to
the defendant for breach
of the agreement.
18
The appeal can therefore not succeed. The defendant applied for
condonation for certain shortcomings
in relation to the rules. The
application for condonation was not opposed but the defendant must
pay the costs of the application
for condonation. I make the
following order:
1
The application for condonation is granted.
2
The appeal is dismissed.
3
The appellant (defendant in the court below) must pay
the costs of
the application for condonation and of the appeal.
_________________________
NB Tuchten
Judge of the High Court
6
August 2015
I agree.
_______________________
S Magardie
Acting judge of the High Court
6 August 2015
ADTBnnkASS 15