Saayman v Visser and Others (1276/01) [2007] ZANCHC 12 (2 January 2007)

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[2007] ZANCHC 12
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Saayman v Visser and Others (1276/01) [2007] ZANCHC 12 (2 January 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 1267/01
Heard:
23-24/11/06
Delivered:
02/01/2007
In
the matter between:
JACOBUS
HENDRIK SAAYMAN Plaintiff
And
CHRISTIAAN
ANDREAS VISSER 1
st
Defendant
GRIEKWA
SECURITY CC 2
nd
Defendant
SYLVESTER
M MOREBUDI 3
rd
Defendant
JUDGMENT
Tlaletsi
J:
The
plaintiff has instituted an action for damages against the three
defendants both in his personal capacity as well as in a
representative
capacity, as father and natural guardian of his son,
Gideon
Barthalomeus Saayman (“Gideon”)
.
The cause of action arises from a shooting incident that took place
on 12 February 1999 in Kimberley.
At
the inception of the trial I made an order in terms of Rule 33(4) of
the
Uniform
Rules
,
with the effect that at this stage the merits be determined first
and the
quantum
separately thereafter. Initially all three defendants opposed the
plaintiff’s claim. However, the second defendant withdrew
its
defence on 26 August 2003 by notice. The third defendant was placed
under Bar for failure to file his plea. Subsequent thereto
his
attorneys withdrew as his attorneys of record. He failed to provide
a new address for service of the process on him in compliance
with
Rule 16. He was notwithstanding, served with a notice of set down
of the trial and he did not turn up or do anything about
this case.
The case against him is therefore not defended. The trial proceeded
against first defendant only and judgment by default
was requested
against second and third defendant.
The
plaintiff tendered the evidence of
Winton
Franscois Smith
(“Smith”),
a 24 year old who was in the company of Gideon at the time of the
incident. A bundle of documents including photos
of the scene was
admitted and the first defendant was prepared to admit certain
aspects of the material found at the scene. These
admissions
dispensed with the need to tender evidence of the police officer(s)
who attended the scene. An inspection
in
loco
was conducted and with the consent of the first defendant certain
points were accepted as evidence. The plaintiff thereafter closed
its case. The first defendant tendered the evidence of
Steven
Peter Hansen
(“Hansen”),
who is the manager of the second defendant, as well as his own
evidence. After the first defendant closed its case
the matter was
by consent postponed
sine
die in
order to enable the plaintiff to bring an application to re-open his
case and tender further evidence. He was ordered to pay the
costs
occasioned by the postponement. On the next day of trial the order
to re-open the plaintiff’s case was granted unopposed
and the
plaintiff was ordered to pay costs accessioned thereby. This
happened on 14 November 2005 and the matter was again postponed
sine
die
.
The
trial resumed on 5 December 2006. On this day an agreement entered
into by the parties was made an order of court. In the
agreement
the plaintiff tendered the affidavits of
Waldemor
Engines Eksteen
(“Eksteen”),
who is an inspector in the employ of the
Private
Security Industry Regulatory Authority
,
and that of
Dennis
Leslie Morgenrood
(“Morgenrood”),
who is formerly a member of the South African Police Services and
now attached to the entity known as
Stallion
Security
in Bloemfontein. In addition to the affidavits the Plaintiff
accepted certain facts relating to the affidavit. The case for the
plaintiff was thereafter closed.
The
evidence in this matter, which is common cause, is briefly that the
witness Smith and Gideon then aged 20 and 16 years respectively,
were on 12 February 1999 at Gideon’s parental home where they had
a party. The occasion, for some unknown reasons, entailed
the
consumption of liquor by the two teenagers. When the party was over
and after other people left, the two left the premises
after
midnight and walked to a pub known as the
Half
Way House
.
They spent about half an hour there conversing. They did not
partake in further consumption of liquor. They thereafter left
for
home. They walked along
Olver
Road.
As
the two walked past the first plaintiff’s residence they saw a
garden pot (ornament) inside the premises on the lawn. The
premises
were not yet fenced and the parameter wall was still under
construction. They decided to enter the premises in order
to over
turn the garden pot. They could only manage to shift the top part
of the pot. They tried to overturn it without success
as the pot
was too heavy for them. In the process a shot was fired. They ran
away. As they ran on the pavement a second shot
was fired and
Gideon was struck on the back and fell. They were at this stage
about 40m away from the premises. Gideon was paralysed
as a result
of the injury he sustained.
The
aforesaid shots were fired by the third defendant from a shotgun.
It is now common cause that third defendant was an employee
of the
second defendant. He was posted at the first defendant’s premises
by the second defendant to guard the premises in terms
of a service
agreement between the first and second defendant. He used live
ammunition. Third defendant was as a result of this
incident
criminally charged and was convicted of attempted murder and
sentenced to 5 years imprisonment. The transcribed record
of the
criminal proceedings forms part of the bundle prepared by the
plaintiff. It’s contents are not in dispute.
In
the particulars of claim, the plaintiff alleges that the third
defendant was at all relevant times and at the time of the incident
acting within the course and scope of his employment with the first
defendant, alternatively the second defendant, alternatively
the
first and second defendants had control over the third defendant.
In the alternative to the above, the plaintiff alleges that
the
third defendant as an employee of the second defendant rendered
security services under the authority and control and within
the
premises and in the interests of the first defendant. The
plaintiff’s case is therefore that the first and second defendants
should also be held liable for the delict committed by the third
defendant alternatively, that the defendants owed plaintiff a
duty
of care and having breached such duty the defendants are also liable
to the plaintiff for his damages. In the further alternative
the
plaintiff alleges that it is fair, reasonable and justified that the
first defendant be held liable for the relevant unlawful
conduct of
the third defendant.
The
central issue in this case is whether the three defendants, as
matter of law can on the facts of the case be held liable for
the
damages suffered by the plaintiff. It is clear from the facts that
the legal position of the three defendants would differ
from one
another. The position of the third defendant as the person who
fired the shot that caused harm is more straightforward.
The
position of the second defendant as the employer of the third
defendant is not as complicated as that of the first defendant.
The
crisp issue is therefore whether the first defendant can on the
facts of this case be held liable for the delict committed
by the
third defendant. It is convenient to deal with the position of the
first defendant and consider the position of the other
two
defendants who did not defend the action thereafter.
Vicarious
liability exists where one is liable, not for a delict committed by
oneself, but for a delict which is committed by another
person. As
a general rule an employer is vicariously liable for the delicts of
his/her employee acting in the course and scope
of the employer’s
employment. The position of an independent contractor was
authoritatively set out by
Van
Reenen J
in the
Stein
v Rising Title Productions CC,
2002 (5) SA 199(C)
at 205 F-I
as follows:-
“
As
a general rule, an employer is vicariously liable for the delicts of
his or her employee acting in the course and scope of the
latter’s
employment, while, in general, an employer is not vicariously liable
for the negligence or wrongdoing of an independent
contractor
employed by him or her. The main distinction between an employee
(servant) and an independent contractor appears to lie
in the fact
that the former undertakes to render personal services to the
employer, while the latter undertakes to perform a certain
specified
piece of work or to produce a certain specified result for the
employer. Unlike an employee, an independent contractor
is generally
not subject to the control or the instructions of the employer as to
the manner in which he or she performs the work
or produces the
result”.
It
is not necessary to go into the authorities including those referred
to by Mr
De Bruin
on behalf of the first defendant regarding the determination of the
nature of the employment relationship between first defendant
and
third defendant. Mr
Danzfuss
argued the matter on the basis that second defendant was employed by
the first defendant as an independent contractor. This approach
is a
correct one as it is supported by the evidence tendered. Put
differently, no attempt was made to tender evidence that third
defendant was an employee of the first defendant, as alleged in the
particulars of claim.
In
Langley
Fox Building Partnership(Pty) Ltd v De Valence 1991(1) SA 1(A)
at p12
Goldstone
AJA
(as he then was) after reviewing various decisions on the subject,
formulated the principles applicable to the liability of a person
for a delict committed by an independent contractor as follows:
“
In
my opinion, it follows from the aforegoing that in a case such as the
present, there are three broad questions which must be asked,
viz:
would
a reasonable man have foreseen the risk of danger inconsequence of
the work he employed the contractor to perform? If so,
would
a reasonable man have taken steps to guard against the danger? If
so,
were
such steps duly taken in the case in question?
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 learned Judge further held that:
“
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 intended to be comprehensive. It does follow,
however, that
the duty of an owner of premises such as the present may not be the
same as that of the building contractor employed
by him to do the
work. That question, too, must be answered with due regard to the
facts.”
(p13
A-C)
12. 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. Put differently, one should
determine whether
the employer had in fact been personally at fault in regard to the
harm caused to a third party by the conduct
of the independent
contractor. One should therefore determine whether the first
defendant owed a separate legal duty to the plaintiff.
The
traditional test would therefore be the question whether a
diligens
paterfamilias
in the position of the defendant would foresee the possibility of
harm occurring to the plaintiff and would have taken steps to guard
against its occurrence.
13.
Botha
J A
in the
Langley
Fox-case
(
supra
)
correctly put the test as follows at p16J:
“
The
real difficulty in this case is occasioned by the second of the three
questions postulated: would a reasonable man in the position
of the
appellant have taken steps to guard against the danger.
As appears from the
judgment of Goldstone AJA the answer to this crucial question
depends upon the particular circumstances of the
case. For my
purposes, as will appear presently, it is necessary to emphasise the
importance of this approach. To that end I venture
to add a further
authority to those already mentioned by Goldstone AJA… I have in
mind the well-known passage in Grueber’s Work
on the lex aquiliae
which was quoted by Centlivres JA in Fred Saber (Pty)Ltd v Franks,
1949 (1) SA 388
(A) at 405 and which I consider bears repetition in
the context of a case such as the present.”
After
having quoted from the case at p17C-E of the
Langley
Fox-case
judgment, the learned judge of Appeal proceeds as follows:
“
In
my view, when the liability of an employer for the consequences of
the negligent conduct of his independent contractor is in issue,
a
facet of the enquiry into the relevant circumstances, which requires
particular scrutiny is the state of the employer’s knowledge
relating to the actual existence of a dangerous situation at the very
time when harm befalls a third party. The importance of such
an
enquiry may be illustrated by means of contrasting to hypothetical
examples. In the first, the employer is present when the contractor
is in the process of executing the work, perceives that the
contractor has not taken any precautions against harm resulting from
the danger inherent in it, and does nothing to remedy the situation.
In the second, the employer is unaware of the fact that the
contractor has commenced the execution of the work and consequently
does not know that a dangerous situation has been created by
the
contractor’s failure to take the requisite precautionary measures.”
14. The learned judge
points further that not a too heavy burden is to be cast on the
employer and points out(at p18) that a potential
danger may be of an
extraordinary nature which is encountered by infrequently and
extraordinary and special precautions are required
to avoid it. He
cautioned that:
“
An
employer should not be fixed with liability solely and simply on the
basis of categorizing the work entrusted to the contractor
as being
inherently dangerous, lest the distinction between the relationship
of employer and independent contractor and that of Master
and servant
be blurred, and the employer be held vicariously liable for
negligence of his contractor.”(at p.18 c)
15.
I
now proceed to consider the facts of this case and determine whether
the first defendant can be held liable. The first argument
raised by
Mr
Danzfuss
is
that the mere fact that Gideon was a trespasser on the first
defendant’s property will not affect the liability of any of the
parties towards the plaintiff. Relying on the authority of,
inter
alia
,
Veiera
v Van Rensburg, 1953(3) SA 647(T)
at 653 A-D and F-G, he submitted that in this case it was foreseeable
that a trespasser may enter upon the premises, and that the
third
defendant was on the premises for the very foreseeable reason, and he
was armed with a shotgun and live ammunition to enable
him to shoot
trespassers. I agree that the evidence show that it was foreseeable
that trespassers may enter the premises. However,
the question which
should be answered together with the others, is whether a reasonable
man under the circumstances and in the position
of the first
defendant, would have taken steps to guard against harm to
trespassers, and if so, what steps would have been taken.
The
Veiera-case
is distinguishable from the present case in that in the
Veiera-case
,
the person(a salesman) who entered the premises was busy talking to
the appellant’s wife enquiring about a debtor when the dog
attacked
him from behind and caused him serious harm. Secondly, a dog and a
human being who is a trained guard should not be unfairly
equated.
Thirdly, this court in the
Veiera-case
the
evidence was that the appellant kept a ferocious dog well knowing
that it will attack any trespasser and not merely a fierce dog
to
bark, and frighten trespassers away and further secured in such a way
that the trespassers are able to keep out of its way.
16. The
factual basis relied upon on behalf of the plaintiff is that the
first defendant was well aware of the fact that a security
guard
armed with a shotgun and live ammunition was patrolling his premises
with his consent and that he specifically requested an
armed security
guard who must be able to shoot and as such created a dangerous
situation. It was further argued that he had no information
whatsoever about the training the third defendant underwent and its
duration that he knew that the security guard’s sole object,
was to
shoot human beings should he deem it necessary and when the situation
in his opinion called upon him to do so. It was therefore
argued
that the first defendant did not do anything or take any precautions
to ensure that warning signs were placed on the premises
to warn the
public, or take other alternative measures available to first and
second defendant for protecting the first defendant’s
premises,
wife and daughter. It was further argued that first defendant did
not only condone or authorise a dangerous situation
but instructed
second defendant to create a dangerous situation. The first
defendant, it was argued, as the owner of the premises,
has a duty of
care and take precautions against damages to others should a
dangerous situation occur on his premises, and as a result
no
reasonable precautions were taken by the first defendant to prevent
harm to
Gideon
.
17. Mr
De
Bruin
argued on behalf of the first defendant that the plaintiff has failed
to discharge the
onus
of
proving that the first defendant is liable for the damages suffered
by the plaintiff. He submitted that in the circumstances of
this
case the first defendant did not owe the plaintiff a duty of care and
that even if the test of foreseeability is applied no
reasonable
person in the position of the first defendant would have foreseen
that third defendant would have fired shots in the circumstances
in
which he did.
18. The accepted
evidence reveal that the third defendant was one of the two security
guards who were provided by second defendant
24 hours a day. The
third defendant had previously, on behalf of the second defendant,
guarded over first defendant’s property.
In terms of the agreement
entered into between the second and third defendant dated 18
September 1998, third defendant was obliged
to stand guard, patrol
and assist clients of the second defendant where necessary and was
not entitled to refuse any instruction
given to him by the employer.
The agreement further states that he must at all times act within the
law and in cases where he is
unsure he must contact the office for
help. Furthermore, Hansen’s evidence, which is not disputed, is
that he ensured that second
defendant was licensed to possess
firearms and that first defendant enquired from him whether third
defendant was competent in handling
a firearm. He gave him the
assurance that he had the necessary training to handle the specific
weapon.
19. The reason advanced
by the first defendant for requesting armed guards on his premises
was because of the risk involved in the
premises not having been
fenced off, his position as a diamond mine owner and the presence of
his wife and daughter during long hours
of the day while he was
absent. He also had information of unlicensed motor vehicles being
parked in front of his home in the street
keeping surveillance of his
premises. He therefore employed a well-known registered security
firm and relied on the assurance given
to him by Hansen regarding the
training of the third defendant.
20. It was argued on
behalf of the plaintiff that the mere fact that the second defendant
being a commercial security company was
probably eager to obtain this
contract because of the remuneration attached thereto should have
warned the first defendant to be
careful towards communications
regarding the competence of the security guard. He should not, it
was argued have simply accepted
Hansen’s word in this regard
without any information regarding the nature and extend of the
training of the third defendant, as
well as the instructions given by
the second defendant to the third defendant, eg. regarding when he
may shoot and when not, the
extent of the violence he is authorized
to use and under what circumstances he is entitled to use the
firearm. I am of the view
that accepting this contention would be
unduly blurring the distinction between an employee and an
independent contractor. It would
also be expecting too much from the
first defendant. The reasonable position is that first defendant
employed the second defendant
to perform security services on a
legitimate and lawful basis having the assurance that trained guards
are deployed. Unlike ferocious
animals and certain construction
works, the employment of security services is by its very nature not
a dangerous operation. One
must be careful not to shift the second
defendant’s responsibilities as the employer of the third defendant
and place them on the
shoulders of the first defendant. I am not
convinced that the first defendant should be found liable on the
basis that he created
a nuisance on his property. Such a finding is
not supported by the evidence and has its own requirements.
21. In
my view, even if the first defendant knew that there was an armed
guard in his premises which created a dangerous situation,
he was at
the time of the incident asleep in his house and it would be
unreasonable to find that he should have anticipated that
third
defendant would have, in breach of the law, shoot a young man on the
back while running away from the scene where he could
have posed a
possible threat to property. The circumstances of this case should
be distinguished from those in
Mouton
and Others v Beket,
1918 AD 181
referred to by Mr
Danzfuss.
In
the latter case one
Van
Niekerk
who was a commander of a commando of rebels was held liable for the
unlawful actions of a scouting group that shot and hit the plaintiff
who was a member of the then Union Forces. Although
Van
Niekerk
was not present at the time of the shooting it was found that the
operation was undertaken entirely in the interest of and for the
protection of the commando and those who were not present are liable
on the ground that they authorized them to engage in that operation.

However, in the present case, third defendant was not posted to
conduct illegal activities as was the aims and objective of the
commando, and was only authorized to act within certain parameters
and circumstances. The first defendant, can therefore in my view,
not be taken to have authorized the shooting of
Gideon
.
Shooting people is not a probable and natural outcome of security
services as it was found to be the scouting (see:
Hammon
v South West African Peoples Organisation 1991(1)SA 127 (SWA) at
140H-141A.
)
22. In
applying the test set out in the
Langley
Fox- case
I am not satisfied that a reasonable man in the position of the first
defendant would have foreseen the risk of danger in consequence
of
the work he employed the second defendant to perform. Even if it
could be found that a reasonable man would have foreseen the
risk of
danger, in my view, the first defendant acted reasonably in all the
circumstances in that he enquired from the second defendant
whether
the guards were properly trained and competent. There was in my
view, no need for him to go behind what he was assured by
the other
contracting party and to enquire from each individual guard whether
he was in fact properly trained and competent, and
what the content
and syllabus of his training entailed. Even if the evidence of
Eksteen
to
the effect that third defendant had at the time of the incident never
attended any formal training as a security guard provided
by the
regulatory authority and that he was not entitled to perform any
security functions is accepted, the fact of the matter is
that first
defendant was given the assurance that he was trained and competent
and that the third defendant had on previous occasions
been posted
to guard first defendant’s previous premises. In addition, the
shooting incident did not happen on the first day of
his deployment
or few days thereafter. It occurred after some considerable period.
23. The
same applies to the evidence of
Morgenrood
.
It cannot be the responsibility of the first defendant to enquire
whether third defendant was undergoing further training, and
whether
he loaded blank ammunition in his firearm, or if he knew of having to
fire warning shots first. That was the responsibility
of second
defendant. It was for him to ensure that warning signs if necessary,
were placed on the premises and to conduct a feasibility
study of the
area. He was being paid for his special services. This case is not
to be equated with the case where the employer
knew that a contractor
had already started constructing a dangerous situation and therefore
had to foresee the possibility of harm
and had to, as a reasonable
man, take steps to guard against it. In view of the fact that the
first defendant was assured that
the security guard was trained in
handling the firearm he correctly, under the circumstances, relied on
the judgment of the guard
to decide when he may legitimately fire and
lawfully discharge the firearm.
24. I therefore find
on the evidence presented that the plaintiff has failed to discharge
the onus of proving that the first defendant
is liable to him for the
payment of damages. His claims both in his personal and
representative capacities should be dismissed with
costs.
25. What remains is
the claims against the second and the third defendants. I have no
doubt that even though no evidence was presented
by these defendants
to oppose plaintiff’s claim, the evidence on record support the
finding that the plaintiff has discharged its
onus of proving its
claims unopposed and is entitled to the damages he is able to prove.
As these defendants did not take part in
this trial there shall be no
costs order against them.
I make the
following Order.
The
plaintiff’s claim against the first defendant is dismissed with
costs.
The
plaintiff’s claim against second and third defendants succeeds and
the two defendants are ordered to pay the plaintiff’s
proved
damages jointly and severally, the one paying the other to be
absolved.
There
shall be no order for costs against second and third defendants in
relation to the trial on the merits.
___________________
L
P TLALETSI
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant: FWA Danzfuss, SC
Instructed
by: Duncan & Rothman Attorneys
For
the Respondents: J P De Bruin, SC
Instructed
by: Van de Wall & Vennote Attorneys