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[2020] ZASCA 33
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Osman Tyres and Spares CC and Another v ADT Security (Pty) Ltd (1174/2018) [2020] ZASCA 33; [2020] 3 All SA 73 (SCA) (3 April 2020)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1174/2018
In the
matter between:
OSMAN TYRES AND SPARES
CC
FIRST APPELLANT
SHIRAZ MOHAMMED
OSMAN
SECOND APPELLANT
and
ADT
SECURITY (PTY)
LTD
RESPONDENT
Neutral
citation:
Osman Tyres and Spares CC & another v ADT
Security (Pty) Ltd
[2020] ZASCA 33
[3 April 2020]
Coram:
Ponnan, Saldulker, Mokgohloa and Nicholls JJA and Koen AJA
Heard:
5 March 2020
Delivered:
3 April 2020
Summary:
Contract – civil procedure – clause in contract
excluding liability for negligent conduct of security service
provider
– Private Security Industry Regulation Act 56 of 2001
and the Code of Conduct for Security Service Providers 2003 –
whether liability for gross negligence excluded – whether a
court could find for the plaintiffs on the evidence adduced –
what evidence to take into account - whether absolution from the
instance should have been granted.
ORDER
On
appeal from
: North West High Court, Mahikeng (Hendricks J sitting
as court of first instance): judgment reported
Osman Tyres and
Spares CC and Another v ADT Security (Pty) Ltd
[2017] ZANWHC 113.
The
appeal is dismissed with costs, to be paid by the appellants jointly
and severally, the one paying the other to be absolved.
JUDGMENT
KOEN
AJA:
[1]
This appeal
[1]
concerns an order granted by the North West High Court, Mahikeng (the
high court) at the close of the appellants’ case, absolving
the
respondent from
the instance
and directing the appellants jointly and severally to pay the costs,
the one paying the other to be absolved. The high
court concluded
that the first appellant, Osman Tyres and Spares CC (the CC) and the
second appellant, Mr Shiraz Mohammed Osman
had ‘failed to make
out a case on the probabilities’, presumably meaning on a
balance of probabilities. In that respect
it clearly applied the
wrong test and erred. The high court was however correct, for reasons
which will be set out below, in granting
an order absolving the
respondent, ADT Security (Pty) Ltd (ADT) from the claim of Mr Osman.
The material remaining question in
this appeal is whether an order of
absolution was justified in respect of the CC’s claim. This
judgment will, in what follows,
consider the nature of the
appellants’ claims, record a brief reminder of the essentialia
of those claims, assess the allegations
made in the pleadings and the
evidence adduced by Mr Osman, identify what were properly the issues
which served before and had
to be decided by the high court, and
conclude by applying the correct test for absolution to the admitted
facts and evidence.
The appellants’ claims
[2]
The standard of the appellants’
representation
[2]
before the
high court was disappointingly poor.
[3]
The particulars of claim were not a model of clarity.
[4]
They were however clear that the claims by the CC and Mr Osman,
against ADT were damages claims. The CC’s claim was for
contractual damages based on a written agreement, a copy whereof was
annexed as annexure ‘A’ to the particulars of claim,
[5]
concluded between the CC and ADT on 6 February 2005, for the
rendering of security services at the CC’s business premises.
This agreement was admitted by ADT. All that remained to be
considered
to
complete
a
cause
of
action
for
contractual
damages
were
the
breaches of the agreement and the damages caused by such breaches. By
the time the matter was argued before the high court,
it was apparent
that Mr Osman’s claim, on the other hand, was a delictual
claim.
[3]
The particulars of claim did not distinguish
clearly between the allegations relating to the alleged breaches of
the agreement for
the purposes of the contractual claim, and those
relating to wrongfulness, fault and causation for the purposes of Mr
Osman’s
delictual claim. Instead, they were conflated in
general terminology alleging ‘a duty of care’, and that
ADT had been
negligent alternatively grossly negligent in rendering
its services to the CC. The interest of justice nevertheless require
that
the particulars of claim be examined carefully to identify the
factual allegations relevant to each cause of action. Particulars
of
claim must be construed properly, even generously if ambiguous, as
with exceptions,
[6]
to identify
the material factual allegations advanced in respect of a particular
cause of action.
Mr Osman’s claim
[4]
It is convenient to deal first with the order of
absolution in respect of Mr Osman’s claim. The conflated
allegations in the
particulars of claim
[7]
referring to Mr Osman’s claim were as follows:
‘
11
[ADT] by concluding an agreement with the [CC], created
and imposed upon itself, although tacitly and/or implied, a legal
duty not
to be negligent in the discharge of its contractual
obligations. Further in the alternative, public policy and legal
consideration,
places upon [ADT] the legal duty not to be negligent
and to render services in accordance with highest standards of care
expected
of a professional in the position of [ADT]. The above stated
burglary and damages suffered by the [CC] alternatively [Mr Osman]
(in his capacity as the sole member of the [CC]) was caused by the
sole negligence alternatively the gross negligence of [ADT]
in the
sense that [ADT] had a duty of care towards the [CC’s]
premises, and to exercise reasonable care in the rendering
of
security services which duty of care was not reasonably exercised by
[ADT] in one or more or all of the following respects:
11.1
[ADT] was negligent alternatively grossly negligent by its failure to
apply reasonable care when it responded to the emergency
signal at
[ADT’s] premises.
11.2
[ADT] was negligent alternatively grossly negligent to attend to the
matter only minutes after the alarm went off.
11.3
[ADT] was negligent alternatively grossly negligent in finding that
everything was in order, when it eventually arrived at
the premises,
whilst a serious burglary in fact happened.
11.4
[ADT] was negligent alternatively grossly negligent by its omission
to take positive steps to avoid alternatively to minimise
the damages
caused to the [CC] and or [Mr Osman] by the burglary, by neglecting
to immediately inform the police and the [CC] as
duly represented by
[Mr Osman].
12.
As a result of [ADT’s] above stated sole
negligence alternatively gross negligence, the [CC] and [Mr Osman]
suffered damages
. . .
[5]
The further allegations in the particulars of claim specific to Mr
Osman’s claim were as follows:
‘
CLAIM 2 – DAMAGES SUFFERED BY [MR OSMAN]
13.
The allegations contained in paragraph 1 to 11 above are
herein repeated.
14.
As a result of the burglary, which [ADT] at all relevant
times had a duty of care to reasonably avoid, [Mr Osman] (in his
capacity
as a sole member of the [CC]) suffered emotional damages,
which damages were caused by the sole negligence alternatively gross
negligence of [ADT], in one or more of the respects being:
14.1 [Mr Osman] is constantly in a depressed mood, as a
result of Depressive Mood Disorder and Post Traumatic Stress
Disorder.
14.2 [Mr Osman] is constantly in an anxious mood.
14.3 [Mr Osman] is experiencing intrusive images of the
All [CC’s] business in ruin as a result of the burglary.
14.4 [Mr Osman] suffers from sleep disturbances.
14.5 [Mr Osman] is experiencing feelings of being a
completely different person from what he was before the burglary.
15.1 [Mr Osman] is experiencing continual feeling of his
life coming to an end.
15.
15.1 As a result of the above stated emotional damages
[Mr Osman] must attend to Specialist Psychiatry Treatment’.
[6]
Mr Osman did not give any evidence on which it
could be found that ADT had acted wrongfully. The high court further
correctly found
that Mr Osman ‘did not testify in any detail
about the emotional stress, trauma and depression he suffered as a
result of
the burglary. No expert and/or medical evidence was
tendered’. Accordingly, there was no evidence on which a court
acting
carefully could or might find in his favour in respect of his
personal claim. That was sufficient reason on its own to justify the
order of absolution in respect of Mr Osman’s claim. The high
court in its judgment however
also
concluded that ‘clause 6.2
[8]
exonerated [ADT] from liability arising out of delict . . .’
That was a misdirection, as I shall endeavour to explain when
dealing
with clause 6.2 below.
[9]
It
does not however effect the conclusion
that
the appeal against the order of absolution in respect of Mr Osman’s
claim falls to be dismissed.
[7] The
appellants’ counsel, although not authorised to make any
concession in that regard, fairly stated that she could not
advance
any cogent argument that the order of the high court absolving ADT
from Mr Osman’s claim was incorrect.
The CC’s claim.
[8]
In identifying the material issues relevant to
the CC’s contractual claim, reference must be had not only to
the issues pleaded
but also to issues
arising
from the pleadings as widened by the evidence.
[10]
Thus widened, the issues included, amongst others, the specific
obligations undertaken by ADT as part of the service it would render
to the CC in terms of the agreement, and details of the respects in
which the CC contended that ADT had breached the agreement.
Some
of
the
terms
of
the
agreement
were
not
pleaded
in
the
particulars of claim, but were elicited during the cross examination
of Mr Osman, confirmed by him, and hence became common
cause during
the trial.
The existence of the contract
[9]
The following were common cause:
(a) The existence of the agreement, annexure ‘A’
to the particulars of claim;
(b)
The
terms
[11]
thereof,
[12]
which included, inter alia, the
following:
(i) ADT would supply security services, including radio
monitoring, telephone monitoring, and armed response in respect of
the CC’s
business premises (the premises) in Rustenburg
(ii) Armed personnel of ADT would attend at the premises
in response to activation signals received from the alarm system
fitted
at the premises, as quickly as operational circumstances would
permit, if no satisfactory explanation was given telephonically from
the premises,;
(iii) On arrival of the armed personnel at the premises
ADT would take such further steps as might be reasonably necessary to
safeguard
the premises, the contents thereof, the customer and/or the
customers invitees;
(iv)
ADT would
exercise reasonable care
[13]
in the rendering of the services, but did not guarantee assurance of
safety or against any loss, liability, injury or damage of
whatsoever
nature and howsoever arising;
(v)
Subject to
the provisions of the Act,
[14]
neither ADT nor any other persons for whom ADT may be liable in law
would be liable to the CC in respect of, or pursuant to any
loss,
liability, injury, damage or claims of whatsoever nature, including
without any limitation, any loss of profits and/or any
special or
consequential loss or damages whether arising through the rendering
or non- rendering or attempted rendering by ADT
of the service, if
any such loss, liability, injury, damage or claims arose as a result
of or pursuant to any innocent or negligent
act or admission on ADT’s
part or any persons for whom ADT may be liable in law
[15]
(the exclusionary clause); and
(vi)
The CC
waived certain claims and indemnified ADT against certain claims by
others.
[16]
Breaches of the agreement
[10]
The issues which arose from the allegations in
the amended
particulars of
claim
in this regard have
been set out in
paragraph 4
above. If ADT required more particulars of the negligent
alternatively gross negligent breaches, then it could have
requested
further particulars for trial.
[17]
ADT was however left in no doubt, having regard to these allegations,
as amplified by Mr Osman’s evidence explaining and
widening the
issues insofar as might be necessary, that the CC contended that ADT
had breached its contractual obligations negligently,
alternatively
grossly negligently. The high court had no difficulty with the
allegations regarding the various breaches of the
agreement, as the
judgment did not refer to a failure to plead breaches of the
agreement, or a lack of evidence establishing the
breaches, otherwise
that would have been stated in the high court’s reasons for
granting absolution.
Causation and damages
[11]
It is trite law that a plaintiff ‘is not
required to establish the causal link (between breaches of an
agreement and damages)
with certainty, but only to establish that the
wrongful conduct was probably a cause of the loss, which calls for a
sensible retrospective
analysis of what would probably have occurred,
based upon the evidence and what could be expected to have occurred
in the ordinary
course of human affairs, rather than an exercise in
metaphysics.’
[18]
A
plaintiff who at the end of a trial can show no more than a
probability that he would not have suffered the loss if the contract
had been properly performed, will succeed unless the defendant can
discharge the onus of proving that there was no such probability.
[19]
This requirement will not be considered further in view of the
separation of issues which occurred at the commencement of the trial.
The separation of issues
[12]
Not all the issues ordinarily required to be
proved to succeed with a contractual damages claim, were to be
adjudicated before the
high court. In regard to the application for
absolution the question thus became whether there was evidence on
which a court acting
carefully might or could find for the CC
on
the issues separated for determination,
not
all the issues. The parties agreed at a pre-trial conference that
‘the merits and quantum should be separated in terms
of Rule 33
(4)
[20]
and that the trial
would be confined at first to the merits of the plaintiffs’
claims.’ Where parties conclude such
an agreement, the sub-rule
nevertheless requires that it is for the court to grant such an order
for separation. It will ordinarily
do so, unless it appears that the
issues sought to be separated, cannot conveniently be decided
separately. But it remains for
the court to identify the issues which
it orders to be separated clearly and with precision, otherwise
considerable prejudice could
ensue.
[13]
Thus, it has been held that:
‘
It is imperative at the start of the trial that
there should be clarity on the questions that the court has been
called upon to
answer. Where issues are to be separated rule 33(4)
requires the court to make an order to that effect. If for no reason
but to
clarify matters for itself a court that is asked to separate
issues must necessarily apply its mind to whether it is indeed
convenient
that they be separated, and if so, the questions to be
determined must be expressed in its order with clarity and
precision.’
[21]
The
high court however made no formal order and did not identify the
issues separated with clarity and precision. It simply requested
the
pre-trial minute, referred to the paragraph number containing the
parties’ agreement, and then said ‘Okay. Yes
proceed.’
The appellants’ counsel then referred to the breaches of the
agreement. Nothing was said as to whether causation
would form part
of the merits or quantum. The learned judge simply remarked ‘Yes,
thank
you’
and
the
trial
proceeded.
No formal
separation
was
ordered.
It seems that the parties might have been ad idem
as to what was included under ‘the merits’, but that begs
the question
as to which specific issues the high court and any
appeal court might consider should have been dealt with separately.
It has been
held by this court in
FirstRand v
Clear Creek Trading
[22]
that the failure to make a formal order for
separation of the issues, and the failure to specify an issue with
clarity, would render
the process incompetent. This would be
particularly so, as in the present case, where the failure to address
the matter properly
under rule 33(4), introduced uncertainty.
[14]
The high court and the parties do not appear to
have experienced any particular difficulty in this regard.
[23]
During argument before this court it was however suggested
[24]
to counsel that there was no evidence on causation, specifically in
respect of an alleged loss of profits claimed. That question
presupposes that the element of causation formed part of the merits
that had been separated for determination. Because no formal
order
was granted, there is no order to interpret in accordance with the
usual principles applicable to the interpretation of court
orders.
The uncertainty as to what might have been separated would work to
the CC’s prejudice if it was now found that it
should have
provided evidence on causation, whilst it had thought, that the
requirement of causation was separated for subsequent
determination.
This uncertainty, whether real or perceived, simply reinforces the
importance of issues separated for hearing always
being formulated
with precision and clarity.
[15]
Accepting even in the absence of an express court order that the
‘intention’ was that the ‘merits’,
whatever
the exact meaning thereof might be, were to be separated, then the
reference to the ‘merits’, in contradistinction
to
‘quantum’, would still be ambiguous. On that basis alone,
absolution should not have been granted, and the trial
should be
referred back for clarity to be obtained, the trial to continue, and
the CC possibly to re-open its case, if so advised.
If I am wrong in
that conclusion then the discussion which follows remains apposite.
[16] It
would be dangerous to speculate on what the non-existent order of
separation possibly would have meant, by just having regard
to the
wording of the pre-trial minute. Nevertheless, the parties and the
high court appeared to have accepted that causation was
not an issue
for determination. It is useful to have regard briefly to how the
action was conducted, as such conduct is consistent
with causation
not having been considered as part of the ‘merits’.
[17] As
far as the learned judge was concerned, when Mr Osman commenced
giving evidence of what ‘other damages’ the
CC had
suffered and he referred specifically to the ‘loss of profits
for the year 2008 after the burglary’, the court
interjected
and stopped the appellant’s counsel stating, ‘I thought
that merits and quantum are separated’. Counsel
responded, ‘No,
we are not going to the quantum’ and the learned judge remarked
approvingly, ‘Oh, okay’.
Counsel had clearly taken his
cue from the learned judge who, on probability, would not have
interrupted the evidence, if the issues
separated for determination
before him included causation.
[18]
Likewise in his judgment, the learned judge did not refer to an
absence of evidence regarding causation, as being a reason
why the
order of absolution should be granted. The high court simply held
that the exclusionary clause in the agreement, excused
ADT from
liability to the CC for any loss, liability, injury, damage or claims
of whatsoever nature, that the CC had irrevocably
waived any claims
that may arise out of contract or delict against ADT, and that the
claim was not proved on a balance of probability.
If evidence had
been required on causation as well, then the failure to have adduced
such evidence would have featured prominently
in the judgment, just
like the absence of evidence in support of Mr Osman’s personal
action featured in the high court’s
reasons for having granted
absolution in respect of his claim.
[19]
The court was responsible for formulating clearly which issues were
separated. It did not do so. It was also never debated
what order the
high court would be required to make, should it, after a full trial,
have decided the separated issue in favour
of the CC. Presumably it
would be a declaratory order that ADT was directed to compensate the
CC for such damages as it would be
able to prove it had suffered as a
result of the breach of the agreement. That formulation would leave
the issue of causation for
subsequent determination.
[20]
Considerations of convenience also render it unlikely that a
separation of the ‘merits’, would have included
causation.
Evidence on causation would have to be repeated in the
mechanical process of calculating the amount of the CC’s
damages.
For example, the proof of the quantum of damages for
computers stolen, would require evidence that computers were stolen,
the number
stolen and the value of each, which except for the last,
would also be the evidence in respect of causation. To have separated
causation as part of the merits, would result in a duplication of the
same evidence, which would render such a separation not ‘convenient’
for the purposes of rule 33(4).
[21]
The aforesaid uncertainty should have been clarified by the high
court. The resultant ambiguity in the non-existent ‘order’,
should not summarily be assumed against the CC. This is particularly
so where the above facts and circumstances, indicate that
the court
was not even interested in hearing evidence on the general nature
(loss of profits) of damages which the CC would contend
had been
caused by ADT’s breach. For the purposes of adjudicating the
application for absolution, the issue of causation
did not and should
not feature. The cursory manner in which the question of a separation
of issues was dealt with, would be reason
to refer the trial back to
the high court. But absent such a referral considerations of
practicality can be served by the order
of absolution in respect of
the CC’s claim for that reason alone be dismissed, so that the
matter may continue in the high
court, and these issues can be
addressed in that forum. At worst for the CC, evidence was given in
general terms that the breaches
of the agreement had resulted in it
suffering various losses. That should satisfy the requirement of
causation at the absolution
stage, if causation in fact formed part
of the ‘merits’. On that basis, alternatively, the basis
that causation was
not an issue before the high court, I turn to
consider the facts and evidence the high court should have had regard
to in deciding
whether to grant absolution.
The facts and evidence the high court should have had
regard to.
[22]
For the purpose of considering whether absolution from the instance
should have been granted, the relevant facts would be the
allegations
in the particulars of claim that were admitted in the plea, as
widened by or explained in the evidence of Mr Osman
in chief and
reply, together with any concessions made by him during cross
examination. Propositions put during cross examination
as to what
ADT’s version might be when called upon to testify, not
expressly admitted by Mr Osman, are not evidence and have
no
probative value.
[23]
A court must not evaluate a plaintiff’s
evidence at the absolution stage, but must accept the evidence as
true.
[25]
Nor should a court
weigh up different possible inferences. It must rather determine
whether any one inference, from a range of
possible reasonable
inferences, might favour the plaintiff.
[26]
The truthfulness or otherwise of Mr Osman’s evidence and any
conclusions drawn on what may be perceived to be the probabilities,
would also be irrelevant at the absolution stage. Mr Osman was
clearly an excitable witness, who felt very aggrieved by how he
had
been treated by ADT. Due allowance must be made for that,
particularly where his evidence is considered in an application for
absolution at the end of the plaintiffs’ case. The statement by
the
high
court in its judgment that the appellants had not proved their claims
‘on the probabilities’, was a misdirection.
[24]
Keeping these very stringent considerations in mind, the following
constituted the factual foundation on which the high court
had to
decide whether it should grant absolution, or not –
(a) The CC had concluded an agreement, with the terms
set out above, in terms of which ADT was to render security services
at its
business premises. It was required to exercise reasonable care
in doing so;
(b)
At 06h48:38
on 21 December 2007 Mr Osman received
[27]
a text message on his cellular phone from ADT indicating that an
emergency vehicle of ADT had ‘responded to
an alarm’ at the premises;
(c) He attempted on numerous occasions to contact the
offices of ADT, but was unsuccessful and they did not answer at all;
(d) At around 8h00 he proceeded to the premises where he
found at the front that the locks were smashed, and the door had been
left
open. At the front door he found a slip of the kind issued by
ADT when attending at the premises when the alarm had been activated,
which recorded that the premises had been attended by a security
response officer of ADT, Isaac, at 00h24 who, inconsistent with
what
Mr Osman discovered, recorded that he had found ‘all in order’;
(e) Mr Osman entered the building and realised that no
one from ADT was present;
(f) He called ADT and a ‘guard’ Abel arrived
to see what had transpired. Upon inspection they noted that the
premises
had been broken into at the front and also at the back,
where the ‘wall was broken down’. He discovered that
various
rims and tyres for motor vehicles, being stock in which the
CC traded, and computers and cash had been stolen, and locks damaged;
(g)
Mr Osman
would have no personal knowledge as to when the premises were broken
into early that morning.
[28]
The only information he had, was from a Customer History form for the
period from 13 December 2007 to 2 January 2008
[29]
generated in the offices of ADT, which he introduced in evidence. It
was not challenged that this history report accurately reflected
the
events contained therein. Additional matter put to
him,
as
being what
ADT’s
version of
events would be,
was invariably disputed and can therefore not be
taken into account in deciding whether absolution should have been
granted;
(h) According to ADT’s own document, alarm signals
were received from the premises twice at around 00h33, twice at
around
00h47, twice at around 00h49, and once each at 00h50 and
00h51, that is eight times over a period of 18 minutes. These
indicated
that the alarm system had been triggered, in Mr Osman’s
words, at the ‘front, front, front’ of the building,
which on probability would be indicative, as the only reasonable
inference, that the building was being broken into at the front
at
that time. The repeated activations would be consistent, at the level
of a reasonable inference, with continuous breaking-in
activityand
movement at the front of the building, where Mr Osman subsequently,
not surprisingly, discovered evidence of a break
in. Yet no one from
ADT attended at the premises in response;
(i) Mr Osman also referred to the written report which
he had found at the premises that morning around 08h00. He explained
that
the procedure was that ADT was to remain at the premises and to
phone him whenever there was a break in.
[25]
Had ADT discharged its obligations properly, the break in would, on
probability have been detected and the intruders probably
caught
red-handed. ADT was then required to have safeguarded the premises
and to have prevented further damage and loss. It did
not do so.
The test for absolution from the instance
[26]
The test for absolution, to be applied by a trial
court at the end of a plaintiff’s case, was formulated in
Claude Neon Lights (SA) Ltd v Daniel
[30]
as follows:
‘
(W)hen absolution from the instance is sought at
the close of plaintiff’s case, the test to be applied is not
whether the
evidence lead by plaintiff establishes what would finally
be required to be established, but whether there is evidence upon
which
a Court, applying its mind reasonably to such evidence, could
or might (not should, nor ought to) find for the plaintiff ’.
This
court added in
Gordon Lloyd Page &
Associates v Rivera and Another
[31]
that:
‘
This implies that the plaintiff has to make out a
prima facie case - in the sense that there is evidence relating to
all the elements
of the claim - to survive absolution because without
such evidence no court could find for the plaintiff. . . As far as
inferences
from the evidence are concerned, the inference relied upon
by the plaintiff must be a reasonable one, not the only reasonable
one
. . . The test has from time to time been formulated in different
terms, especially it has been said that the court must consider
whether there is “evidence upon which a reasonable man might
find for the plaintiff” . . . a test which had its origin
in
jury trials when the “reasonable man” was a reasonable
member of the jury. Such a formulation tends to cloud the
issue. The
court ought not to be concerned with what someone else might think;
it should rather be concerned with its own judgement
. . . Having
said this, absolution at the end of the plaintiff’s case, in
the ordinary course of events, will nevertheless
be granted sparingly
but when the occasion arises, a court should order it in the
interests of justice.’
[27]
The fact that a defendant had at that stage not
yet given evidence, is often a cogent factor to be taken into
account, particularly
where the facts are within the peculiar
knowledge of the defendant and the plaintiff has made out a case to
answer. In those circumstances
a plaintiff should not lightly be
deprived of his remedy without the court first hearing what the
defendant
has to say.
[32]
Issues of negligence alternatively gross negligence are questions of
fact best determined only after all the evidence has been
heard. This
is exactly the position in this matter.
[28]
When the interpretation of a document
foundational to a plaintiff’s claim is in issue, a court will
also normally refuse absolution
unless the proper interpretation of
the document is beyond question.
[33]
Generally, a trial court is a very chary of granting absolution at
the close of a plaintiff’s case.
[34]
Discussion
[29]
Although submissions were advanced as to the
application of the Private Security Industry Regulation Act 56 of
2001 and the Regulations
in respect thereof (the Act)
[35]
,
and the Code published in Government Notice 305 of 2003 issued
pursuant thereto, these have no material bearing on the issues
in the
appeal. The exclusionary provision in the agreement did not offend
against the provisions of the Act.
[36]
In terms of the wording of the exclusionary provision ADT did not,
and indeed as a matter of law in terms of the provisions of
the Act,
could not contract out of liability for ‘any malicious,
intentional, fraudulent, reckless or grossly negligent act
or
omission’.
[30]
The
high
court
should
also have
considered
that
there
is
a
potential issue arising in regard to the proper
interpretation of the agreement. I put it no higher at this stage,
than that it
seems incongruous that an agreement can positively
undertake on the one hand that ADT ‘would exercise reasonable
care in
the rendering of its services’, that is according to an
objective standard, but then simultaneously provide that ADT could
contract out of liability for negligent conduct, which is determined
with reference to that same objective standard. That issue,
or at
least how this apparent contradiction can be reconciled, should
properly be considered only after all the evidence had been
heard.
The pleadings are wide enough to raise that enquiry, regardless of s
48 of the Consumer Protection Act
[37]
not having been pleaded
specifically.
[31]
That interpretation issue aside, the exclusionary
clause did not, contrary to the finding of the
high court, exclude liability for any grossly negligent
act or omission.
[38]
Jurisprudentially it is now
[39]
accepted that gross negligence is different to and separate and
distinct from negligence.
[40]
Whether an act or omission is negligent or grossly negligent, is a
question of fact. Where the conduct in question falls peculiarly
within the knowledge of the defendant, that question cannot be
determined properly until all the evidence has been heard. A court
should not be called upon to decide the issue of gross negligence
until all the evidence is concluded.
[41]
[32]
The high court did not at all consider whether there was evidence on
which a court might find that there was gross negligence.
The
established facts, in the absence of evidence in rebuttal, were
consistent with recklessness, or at least gross negligence,
which is
what the CC had pleaded. It certainly could not be said that there
was no evidence on which a court might or could find
grossly
negligent conduct on the part of ADT. The alarm was activated
repeatedly on eight, but at least at four separate and distinct
times, within a short period of 18 minutes. There was no reaction to
those activations. On those facts the alarm was ignored while
access
was being gained at the CC’s premises. There was no evidence
that ADT’s staff could not attend; if was not even
suggested
that they could not attend. Their failure to attend in those
circumstances, to properly inspect the premises, and had
they done
so, to protect and preserve the premises, could or might be reckless,
but at the very least would give rise to a reasonable
inference of
gross negligence. There has, as yet, been no answer to that evidence.
Consequently, only one inference can arise.
Whether it might
ultimately be the appropriate inference is not part of the enquiry at
the absolution stage, but can only be determined
at the end of the
trial.
[33]
When an application for absolution is considered at the end of a
plaintiff’s case is not the time to cast scorn on the
plaintiff’s prospects proving that it has suffered a particular
form of damages. That would amount to an impermissible premature
determination that the balance of probabilities don’t favour
the CC, at a time when there is no evidence contradicting the
only
evidence before the court. ADT should not have been absolved from the
instance in respect of the CC’s claim and the
appeal must
accordingly succeed to the extent that the order of absolution from
the CC’s claim is set aside.
Costs
[34]
The CC has been successful and Mr Osman unsuccessful in this appeal.
Most of the argument during the appeal was devoted to
the order
granted against the CC. In the exercise of this court’s
discretion on costs it would be appropriate if ADT is directed
to pay
80% of the appellant’s costs. A similar costs order would be
appropriate in respect of the application before the
high court.
Order
[35]
I would grant the following order:
1. The appeal by the first appellant is upheld;
2. The appeal by the second appellant is dismissed;
3. The order of absolution granted with costs by the
court a quo is set aside and is replaced with the following orders:
‘
(a)
The application for absolution in respect of the first plaintiff’s
claim, is dismissed.
(b) The application for absolution in respect of the
second plaintiff’s claim is granted.
(c) The defendant is directed to pay 80% of the
plaintiffs’ costs of opposing the application for absolution.’
4. The respondent is directed to pay 80% of the
appellants’ costs of the appeal.
_________________
P
A Koen AJA
Judge
of Appeal
Ponnan JA (Saldulker, Mokgohloa and Nicholls JJA
concurring)
[36] I
have had the benefit of reading the judgment of Koen AJA, who
proposes to uphold the appeal of the first appellant (the CC)
and
dismiss the appeal of the second appellant, Mr Osman. Whilst I agree
with my colleague in respect of Mr Osman’s appeal,
I regret I
arrive at a contrary conclusion as to the fate of the CC’s
appeal.
[37]
Koen AJA states that the particulars of claim are not a model of
clarity. In that, he is being unduly charitable to the appellants.
The particulars of claim provide:
‘
5.1 On or about 16th of February 2005 the first
plaintiff, as duly represented by the second plaintiff, entered into
a written agreement
with the defendant as duly represented by Rina Du
Toit, at Rustenburg.
5.2. The material terms of the agreement were inter alia
as follows:
5.2.1.
That the defendant will render telephonic monitoring, radio
monitoring, medical response and armed response services in respect
of the first plaintiff’s premises situated at 28 Hollyhock
Street, Zinnaville, Rustenburg.
5.2.2.
That the defendant shall exercise reasonable care in the rendering of
the above stated services.
5.2.3.
That the agreement is for an unfixed period, subject to the terms in
respect of termination or suspension of the agreement
as contemplated
in clause 10 of the agreement.
5.2.4.
That the first plaintiff will pay the monthly fee, charged by the
defendant, annually in advance.
5.3. At all relevant times hereto the annual fee was
paid to the defendant by the first plaintiff alternatively second
plaintiff
further alternatively first and second plaintiffs, and the
defendant had the contractual obligation to act in accordance with
the
provision of paragraph 5.2 above.
5.4. A copy of the service agreement is hereto attached
as annexure ‘A’.
6.1.
On or about the 15th of June 2005 the Defendant confirmed in a
letter, called security service confirmation, that:
6.1.1. That the defendant confirms security services at
28 Hoolyhock Street, Zinniaville, Rustenburg as from March 2005.
6.1.2. That the security system linked by a radio to the
defendant’s 24 hour, fully computerised SAIDSA approved control
room
and 24 hour armed response service, in respect of the first
plaintiff’s premises, is operative.
6.2 A copy of the above stated letter is hereto attached
as annexure ‘B’.
7. On or about the 21st of December 2007, and about
00h00 a burglary took place at the premises of the first plaintiff.
An employee
of the defendant, known as Isaac, who at all times acted
in the scope of his employment, responded to the activation of the
alarm
at the premises of the first plaintiff, at 00h24, but reported
that all was in order. A copy of the relevant alarm activation report
is hereto attached as annexure ‘C’.
8. On or about 06h48:38 on the 21 December 2007, the
second plaintiff received a short text message from the defendant
indicating
that the defendant’s reaction unit has responded to
an emergency signal at the first plaintiff’s property.
9. The first plaintiff, as duly represented by the
second plaintiff, immediately attempted to contact the defendant
telephonically
to establish the whereabouts of the emergency signal,
but could not get hold of the defendant.
10. When the first plaintiff, as duly represented by the
second plaintiff arrived at the premises on or about 8h05 on the 21st
of
December 2007 the second plaintiff observed:
10.1.
That a burglary took place as the door locks and walls to the premise
were broken by force.
10.2.
That the alarm system was disconnected and destroyed beyond repairs.
10.3.
That a big amount of stock, in form of tyres, spares and rims were
stolen from the premises.
10.4.
That significant computer data was stolen.
10.5.
That amounts in cash were stolen which were kept in a safe on the
premises.
10.6.
That the fax machine used on the premises was stolen.
10.7.
That architect plans and engineering plans were stolen.
10.8.
That the balancing machine was damaged.
10.9. That an antique till was stolen.
10.10. That an antique safe was stolen.’
[38]
Pleadings play a vital role in litigation. The purpose of pleadings
is to bring to the attention of the court and the other
party the
issues in the case. They must be lucid, logical and in an
intelligible form, because they define the issues as well as
the
scope and ambit of the dispute between the parties. It will be
immediately apparent that the amended particulars of claim in
this
case fall short in several respects.
[39]
The CC’s claim is one in contract. In that regard, reliance was
placed on a written agreement. Although the relevant
provisions
relied upon by the CC were not pleaded, the entire agreement was
annexed to the particulars of claim. Thus, one simply
does not know
which provisions of the written agreement are alleged to have been
breached or in what respects. The agreement described
as a ‘Service
Agreement’ consisted of some six pages. The first page, which
is in the nature of an offer to ADT by
the customer, contains a block
for the insertion of the customer’s details. Immediately
thereunder is a block under the heading
‘Service Levels’.
Three levels of service are described: maintenance; monitoring and
armed response. For the present,
the first is not relevant and I
shall pass over the second. The third provides:
‘
The Armed Response Services are only applicable
for Premises in areas which are patrolled by ADT and consist only of:
Attendance by armed personnel at the Premises as quickly
as operational circumstances may permit in response to activation
signals
received from the system if no satisfactory explanation is
given telephonically from the premises;
On arrival of such armed personnel at the Premises, such
further steps as may be reasonably necessary to safeguard the
Premises,
the contents thereof, the Customer and/or Customer’s
invitees’.
[40]
Pages two and three of the agreement contain the terms and
conditions. Those, inter alia, provide:
‘
4.2 The System is designed to reduce the risks of
loss or damage at the Premises so far as this can be the use of this
type of equipment.
We do not, however, guarantee that the System
cannot be tampered or interfered with, or that there will be no
miscommunication
problems, or prevent working by you or by any other
person. We are accordingly not liable to you for any loss or damage
any other
party may suffer however arising from any such removal,
tampering, interference or System being prevented from working in any
manner:
4.3. Furthermore, ADT do not undertake or guarantee to
the Customer that:
4.3.1. Particular losses or injuries will be prevented
by using the System and/or the Services;
4.3.2. The System and/or the Services will work
continuously and without error; or
4.3.3. The radio signals or any other communication
cannot be disrupted.
. . .
6.1. The Customer acknowledges that to the extent that
the Services function as a deterrent, they are not a guarantee of
safety
against or prevention of loss, liability, injury and damage of
whatsoever nature and howsoever arising. Accordingly while ADT shall
exercise reasonable care in the installation of the System and in the
rendering of the Services, nothing herein contained shall
be
construed or interpreted in any manner whatsoever as providing the
Customer or any third party whomsoever with any guarantee
or
assurance of safety or against any loss, liability, injury or damage
of whatsoever nature and howsoever arising.
6.2. Subject to the provisions of the Act, neither ADT
nor any other person for whom ADT may be liable in law shall be
liable to
the Customer in respect of or pursuant to any loss,
liability, injury, damage or claims of whatsoever nature (including
without
limitation any loss of profits and/or any special and/or
consequential loss or damages) whether arising through the rendering
or
non-rendering or attempted rendering by ADT of the Services in
terms of this Agreement or in delict or otherwise whether at the
Premises if any such loss, liability, injury, damage or claims arise
as a result of or pursuant to any innocent or negligent act
or
omission on the part of ADT or any other persons for whom ADT may be
liable in law.
6.3. Subject to the provisions of the Act, the Customer:
6.3.1.
hereby irrevocably waives all and any such claims referred to in
clause 6.2 above;
6.3.2.
hereby irrevocably indemnifies ADT or any other person for whom ADT
may be liable in law against all claims of third parties
arising out
of the said acts or omissions, as referred to in clause 6.2 above, at
the Premises.
. . .
6.6. The Customer hereby agrees and acknowledges that
the System and/or the Services are complementary to insurance cover
and do
not provide an alternative to such insurance cover. It remains
at all times the duty of the Customer to ensure that the Customer
has
adequate insurance where necessary and that the Premises and contents
thereof (including the premises for which the Customer,
not being the
owner thereof, is nevertheless responsible) adequately insured.’
[41] In
First National Bank of SA Ltd v Rosenblum and another
2001 (4)
SA 189
(SCA) paras 6–7, Marais JA stated:
‘
Before turning to a consideration of the term
here in question, the traditional approach to problems of this kind
needs to be borne
in mind. It amounts to this: In matters of contract
the parties are taken to have intended their legal rights and
obligations to
be governed by the common law unless they have plainly
and unambiguously indicated the contrary. Where one of the parties
wishes
to be absolved either wholly or partially from an obligation
or liability which would or could arise at common law under a
contract
of the kind which the parties intend to conclude, it is for
that party to ensure that the extent to which he, she or it is to be
absolved is plainly spelt out. This strictness in approach is
exemplified by the cases in which liability for negligence is under
consideration. Thus, even where an exclusionary clause is couched in
language sufficiently wide to be capable of excluding liability
for a
negligent failure to fulfil a contractual obligation or for a
negligent act or omission, it will not be regarded as doing
so if
there is another realistic and not fanciful basis of potential
liability to which the clause could apply and so have a field
of
meaningful application. . . .
It is perhaps necessary to emphasise that the task is
one of interpretation of the particular clause and that caveats
regarding
the approach to the task are only points of departure. In
the end the answer must be found in the language of the clause read
in
the context of the agreement as a whole in its commercial setting
and against the background of the common law and, now, with due
regard to any possible constitutional implication.’
[42]
The exclusionary clauses in this case are not ambiguous. They clearly
state that while ADT shall exercise reasonable care,
it gives no
guarantee; that the contract is not an alternative to insurance; and
that it is not liable to the CC for any damage
or loss incurred.
Nothing could be plainer. Koen AJA, para 8, states: ‘In
identifying the material issues relevant to the
CC’s
contractual claim, reference must be had not only to the issues
pleaded but also to the issues arising from the pleadings
being
widened by the evidence.’ However, as Harms DP pointed out in
KPMG Charted Accountants
(SA)
v Securefin Ltd and Another
[2009] ZASCA 7
;
2009 (4) SA 399
para 39:
‘
First, the integration (or parol evidence) rule
remains part of our law. However, it is frequently ignored by
practitioners and
seldom enforced by trial courts. If a document was
intended to provide a complete memorial of a jural act, extrinsic
evidence may
not contradict, add to or modify its meaning Second,
interpretation is a matter of law and not of fact and, accordingly,
interpretation
is a matter for the court and not for witnesses (or,
as said in common-law jurisprudence, it is not a jury question’.
[43]
Where, as here, a contract has been reduced to writing, the writing
is regarded as the exclusive embodiment or memorial of
the
transaction and no extrinsic evidence may be given of other
utterances or jural acts by the parties which would have the effect
of contradicting, altering, adding to or varying the written
contract. (see
Johnson v Leal
1980 (3) SA 927
(A) at 938).
What is more, clause 11.8 of the agreement records that:
‘
This Agreement is the entire agreement between
ADT and the Customer’s and ADT shall not be bound by any
representations, undertakings,
promises or the like not specifically
recorded or incorporated herein. No variation of this agreement,
waiver of rights, release
from any obligations or any consensual
cancellation in terms of this Agreement shall have no effect unless
in writing and signed
by both ADT and the customer.’
[44] Mr
Osman testified at the trial. No other witnesses were called. He
tried to suggest that at the time of signing the agreement,
certain
oral representations had been made to him by an employee of ADT. That
evidence was plainly inadmissible. Under cross examination,
after the
exclusionary clauses alluded to were put to Mr Osman and he was
asked, ‘[y]our summons says the opposite and I
am simply asking
you to explain to the court on what basis do you say the opposite to
what you agreed to?, he replied: ‘[p]erhaps
on the fact that I
did not read the contract’. The evidence then ran thus:
‘
Well unfortunately Mr Osman [it] is going to be
argued that you are bound by the fine print. . . .
My Lord, I cannot be bound by something that is drawn up
against the client. A contract that is prejudice the client in the
very
first instance of that if the company in question draws up this
contracts they can walk away from responsibility and that I am not
prepared to accept regardless of how well the contract is written,
how many legal terms that are on the contract the important
thing is
ADT does nothing for me’.
[45] A
consideration that appears to weigh with Koen AJA (para 12) is the
failure of the high court to separate the issues ‘with
clarity
and precision’. It is so that in
Consolidated News Agencies
(Pty) Ltd (in liquidation) v Mobile Telephone Networks (Pty) Ltd and
Another
[2009] ZASCA 130
;
[2010] 2 All SA 9
(SCA) paras 89–90,
this court cautioned:
‘
Piecemeal litigation is not to be encouraged.
Sometimes it is desirable to have a single issue decided separately,
either by way
of the stated case or otherwise. If a decision on the
discrete issue disposes of a major port part of a case, or will in
some way
lead to expedition it might well be desirable to have that
issue decided first.
This court has warned that in many cases, once properly
considered, issues initially thought to be discreet are found to be
inextricably
linked. And even where the issues are discrete, the
expeditious disposal of the litigation is often best served by
ventilating
all the issues at one hearing. A trial court must be
satisfied that it is convenient and proper to try an issue
separately.’
However,
as pointed out in
Consolidated News Agencies
para 86 ‘[t]he
pleadings and the evidence should not be viewed microscopically. It
is necessary to step back to see the bigger
picture’.
[46] In
my view, although no formal order issued in terms of rule 33(4), the
CC could not have been under any illusion as to the
elements of the
claim that had to be satisfied to survive absolution. The rule 37
minute recorded the parties’ agreement
that ‘the merits
and quantum should be separated in terms of Rule 33(4) and that the
trial be confined to the merits of the
plaintiffs’ claim’.
The parties appear to have approached the matter on the basis that
the issues of liability and
quantum had been separated and that at
that stage the matter would be proceeding to trial only in relation
to the former. That,
it seems, is the basis on which the high court
also approached the matter. That is where matters stood until it was
first raised
by a member of the court. It was not advanced on behalf
of the CC, either in the heads of argument or by counsel during
argument
from the bar. It has never been suggested that the CC has
suffered any prejudice as a result of the manner in which the trial
proceeded
pursuant to the separation agreed upon at the rule 37
conference. Nor, it seems to me, could such a contention be advanced.
After
all, the CC was the plaintiff and thus the master of the suit.
I, thus, simply cannot see how this point, which was never invoked
by
the CC, can be held to be decisive against ADT at this stage of the
proceedings.
[47]
However, on my analysis of the case, this hardly matters, because on
a proper interpretation of the agreement, which is a matter
for the
court, the CC has failed to make out a prima facie case. The evidence
of Mr Osman does little to tip the scales in its
favour. If anything,
properly construed, his evidence only serves to further detract from
the CC’s pleaded case. If the appeal
were to succeed, I cannot
conceive how things could possibly get any better for the CC. Thus,
despite the fact that absolution
from the instance at the end of the
plaintiff’s case, should be granted sparingly, it is clearly in
the interests of justice
for such an order to issue in this case.
[48] I
accordingly cannot agree with Koen AJA that the order absolving ADT
from the instance should be disturbed. In my judgment
no court could
find for the CC.
[49] In
the result, I would dismiss the appeal with costs, to be paid by the
appellants jointly and severally, the one paying the
other to be
absolved.
____________________
V
M Ponnan
Judge
of Appeal
APPEARANCES
For the
Appellants: C J Mouton
Instructed
by: Michael Krawitz & Co
c/o
Lovius Block, Bloemfontein
For the
Respondent: H Drake
Instructed
by: Eversheds Sutherland (SA)
c/o
Honey Attorneys, Bloemfontein
[1]
The appeal is with the leave of this court.
[2]
Counsel who appeared for the appellants in the appeal did not appear
in the high court.
[3]
During argument on the application for absolution, counsel for the
appellants presented a ‘thesis’ on constitutionalism
which was irrelevant and misguided, rather than addressing the true
issues involved.
[4]
It is undoubtedly so that pleadings play an important role in
litigation as set out in paragraph 38 below. But pleadings are
made
for the convenience of the court, and not the court for pleadings.
Pleadings are drafted by practitioners of various levels
of skills;
some perhaps not all that skilled, and allowance must be made for
that fact.
[5]
The CC’s cause of action could only be contractual - Lillicrap
Wassenaar and Partners v Pilkington Brothers (S.A) (Pty)
Ltd
[1984] ZASCA 132
;
[1985]
1 All SA 347
(A).
[6]
First National Bank of Southern Africa Ltd v Perry No and Others
2001 (3) SA 960
(SCA) para 36.
[7]
The particulars of claim are set out more extensively in the
judgment of Ponnan JA below.
[8]
Paragraph 9(b)(v) below.
[9]
Paragraphs 31 and 32 below.
[10]
Shill v Milner
1937 AD 101
at 105. In paragraph 42 below Ponnan JA
contrasts this statement to the provisions of the parol evidence
rule, the decision in
KPMG Chartered Accountants (SA) v Securefin
Ltd and Another
[2009] ZASCA 7
;
2009 (4) SA 399
(SCA) para 39, the
provision in clause 11.8 of the agreement providing that the written
agreement contains the entire agreement
between the parties and the
decision in Johnson v Leal
1980 (3) SA 927
(A) at 938. My statement
does not seek to introduce anything in conflict with those
principles. It simply deals with identifying
what are truly the
issues (as opposed to evidence) and determining which issues are in
dispute. The issues in any contractual
claim would ordinarily be
whether a contract exists, the terms thereof, the breach of any of
the terms, and the remedy the aggrieved
party wishes to enforce.
These would all be pleaded in the particulars of claim. In the
present matter the terms of the agreement
have not all been pleaded.
They are however not disputed, as all the provisions contained in
the written agreement, which document
is acknowledged to be the
‘entire agreement’ between the parties, constitute the
terms of the agreement. ADT does
not dispute that. Many of these
terms, notably those contained in clause 6 and the exclusionary
provision relied upon, although
not pleaded in the particulars of
claim, were pleaded by ADT. Some that were not pleaded, such as the
ambit of ADT’s contractual
obligations, have now been set out
in paragraphs 37 and 39 of Ponnan JA’s judgment below.
Paragraphs 37, 39 and 40 of his
judgment now record all these terms,
which have become common cause, more extensively. All my statement
seeks to convey is that
at the level of the technical adequacy of
the particulars of claim, terms not pleaded but referred to in the
evidence of Mr Osman,
where these specific terms were put to him in
cross examination and conceded to be part of the agreement, resulted
in the issues
for determination by the high court, and which would
be relevant also to adjudicating the application for absolution, not
being
confined to the issues expressly pleaded in the particulars of
claim. The terms expressly pleaded in the particulars of claim have
been broadened by these additional terms identified in his evidence.
To that extent the issues have been widened by the evidence.
Mr
Osman’s evidence does not contradict or add to the terms of
the agreement, in contravention of clause 11.8 or the parol
evidence
rule. It simply cures the omission of these terms not having been
pleaded fully in the particulars of claim. My statement
relates to
the facta probanda, not the facta probantia.
[11]
In paragraph 44 below, Ponnan JA refers to evidence being given by
Mr Osman of certain representations. Such evidence would clearly
be
inadmissible. In this judgement I have made no reference thereto. I
did not understand that argument to be advanced by the
CC in the
High Court either. The parties were bound by the ‘fine print’
of the written agreement. The practice sometimes
resorted to by
counsel to engage in legal debates with lay litigants about the
legal niceties of their claim, quoted by Ponnan
JA, is to be
avoided.
[12]
The terms are set out more extensively in the judgment of Ponnan JA
at paragraphs 39 and 40 below.
[13]
Clause 6.1 of the agreement provided that:
‘
The Customer acknowledges that to the extent
that the Services function as a deterrent, they are not a guarantee
of safety against
or prevention of loss liability, injury and damage
of whatsoever nature and howsoever arising. Accordingly while ADT
shall exercise
reasonable care in the installation of the System and
in the rendering of the Services, nothing herein contained shall be
construed
or interpreted in any manner whatsoever as providing the
Customer or any third party whomsoever with any guarantee or
assurance
of safety or against any loss, liability, injury or damage
of whatsoever nature and howsoever arising.’
[14]
The agreement defined ‘Act’ as ‘The Private
Security Industry Regulation Act 56 of 2001 and the Regulations
in
respect thereof.’ It would also include the code.
[15]
Clause 6.2.
[16]
Clause 6.3 provided that:
6.3 Subject to the provisions of the Act, the Customer:
6.3.1 hereby irrevocably waives all and any such claims
referred to in clause 6.2 above.
6.3.2 hereby irrevocably indemnifies ADT or any other
person for whom ADT may be liable in law against all claims of third
parties
arising out of the said acts or omissions, as referred to in
clause 6.2 above, at the Premises.’
[17]
Rule 21.
[18]
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431
(SCA) 449.
[19]
Primesite Outdoor Advertising (Pty) Ltd v Salvianti and Santori
(Pty) Ltd
1999 (1) SA 868
(W) at 881F-882B.
[20]
Rule 33 (4) provides:
‘
If, in any pending action, it appears to the
court mero motu that there is a question of law or fact which may
conveniently be
decided either before any evidence is led or
separately from any other question, the court may make an order
directing the disposal
of such question in such manner as it may
deem fit and may order that all further proceedings be stayed until
such question has
been disposed of, and the court shall on the
application of any party make such order unless it appears that the
questions cannot
conveniently be decided separately.’
[21]
Absa Bank Ltd v Bernert
2011 (3) SA 74
(SCA) para 21.
[22]
FirstRand v Clear Creek Trading
2018 (5) SA 300
(SCA) para 13-14.
[23]
In this regard I respectfully go beyond the statement by Ponnan JA
in paragraph 46 below. Not only had the parties approached
the
matter on the basis that the issues of liability and quantum had
been separated and that the trial would proceed in relation
to the
former, but further that causation was not included under the
merits.
[24]
See also paragraph 46 below.
[25]
Atlantic Continental Assurance Co of SA v Vermaak
1973 (2) SA 525
(E) at 527C-E.
[26]
Gandy v Makhanya
1974 (4) SA 853
(N) at 856B-C; Marine & Trade
Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 39.
[27]
Consistent with Mr Osman’s evidence the plaintiffs’
amended particulars of claim alleged that a short text message
(sms)
was received at 06h48:38. The defendant pleaded that a sms was sent
at approximately 00h45:56 to cellular number 0824874512
advising
that a reaction unit responded to a false emergency at the premises,
but that it had no knowledge as to when the message
was received by
the recipient.
[28]
The amended particulars of claim had alleged that a burglary took
place at the premises at about 00h00.
[29]
Significantly after each of the four distinct activations, the
record reflects a ‘restoral’, which has not been
explained by ADT.
[30]
Claude Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409G-H.
[31]
Gordon Lloyd Page & Associates v Rivera and Another
2001 (1) SA
88
(SCA) para 2.
[32]
Supreme Service Station (1969) (Pty) Ltd v Fox and Goodridge (Pty)
Ltd
1971 (4) SA 90
(RA) at 93.
[33]
Gafoor v Unie Versekeringsadvisuers (Edms) Bpk
1961 (1) SA 335
(A)
at 340; Malcolm v Cooper and Others
1974 (4) SA 52
(C) at 59.
[34]
Atlantic Continental Assurance Co of SA v Vermaak
1973 (2) SA 525
(E) at 526 H.
[35]
Section 8(3) of the Act provides that, ‘Every security
provider must endeavour to prevent crime, effectively protect
persons and property and refrain from conducting himself or herself
in a manner which will or may in any manner whatsoever further
or
encourage the commission of an offence or which may unlawfully
endanger the safety or security of any person or property’.
Section
8(11) provides that a ‘security service provider must in
practising this occupation . . . always act in an honest
and
trustworthy manner’.
Section
9(5) provides that a security service provider ‘must render
the security service for which he or she has bound himself
or
herself contractually in accordance with the terms and conditions of
the contract, the Act and this Code’ and …
with ‘such
a degree of skill, diligence and care as may be expected of a
reasonable, competent and qualified security service
provider in the
circumstances’
In
terms of section 9(15)(b) a security service provider may not
‘intentionally or through gross negligence damage or lose
any
property of a client’.
[36]
In terms of section 9(3) of the code:
‘
A security service provider may not-
. . .
(d) make a contractual offer to conclude a contract
with the client containing any term, condition or provision that –
(i) excludes, limits or purport to exclude or limit the
legal liability of the security service provider towards the client
in
respect of any malicious, intentional, fraudulent, reckless or
grossly negligent act or the security service provider, his or her
security officers or other personnel, or any other person used by
the security service provider or recommended by him or her
to the
client; or
(ii) places a duty or purport to place a duty on the
client to indemnify will compensate the security service provider or
any
other person in respect of any act referred to in subparagraph
(i) by a person for whose conduct the client is not independently
responsible in law;
(e) make a contractual offer or conclude a contract
with the client containing any term, condition or provision that
excludes
or limits or purport to exclude or limit any duty on the
security service provider in terms of the Act or this Code or any
right
which the client has in terms of this Act or this Code, or
which constitute or purport to constitute a waiver of any such right
by the client’ (Emphasis added.)
[37]
Section 48
of the
Consumer Protection Act 68 of 2008
deals with
‘Unfair, unreasonable or unjust contract terms. It provides:
(1) A supplier must not-
(a) offer to supply, supply, or enter into an agreement
to supply, any goods or services-
(i) at a price that is unfair, unreasonable or unjust;
or
(ii) on terms that are unfair, unreasonable or unjust
(b) . . .
(c) require a consumer, or other person to whom any
goods or services are supplied at the direction of the consumer-
(i) to waive any rights;
(ii) assume any obligation; or
(iii) waive any liability of the supplier,
on terms that are unfair, unreasonable or unjust, or
impose any such term as a condition of entering into a transaction.
(2) Without limiting the generality of subsection (1),
a transaction or agreement, a term or condition of a transaction or
agreement,
or a notice to which a term or condition is purportedly
subject, is unfair, unreasonable or unjust if-
(a) it is excessively one-sided in favour of any person
other than the consumer or other person to whom goods or services
are
to be supplied;
(b) the terms of the transaction or agreement are so
adverse to the consumer as to be inequitable ;
(c) the consumer relied upon a false, misleading or
deceptive representation, as contemplated in
section 41
or a
statement of opinion provided by or on behalf of the supplier, to
the detriment of the consumer; or
(d) the transaction or agreement was subject to a term
or condition, or a notice to a consumer contemplated in
section
49(1)
, and –
(i) the term, condition or notice is unfair,
unreasonable, unjust or unconscionable; or
(ii) the fact, nature and effect of that term,
condition or notice was not drawn to the attention of the consumer
in a manner
that satisfied the applicable requirements of
section
49.
’
[38]
In paragraph 41 below, Ponnan JA refers to the decision in First
National Bank of SA Ltd v Rosenblum and another
2001 (4) SA 189
(SCA) at para6 – 7. I draw attention specifically to the dicta
in that decision that an exclusionary provision, as in this
appeal,
is to be interpreted strictly. The court held that, ‘(t)he
strictness in approach is exemplified by the cases in
which
liability for negligence is under consideration. Thus, even where an
exclusionary clause is couched in language sufficiently
wide to be
capable of excluding liability for a negligent failure to fulfil a
contractual obligation or for a negligent act or
omission, it will
not be regarded as doing so if there is another realistic and not
fanciful basis of potential liability to
which the clause could
apply and so have a field of meaningful application…’
In this matter liability for ’gross
negligence’ is not
excluded. Yet the high court did not consider such liability at all.
[39]
Contrary to earlier dicta in for example Cape Town Municipality v
Paine 1923 AD 207.
[40]
Transnet Limited v Owners of the ‘Stella Tingis’
[2003]
1 All SA 286
(SCA) para 7; Bickle v Joint Ministers of Law and Order
1980 (2) SA 764
(R). In an entirely different context of company law
it is significant that
s22
of the
Companies Act 71 of 2008
provides
for instances of a company carrying on its business ‘recklessly,
with gross negligence, with intent to defraud
any person or for any
fraudulent purpose’ (emphasis added)
[41]
Arthur v Bezuidenhout and Mieny
[1962] 2 All SA 506
(A);
1962 (2) SA
566
(A) at 573H.