Free State Provincial Government v Dichaba (3515/2001) [2004] ZAFSHC 71 (8 July 2004)

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[2004] ZAFSHC 71
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Free State Provincial Government v Dichaba (3515/2001) [2004] ZAFSHC 71 (8 July 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 3515/2001
In
the matter between:
FREE
STATE PROVINCIAL
Plaintiff
GOVERNMENT
and
SAMUEL
DICHABA
Defendant
___________________________________________________________
CORAM:
MALHERBE
JP
___________________________________________________________
HEARD
ON:
8 & 9 JUNE 2004
___________________________________________________________
DELIVERED
ON:
8 JULY 2004
___________________________________________________________
Defendant is employed by plaintiff in the Department of
Social Welfare. At all times relevant to this action he was
stationed at
Phuthaditjaba in Qwa Qwa. It is common cause that cash
in the amount of R278 000,00 and 4 laptops to the value of R60 000,00
were
stolen from the Department’s Social Security office at
Phuthaditjaba on 14 October 1998. It is plaintiff’s case that
defendant
is liable to it for this loss. Its cause of action is set
out as follows in paragraph 9 of the Particulars of Claim:
“ 9.
The defendant wilfully or negligently caused the aforesaid loss or
damage to the plaintiff, being the owner of this aforesaid cash
and
laptops, because:
9.1 As Head of Social Security in QwaQwa he was responsible for the
safekeeping of all equipment in the relevant office;
9.2 He was
the only person present in the office on 14 October 1998 who had a
key to the office;
9.3 He
failed to adhere to the request of a Junior Officer to lock in the
laptops and to secure the laptops;
9.4 He
failed to carry out the instruction given by his Director not to keep
money overnight in the said offices under any circumstances;
9.5 He
failed to instruct his subordinates not to bring money to the office;
9.6 He
failed to take any or sufficient preventative steps to secure the
money or to satisfy himself in regard to the amount of the
money.”
Defendant pleaded a bare denial to these allegations.
The Department of Social Welfare deals with large sums
of money that have to be paid out every month to pensioners and other
recipients
of welfare grants and allowances. Social Security
Circular No. 1 of 1997 is the procedure manual for officials involved
in the payment
of social pensions and allowances. (It is to be found
at pp.1 – 11 of the bundle Exhibit “A”). On the day in
question a pay
team from the Phuthaditjaba office, headed by Mr
Ntsamai, paid out pensions at Bolata, a village some 5 to 7
kilometres from the
office. As a result of some problem in the
electronic or computer system, payouts could not be completed on that
day. All officials
concerned, including defendant, were aware of
this beforehand. Mr Ntsamai stopped payouts approximately 3:00 p.m.,
and rushed to
the bank in order to bank the remaining cash before the
bank closed at 3:30 p.m. When he arrived at the bank, it had already
closed.
He then went to the office where, according to him,
defendant was in charge, and arrived there approximately 4:00 p.m.
He describes
what happened there as follows:
“
--- Toe ons nou by die kantoor aangekom het,
het ek opgemerk dat mnr. Dichaba se voertuig buite geparkeer staan en
toe het ek na sy
kantoor toe gegaan. Ek het na hom toe gegaan en
gesê soos ons weet wat die prosedure bepaal dat indien ons met die
geld terugkom,
moet hy die geld kom tel. Toe sê hy vir my nee, hy
is nie meer die hoof van die kantoor nie en hy vra dat ek en ‘n
betaalmeester
die geld gaan tel. Ek het toe gegaan om saam met die
betaalmeester die geld te tel.
Wie was die betaalmeester? --- Dit was mnr. Leshoro Mokgere.
Spel vir ons die naam en die van asseblief? --- L-E-S-H-O-R-O
M-O-K-G-E-R-E. Verder het mnr. Dichaba vir my gesê gehad dat
wanneer
ons klaar die geld getel het, moet ek hom kom sê hoeveel die
geld bedra. Ek het die geld getel. Na ek dit getel het, het ek
teruggekeer
na hom toe. Ek het op so ‘n stukkie papier die bedrag
opgeskryf gehad en ek het hierdie stukkie papier in my hand gehad.
Toe
sê hy hy gaan ons een van die kluise se sleutels gee.
Hy sê hy sal vir julle ‘n sleutel van die kluis gee. --- Ek het
hom nou die strokie gegee waarop die bedrag geskryf is en toe
vra ek
nou vir die sleutel van die kluis. Hy het uitgestap na sy voertuig
toe, toe gee hy vir my die sleutel van die kluis. Ons
het toe die
geld in die kluis ingeneem, ek en die betaalmeester en ‘n ander
assistent van ons wat ons gehelp het daardie dag.
Ons het die kluis
toegesluit en die sleutel daarvan het ons aan die betaalmeester
oorhandig.
Net ‘n oomblikkie. Hierdie mnr. Mokgere? --- Ja.”
Defendant describes the same events as follows in his
evidence:
“
MR SIMELANE
: On 14 October 1998. money was brought back
from Bulate pay-point to the office, is that the position? ---
Correct.
Was that money brought to you? --- No, sir.
What
happened? --- Mr Ntsamai came to ask for the key.
COURT
: He came to you and asked for the key to ...? --- For
the key to the safe.
MR
SIMELANE
: And then? --- I asked him for what purpose should I
give the key to him; he explained that he returned with the money and
then
I gave him the key.
Do you know what he did with the key? --- No, I know nothing.
COURT
: You apparently did not care either? --- No, sir, but
had he asked for assistance, I would have assisted but he apparently
was
able to go on on his own.
You were asked what happened to the key, you said you did not know.
I then said you apparently did not care either. Did he return
the
key to you? --- No, sir.
Did you
ask him to return it to you? --- My understanding was that he has the
key and he has the money with him and therefore he carries
the
responsibility.”
“
MR SIMELANE
: Why was this key in your possession to start
with? --- The strongroom was previously used to put in money but at
the time it was
used for stationery, for keeping stationery.
Was there no other place where this money could be stored? --- There
are three strongrooms, the first one did not have a key, it
was
broken into. The second strongroom’s key someone was out of town
with the key so there could have been no access to it and
the third
one was this strongroom to which I had the key.
COURT
: So are you saying that the strongroom to which you
had the key was the only strongroom in that building on that day
where money
could be safely stored? --- Yes, sir.
MR
SIMELANE
: You say now in your evidence you were not asked to
help, Ntsamai did not ask you to help with the money? --- Yes, sir.
Had he asked you to help, what would you have done? --- I would have
helped by counting the money to ascertain how much it amounts
to and
then put it in the strongroom, sir. About 3 metres away from my
office I met a security guard and told him what the situation
was in
the building so that he should be more awake towards his work.”
Regarding the 4 laptops, it is common cause that Mrs Van
der Nest requested defendant on the day in question to lock them up
in a
certain office and that he did not do so. It is also common
cause that these laptops were stolen from the office building during
the same night but that office in which the laptops were supposed to
be locked up, was not burgled.
Social Security Circular 1 of 1997 contains
comprehensive instructions to officials who are responsible for the
payment of social
pensions and allowances. It was issued by a
certain Mr Roberts in his capacity as Director: Social Security.
Paragraph 13 deals
with the procedure to be followed after completion
of payments and sub-paragraphs 1 and 2 thereof provide as follows:
“13. PROCEDURE AFTER COMPLETION OF PAYMENTS
13.1 The balance of the cash withdrawal for pension moneys must be
counted and deposited at the bank nearest to the paypoint. If
after
banking hours, the balance as above must be taken to the
Regional/sub-office and there given to the office head, Social
Security,
who must check it and issue a receipt to the paymaster. The
money must be placed in safekeeping until it can be deposited on the
next day.
13.2 A
receipt (Z 371) in respect of the balance of the cash withdrawal
deposited must be issued. A paymaster may not issue and sign
a
receipt in respect of himself.”
It is common cause that there was a meeting in Kroonstad
during 1997 where this same Mr Roberts and other senior officials of
the
Department, including defendant, were present. According to
plaintiff’s witness, Mr Vlok, the following took place there:
“--- As gevolg van die groot rooftog waarna so pas verwys is, het
ons ‘n bestuursvergadering gehad te Kroonstad waar die verweerder
ook teenwoordig was namens die spesifieke kantoor, Phuthaditjaba
kantoor. Ons direkteur op daardie stadium, mnr. Gerald Roberts
nog
steeds het toe ons vir tee gebreek het,
het hy
gevra dat mnr. Dichaba, myself and mnr. André Theron agterbly in die
lokaal. Ons het die deur toegemaak en mnr. Roberts
het vir mnr.
Theron gevra om notas te maak op die swartbord, daar was ‘n
swartbord in hierdie lokaal. Mnr. Roberts het toe vir
mnr. Dichaba
gesê dat as gevolg van hierdie roof wat pas plaasgevind, moet hy
stappe neem of het ons voorstelle gemaak wat nou
moet gebeur indien
daar .... met pensioenbetalings. Die eerste ding wat mnr. Roberts
vir hom gesê het wat André of mnr. Theron
op die bord geskryf het,
was dat geen kontant moet meer oornag by die kantoor in die kluis
nie. Die tweede ding wat hy vir hom gesê
het om dit haalbaar te
maak, moet betalings nie plaasvind na drie-uur die middag nie;
betalings moet gestaak word sodat die balans
van die geld teruggebank
kan word. En dit is basies die opdrag wat mnr. Roberts vir mnr.
Dichaba gegee het die dag.”
During cross-examination he says the following:
“ In my mind the instruction issued by Mr Roberts seems to be
contrary to the instructions that is written down here, they do not
go hand in hand. If money had not to be brought back to the office
then it means the defendant could not have accepted the money.
--- Om
te verduidelik
dat die omsendskrywe waarna die
verweerder se verteenwoordiger verwys, is ‘n omsendskrywe wat die
betaling van pensioene reguleer
en dit het gesê dat geld moet deur
die kantoorhoof ontvang word, teken ‘n kwitansie en die
betaalmeester sê dit moet veilig bewaar
word. Na die uitreking van
daardie omsendbrief met, as gevolg van die eerste rooftog in Qwa Qwa,
wou die hoof van die Departement
of mnr. Roberts spesifiek keer dat
so ‘n geval weer moet gebeur. Dit is hoekom hy spesifiek daardie
instruksie gegee het wat gesê
het geld mag nie na drie-uur of mag
nie by die kantoor oornag nie.
If it did happen that the pay team comes back with the money from the
pay-point as it was in this case, what should the defendant
have done
with the money? --- U moet onthou dat die omsendskrywe, 1/79 is nie
teruggetrek deur mnr. Roberts nie, dit was nog steeds
van krag. ‘n
Omsendbrief raak net nietig wanneer hy teruggetrek word en vervang
word deur ‘n ander instruksie. Daardie omsendskrywe
was nog steeds
van krag ten spyte van die feit dat hy vir hom as ‘n
veiligheidsmaatreël ‘n opdrag gegee het om nie geld te bank
nie,
ag, in die kluis te bêre nie, staan hierdie omsendskrywe nog steeds
van krag. Hy is nêrens ingetrek nie, so hy was nog steeds
in
werking
HOF
: So wat u
sê, toe hierdie geld nou terugkom van die betaalpunt op die betrokke
dag, toe was mnr. Ditchaba, die verweerder, veronderstel
om daardie
omsendbrief stiptelik na te kom? --- Positief, want hy was nog steeds
van krag, hy was nie teruggetrek of gewysig nie.
MR
SIMELANE
: Yes, I understand that.
But my point is in his mind there was now instructions that were
contrary to each other. The circular
says one thing and Mr Roberts
specifically orders something else, in his mind therefore there must
have been that confusion what
he must do with the money. --- Ja, ek
kan nie getuig oor wat in sy confusion aangegaan het of wat in sy,
what his state of mind was
nie, I cannot say that. My answer remains
the same dat die omsendbrief was nie ingetrek nie en daardie was ‘n
addisionele opdrag
om geld te beskerm.
Finally on this point, what I am trying to drive at is that if he
kept one instruction he could not keep the other. He had, that
could
not go both ways. --- Ek stem nie saam daarmee nie.
COURT
: Are you
suggesting Mr Simelane, that the instruction that was given at
Kroonstad on the evidence, do not keep money in the office
overnight,
that was the instruction?
MR SIMELANE
: That is correct M’lord.
COURT
: Are you
saying that that is the reason why your client did not want anything
to do with the money that arrived after hours?
MR
SIMELANE
: Definitely, M’lord, this
is what I am saying. He did not take it because there was a specific
instruction that he must never
have anything to do with the money
that comes back after hours. And at the same time not being told if
it did happen what he must
do.”
This was also defendant’s evidence as quoted above.
Regarding Mr Roberts’ instruction at the meeting in Kroonstad, he
testified
as follows:
“--- We understood that Mr Roberts does not give us any option;
under no circumstances should the money come back to the office.

That is what we understood him to be saying.”
“ Mr Dichaba, I just get the impression that you are trying to
evade your responsibility in that particular office. --- No, I do
not
avoid responsibility.
And the avoidance in particular in regard to the money that is
involved in payments to pensioners. --- I do not avoid
responsibility,
sir, because I have already explained that
instruction was to the effect that under no circumstances should the
money be brought
back to the office.”
Defendant’s defence is really very simple, viz. that
he was no longer the head of the office and, therefore, not
responsible for
money that was brought back to the office in
contravention of Mr Roberts’ clear instruction.
There can be no doubt that Mr Vlok’s evidence is
correct. Defendant’s “understanding” of the instructions given
at Kroonstad
is untenable. He was a senior official at the time. In
fact, from his own evidence it appears that the person who had to
replace
him as head of the office had not yet assumed duty. It is no
wonder that all the witnesses for plaintiff regarded him as head of
the office at the time of the burglary.
Mr Vlok made notes of his interview with defendant the
day after the burglary. (These notes are to be found at pp. 64 &
65 of
Exhibit “A”). I have no doubt that they correctly reflect
what defendant told Mr Vlok on that occasion. It really coincides
with defendant’s own evidence viz. that he wanted nothing to do
with the money and was not willing to take responsibility for it.
I
also have no doubt whatsoever that he told Mr Vlok that he forgot to
lock up the laptops as requested by Mrs Van der Nest and
that his
elaborate explanation in Court of his understanding of the request in
this regard, is a clumsy attempt to explain his lack
of interest in
duties and responsibilities.
It appears from the evidence of both Mr Vlok and Mr
Ntsamai that it would have been possible to obtain assistance from
the South African
Police to post guards at the office where the money
and laptops were kept or even to keep it overnight at the Police
Station. It
would also have been possible to arrange for extra
security guards at the office from government sources. These steps
seem eminently
practical and reasonable and should, in my judgment,
have been taken by the reasonable senior official in defendant’s
shoes on
the afternoon in question. His failure so to act was
negligent.
I
am satisfied that had these steps been taken, the housebreaking would
probably not have occurred. I find that the necessary causal
link
between defendant’s negligence and plaintiff’’s loss has been
established.
It is common cause that the statutory prerequisites to
hold an official personally liable for loss have been complied with.
(See the
list of “Further Agreements between the Parties” that
was handed in at the end of plaintiff’s case).
In
the premises judgement is granted in favour of plaintiff as follows:
1. Payment
of the amount of R338 000,00.
2. Payment of interest on the said amount at the rate of
15,5% per annum
a tempore morae
to date of payment.
3. Costs of suit.
__________________
J.P. MALHERBE JP
On behalf of Plaintiff:
Adv.
J.Y. Claasen
Instructed by
State
Attorney
Bloemfontein
On behalf of Defendant:
Adv.
A.J. Simelane
Instructed by
Honey
& Partners
Bloemfontein
/scd