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[1] This case involves a trial action concerning a claim by the plaintiff , in contract ,
for damages sustained by it as a result of a robbery at the warehousing premises
in respect of which the defendant was obliged to offer remote security monitoring
services.
[2] The plaintiff claims , in the alternative , damages on the basis of delict.
[3] There is no dispute about the written terms of the contract save that the plaintiff
argues that , on a proper construction of the contract , it included the obligation to
provide monitoring services in respect of a server rack/cabinet on the premises .
[4] The defendant denies that its obligations extended to the monitoring of the
server r ack. It argues that the monitoring and alarm trigger devices which were
installed in this server room where the rack was kept were for the defendant’s
benefit in that the equipment housed in the server room belonged to it and it
wished to monitor it .
[5] An important consideration is that the contract contains a n exemption clause in
terms of which the liability of the defendant is excluded , save in the event of gross
negligence or fraud.
[6] The defendant has pleaded a counterclaim on two bases : the first being a claim
for contractual damages arising from the alleged repudiation of the contract ; the
second is a claim for the value of the defendant’s equipment which was taken
from the server room on the basis that the plaintiff had the obligation under the
contract to kee p this equipment insured but failed to do so.
[7] The issues before this court relate only to the respective liability of the parties.
The quantification of the damages and a point relating to locus standi are issues
conveniently held over for later determination. Accordingly, the issue of liability
was separated under rule 33(4) to be determined first.
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[8] I now turn to the salient facts which emerge from the evidence adduced at the
trial.
Salient facts
[9] The starting point is the nature and scope of the contract .
[10] The defendant is a company that offers, inter alia, remote monitoring of
premises. The plaintiff is a company that deals in the sale of export grade
alcoholic beverages such as spirits and other alcoholic drink s.
[11] The premises on which the warehouse used by the plaintiff to store the bottles of
alcoholic beverages was situated was the subject of the contract .
[12] The parties agree that the contract comprises a master agreement, various site
schedules that set out the services provided and the equipment leased for the
purposes of the carrying out of the services , and a document that sets out the
standard operating procedures (SOPs) which the defendant is obliged to follow
in the event of the trigger of an alarm.
[13] The services are merely described as “remote mo nitoring of close circuit
television alarms” . There is no de tail provided beyond this wide description. This
lack of detail has led to the dispute as to whether the server room in issue was
included in the monitoring obligations under the agreement.
[14] The plaintiff leased from the defendant the equipment as reflected in each site
schedule which provided the means for the performing of the services. The
defendant makes the point that the equipment pertaining to the disputed services
is not part of the equipment leased by the plaintiff under the contract. This is not
disputed.
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[15] Pertinently , the contract reads that the defendant does not warrant or guarantee
that it or its services, personnel or equipment would be able to minimize or
prevent any loss or damage to the plaintiff.
[16] Furthermore , it was agreed that t he services and equipment provided in terms of
the agreement were not intended to be an alternative to or supplement any
insurance.
[17] The contact contained an exemption clause to the effect that t he defendant would
not be liable to the plaintiff for any loss or damage which the plaintiff may suffer
or incur as a consequence of utilising the services and/or the equipment unless
such loss or damage was directly attributable to the defendant's gross negligence
or its fraudulent intent .
[18] In the event of an alarm activation which led to a suspect or suspects being noted
to be on the site, the operator in the control room was obliged to review the event
to identify what caused the alarm and then “go live” to view the actions of the
person who triggered the alarm . The operator would then perform audi ble
warnings .
[19] It was explained by Mr Justice Ramhali, who testified for the defendant and who
was the control room operator when the event occurred , that the system allowed
a live close circuit television (CCTV) monitoring of the site. This live monitoring
could be called up as required when activity was notifie d on the site in question .
[20] Mr Ramhali explained further the alert would register on a computer screen which
he was monitoring and he would then take action as per his instruc tions.
[21] Mr Ramhali explained in relation to the audible warning feature that this entailed
the operator giving an audible command or warning which was transmitted
through speaker equipment on site so that the suspect could be deterred. The
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speaker was not a two-way speaker and did not allow communication with the
person detected on site.
[22] It was agreed in terms of the SOP that, if this audible warning did not deter the
suspect , the plaintiffs armed response company would be notified so that its
guards could be dispatched to intervene . If there was an actual threat , the South
African Police Services (SAPS) would be notified . It was agreed further that t he
operator would make contact with security officers on site if possible and would
then continue to ‘patrol’ the site.
[23] The use of the word ‘patrol’ in this context meant a virtual remote monitoring of
the scene .
[24] Once this protocol had been carried out, there would be a follow -up by the
control room as to what had occurred and, lastly , the client would be inform ed
telephonically of the incident.
[25] The premises consisted of a large warehouse and some personnel offices and
facilities (the buildings). The buildings were situated within a perimeter security
fence.
[26] The entrance from the perimeter onto the premises was also manned during
office hours , which were 08h00 to 17h00 , by a guard stationed at a security
check -point inside the perimeter. This guarding service was independent from
the defendant .
[27] The plaintiff also employed an armed response company, again separate from
the defendant . This alarm system allowed for the manning of the warehouse
alarm to be operative overnight. Importantly , it also had a panic button feature
which allowed a panic call to be sent during office hours.
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[28] Mr Emerson Haupt was the general manager of the defendant at the time of the
incident. He has more than 20 years of experience in the security industry on the
technical side in relation to remote monitoring. He testified for the defendant.
[29] Mr Haupt explained that the services offered were the monitoring of the
perimeter of the premises after hours. He explained that this entailed the
installation of cameras around the perimeter which would be aligned with
movement detectors in the form of an invisible beam. This system was
operational only after office hours.
[30] The only monitoring alarm system which was in operation during office hours was
the system in question in the server room. The server was an integral part of the
remote monitoring system.
[31] The server was housed in a server cabinet /rack. The cabinet had a glass door .
[32] An alarm was installed in the sever rack which operated on the basis that it was
triggered if the door was opened. This was referred to as a “quad alarm”.
[33] There was a further protection which entailed a signal being sent to the control
room if the If the server was unplugged or the connection to the server failed for
any reason. This was called a “loss of si te” alarm .
[34] The protocol for loss of site was that there would be a telephone call placed by
the operator to the client to determine what had occurred and if this could not be
established the armed response company and the police would be called .
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[35] Mr Haupt testified that the quad alarm was for the benefit of the defendant only
in that it protected the defendant’s equipment. The equipment va lue is
approximately R80 000.
[36] He testified further that the loss of si te alarm served to notify that there had been
a technical interruption of the operating system . This was as opposed to the
alarm which was triggered when the server rack door was opened .
[37] The loss of site alarm would occasion inquiry by way of telephone call and if this
could not be achieved there would be a notification of armed response company
and police. The argument of the defendant was that this facility protected the
client so contact could be kept with the client at all times , whereas the door alarm
of the server cabinet was for the defendant ’s benefit alone .
[38] Thus, in sum, the following systems were operative during office hours : An on -
site security guard ; panic buttons which connected both the defendant and the
independent security company that offered armed and tactical response; and the
quad alarm.
[39] It is not disputed that the quad alarm system was not part of the equipment
leased by the plaintiff under the agreement.
[40] Mr Prestin Cheslin Aitkin who was the only witness for the plaintiff was in charge
of the warehouse on the day in question being 26 September 2016 . He
described how the robbery unfolded and also testified as to his usual procedure
in relation to the alarm systems in issue.
[41] As usual Aitken arrived at the warehouse just before 08h00. As part of his
employment Aitken had in his possession a remote -control device that operated
the perimeter gate at the entrance to the premises.
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[42] The gate was palisade in nature and was controlled remotely by Aitken with the
remote -control device. Once opened and closed behind him Aitken would give
the remote control to the guard who manned the security check -point .
[43] Aitken on the day , as he did in the normal course attended on the warehouse;
disarmed the alarm system which he had armed the evening before when he left
the premises.
[44] Aitken was the person who opened the offices each morning and locked up at
night.
[45] There were nine other staff members who performed various functions that the
pack ing, loading and off - loading of the alcohol crates involved.
[46] The morning began in the normal way. At approximately 08h30 three armed men
wearing reflective vests labelled with the word “POLICE” entered the offices.
They initially pretended to be policemen but it soon emerged that they were
robbers.
[47] The robbers proceeded to round up the staff , including Aitken and the security
guard . They then used cable ties to handcuff them with their hands behind their
backs. All had their mobile phones confiscated. They were told not to swich them
off however .
[48] During the course of the action, Aitken’s mobile phone rang. The robber who
seemed to be in charge of the proceedings pointed his firearm at Aitken and
instructed him to take the call and to “speak nicely”.
[49] The call was from the Director of the plaintiff Mr David Ka plan. It was a business -
related call.
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[50] Aitken , at gun -point , did he was told and pretended to Ka plan that nothing was
amiss. He was later praised for his “co -operation” by the gun wielder.
[51] The next demand was that he take the gun -wielder to the server room . He duly
complied – at gunpoint.
[52] Aitken understood that the reason why access to the server was required by the
robbers was an attempt to thwart the security measures that were in place.
[53] When access to the server room was gained , Aitken was confronted by a nother
man. This man was masked with a face mask that covered most of his face and
he wore a beanie hat and he wore gloves.
[54] Aitken referred to this man as “the IT Man” because he appeared to understand
the technology of the server and seemed to know what he had to do in relation
to the server.
[55] As I have said, the server rack was a steel up -right cabinet with shelves on which
the server was placed and it had a glass door. The IT man opened the glass
door to the rack
[56] At this point it is important to understand what was triggered on the system by
the opening of the door. I move then to analyse how the system operated .
[57] The opening of the door to the server rack triggered what was referred to as a
quad -alarm in the defendant’s control room.
[58] This trigger manifested as a line-item pop - up on a computer monitor screen
which , when clicked on took the person monitoring the screen to a page
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containing four photo graph ic images positioned on the screen in postcard size
quadrants. The screen measured 22 inches.
[59] The two top and bottom left photographs were still snapshots taken at one
second intervals. The fourth was a moving composite of the three forming a
moving montage. The aim of this system was to give a snapshot view of who had
opened the cabinet.
[60] The court was provided with copies of the view which appeared on the screen
so that it could assess for itself what emerged therefrom.
[61] Aitken was shown standing in the server room with his back to the camer a and
his hands behind his back. He was looking on at the masked man who had
opened the server door. The man was wearing a beanie hat and gloves.
[62] Aitken confirmed that the man depicted at the cabinet was who he referred to as
the IT Man. The gloves he says were long and made of a thick material. After
having shown the men to the server , Aitken was immediately escorted out of the
room by the gun -wielding man back to the office where all the employees were
being held . The gun -wielding man was not visible on the screen.
[63] Ranhali testified that this alarm registered on his screen as low priority. He had
not been instructed to respond to this alarm other than to check what had caused
the trigger . He denied that he had the obligation to take any action if he was
satisfied that there was nothing suspicious taking place .
[64] He surveyed the snapshots which appeared on the screen . He recognised
Aitken. He could not discern the cable ties. They are not readily visible on the
photographs which were placed before the court . To my mind there is nothing
which should have evoke d Ranhali’s suspici on.
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[65] The fact that the man attending to the server was masked did not attract
Ranhali’s interest in that it was lockdown and everybody was required to wear
masks. The fact that the person was gloved likewise did not cause suspicion
because it was winter.
[66] Furthermore, the opening of the server door was not an isolated occurrence .
There was undisputed testimony that the opening of the server door had
previously occurred over the preceding months on least three other occasions.
[67] The reason for the opening of the server door on these occasions was that the
plaintiff’s personal internet device (i.e. it was not connected with the defendant’s
system) was giving trouble which required it to be rebooted. The device was
stored in the same cabinet as the server and , thus, to access the plaintiff’s device
the glass door had to be opened .
[68] Mr Haupt testified that the plaintiff was not strictly allowed to store its own
equipment in the server rack precisely because of the nuisance factor involved.
It seems it was overlooked however.
[69] Mr Rankali knew that the plaintiff’s equipment was housed in the same server
cabinet and that there had been at least three occasions where the door had
been opened by Aitken and others to attend to this equipment.
[70] The most contentious part of Aitken 's evidence was that on each occasion, when
there was such a trigger, the person monitoring the alarm would call to find out
the reason for the trigger. This evidence was relied by the plaintiff for its version
of the contract .
[71] The plaintiff argues that it was practice and a part of the defendant’s obligation
under the contract to respond to the trigger by phoning Aitken. Had this been
done, argues the plaintiff this would have resulted in either the phone not being
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answered which would occasion further action in the form of notification of the
plaintiff’s security company which may have yielded discovery of the robbery in
progress or in Aitken being in a position to give the alert.
[72] As it happened, the robbery progressed for more than two hours after the quad
alarm was triggered . It involved further robbers bringing trucks into the loading
area and even using the fork -lifts at the warehouse to achieve the loading of the
cases of drink . The fork -lift driver was ordered at gun -point to perform the loading.
[73] A substantial amount of alcohol was stolen in this well -orchestrated heist. The
plaintiff alleges it suffered damages in an amount of in excess of R8.7 million due
to the loss of its stock. As I have said, the quantum is not part of this inquiry.
Discussion
[74] Essentially , the dispute under the contract is whether the plaintiff was entitled to
24-hour protection of the server which would require action on the part of the
defendant or whether it was a fac ility for the defendant only.
[75] It is clear that the main service offered by the defendant was an after -hours
monitoring of the perimeter of the premises. This required arming at the end of
the working day and disarming at the start of the day .
[76] During the day there were other security measures in place comprising the
security guard and panic buttons which were person - activated.
[77] The question posed when weighing up the probab ilities is why only the server
alarm was armed 24/7 .
[78] It is not in dispute that there was no other armed service during the day .
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[79] Neither is it disputed that the equipment protecting the serv er was not leased by
the plaintiff in terms of the contract as was the case with the other equipment
which facilitated the furnishing of the services under the agreement .
[80] It stands to reason that the defendant would want to protect its equipment during
the day. It could , after all , not control the access that could be had to its
equipment during the day.
[81] Ranhali struck me as an honest witness . His evidence was to the effect that was
not instructed to telephone and alert armed or police response in the event of a
trigger of the quad alarm. This position was confirmed by Haupt .
[82] In any event, the system under the contract was set up in such a way that there
were layers of intervention which st arted with visual checking of the scene and
escalated to armed response and police involvement in the ev ent of the perimeter
being breached. The evidence was to the effect that there would first be a visual
check and if necessary ( i.e. if a suspect was noted on site ) the next step would
be the audible deterrent . Armed response would be a last resort.
[83] To my mind the probabilities support the defendant’s version of the agreement.
However , at best for the plaintiff the probabilities are evenly balanced.
[84] However , even if it is accep ted if the defendant was contracted to initiate the
protocol, the initial check by Ranhali would , to my mind have satisfied a person
in Ranhali’s position that a threat of the type where armed response action was
required.
[85] The pro babilities support the defendant’s contention that the contract did not
include 24 -hour monitoring of the server rack. To the extent that the server w as
compromised the control room would be notified immedia tely. This ultimately
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occurred albeit only after the robbery was over. Thus, the plaintiff’s argument that
keep ing this communication mechanism functional and operational was a priority
which served the plaintiff’s requirements is not compelling.
[86] Thus , I find that the plaintiff has not established a breach of contract.
[87] However , even if the contract required that Ram hali take some action , and it is
not clear what action would have been appropriate in any event, his failure to act
does not rise to the level of gross negligence required for liability in terms of the
exemption clause. He checked the site and nothing evoking suspicion of an
armed robbery was noted.
[88] Furthermore, the submission that if action were taken this would have th warted
the robbery is fanciful.
[89] Thus , the claim for liability under the contract must fail.
The claim in delict
[90] The plaintiff asserts that , notwithstanding the contracting out of liability for
negligence , the plaintiff still can found a claim on delictual principles.
[91] The proposition is stated as follows:
‘‘Although there has historically been some uncertainty on this score, it is respectfully
submitted that the law in this regard is now clear. Delictual liability can arise even in the
case where the relationship between two parties is regulated by means of a contract."
[92] As authority for this proposition a scattergun approach is taken with bald
reference to : Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty)
Ltd 1985 (1) SA 475 (A) at 499 A -D; Holtzhausen v ABSA Bank Limited 2008 (5)
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SA 630 (SCA) at 633 -634; Trio Engineered Products Inc v Pilot Crushtec
International (Pty) Ltd [2018] ZAGPJHC 447 at paragraphs 23 -27.
[93] This is unhelpful. It fails to take account of the approach to Lillicrap adopted by
the Constitutional Court in Country Cloud Trading CC v MEC, Department of
Infrastructure Development1.
[94] The Court in Country Cloud , in fact , warned that courts should be wary of
extending the law of delict where there are existing contractual relationships . It
held to do so may subvert the autonomy of parties to regulate their rights and
duties. The principle was put thus by the Court :
“Where parties take care to delineate their relationship by contractual boundaries, the
law should hesitate before scrubbing out the lines they have laid down by superimposing
delictual liability ”.2
[95] Unterhalter J (as he was) in his careful exposition of the position taken in Country
Cloud in Trio Engineering Products Inc v Pilot Crushtec International (Pty) Ltd3
concluded , correc tly with respect, that the position adopted in Country Cloud
would appear to exclude concurrent liability in contract and delict in that once
parties have chosen to frame their relationship in contract, respect for the
autonomy of the parties precludes the imposition of duties in delict that may be
different and have different consequences.
[96] The most that can be said of the authorities relied on by the plaintiff for its
delictual claim is that the facts of a particular case may accommodate concurrent
claims in contract and delict.
1 Country Cloud Trading CC v MEC, Department of Infrastructure Development 2016 (1) SA 1 (CC).
2 Id at para 65.
3Trio Engineering Products Inc v Pilot Crushtec International (Pty) Ltd (16/16836) [2018] ZAGPJHC 61;
2019 (3) SA 580 (GJ) (22 March 20 18).
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JOHANNESBURG
This Judgment was handed down electronically by circulation to the
parties/their legal representatives by email and by uploading to the
electronic file on Case Lines. The date for hand -down is deemed to be 13
January 202 5.
Heard: 07, 08 & 09 October 202 4
Heads : 05 November 2024
Delivered: 13 January 2025
APPEARANCES:
Applicant’s counsel: Adv. D. Dorfling SC
Applicant’s Attorneys: JHS Attorneys
Respondent's Counsel: Adv. B Boot SC
Respondent Attorneys: Weavind & Weavind Attorneys