Kellaprince Properties (Pty) Ltd v Muntingh and Another (48/2001) [2002] ZASCA 30 (28 March 2002)

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[2002] ZASCA 30
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Kellaprince Properties (Pty) Ltd v Muntingh and Another (48/2001) [2002] ZASCA 30 (28 March 2002)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case
No: 48/2001
In the
matter between:
KELLAPRINCE
PROPERTIES (PTY) LTD
Appellant
and
SALLY
MUNTINGH
1
st
Respondent
AND
NEDCOR
BANK
2
nd
Respondent
Coram
:
Olivier,
Streicher, Cameron, JJA
Heard
:
14
March 2002
Delivered
:
28
March 2002
J U D G M E N T
STREICHER
JA
:
[1] In a judgment by Van der Walt J
in the Transvaal Provincial Division the first appellant, as agent of
the respondent, and the
second appellant as surety in respect of the
obligations of the first appellant to the respondent, were held
liable in respect of
a loss, as a result of a robbery, of monies
belonging to the respondent. With the necessary leave the appellants
appeal against that
judgment.
[2] The
respondent is a bank registered in terms of the Banks Act 94 of 1990.
The first appellant is a close corporation doing business
as an
estate agency. On 23 September 1993 the respondent and the first
appellant entered into a written agreement in terms of which
the
first appellant was appointed as an agent of the respondent to
operate an agency of the respondent’s Perm Division in Barberton
(the ‘Perm Agency’).
[3] Clauses
4.1, 4.2 and 9 of the agency agreement provided as follows:
‘
4.1 A trust banking account will be opened by the
Bank, in the name of the Bank, to serve the Agency, and you will
operate such account
in accordance with the Bank’s regulations.
4.2 All monies, cheques or any other instruments of
value received by you on behalf of the Bank shall be and remain the
property of
the Bank. You will be responsible for depositing such
monies, cheques or any other instruments of value to the credit of
the aforesaid
trust banking account in the name of the Bank at latest
by the next business day following receipt of such monies, cheques or
instruments
of value.’
‘
9 You will be wholly accountable and responsible for
the management and conduct of the Agency and for all monies, cheques
and any
other instruments of value received on behalf of the Bank and
for any loss to the Bank whatsoever arising out of your services as
the Bank’s Agent including loss arising from: any act of fraud or;
errors of commission or; errors of omission by your staff.’
[4] The first appellant employed Ms
Retha Theron as a teller in the Perm Agency with overall
responsibility for the Perm Agency and
a Ms Du Toit as a ‘flexi
girl’ to assist her. Whenever necessary Ms Hannie Strydom, one of
the members of the first appellant,
also assisted in the Perm Agency.
[5] On
9 July 1997 the respondent gave notice to the first appellant that
the agency would terminate on 30 November 1997. As a result
it was
agreed between the first appellant and Theron that her last day of
employment would be Saturday 29 November 1997.
[6] Prior
to Saturday 29 November 1997 Mr Madden, an employee of the
respondent, acting on behalf of the respondent, arranged with
the
second appellant, one of the three members of the first appellant,
and with Theron that the final accounting of the first appellant
to
the respondent would take place at 08h00 on Monday 1 December 1997.
According to the second appellant the other members and she
were
going to be present as a courtesy gesture on their part.
[7] The
automatic teller machine (‘ATM’) installed on the premises of the
Perm Agency would also have been removed on the Monday
and the
accounting, which had to be done on Monday, would have included an
accounting in respect of the transactions done through
the ATM.
However, on Saturday 29 November 1997 people unexpectedly arrived at
the premises of the Perm Agency to remove the ATM.
Theron notified
Madden whereupon he proceeded to the Perm Agency to assist. He and
Theron closed the ATM, balanced the transactions
conducted through
the machine with the cash still available in the machine, removed the
cash from the machine and locked it in the
safe used by the Perm
Agency. Madden was still present at closing time when Theron put the
other money held by her in the safe, locked
the safe and locked the
front door. Two keys are required to lock and unlock the safe and one
of the requirements of the respondent
was that, for security reasons,
the two keys be kept separately. Madden testified that it did not
strike him that Theron was, contrary
to the respondent’s
requirements, in possession of both keys of the safe.
[8] At
06h10 on Monday morning Strydom telephonically advised the second
appellant that there had been a robbery at the Perm Agency.
The
second appellant telephoned Theron, who was at the Agency, and asked
her what she was doing there at that time of the morning.
Theron said
that Madden told her to get her administrative work up to date before
08h00 on Monday morning. The second appellant was
angry because one
of the first appellant’s in house rules was that the premises were
never to be entered alone. According to Theron
she went to the Perm
Agency at about 06h00 to bring her work up to date. Two men knocked
at the door and asked whether the bank was
open. She ignored them but
they persisted in knocking at the door. When she opened the door to
tell them that the bank was closed
they forced their way in,
assaulted her and demanded money. They got hold of the keys to the
safe and removed money from the safe.
[9] It
is common cause between the parties that a robbery took place on
Monday morning and that there was a shortfall of R217 236,84
after
the robbery.
[10] Clause
9 of the agreement of agency provided that the first appellant would
be ‘wholly . . . responsible . . . for all monies
. . . received on
behalf of the Bank and for any loss to the Bank whatsoever arising
out of (its) services as the Bank’s Agent
including loss arising
from: any act of fraud or errors of comission or; errors of omission
of your staff’. The court
a quo
held that by these words
absolute liability was imposed on the first appellant in respect of
the loss of money of the respondent arising
out of the first
appellant’s services to the respondent. In my view the court
a
quo
was correct in doing so, for the following reasons:
The
parties agreed that the first appellant would be
wholly
responsible for all monies received on behalf of the respondent. If
they intended no more than the common law responsibility for
negligence there was no need for the word ‘wholly’.
The
words ‘for any loss to the Bank
whatsoever’
are another
indication that not only losses caused by the negligence of the
first appellant or its employees were intended. Once
again if the
parties intended no more than the common law responsibility for
negligence one would have expected them to say ‘for
any loss
caused to the Bank by the negligence of the (first appellant)’ and
not to have used the word ‘whatsoever’.
[11] The
appellants submitted that:
The
agency relationship between the first appellant and the respondent
terminated at the end of November 1997 with the result that
clause 9
of the agreement could no longer be relied upon.
Alternatively:
Madden
took control of the money in the safe on Saturday.
Madden
was responsible for the loss as he left Theron in possession of
both keys of the safe.
Theron
was no longer an employee of the first appellant on 1 December
1997.
The
loss did not arise out of the first appellant’s services as the
respondent’s agent.
I
shall deal with each of these submissions in turn.
[12] I
do not think that there is any merit in the contention that clause 9
of the agency agreement could no longer be relied upon
after 30
November 1997. The termination of the agency agreement as of the end
of November meant that the first appellant as agent
for the
respondent would after 30 November 1997 no longer conduct the Perm
banking business. It did not mean that all obligations
in terms of
the agency agreement came to an end on that day. In terms of clause 9
the first appellant was wholly accountable and
responsible for monies
received on behalf of the respondent. That obligation was clearly an
obligation that was intended to survive
the termination of the agency
agreement in that a final accounting of necessity had to take place
after termination of the agency
agreement.
[13] There
is no evidence that Madden took control of the money held by the
first appellant on behalf of the respondent. The evidence
is to the
contrary. At closing time on Saturday Theron and not Madden counted
the money. Moreover, Theron locked the safe and the
front door and
kept the keys. If Madden had taken control of the money one would
have expected him to give a receipt for the money
taken and one would
have expected him to take at least one of the keys of the safe.
[14] Madden
was not the employer of Theron or in a position of authority over
Theron. He could not have given her instructions as
to what to do
with the keys of the safe. He or his employer can therefore not be
held responsible for the fact that Theron was in
possession of two
keys.
[15] In
terms of the arrangement with the first appellant the final
accounting would have taken place on Monday. It was going to be
done
by Theron on behalf of the first appellant and the members of the
first appellant were going to be present as a courtesy gesture.
Theron locked the safe and the front door and kept the keys. The
appellants did not suggest that she was not entitled to remain in
possession of at least one of the keys of the safe and of the key of
the front door. In these circumstances the accounting by Theron
was
probably considered by Theron as well as by the first appellant as a
finalisation of her duties as an employee of the first appellant.
She
was, therefore, when she went to the Perm Agency premises to bring
her administrative work up to date, and when she was doing
so, acting
as an employee of the first appellant.
[16] Theron
was ‘in overall charge’ of the Perm Agency, she was entrusted
with the key to the front door and, therefore, was entrusted
with
control as to who entered the premises. On Monday morning she was
engaged in the affairs of her employer and it was in the course
of
doing so that she opened the door in order to tell the two strangers
that the bank was closed. In these circumstances the first
appellant
was vicariously liable for her actions. Theron may have been acting
against instructions by entering the premises on her
own but it is
not only when an employee acts according to instructions that his
employer can be held liable. In
Estate Van der Byl v Swanepoel
1927 AD 141
at 147 Wessels JA said:
‘It
is clear therefore that this Court in applying the general principle
that a master is liable for the torts of his servant acting
within
the scope of his employment has taken the extended view of the
master’s liability to third parties (rather) than the narrower
one
which would confine his liability strictly to acts done within the
instructions or necessarily incidental thereto.’
The
critical question is whether the employee was engaged in the affairs
or business of his employer (see
Minister of Law and Order
v
Ngobo
[1992] ZASCA 172
;
1992 (4) SA 822
(A) at 826H to 827B). In this case, in
contrast with many other cases where the question of vicarious
liability arises the application
of the test does not present a
problem. Theron was engaged in the affairs or business of the first
appellant.
[17] It
follows that the loss arose from the first appellant’s services to
the respondent and that the court
a quo
correctly held the
first appellant liable for such loss.
[18] In
any event, in terms of the common law the first appellant had to
account to the respondent in respect of all monies received
on behalf
of the respondent. If, through the first appellant’s own fault, it
allowed such money to be lost, the first appellant
is responsible to
make good such loss (
Pothier’s Treatise on the Contract of
Mandate
para 51).
[19] There
can be no doubt that Theron acted negligently by opening the doors of
the Perm Agency at 06h00 in the morning for two strangers.
She was
alone with the keys of the safe, there was some R400 000 in the safe
and the two strangers had absolutely no business to
be there and
could not possibly have thought that the bank was open. A reasonable
person would in those circumstances not have opened
the door.
[20] It
follows that the liability of the first appellant for the loss
suffered was established independently of the provisions of
clause 9
of the agency agreement.
[21] It
is common cause that if the appeal of the first appellant fails the
appeal of the second appellant also has to fail.
[22]
The appeal of both the first and the second appellants is therefore
dismissed with costs.
_____________
P E Streicher
Judge of Appeal
Olivier,
JA)
Cameron,
JA) concur