IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, MTHATHA)
CASE NO: 2210/2015
In the matter between:
NKCUBEKO BEBE Plaintiff
and
XHOBANI SECURITY SERVICES Defendant
JUDGMENT
___________________________________________________________________
MAKAULA J:
A. Introduction
[1] The plaintiff issued a summons against the defendant, seeking damages
arising from an assault by the defendant's employees, whom the plaintiff claims were
acting within the course and scope of their employment. I shall refer to the witnesses
by their first names and mean no disrespect to them. Further, I shall, where
necessary, use the defendant, the security guards, and the defendant’s employees
interchangeably.
[2] In his claim, the plaintiff averred that on 18 April 2015, at the sports ground of
the Walter Sisulu University (WSU), he was confronted by two security guards,
employees of the defendant, who accused him and his friend of complicity in the
snatching of the cell phone belonging to a female student. The matter is before me
on liability only.
[3] The plaintiff pleaded that he was arrested, handcuffed, and taken to the
security guardhouse. He was detained in the guardhouse until a group of students
stormed in and assaulted him. He averred that the defendant;
‘Failed to protect him from further assault by the enraged group of students as they
were obliged to do so by reason of their having detained and manacled him and his
friends, thus rendering him helpless and/ or defenseless in the face of the attack.’
B. The plaintiff’s case.
Nkcubeko Bebe
[4] Nkcubeko (the plaintiff) testified that on 18 April 2015, he left home with
friends, Sinawo, Siphenathi, and Luxolo. They proceeded to WSU, where a music
festival (bash) was taking place. After a while, they decided to go home. He and
Sinawo looked for others and found them socialising with their friends. They told
them that they had had enough and were going home. Their friends refused, saying
that they were still enjoying themselves. He and Sinawo headed for the gate. They
met two security guards who were with a girl. The security guards pulled out firearms
and fired shots in the air, ordering them to lie down on the ground. They obliged.
They handcuffed one to the other and took them to a guardhouse. The girl had
identified them as the ones who took her cell phone. They denied that. The security
guards searched for them and did not find the cell phone.
[5] In the guardhouse, they found three more security guards, one of whom was
a female. They were ordered to sit on the floor whilst still handcuffed to one another.
They denied knowledge of the cell phone. The security guards interrogated and
They denied knowledge of the cell phone. The security guards interrogated and
assaulted them. The female guard tried to intervene on their behalf, to no avail. The
students looked through the guardhouse windows as the plaintiff and the security
guards were interrogating Sinawo. The plaintiff was hit by one of them with a baton
on the head. He lost consciousness.
[6] He regained consciousness after four months in the hospital. He had
sustained a traumatic head injury and lost his teeth. He underwent a head operation.
He was taken to a physiotherapist who taught him how to walk again. He remained
in the hospital for eight months. He left the hospital in a wheelchair. His parents took
him for rehabilitation to another hospital. He could not continue schooling because
he was paralysed. His dominant right hand and right leg are weak.
[7] He testified under cross -examination that it was the female student who
pointed them out to the security guards. He disputed that a cell phone was found
with them. He denied that they were apprehended and assaulted by the students at
any time before he lost consciousness. He was not aware that the students had
entered the guardhouse.
Sinawo Masi
[8] Sinawo testified that on the day in question, he was with the plaintiff. They
attended a bash at WSU. After some time, they decided to go home. As they stood at
the gate, two ladies and two security guards confronted them. The two ladies
informed the security guards that they had snatched one of their cell phones. One of
the security guards fired shots in the air and ordered them to lie down. They
complied. They were searched, and none was found. They denied snatching a cell
phone from the female studen t. The security guards ordered them to raise their
hands above their heads and walked them down to the guardhouse. In the
guardhouse, they found three security guards, one of whom was a female. They
were handcuffed together, interrogated, and assaulted by the security guards with
batons, who demanded the cell phone. Only the female guard did not assault them.
They accused them of being thieves from Payne location. He denied that the security
guards found a cell phone in their possession.
guards found a cell phone in their possession.
[9] Two security guards left the guardhouse and returned with Simile, Luvo, and
Xolisa, whom they knew from their locality. The guards asked whether they knew
each other, and they all admitted they did. The students who followed them to the
guardhouse attempted to enter, but the security guards prevented them by closing
the door. Nevertheless, the students forced their way into the guardhouse and joined
the security guards in assaulting them. The plaintiff was noticed to be unconscious.
The students dragged the plaintiff and Sinawo out of the guardhouse. The security
guards did nothing to stop the students. Soon thereafter, Sinawo became
unconscious and regained consciousness the following day in the hospital. He had
sustained a head injury.
Luvo Agreement Kolwane
[10] Luvo resided at Payne location like the plaintiff. He also attended the bash at
WSU and met the plaintiff. On their way to the gate, next to the guardhouse, they
encountered three security guards who cocked and pointed firearms at them and
ordered them to lie on the ground. They complied. They were searched and taken to
the guardhouse, where they found other security guards, the plaintiff, and Sinawo.
They were asked whether they knew each other. They confirmed they did, but
Sinawo told them they had n ot attended the bash together. The security guards
searched him. They found his cell phone in his pocket, took it, and never returned it
to him. The security guards instructed him and his friend to leave, but he refused. He
told the security guards he would only leave when the police arrived. Some students
surrounded the guardhouse, including Student Representative Council (SRC)
members. A security guard opened the door and let the students enter one by one.
Eventually, the door was wide open, and the stude nts flooded the guardhouse. The
students assaulted the plaintiff and Sinawo. At that time, Nkcubeko and Sinawo were
standing, leaning against a pillar in the room. They were handcuffed to one another.
The security guards stood there and did nothing. An SRC member directed him to
hide in the toilet. He remained inside the toilet until it was quiet. He walked out and
saw the plaintiff and Sinawo lying on the tarred road next to the guardhouse. An
ambulance arrived and took them. He left for home.
C. Defendant’s case
Lindinceba Poswa
[11] Lindinceba testified that he commenced working for the defendant on 1
Lindinceba Poswa
[11] Lindinceba testified that he commenced working for the defendant on 1
December 2014. He was on duty on the day of the incident, working night shift. He
received a message on the radio that some children were causing commotion at the
stadium. The call was for all armed security guards. He responded to the message
and, on his way to the guardhouse, he met armed security guards and two boys who
had been identified as the plaintiff and Sinawo. The boys were not handcuffed. He
did not hear any gunshots at that juncture. The security guards got inside the
guardhouse with the two boys. Students had gathered around the guardhouse,
baying for their blood. They were chanting, saying they must be released to them.
[12] Their supervisor, Nomnqophiso Klass, and controller, Khedamile Dila, got
inside the guardhouse with them. Lindinceba remained outside. However, he could
see what was happening inside through the window. He heard a lady saying one of
the boys had snatched her phone. He later heard her say, ‘This is my phone.’
Xuluba Zingisa, a member of the reaction unit, was instructed over the radio to go
and call the police. The armed guards left the guardhouse and came back with four
boys. The student numbers in creased. They started pushing against the door. The
students eventually managed to push the door open. Upon entry, they assaulted the
plaintiff and Sinawo using stones and iron rods. The assault continued relentlessly.
They switched off the lights. They later dragged them out of the guard house. Mr.
Zingisa fired a shot to disperse them, but they did not. He and Nomnqophiso
watched helplessly while they sat on the pavement. The police arrived at about
1h00, even though they were informed of the incident a t about 22h00. When the
police arrived, the plaintiff and Sinawo were lying on the pavement. There was a lot
of blood where they were. The students were chanting next to a Nedbank ATM.
[13] He stated that all they could do to protect the plaintiff was too close and lock
the door to prevent the students from getting inside. They called a campus security
company to come and assist. They were, in the same breath, searching for the cars
that drove in and out of the campus. They would occasionally check what the
students were doing. He testified that the plaintiff and Sinawo were neither assaulted
by him nor by the security guards.
Nomnqophiso Klaas
by him nor by the security guards.
Nomnqophiso Klaas
[14] Nomnqophiso was the supervisor of the security guards at the time of the
incident. She was on patrol duty at one of the residences when she received a call
through a security radio from the control room. The controller informed her of
students whose cell phones had been snatched. She went to the control room and
found about twenty students, including those whose cell phones had been snatched.
She got on the radio and called the security guards who were patrolling the area
where there was a function, to come to the guardhouse. The security guards arrived
and left with the two female students to look for the culprits.
[15] After a while, the security guards returned with two boys who allegedly
snatched the cell phones. She enquired with the two boys whether they had stolen
the cell phones. They denied. She told the boys to take out the things that were in
their pockets. They took out two cell phones. The cell phones needed security codes
to open. The students used their security codes to open them. The cell phones had
the students’ profile pictures. One of the boys confirmed that they stole the cell
phone.
[16] She testified that a group of students gathered around the guardhouse,
demanding that the boys be released. Pandemonium ensued. The security guards
closed the windows and locked the door. She instructed the radio controller to call
the police as the situation was getting out of hand. The students started breaking the
windows and pushing the door. They pushed back. She instructed the reaction unit,
which comprised two extra guards, to fetch the police themselves.
[17] The students eventually managed to force their way to the guardhouse. Upon
entering, they switched off the lights. They got hold of the two boys, dragged them
out of the guardhouse up to the front gate, and assaulted them. They intervened, but
in vain. There were fewer than 10 security guards at the gate, even though there
were about 26 security guards around the campus. After a while, the reaction unit
came back reporting that the police said they were coming.
[18] She denied that the security guards assaulted the two boys. She stated that
they do not use handcuffs and even leave the batons in the guardhouse. She
testified that the police eventually arrived and rescued the boys. She said that no
case was opened against the students, nor was there any against the security
guards.
[19] Under cross -examination, she testified that the two security guards who
guards.
[19] Under cross -examination, she testified that the two security guards who
apprehended the two boys were unarmed. Only the two reaction unit members were
armed. She stated that the two security guards who apprehended the boys never left
the guardhouse. The two boys are the plaintiff and Sinawo. She denied sending the
same security guards to look for other boys. Shedenied that four more boys were
brought to the guardhouse. She tried to protect the two boys by closing the door, but
the students pushed it open and dragged them out.
D. Argument
The plaintiff’s argument
[20] The plaintiff argued that the defendant's witnesses were not reliable and
credible. The contention was that their evidence contradicted what was pleaded. The
argument was that the defendant owed the plaintiff a duty of care. Furthermore, it
was negligent in not protecting him from the students whose intention was clear from
the outset that they wanted to assault him and Sinawo. The plaintiff contended that
the harm to himself was reasonably foreseeable and preventable. The submission is
that an alert g uard acting reasonably would have jumped into action, taking
preparatory steps to prevent harm to the plaintiff at the start of the fracas. That was
not done, thus breaching the legal duty resting on the defendants’ servants.
[21] The argument went on to state that the plaintiff established that the
defendant’s servants initiated the assault when the plaintiff and Sinawo were
interrogated. The plaintiffs admitted that there were acts of commission and omission
by the defendant's servants, and therefore the harm suffered by the plaintiff was
causally connected to their conduct.
The defendant’s submissions
[22] The defendant averred that the plaintiff, in his amended particulars of claim,
failed to plead that the assault on the plaintiff was wrongful and unlawful . The
contention was that the plaintiff had not alleged wrongfulness or blameworthiness on
the part of the defendant, causally linking that conduct to the injuries he sustained.
The argument is that such failure resulted in the plaintiff's own argument conflating
negligence with wrongfulness, thus missing the point in his particulars of claim; he
relied on the omission to protect the plaintiff from the students. The submission was
for the dismissal of the action on this ground.
for the dismissal of the action on this ground.
[23] The argument is that the plaintiff's evidence failed to establish the claim
against the defendant. The defendant relied, for this submission, amongst others, on
the fact that the plaintiff failed to bring corroborating evidence of the ambulance
driver’s notes, which ‘would demonstrate that, the plaintiff and his fried (sic) were
found still handcuffed because, the plaintiff and his friend do allege that they were
not, at any time prior to them collapsing into unconsciousness, untied from the
handcuffs.’ It was argued by the defendant that ‘it must be then that they were found
by the ambulance undertakers still tied in the same way they had been handcuffed
on being apprehended by the guards, at least on the version of the plaintiff.’ (sic)
[24] The defendant relied heavily on the contradictions of the plaintiff’s witnesses.
The defendant argued that the evidence of the plaintiff, who bears the overall onus,
did not contain a sufficient basis for it to be believed in the light of the aspects
disputed by the defendant. It further contended that the plaintiff failed to lead
evidence to demonstrate that there were other actions available to be taken over and
above those that the employees of the defendant took. The evidence of the plaintiff is
so weak that it fell woefully short of establishing the liability of the defendant on the
facts or even an accurate version that supports liability. The argument went further
that the probabilities favoured the defendant, particularly regarding what occurred at
the time of apprehension, in the guardhouse, the contradictions, and the reason for
their apprehension. In conclusion, the defendant argued that the plaintiff had failed to
prove its liability on the balance of probabilities and that the action should be
dismissed with costs on a scale of C.
E. Analysis
[25] The essential elements of the cause of action in a delictual claim, like the
present, have been amply dealt with by Corbett JA in Evins v Shield Insurance Co
Ltd,1 where he stated them as follows:
‘(a) a wrongful act by the defendant causing bodily injury, (b) accompanied by
fault, in the sense of culpa or dolus, on the part of the defendant, and (c)
damnum, ie loss to the plaintiff’s patrimony, caused by the bodily injury.’
[26] In H v Fetal Assessment Centre2,the Constitutional Court held as follows:
[26] In H v Fetal Assessment Centre2,the Constitutional Court held as follows:
‘[54] From this it is apparent that “harm -causing conduct” is a prerequisite for the
further enquiry into the other elements of delict, namely wrongfulness and fault.
1 1980 (2) SA 814 (A) 838 -839; HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd
[2000] 4 ALL SA 545 (SCA); 2001 (4) SA 814 (SCA) para 13.
2 2015 2 BCLR 127 (CC); 2015 2 SA 193 (CC) para 54.
Without harm -causing conduct, there is no conduct which can be found to be
wrongful or committed with the requisite degree of fault.’
[27] Based on the principles enunciated above, I must determine whether the facts
of this matter fall squarely within the elements of delictual liability. It is common
cause that the cause of action is premised on vicarious liability. The defendant is
sued based on the action or non -action of the defendant’s employees. They were on
duty on the day the plaintiff was injured. There is no dispute that they were executing
their duties when they apprehended the plaintiff.
[28] I must determine whether the plaintiff was assaulted by the defendant’s
employees and subsequently by the students. If I find that the students did so, a
determination must be made whether the defendant failed in its duty to protect the
plaintiff from the students.
[29] It is a common fact that the plaintiff and Sinawo corroborate each other
regarding the manner in which they were apprehended, i.e., the firing of gunshots in
the air, they being ordered to lie on their stomachs, and the search. Their evidence
differed regarding other details. They both testified that the defendant’s employees
assaulted them in the guardhouse. However, Sinawo claimed that they were also
assaulted by the students who forcefully entered the guardhouse. Luvo arrived when
the students were assaulting them and dragging them out of the guardhouse.
However, he did not see the security guards assaulting them. Sinawo testified that
Luvo and others arrived after the security guards had assaulted them.
[30] The plaintiff differed with Sinawo as not which stage they were handcuffed. He
stated that they were immediately handcuffed after being apprehended, while
Sinawo said it was in the guard house. However, the fact that they were handcuffed
is corroborated by Luvo, who said he found them handcuffed to one another in the
guard house. Therefore, I find it immaterial that there is a conflict as to when they
guard house. Therefore, I find it immaterial that there is a conflict as to when they
were handcuffed. The truth is that they were in handcuffs when they were assaulted.
In the same breath , I reject Nomnqophiso's claim that the security guards did not
carry handcuffs.
[31] Lindinceba stated that armed guards were summoned over the security radio to
the stadium because of children who were causing commotion. Indeed, on his way to
the guard house, he met with armed guards in the company of the plaintiff and
Sinawo. That corroborates the presence of armed guards. Nomnqophiso testified
that she instructed the two reaction unit guards to fetch the police. The issue of the
armed guards confirms the version of the plaintiff and Sinawo that the security
guards who apprehended them were armed with firearms. The plaintiff and Sinawo
were adamant that two gunshots were fired into the air. Lindinceba also testified that
Mr Xuluba, one of the armed guards, fired a gunshot in the air, albeit at the time the
students were assaulting them outside the guardhouse. It therefore gives credence
to the fact that the security guards fired gunshots, contrary to the denial by
Nomnqophiso. Most probably, gunshots were also fired at the time of their
apprehension.
[32] Nomnqophiso testified that cell phones were found with the plaintiff and
Sinawo, contrary to their denial. However, Luvo testified that the security guards
confiscated their cell phones upon entering the guardhouse. They never returned
them. Premised on this, Lindinceba testified that the armed guards left and returned
to the guard house with four boys. The plaintiff’s witnesses confirmed this version.
Nomnqophiso is the only one who denied it. Considering these versions, I accept
that Nomnqophiso’s evidence stands to be rejected as erroneous.
[33] It is uncontroverted that when the plaintiff and Sinawo were apprehended,
they were followed by students to the guard house. The evidence reveals that they
were baying for their blood. The number grew larger as they proceeded. They
followed them up to the guard house. It is safe to say that the security guards were
negligent in taking the plaintiff, who was in handcuffs, to the guardhouse, which is an
enclosure, well knowing that the violent students were in tow. It was foreseeable that
the students would overpower the plaintiff.
[34] I have accepted that the plaintiff and Sinawo were handcuffed throughout.
Their movements were restricted, and they could not ward off the danger from the
Their movements were restricted, and they could not ward off the danger from the
students. The security guards continued to keep them in handcuffs even in the wake
of violence. It should have been clear to them at the time when the windows were
broken and the door was forced open that the plaintiff was in danger. They should
have uncuffed him. The plaintiff was still handcuffed to Sinawo when the students
managed to get inside th e guardhouse. A reasonable security guard in their position
would have realised the danger and removed the handcuffs to enable him to either
escape or defend himself, especially since the security guards were helpless. The
security guards were grossly negligent in not doing so in the wake of the violence the
student posed. The defendant acted wrongfully in continuing to allow the plaintiff to
remain in handcuffs under those circumstances.
[35] The plaintiff testified that the security guards assaulted him, and the students
joined in thereafter. In the wake of the evidence of the plaintiff, Sinawo, and Luvo, I
have no reason to reject the version that the defendant’s employees assaulted him.
Lindinceba’s denial in this respect should be rejected. He did not get inside the guard
house. He was looking through the window. The evidence shows that the students
‘flooded’ the guard house, meaning that it was full of students. They switched off the
lights thereafter. Therefore, Lindinceba’s observation cannot be relied upon.
[36] Based on the above analysis, the plaintiff and his witnesses gave credible and
reliable evidence. The probabilities favour the plaintiff. I reject the evidence of the
defendant as far as it conflicts with the accepted evidence.
F. Costs
[37] The plaintiff has been successful. I find no reason why the traditional rule that
costs should follow the results should not apply. The defendant shall have to bear the
costs incurred by the plaintiff.
[38] As a result, I make the following order.
1. The defendant is liable for the plaintiff’s damages as may be
proven or agreed upon.
2. The defendant is to pay the costs of the action.
_____________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Appearances
For the Plaintiff : Adv Jozana
Instructed by : NONTSWABU INC. ATTORNEYS
For the Defendant : Adv Maswazi
Instructed by : MBABANE & MASWAZI INC.
Date heard : 21 August 2025
Judgment delivered : 09 June 2026