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[2014] ZACC 4
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Loureiro and Others v Imvula Quality Protection (Pty) Ltd (CCT 40/13) [2014] ZACC 4; 2014 (5) BCLR 511 (CC); 2014 (3) SA 394 (CC) (20 March 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 40/13
In
the matter between:
LICINIO
LOUREIRO
.................................................................................
First
Applicant
VENESSA
LOUREIRO
..........................................................................
Second Applicant
LUCA-FILIPE
LOUREIRO
......................................................................
Third
Applicant
JEAN-ENRIQUE
LOUREIRO
................................................................
Fourth
Applicant
and
IMVULA
QUALITY PROTECTION (PTY)
LTD
..........................................
Respondent
Neutral
citation:
Loureiro and Others v
iMvula Quality Protection (Pty) Ltd
[2014]
ZACC 4
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Madlanga J, Nkabinde J, Van der Westhuizen
J
and Zondo J
Heard
on:
6 November 2013
Decided
on:
20 March 2014
Summary:
Constitutional issue –
wrongfulness – role of private security industry
Contract
for guarding services – breach of contract – express
prohibition – strict liability – liability
of security
companies
Delict
– wrongfulness – negligence – vicarious liability
of security companies
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
South Gauteng High Court, Johannesburg):
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is
set aside and the order of the High Court is replaced with the
following order:
(a)
The respondent is declared liable in
contract to the first applicant for whatever damages may be proved.
(b)
The respondent is declared liable in delict
to the second, third and fourth applicants for whatever damages may
be proved.
4.
The respondent is ordered to pay the
applicants’ costs in this Court, the Supreme Court of Appeal
and the High Court including,
where applicable, the costs of two
counsel.
JUDGMENT
VAN
DER WESTHUIZEN J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ,
Froneman J, Jafta J, Madlanga J, Nkabinde J and Zondo
J concurring):
Introduction
[1]
The
founding values of our Constitution include human dignity, the
advancement of human rights and freedoms and the rule of law.
[1]
The Bill of Rights recognises the rights to life, freedom and
security of the person, freedom from all forms of violence, privacy
and not to be arbitrarily deprived of property.
[2]
And the Preamble of the Constitution calls for our people to be
protected.
[3]
Our police service
is mandated—
“
to
prevent, combat and investigate crime, to maintain public order, to
protect and secure the inhabitants of the Republic and their
property, and to uphold and enforce the law.”
[4]
[2]
Yet,
there is a disturbingly dark side to the often-stated miracle of our
constitutional democracy. South Africa is plagued by crime
–
often
viciously violent, sometimes sophisticated and organised, often
ridiculously random, but always audacious and contemptuous
of the
values we are supposed to believe in and the human rights enshrined
in our Constitution – perhaps not unlike other
young
democracies. More than 16 000 murders were reported to have
taken place in the 2012/2013 year – almost 45 a day
– and
almost 106 000 armed robberies.
[5]
Many of our people live behind high walls and electrified fences;
others rely on the communities around them for security; and
many are
mercilessly exposed to the cruelty of crime.
[3]
The
South African Police Service is not always perceived to be capable of
meeting its constitutional mandate. Hence, the private
security
industry is a large and powerful feature of South Africa’s
crime-control terrain. While it should and could not
be a substitute
for state services, it fulfils functions that once fell within the
exclusive domain of the police.
[6]
This is in part because of our history. From the late 1970s and
throughout the 1980s the apartheid regime concentrated policing
activities on state security and maintaining political control, and
so the private security industry increasingly played a role
in
protecting private individuals’ safety and security.
[7]
[4]
The
industry continues to do so. It is suggested to have been the
fastest-growing South African industry since the early 1990s.
[8]
Indeed, security officers employed in the private industry greatly
outnumber the members of the South African Police Service.
[9]
Many of those with the resources to do so turn to the private
security industry for the protection of their rights.
The
Loureiro family, the applicants, did just that.
[5]
The respondent, iMvula Quality Protection
(Pty) Ltd, a private security company, was contracted to provide a
24-hour armed guard
at the Loureiro home. On a night in January
2009 robbers masquerading as police officers drove up the Loureiros’
driveway
and demanded entry. iMvula’s employee on duty
opened the pedestrian gate, allowing the robbers to apprehend him and
gain access to the home. They accosted the Loureiros and their
household staff and stole goods worth millions. The
Loureiros
successfully asked the High Court to hold iMvula liable in both
contract and delict. That judgment was overturned
by the
Supreme Court of Appeal. The Loureiros approach this Court for
leave to appeal against the decision of the Supreme
Court of Appeal.
Issues
[6]
The issues for determination are:
(a)
Should leave to appeal be granted?
(b)
Is iMvula liable for breach of contract?
(c)
Is iMvula liable in delict for the
Loureiros’ loss?
Factual
background
[7]
In late November 2008, after having been
robbed at gunpoint in their previous home, the Loureiro family moved
to a new house in
Melrose, Johannesburg. Mr Loureiro
arranged for an extensive security system to be installed at the
house, including
electrified fencing, perimeter beams, multiple alarm
systems, a guard house and an intercom system with closed-circuit
television.
[8]
At the entrance to the house are two gates:
a vehicle entryway and an armoured pedestrian gate. The
pedestrian gate has a
peephole. An intercom, which communicates
with the guardhouse, is mounted on a gooseneck next to the driveway.
The
guardhouse, with a full view of the driveway through a
bulletproof glass window, is to the right of both gates.
[9]
Mr
Loureiro contracted iMvula, in an oral agreement, to provide a
24-hour service of armed guards to be placed at his home.
[10]
As
pleaded in the High Court, the terms of this agreement initially
included that
—
“
6.5.1
[iMvula] would take all reasonable steps to prevent persons gaining
unauthorised access and/or entry to the [Loureiro family’s]
premises;
6.5.2
[iMvula] would take all reasonable steps to protect the persons and
property of [the Loureiro family];
...
6.7
[iMvula] would take all reasonable steps to ensure that no persons
gained unlawful access to the [Loureiro family’s]
premises”.
[11]
[10]
A few days after the guarding service
commenced, a guard on duty admitted Mr Loureiro’s brother
onto the property without
first obtaining Mr Loureiro’s
permission. In early December 2008, concerned about guards
allowing access to visitors
without prior authorisation, Mr Loureiro
instructed that the intercom be partially disabled so that the guards
would be unable
to open and close the main driveway gate, and so
would have to contact the main house to let anyone onto the premises.
[11]
This affected the guards’ ability to
change shifts. To address this problem, Mr Loureiro
provided a key to the
pedestrian gate and expressly prohibited the
use of the key for any purpose other than to enable guards to change
shifts. He emphasised
to Mr Green, a supervisor employed by iMvula,
that the key should not be used to open the gate to allow access to
anyone without
prior authorisation.
[12]
Throughout
the litigation, the Loureiro family has argued that this express
prohibition had the effect of amending the contract.
In their
particulars of claim, they cast the term as clause 6.8:
[12]
“
[iMvula]
was not entitled to permit any person to gain access to the [Loureiro
family’s] residence other than [Mr and Mrs
Loureiro] and their
two minor sons, unless [iMvula] had obtained such prior authorisation
from [Mr Loureiro] alternatively [Mrs
Loureiro] to allow such persons
access”.
[13]
iMvula agrees that Mr Loureiro prohibited
the guards from using the key to open the gate to allow access to
anyone without prior
authorisation. However, it disputes that
this prohibition amended the oral agreement so as to impose a
strict liability
obligation on iMvula.
[14]
On
22 January 2009, just over a month after the express prohibition, Mr
and Mrs Loureiro left their home to attend a school
function,
leaving their children in the care of three members of their
household staff. iMvula’s guard on duty that
night was
Mr Mahlangu, a qualified Grade-A security guard. Mr
Mahlangu had never been told about Mr Loureiro’s
instructions to Mr Green, nor had he received a job description or
instructions from iMvula about the specific services that the
Loureiros required. He had also not been properly informed
regarding the entry of police officers onto private property,
[13]
or how to identify police officers. Mr Mahlangu had no means of
communicating with iMvula other than his personal cellphone,
which
had no airtime. He was not armed on the night.
[15]
At 19h47 an unmarked white BMW car with a
flashing blue light on the dashboard pulled up to the Loureiro
family’s driveway.
A man alighted from the front
passenger seat, wearing dark blue clothing, a reflective vest marked
“Police” and a cap
bearing a logo resembling a police
logo. He walked towards the bulletproof glass of the guardhouse
and flashed an identity
card in Mr Mahlangu’s direction,
without giving him a chance to examine it. When Mr Mahlangu
tried to speak to the
man through the intercom, he received no
answer. He assumed that the intercom must have been broken.
He attempted neither
to gesture the man back to the intercom or
guardhouse window, nor to contact the main house or iMvula.
Instead, he picked
up the key to the pedestrian gate, exited the
guardhouse and walked over to the pedestrian gate. Without
attempting to speak
to the man through the gate or the peephole, he
used the key to open the gate.
[16]
As soon as Mr Mahlangu opened the gate, the
man pointed a gun at him. Accomplices then emerged from the car
and forced Mr
Mahlangu into the guardhouse. After this, the
robbers were easily able to enter the house. They accosted the
household
staff and children, holding them captive while the robbery
took place. When Mr and Mrs Loureiro returned to their home
just
before 21h00, the robbers confronted them in their garage.
Mrs Loureiro was tied up with her children and the staff, while
Mr
Loureiro was ordered to accompany the robbers to where valuables were
hidden in the house and to provide keys to the safes.
The
robbers stole belongings allegedly worth more than R11 million.
High
Court
[17]
In
April 2009 the Loureiros instituted proceedings against iMvula in the
High Court, relying on two causes of action. The first
claim, brought
by Mr Loureiro only, was for damages caused by iMvula’s alleged
breach of the contract.
[14]
The second claim was brought in delict by Mrs Loureiro and her two
minor sons, who alleged that iMvula negligently and wrongfully
caused
them patrimonial loss as well as pain and suffering. The
parties agreed to separate the issue of liability from the
issue of
the amount (quantum) of the loss.
[15]
[18]
The
High Court found that iMvula’s liability, whether in contract
or delict, essentially turns on the question of negligence.
[16]
Satchwell J found that iMvula was negligent: a reasonable security
company would have foreseen the possibility of intruders
attempting
to gain access to the premises using disguise; that the only point of
access (the pedestrian gate) required special
surveillance and
management; that the intercom (which was the only means of
communication from the guardhouse to the family home)
had to be
checked; that clear instructions had to be given to its employees;
and that a guard needed a reliable means to contact
supervisors.
In all these respects iMvula failed to take the reasonably
appropriate steps to eliminate or reduce harm and
so was in breach of
its contract and also delictually liable for failing to meet the
standard required of a security company and
to discharge its duty of
care.
[19]
The
High Court also held that Mr Mahlangu was negligent and that iMvula
was vicariously liable in delict. Although the judgment
stated
that Mr Mahlangu “cannot be criticised for assuming that this
was a police patrol and a policeman”,
[17]
it held that in opening the pedestrian gate he “failed to take
reasonably appropriate steps to prevent the anticipated harm”.
[18]
A reasonable security guard would have made sure that he had a chance
to verify the identity card; called the man back to
the intercom when
he received no response; made enquiries through the pedestrian gate
before opening it; and attempted to contact
the main house for
information and authorisation to let him in.
[20]
The High Court concluded that iMvula was
liable in contract to Mr Loureiro and in delict to Mrs Loureiro and
their two sons.
It ordered iMvula to pay costs.
Supreme
Court of Appeal
[21]
iMvula
appealed to the Supreme Court of Appeal.
[19]
The majority (per Mhlantla JA with whom Mthiyane DP, Bosielo JA
and Mbha AJA concurred) found that the reasonableness
of Mr
Mahlangu’s conduct was pivotal to both claims. On the
contractual question, it held that clause 6.8, which provided
that
iMvula was not entitled to permit any person to gain access to the
residence without the prior authorisation of Mr or Mrs
Loureiro,
cannot be read in isolation. Understood against the backdrop of
the contract as a whole, which includes clauses
requiring that
reasonable steps be taken, clause 6.8 does not impose strict
liability – in other words liability without
fault in the form
of intent or, in this case, negligence.
[22]
In
addition, the Court held that the clause has to be read as being
subject to a tacit term excluding the police from the group
of people
who are not allowed access to the premises, so as to comply with
section 25(3) of the Criminal Procedure Act.
[20]
Accordingly, in opening the pedestrian gate, Mr Mahlangu did not
breach the contract, as, first, the contract did not impose
a strict
prohibition on allowing persons onto the premises without prior
authorisation, and second, clause 6.8 could not have been
intended to
apply to police officers performing official duties.
[23]
On whether Mr Mahlangu acted negligently,
the Court found that he was not unreasonable in believing that the
imposter was a police
officer. The flashing blue light of the
car indicated urgency and Mr Mahlangu opened the gate, believing it
necessary to
do so in order to make enquiries. Mr Mahlangu was
thus not negligent in unlocking the pedestrian gate, failing to call
his
superior, or in being duped by the robbers. A court should
not approach the case as an armchair critic, with after the fact
wisdom. The majority concluded that the contract was not
breached because Mr Mahlangu had acted reasonably.
[24]
Regarding
the delictual claim, the Court held that iMvula was not liable.
For the same reasons that Mr Mahlangu was not negligent
for the
purposes of breach of contract, he also was not negligent in delict.
In addition, the Court found that wrongfulness
was not established.
Security guards have an obligation to act in accordance with the Code
of Conduct for Security Service
Providers, 2003 (Code of Conduct),
which requires that they render all reasonable assistance to members
of the security services.
[21]
Mr Mahlangu could not lawfully resist opening the gate to a
policeman’s legitimate demand for entry. At all times
he
acted in good faith, believing that he was helping the police.
The Loureiros did not prove that Mr Mahlangu acted
wrongfully,
and so their delictual claim failed.
[25]
The Supreme Court of Appeal upheld iMvula’s
appeal with costs.
[26]
In a dissenting judgment Cloete JA held
that Mr Loureiro’s account, which was uncontroverted, shows
that clause 6.8 was an
express, strict-liability term of the
contract. On the night of the robbery, Mr Mahlangu opened the
gate without authorisation
and for a purpose other than shift
changes. He therefore breached the contract.
[27]
The dissenting judgment emphasised that
reasonableness is irrelevant to the contractual claim. This is
because, unlike the
other clauses pleaded, iMvula’s obligations
in terms of clause 6.8 were not qualified by a reasonableness
standard.
[28]
On the delictual claim, the minority would
have held that Mr Mahlangu was negligent. He was a trained
security guard employed
specifically to ensure that unauthorised
persons would not be admitted to the premises. There were
simple and effective measures
he could have taken to avoid the entry
and the resulting robbery.
[29]
The
minority also concluded that Mr Mahlangu’s conduct was
wrongful. Although he could not justifiably resist opening
the
gate to a lawful demand of a police officer, the man at the gate was
“no policeman and he made no lawful demand.”
[22]
The minority noted that the reasonableness of Mr Mahlangu’s
conduct and his subjective state of mind are irrelevant
to the
wrongfulness enquiry. Instead, wrongfulness goes to whether it
is reasonable to impose liability. The minority
had no
hesitation in finding that public policy requires a security company
to be liable for its guard’s negligence.
[30]
The minority would thus have found for the
Loureiros, both in contract and in delict.
Leave
to appeal
[31]
For
leave to appeal to be granted, this Court must have jurisdiction.
The Loureiros urge this Court to overturn the findings
of the Supreme
Court of Appeal. They argue that a constitutional issue is
raised, namely the extent to which common law
actions in
contract and delict give effect to the rights to security of the
person, privacy and property. Alternatively,
they submit that
this Court has jurisdiction under the recently amended section 167 of
the Constitution,
[23]
as the
matter raises an arguable point of law of general public importance.
Although the Loureiros’ application to
this Court was filed
before the amendment came into force, they argue that the amendment
applies because the general presumption
against retrospectivity of
law is rebutted when the law in question is procedural and does not
affect a party’s substantive
rights.
[24]
[32]
iMvula denies that there is a
constitutional issue. It argues that there is no need to
develop the common law and that the
Loureiro family raises
constitutional arguments for the first time on appeal to this Court.
iMvula also rejects the notion that
the amendment can apply
retrospectively and argues that even if it were to apply, the
Loureiro family has not identified an arguable
point of law of
general public importance.
[33]
The
Loureiro family relies on the law of contract and the law of delict
to protect their constitutionally recognised rights.
It is
well-established that the law of contract and of delict give effect
to, and provide remedies for violations of, constitutional
rights.
[25]
However, the
mere fact that a matter is located in an area of the common law that
can give effect to fundamental rights does
not necessarily raise a
constitutional issue. It must also pose questions about the
interpretation and development of that
law
[26]
and not merely involve the application of an uncontroversial legal
test to the facts.
[27]
[34]
This
Court has held that
an
appeal against a finding on wrongfulness on the basis that it failed
to have regard to the normative imperatives of the Bill
of Rights
does ordinarily raise a constitutional issue.
[28]
This is because of the nature of the wrongfulness element in
delict. An enquiry into wrongfulness is determined by
weighing
competing norms and competing interests.
[29]
Since the landmark
Ewels
judgment,
whether conduct is wrongful is tested against the legal convictions
of the community.
[30]
These now take on constitutional contours: the convictions of the
community are by necessity
underpinned
and informed by the norms and values of our society, embodied in the
Constitution.
[31]
In
this case the wrongfulness enquiry – canvassed more fully later
– invokes the convictions of a community plagued
by crime on
the crucial issue of respect for the police, its role and its
interaction with the ever growing private security
industry.
[35]
The Supreme Court of Appeal held that Mr
Mahlangu’s conduct in giving access to police officers or
people who claim to be
police officers was not wrongful. The
question arises whether the Supreme Court of Appeal, in coming to
this conclusion,
had sufficient regard to how constitutional
considerations bear upon community mores. If the decision
stands, the harm-causing
conduct of security companies and their
employees who mistake robbers for police would not be wrongful and
thus not attract delictual
liability. Whether this Court should
overturn the decision of the Supreme Court of Appeal poses questions
about the interpretation
and development of the common law.
[36]
A constitutional
matter is therefore raised. Mr Mahlangu’s negligence and
the interpretation of the contract
are – in this case – issues connected to the required
decision on a constitutional
issue.
There
is no need to consider the Loureiro family’s arguments based on
the recent amendment to section 167 of the Constitution.
[37]
Is
it in the interests of justice to grant leave to appeal?
[32]
The Loureiros have prospects of success for their claims in both
contract and delict. The substantial differences in
the
approaches of the majority and minority judgments in the Supreme
Court of Appeal (as well as the High Court judgment) provide
a
further reason for its being in the interests of justice to address
the issues.
[33]
Legal
certainty on the correct approach to security companies’
liability will benefit the public.
[34]
This is particularly critical given the public role that security
companies play in giving effect to fundamental rights.
Resolving the legal dispute between the Loureiros and iMvula has
repercussions beyond the sphere of private affairs. Leave
to
appeal must be granted.
[35]
Contract
[38]
Mr Loureiro contends that the Supreme Court
of Appeal erred in interpreting the contract, by reading clause 6.8
as subject to a
tacit qualification that Mr Mahlangu only had to take
reasonable steps to decide whether or not to permit access to the
premises.
Instead, clause 6.8 is a strict-liability term.
An interpretation to the contrary is inconsistent with the intention
of the
parties, he submits.
[39]
In this Court, iMvula continues to argue
that Mr Loureiro failed to prove that the contract was amended to
include clause 6.8.
Even if the contract were so amended,
iMvula posits that the clause cannot be interpreted to apply
strictly: to do so would ignore
the other terms which impose a
standard of reasonableness. iMvula argues that neither it nor
Mr Mahlangu had breached this
standard of reasonableness.
[40]
To determine whether iMvula is liable to Mr
Loureiro, three issues must be decided: first, whether Mr Loureiro’s
express prohibition
against opening the pedestrian gate without prior
authorisation amended the terms of the contract; second, whether this
prohibition
should be interpreted as imposing strict liability or
instead as including a reasonableness qualifier; and third, whether
the contract
was breached.
[41]
It
is common cause that Mr Loureiro instructed that the intercom be
partially disabled so that guards could not open and close the
main
driveway gate. He provided a key to the pedestrian gate with
the strict instruction that the key should only be used
for guards to
change shift. It is also common cause that he prohibited the
guards from permitting anyone access to the premises
without prior
authorisation and that this prohibition was accepted by iMvula.
Given this unambiguous expression of the parties’
intention, it
is clear that the prohibition amended the contract. It is this
term that Mr Loureiro aimed to capture in his
pleaded clause 6.8 (the
express prohibition).
[36]
iMvula’s argument that the oral contract was not amended
by the addition of this term is improbable based on the evidence
established in and relied upon by the courts below.
[42]
In
the absence of a contrary stipulation, the law of contract does not
require fault (even in the form of negligence) for breach.
[37]
The parties expressly agreed to a strict liability prohibition.
Further, the express prohibition cannot be said
to impose a
reasonableness proviso, tacitly or otherwise, for a number of
reasons.
[43]
First,
contractual obligations are determined by the intention of the
parties.
[38]
The
intention articulated by Mr Loureiro in his prohibition was
unequivocal. The need for the prohibition to be express
was
triggered by the unauthorised admission of Mr Loureiro’s
brother onto the property. It is also in line with
the very
reason for having guards at the gate, that is, to make the property
more secure and act as a barrier to further entry,
stationed to
prevent anyone from gaining access without authorisation and to alert
those in the home to persons at the gate.
This is a strong
reason to conclude that the prohibition does not, in fact, require
fault for breach.
[39]
[44]
Second,
iMvula argued that the prohibition should be understood to include a
reasonableness standard because other obligations in
the contract do
include that standard. The argument must fail.
[40]
Although the contract was oral, the evidence put forward by the
parties on the nature of the obligations was fairly comprehensive.
It establishes that the parties specifically agreed that the express
prohibition would not be qualified. While contractual
terms
must be understood in context, this is no reason to think that all
the terms must impose the same fault standard. And
in this
case, other obligations explicitly imposed a reasonableness standard
and the prohibition deliberately omitted that standard.
Exactly
because of this, the conclusion that strict liability was imposed is
compelling.
[45]
Third,
some of the terms imposing obligations that do include a
reasonableness qualification
[41]
impose obligations of a different nature from the prohibition.
These other terms govern active measures that iMvula and its
employees must take to prevent third parties from gaining access to
the premises. The prohibition, on the other hand, imposes
a
negative obligation not to admit third parties without prior
authorisation. It makes sense that parties would contract
to
require a reasonableness standard for a positive obligation to do
something, while not for a negative obligation not to do something
–
especially not to open the gate, which was at the very heart of
iMvula’s contractual obligations.
[42]
[46]
Were these obligations breached and, if so,
does contractual liability follow? Mr Mahlangu used the
key to open the pedestrian
gate for the imposters, without prior
authorisation. This amounts to a breach of the contract.
Whether or not he was
negligent is irrelevant. iMvula is
liable.
[47]
iMvula
is furthermore not saved by the argument that Mr Mahlangu was
compelled by law to allow the imposter access to the premises
because
the security guard was under an obligation to obey a lawful demand by
a police officer.
[43]
The demand was not lawfully made by a police officer.
[48]
Even if iMvula’s relevant contractual
obligations were qualified by a reasonableness standard, it would in
any event be liable,
since this standard was breached. This is
a consequence of the view I take on the delictual claim, which I now
turn to consider.
Delict
[49]
Delictual – in this case
Aquilian
– liability generally results
from wrongful and negligent conduct which causes patrimonial damage.
iMvula’s liability
could be based on its own conduct, and thus
be direct, or vicarious as a result of Mr Mahlangu’s conduct.
[50]
I
start with whether iMvula is liable vicariously, in view of how the
matter was litigated and the focus of the lower courts.
For
delictual liability to be vicariously imposed: Mr Mahlangu must have
committed a delict; an employer-employee relationship
must have
existed between him and iMvula when the delict was committed; and the
delict must have been committed by Mr Mahlangu
while acting within
the course and scope of his employment.
[44]
iMvula did not dispute that, if Mr Mahlangu had committed a
delict against Mrs Loureiro and her children, it would be
vicariously
liable.
[45]
[51]
The Loureiros argue that wrongfulness is
established, because public policy requires that security companies
be held liable for
negligent conduct and thus be incentivised to take
adequate care to avoid causing harm to others. They also submit
that Mr
Mahlangu and iMvula acted negligently as the loss was
foreseeable and simple steps to prevent it were not taken.
[52]
iMvula disputes that the conduct was
wrongful. While Mr Mahlangu owed the Loureiros a legal duty, he
acted in good faith under
the impression that he was assisting the
police, in accordance with the Code of Conduct. His actions
could not be considered
wrongful. iMvula also argues that Mr
Mahlangu did not act negligently. The High Court and Supreme
Court of Appeal found
that he could not be criticised for believing
that the man at the gate was a police officer. To find Mr
Mahlangu negligent
would be to assume the role of an armchair critic
with knowledge after the fact. iMvula, too, cannot be said to
have been
negligent, as Mr Mahlangu had been properly trained and no
evidence of prevailing practices in the security industry was led.
[53]
Did
Mr Mahlangu act wrongfully and negligently? The enquiries into
wrongfulness and negligence should not be conflated.
[46]
To the extent that the majority judgment of the Supreme Court of
Appeal did not distinguish between these, it is incorrect.
The
wrongfulness enquiry focuses on the conduct and goes to whether the
policy and legal convictions of the community, constitutionally
understood, regard it as acceptable. It is based on the duty
not to cause harm – indeed to respect rights – and
questions the reasonableness of imposing liability.
[47]
Mr Mahlangu’s subjective state of mind is not the focus of the
wrongfulness enquiry.
[48]
Negligence, on the other hand, focuses on the state of mind of the
defendant and tests his or her conduct against that of
a reasonable
person in the same situation in order to determine fault.
[49]
[54]
I
begin with the enquiry into wrongfulness, because “[n]egligent
conduct giving rise to damages is not . . . actionable
per
se.
It
is only actionable if the law recognises it as unlawful”.
[50]
If
Mr Mahlangu’s conduct is not wrongful – for example if
those he let in were indeed police officers acting lawfully
–
his carelessness or negligence regarding the procedures he was
supposed to follow would be irrelevant for delictual purposes.
[55]
I
do not agree with the Supreme Court of Appeal that Mr Mahlangu was
obliged to open the gate because of his duty to cooperate with
the
police.
[51]
The
intruders were as a matter of fact robbers, not police officers.
The community expects security guards not to give
criminals access to
guarded property. It is wrongful to do so. What Mr
Mahlangu believed and how his insight and conduct
may compare with
that of a reasonable person in his position is not determinative of
the wrongfulness enquiry. It belongs
to the negligence enquiry.
[56]
There
are ample public-policy reasons in favour of imposing liability.
The constitutional rights to personal safety and protection
from
theft of or damage to one’s property are compelling normative
considerations. There is a great public interest
in making sure
that private security companies and their guards, in assuming the
role of crime prevention for remuneration, succeed
in thwarting
avoidable harm. If they are too easily insulated from claims
for these harms because of mistakes on their side,
they would have
little incentive to conduct themselves in a way that avoids causing
harm. And
policy
objectives (such as the deterrent effect of liability) underpin one
of the purposes of imposing delictual liability.
[52]
The
convictions of the community as to policy and law clearly motivate
for liability to be imposed.
[57]
Mr Mahlangu’s conduct was therefore
wrongful. Was he negligent?
[58]
The
test for negligence set out in
Kruger
v Coetzee
[53]
remains
authoritative.
[54]
The
questions in this case are whether (i) a reasonable person in the
position of Mr Mahlangu would have foreseen the reasonable
possibility of his conduct injuring another’s person or
property and causing loss; (ii) a reasonable person in the position
of Mr Mahlangu would have taken reasonable steps to guard against
that loss; and (iii) Mr Mahlangu failed to take those steps.
[59]
The
High Court and the Supreme Court of Appeal concluded that Mr Mahlangu
could not be faulted for assuming that the robber
at the gate was in
fact a police officer. iMvula suggested that the question
whether conduct is reasonable is a factual one,
which should not be
considered on appeal. I disagree. The question involves
the application of legal principles to
facts.
[55]
It
is generally understood in our law that the enquiry into negligence
is at least partly normative.
[56]
It
is open to us to determine whether the conclusion is correct.
In my view, it is not. The correct question is not
whether Mr
Mahlangu believed that the imposter was a police officer; rather, it
is whether it was reasonably foreseeable that the
imposter was not.
[60]
A reasonable person would have foreseen the
possibility that the man at the gate was an imposter. The
robbers drove up in
an unmarked car. While the car had a
flashing blue light, the light was fixed to the dashboard of the car,
not to its roof.
Underneath his reflective vest, the man who
walked up the driveway was dressed in a blazer of a type that an
on-duty police officer
would not usually wear. He did not
announce his identity or his business. According to Mr
Mahlangu’s evidence,
the man only “flashed” the
identity card at him, giving him no opportunity to compare the card’s
picture with
the man bearing it.
[61]
Mr Mahlangu was stationed at the entrance
of the Loureiros’ home for the express purpose of ensuring that
unauthorised persons
did not gain access. That required him to
make sure that all persons who seek access are entitled to do so.
And a reasonable
person in his position as a security guard on duty
would have foreseen the possibility that an unauthorised person might
try to
gain access by purporting to be someone that he is not –
including, or indeed especially, a police officer. It is
exactly
because police officers are clothed in authority that it is
foreseeable that an imposter may exploit this apparent authority.
Robbers seldom disclose their identity and announce their intention
to rob when they seek access to their target.
[62]
Given
that it was reasonably foreseeable that loss could arise, what steps
would a reasonable person have taken to prevent harm?
To
determine the reasonableness of guarding against the risk of the
harm, a number of considerations are relevant. These
include
the degree or extent of the risk created by the conduct in question;
the gravity of the consequences if the harm occurs;
and the burden of
eliminating the risk of harm.
[57]
[63]
Here,
the risk created by providing access to a person without first
verifying who he is or what he wants was great, as was the
gravity of
possible consequences. The burden of eliminating this risk was
slight. A reasonable person would have taken
steps to ascertain
the identity of the man at the gate including, for example,
determining whether the card flashed was a legitimate
police identity
card and at least enquiring why the man sought access to the
premises. Even if one were to believe that he
was a police
officer, a reasonable person would have still checked that he was
making a lawful demand.
[58]
If
he could not satisfy these enquiries, a reasonable person would not
have opened the gate. A reasonable person also would
have
attempted to make contact with the main house or his employer to find
out if the police were expected. Mr Mahlangu failed
to take any
of these fairly easy precautions. When one is tasked with
protecting a property against intruders, it is simply
not reasonable
to open a door for a stranger without adequately verifying who that
person is or what he or she wants. Mr
Mahlangu’s conduct
fell short of that of a reasonable person.
[64]
In
addition, it is worth mentioning that Mr Mahlangu is an experienced
security guard with a Grade-A qualification, and so perhaps
it would
be appropriate to raise the negligence standard to that of a
reasonable security guard in his position to be commensurate
with
this expertise.
[59]
The
expected standard is the general level of skill and diligence
possessed and exercised by professionals in that field.
[60]
The
more specialised a person is, the greater the general level of
expected care and skill will be.
[61]
[65]
iMvula
submitted that, in the absence of expert evidence on
security-industry standards, this Court could not determine what a
reasonable security guard would have done. I disagree.
While courts sometimes do call on expert evidence for assistance
in
determining an industry-specific negligence standard,
[62]
there
is no absolute requirement that they do so. Ultimately,
the
negligence enquiry is one that must be determined by the court in
question itself.
[63]
If
a court, on the facts, is able to determine what the reasonableness
standard is it does not have to rely on expert evidence.
Here,
we are able to do so. Security guards are trained to provide
guarded protection and to detect nefarious ways in which
opportunists
may try to penetrate that protection. That is the core of their
mandate. This can clearly be ascertained
without recourse to
expert testimony. In providing the robber with access to the
property without attempting to ascertain
his identity or business, Mr
Mahlangu’s conduct thus in any event failed to meet the
standard of a reasonable security guard.
[66]
Against these findings, it is not necessary to consider whether
iMvula is directly liable for any conduct of its own.
Conclusion
[67]
The contract between Mr Loureiro and iMvula was breached when
Mr Mahlangu gave the robbers access contrary to an express
oral
agreement not to allow anyone onto the premises without prior
authorisation. iMvula is vicariously liable in delict
because
its employee acted wrongfully by opening a gate to robbers and
negligently by failing to foresee the reasonable possibility
of harm
and to take the steps a reasonable person in his position would have
taken to guard against it.
Costs
[68]
There
seems to be no reason to depart from the general principle.
[64]
Costs must follow the outcome.
Order
[69]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is
set aside and the order of the High Court is replaced with the
following order:
(a)
The respondent is declared liable in
contract to the first applicant for whatever damages may be proved.
(b)
The respondent is declared liable in delict
to the second, third and fourth applicants for whatever damages may
be proved.
The
respondent is ordered to pay the applicants’ costs in this
Court, the Supreme Court of Appeal and the High Court including,
where applicable, the costs of two counsel.
For
the Applicants:
Advocate
G Marcus SC and Advocate N Ferreira instructed by Cliffe Dekker
Hofmeyr Inc.
For
the Respondent:
Advocate
W van der Linde SC, Advocate D Turner and Advocate K Serafino-Dooley
instructed by Norton Rose Fulbright.
[1]
Section
1 of the Constitution.
[2]
Sections
11, 12, 14 and 25 of the Constitution.
[3]
The
Preamble states: “May God protect our people. Nkosi
Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.”
[4]
Section
205(3) of the Constitution.
[5]
The
latest available crime statistics released by the South African
Police Service reveal that in the 2012/2013 period, 617 239
contact crimes were reported. These include 16 259
murders, 16 363 attempted murders, 66 387 total sexual
offences (including rapes), 185 893 assaults with the intent to
inflict grievous bodily harm, 172 909 common assaults,
105 888
robberies with aggravating circumstances and 53 540 common
robberies. Commentators indicate that the
total number of
crimes, including those which are never reported, is far higher.
[6]
According
to commentators like Irish “Policing for Profit: The Future of
South Africa’s Private Security Industry”
(United
Nations Development Programme, New York 1999) and Berg “The
Private Security Industry in South Africa: A Review
of Applicable
Legislation”
(2003) 16
SACJ
178
at 178.
[7]
Irish
above n 6.
[8]
Clarno
and Murray “Policing in Johannesburg after Apartheid”
(2013) 39
Social
Dynamics
210
at 213.
[9]
Id
at 222.
[10]
In
the High Court and in the Supreme Court of Appeal iMvula raised the
argument that the contract was concluded with Mr Loureiro’s
nephew. Both courts rejected this argument and iMvula has not
seriously pursued it in this Court.
[11]
For
ease of reference, I call these terms clauses 6.5.1, 6.5.2 and 6.7
respectively, as this is how they were pleaded by the Loureiros
in
the High Court.
[12]
iMvula’s
contention that the Loureiros’ counsel only raised clause 6.8
for the first time in their argument in the
Supreme Court of Appeal
is not sustainable, as this point was pleaded in the High Court.
[13]
See,
for example,
section 25
of the
Criminal Procedure Act 51 of 1977
,
headed “Power of police to enter premises in connection with
State security or any offence”:
“
(1)
If it appears to a magistrate or justice from information on oath
that there are reasonable grounds for believing—
(a)
that the internal security of the Republic or the maintenance of law
and order is likely to be endangered by or in consequence
of any
meeting which is being held or is to be held in or upon any premises
within his area of jurisdiction; or
(b)
that an offence has been or is being or is likely to be committed or
that preparations or arrangements for the commission
of any offence
are being or are likely to be made in or upon any premises within
his area of jurisdiction,
he
may issue a warrant authorising a police official to enter the
premises in question at any reasonable time for the purpose—
(i)
of carrying out such investigations and of taking such steps as such
police official may consider necessary . . .;
(ii)
of searching the premises or any person in or upon the premises for
any article . . . which such police official
on
reasonable grounds suspects to be in or upon or at the premises or
upon such person; and
(iii)
of seizing any such article.
(2)
A warrant under subsection (1) may be issued . . . .
(3)
A police official may without warrant act under subparagraphs (i),
(ii) and (iii) of subsection (1) if he on reasonable
grounds
believes—
(a)
that a warrant will be issued to him . . . and
(b)
that the delay in obtaining such warrant would defeat the object
thereof.”
[14]
Only
Mr Loureiro was party to the contract with iMvula. iMvula
raised a special plea challenging Mr Loureiro’s
standing
to bring the claims, on the basis that Mr Loureiro had ceded part of
the claim to an insurance company after the robbery.
This
argument failed in both the High Court and the Supreme Court of
Appeal. iMvula has not pursued it in this Court.
[15]
Quantum
was thus not argued in either the High Court or the Supreme Court of
Appeal and is not relevant to the proceedings in
this Court.
[16]
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd
[2011]
ZAGPJHC 140 (High Court judgment).
[17]
Id
at para 65.
[18]
Id
at para 66.
[19]
Imvula
Quality Protection (Pty) Ltd v Loureiro and Others
[2013]
ZASCA 12
;
2013 (3) SA 407
(SCA) (Supreme Court of Appeal judgment).
[20]
The
section is quoted above n 13.
[21]
The
Code of Conduct, prescribed under the Private Security Industry
Regulation Act 56 of 2001, was issued by the Minister of Safety
and
Security in 2003. Clause 7 of the Code of Conduct, headed
“General obligations towards the Security Services
and organs
of State” provides:
“
(1)
A security service provider must, within his or her ability, render
all reasonable assistance and co-operation to the members
and
employees of the Security Services to enable them to perform any
function which they may lawfully perform.
(2)
A security service provider may not interfere with, resist,
obstruct, hinder or delay a member or an employee of a Security
Service or an organ of State in the performance of a function which
such person may lawfully perform.
(3)
A security service provider must, without undue delay, furnish all
the information and documentation to a member or employee
of a
Security Service or an organ of State which such member or employee
may lawfully require.”
[22]
Supreme
Court of Appeal judgment above n 19 at para 51.
[23]
This
section was amended by the Constitution Seventeenth Amendment Act of
2012, which came into force on 23 August 2013.
The amended
section 167 empowers the Court to decide non-constitutional matters
if “the matter raises an arguable point
of law of general
public importance which ought to be considered” by it.
[24]
Veldman
v Director of Public Prosecutions, Witwatersrand Local Division
[2005]
ZACC 22
;
2007 (3) SA 210
(CC);
2007 (9) BCLR 929
(CC) at
paras 26 and 28. See also
Curtis
v Johannesburg Municipality
1906
TS 308
at 311 and 313.
[25]
Barkhuizen
v Napier
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at paras 28-30
and 35 and
Fose
v
Minister of Safety and Security
[1997]
ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 58
.
[26]
In
Minister
of Safety and Security v Luiters
[2006]
ZACC 21
;
2007 (2) SA 106
;
2007 (3) BCLR 287
(CC) at para 23 this
Court held that when determining whether an argument raises a
constitutional issue, the question is whether
the Court is forced to
consider constitutional rights or values, even if the argument
ultimately fails. Similarly, in
Barkhuizen
above
n 25 this Court assumed jurisdiction even though it later
concluded that the common-law rule did not need to be altered.
[27]
See,
for example,
Mbatha
v University of Zululand
[2013]
ZACC 43
at paras 194 (Cameron J) and 217 (Madlanga J) and
authorities cited there.
[28]
Steenkamp
NO
v Provincial Tender Board, Eastern Cape
[2006]
ZACC 16
;
2007 (3) SA 121
(CC);
2007 (3) BCLR 300
(CC) at para 19
found
that when an aggrieved party seeks an appeal against a court’s
finding on wrongfulness, we are seized with the matter.
Phumelela
Gaming
and Leisure Ltd v Gründlingh and Others
[2006]
ZACC 6
;
2007 (6) SA 350
(CC);
2006 (8) BCLR 883
(CC) at para 23
also
found that when a court is criticised for an alleged failure to have
regard to the spirit, purport and objects of the Bill
of Rights in
applying the test for wrongfulness, this Court will have
jurisdiction over the appeal.
[29]
Minister
of Safety and Security v Van Duivenboden
[2002]
ZASCA 79
;
2002 (6) SA 431
(SCA) at para 21.
[30]
Minister
van Polisie v Ewels
1975
(3) SA 590
(A) at 597A-C.
[31]
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 56;
Van
Duivenboden
above
n 29
at
para 17; and
Olitzki
Property Holdings v State Tender Board and Another
[2001]
ZASCA 51
;
2001 (3) SA 1247
(SCA) at para 12.
[32]
See,
for example,
Food
and Allied Workers Union v Ngcobo NO and Another
[2013]
ZACC 36
;
2013 (12) BCLR 1343
(CC) at para 24 and
Ingledew
v Financial Services Board: In re Financial Services Board v Van der
Merwe and Another
[2003]
ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) at para 13.
[33]
See
F
v Minister of Safety and Security and Others
[2011]
ZACC 37
;
2012 (1) SA 536
(CC);
2012 (3) BCLR 244
(CC) at para 38.
[34]
See,
for example,
Radio
Pretoria v Chairperson, Independent Communications Authority of
South Africa, and Another
[2004]
ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 22.
[35]
It
is true that the Loureiros first expressed their legal claims in
constitutional language in this Court. But it does not
follow
that it is not in the interests of justice to decide the matter.
The substance of the Loureiros’ case is unchanged,
namely that
the contract between the parties, correctly interpreted and applied,
was breached by iMvula’s employee, who
had also acted
wrongfully and negligently. The relevant facts were canvassed
in the High Court and the key legal points
in dispute were apparent
and ventilated in both previous judgments. There is no
prejudice to iMvula and this Court does
not have to sit as a court
of first instance.
[36]
Clause
6.8 appears earlier at [12].
[37]
Thoroughbred
Breeders’ Association v Price Waterhouse
[2001]
ZASCA 82
;
2001 (4) SA 551
(SCA) at para 66 and
Administrator,
Natal
v Edouard
[1990] ZASCA 60
[1990] ZASCA 60
; ;
1990 (3) SA 581
(A) at 597E-F.
[38]
Ashcor
Secunda (Pty) Ltd v Sasol Synthetic Fuels (Pty) Ltd
[2011]
ZASCA 158
at para 5 and
Total
South Africa (Pty) Ltd v Bekker NO
[1991]
ZASCA 183
;
1992 (1) SA 617
(A) at 624F-G and 625A-B.
[39]
It
also cannot be said that a reasonableness standard was tacitly
imposed, given that Mr Loureiro unambiguously intended that
such a
standard should not apply. The rule
expressum
facit cessare tacitum
militates
against including a tacit term that would either conflict with the
express terms or which purports to deal with a matter
on which the
parties have already expressed themselves. See
Penderis
and Gutman NNO v Liquidators, Short-Term Business, AA Mutual
Insurance Association Ltd
[1992]
ZASCA 178
;
1992 (4) SA 836
(A) at 842I;
Rashid
v Durban City Council
1975 (3) SA 920
(D) at 924-5; and
Glennie,
Egan & Sikkel v Du Toit’s Kloof Development Co (Pty) Ltd
1953 (2) SA 85
(C) at 94.
[40]
While
other terms of the contract (such as pleaded clauses 6.5.1, 6.5.2
and 6.7, quoted above at [9]) qualify iMvula’s obligations
by
requiring that it take “all reasonable steps”, clause
6.8 did not include such a standard.
[41]
See,
in particular, clauses 6.5.1 and 6.7, quoted above at [9].
[42]
Generally
breaching a negative obligation is viewed more severely than failing
to fulfil a positive obligation, even when the
same results occur.
Honoré “Are Omissions Less Culpable?” in
Responsibility
and Fault
(Hart
Publishing, Oxford 1999) at 60 and 65-6.
[43]
See
section 25
of the
Criminal Procedure Act above
n 13.
[44]
F
above
n 33 at para 40 and
K
v Minister of Safety and Security
[2005]
ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9) BCLR 835
(CC) at para 21.
See also Neethling, Potgieter and Visser
Law
of Delict
6
ed (LexisNexis, Durban 2010) at 365-8.
[45]
iMvula
did, however, argue that the conduct was not the legal cause of the
loss suffered by the Loureiros. It suggested
in its written
argument that the deactivated driveway alarm beam and unlocked
backdoor amounted to new intervening factors (
nova
acta interveniens
)
and so interrupted the causal chain between the wrongful conduct and
the resultant loss
.
It
did not persist with this in oral argument. It is thus not in
dispute that Mr Mahlangu’s conduct caused damage
to the
Loureiros.
[46]
Van
Duivenboden
above
n 29 at para 12.
[47]
Lee
v Minister of Correctional Services
[2012]
ZACC 30
;
2013 (2) SA 144
(CC);
2013 (2) BCLR 129
(CC) at para 53;
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
[2011]
ZACC 4
;
2011 (3) SA 274
(CC);
2011 (6) BCLR 577
(CC) at para 122
;
Trustees
for the Time Being of Two Oceans Aquarium Trust v Kantey &
Templer (Pty) Ltd
[2005]
ZASCA 109
;
2006 (3) SA 138
(SCA) (
Two
Oceans
)
at
para 11;
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
[2005]
ZASCA 73
;
2006 (1) SA 461
(SCA) at para 13; and Fagan “Rethinking
Wrongfulness in the Law of Delict” (
2005)
122
SALJ
90
at 109.
[48]
It
is recognised, however, that there are cases where conduct that
would not be wrongful if negligent, may be wrongful if intentional,
where this subjective state of mind may thus be relevant to the
wrongfulness enquiry. See, for example,
Minister
of Finance and Others v Gore NO
[2006]
ZASCA 98
;
2007 (1) SA 111
(SCA) at para 86 and the authorities cited
there; Visser “Delict” in
Wille’s
Principles of South African Law
9
ed (Juta & Co Ltd, Cape Town 2007) at 1187; and Boberg
The
Law of Delict
(Juta
& Co Ltd, Cape Town 1989) at 33.
[49]
See,
for example, Neethling, Potgieter and Visser above n 44 at 131.
[50]
Two
Oceans
above
n 47 at para 10. Courts have ruled that deciding which
enquiry should come first is a matter of convenience.
See, for
example,
Hawekwa
Youth Camp and Another v Byrne
[2009]
ZASCA 156
;
2010 (6) SA 83
(SCA) at para 24;
Gouda
Boerdery BK v Transnet Ltd
[2004]
ZASCA 85
;
2005 (5) SA 490
(SCA) at para 12; and
Local
Transitional Council of Delmas and Another v Boschoff
[2005]
ZASCA 57
;
2005 (5) SA 514
(SCA) at para 20. See also Brand
“Reflections on Wrongfulness in the Law of Delict”
(2007) 124
SALJ
76
at 79; Nugent “Yes, it is always a bad thing for the law: a
reply to Professor Neethling”
(2006) 123
SALJ
557
at 559-62; and Fagan above n 47 at 141.
[51]
See
clause 7 of the Code of Conduct above n 21 which provides that
security guards have obligations to provide assistance
to police
with regard to tasks police officers “may lawfully perform”
and to provide information that police officers
“may lawfully
require”. Opening the gate without more does not fall
within the ambit of these obligations,
because even had the man at
the gate been a police officer, he had not made a lawful demand.
[52]
Although
the law of delict has many purposes including corrective justice,
one aim identified by scholars is “giving people
incentives to
take account of the costs they impose on others”.
Hershovitz “Harry Potter and the Purposes of
Tort Law”
(2010) 63
Stanford
Law Review
67
at 69. See similar reasons playing a role in the context of
vicarious liability in
K
above
n 44 at para 21.
[53]
1966 (2) SA 428
(A) at 430E-F.
[54]
Lee
above
n 47 at para 18 and
SATAWU
and Another v Garvas and Others
[2012]
ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC) at para 48.
[55]
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004]
ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para 60.
[56]
Neethling,
Potgieter and Visser above n 44 at 131 and Boberg above n 48
at 268.
[57]
Ngubane
v South African Transport Services
[1990]
ZASCA 148
;
1991 (1) SA 756
(A) at 776H-I.
[58]
This
is in line with the requirements of
section 25
of the
Criminal
Procedure Act, quoted
above n 13, as amplified by the language
of clause 7 of the Code of Conduct above n 21, requiring
that security
guards provide assistance to police with regard to
tasks police officers “may lawfully perform” and to
provide information
that police officers “may lawfully
require”.
[59]
The negligence standard is adjusted when someone possesses or
professes to possess specialised skills or knowledge in a particular
field. See
Charter
Hi (Pty) Ltd and Others v Minister of Transport
[2011]
ZASCA 89
at para 32 and Neethling, Potgieter and Visser above n 44
at 136.
[60]
Van
Wyk v Lewis
1924
AD 438
at 444.
[61]
Midgley
and Van der Walt “Delict” in Joubert et al (eds)
LAWSA
second
reissue (2005) vol 8(1) at para 125.
[62]
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
[2001]
ZASCA 12
;
2001 (3) SA 1188
(SCA) (
Michael
)
at paras 34-40.
[63]
Id at para 34 and
Van
Wyk
above
n 60 at 448, cited approvingly in
Durr
v ABSA Bank Ltd and Another
[1997]
ZASCA 44
;
1997 (3) SA 448
(SCA) at 460H-461B.
[64]
Bothma
v Els and Others
[2009]
ZACC 27
;
2010 (2) SA 622
(CC);
2010 (1) BCLR 1
(CC) at paras 91-3.