Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Van Zyl J
• Judgment Date: 22 June 1989
• Citation: 1990 (2) SA 520 (W)
• Court: Witwatersrand Local Division

Van Zyl J:

The plaintiff claims from the defendant the amount of R45 464 pursuant to the theft of two motor vehicles from certain premises which were, at the relevant time, being guarded by the defendant. The defendant had a contractual obligation to guard the premises in terms of C a written agreement between it and the occupant of the premises, namely Imperial Motors, Langlaagte. The plaintiff, as the owner of the said vehicles, alleges that the defendant owed it 'a duty of care' to guard the premises in such a manner that the vehicles would not be lost or damaged by theft, burglary or vandalism. In breach of this duty the D defendant negligently failed to guard the premises properly, as a result of which the vehicles were stolen from the premises. The aforesaid amount represents the market value of the vehicles at the time of the theft and constitutes damage which was reasonably foreseeable by the defendant. In the plaintiff's further particulars for trial this amount E is described as 'the net cost of the vehicles to the plaintiff'.

In its further particulars to the particulars of claim, the plaintiff alleges that, in addition to the negligence averred in the particulars of claim, it also relies on the following grounds of negligence on the part of the defendant:

'(a)

F it failed to prevent the theft of the vehicles from the premises when it could and should have done so by the exercise of reasonable care;

(b)

it failed to ensure that its employees who guarded the premises did so effectively and diligently;

(c)

it failed to introduce and/or implement a system of supervision to ensure that its employees responsible for guarding the G premises would prevent the vehicles being lost by theft'.

The defendant admits in its plea that the premises were guarded by it in terms of a written agreement, but pleads that:

'4.1

... its sole function in terms of the contract was to minimise H the risk of loss or damage by theft, burglary or vandalism;

4.2

the defendant gave no warranty or guarantee that its security personnel would be able to minimise or prevent such loss or damage;

4.3

the defendant was not liable in terms of the contract to Imperial Motors Langlaagte, or to any third party, for any loss or damage of whatsoever nature and kind, whether direct or I consequential, arising out of any act or omission to act, whether such act or omission to act was negligent or grossly negligent or not;

4.4

the amount of any valid claim in terms of the contract was restricted to a refund of the contract price or such portion J thereof as may be appropriate;

Van Zyl J

4.5

A the defendant's liability was limited to the sum of R500000 in respect of any public liability claim and R100 in respect of any other claim;

4.6

Imperial Motors Langlaagte undertook to instruct its employees, and request any other persons occupying its premises, to ensure that all cash, documents, jewellery, motor vehicles, motor B vehicle keys and other valuable articles be kept in a place of safe custody; should the articles not be safely secured, then no right of recourse whatsoever would accrue against the defendant as a result of the theft or loss or damage to such articles'.

The agreement in question is described as a 'service contract' between C Imperial Motors (the 'client') and the defendant (the 'contractor') and is attached to the defendant's further particulars for trial. Clause 3.1 thereof reads as follows:

'The parties hereto agree that:

3.1.1

the sole function of the security service and security personnel D provided by the contractor is to minimise the risk of loss or damage by theft, burglary or vandalism;

3.1.2

the contractor gives no warranty or guarantee that its security personnel will be able to minimise or prevent such loss or damage;

3.1.3

the contractor shall not be liable to the client, or any third party, for any loss or damage, of whatsoever nature and kind, E whether direct or consequential, arising out of any act or omission to act, whether such act or omission to act be negligent or grossly negligent or not, by the contractor, or any of its security personnel, whether on duty or not, or as a result of any breach by the contractor of its obligations in terms of this agreement;

3.1.4

the amount of any valid claim shall in any event be restricted to a refund of the contract price, or such portion thereof as F may be appropriate, in respect of the period in which the act, omission or breach referred to above took place.'

Clause 3.2.4 of the agreement limits the defendant's liability to R500000 in respect of any public liability claim and R100 in respect of any other claim.

Clause 6.1 provides thus: G

'The client undertakes, promises and agrees that it shall, from time (sic), instruct its employees and request any other person occupying the premises... to ensure that all cash, documents, jewellery, motor vehicles, motor vehicle keys and other valuable articles be kept in a place of safe custody. Should the articles not be safely secured, then no right of recourse whatsoever shall accrue against the contractor as a H result of the theft and or loss or damage to such articles.'

Clause 15.1, again, provides that

'no addition, subtraction, alteration or variation of or to or from these terms and conditions shall be of any force or effect or binding on the parties thereto unless committed to writing and accepted by both of them'. I

The 'schedule of services' appended to the said agreement makes provision for security services in respect of two premises occupied by Imperial Motors. It is common cause that the premises on which the alleged theft of the plaintiff's motor vehicles took place is described in such schedule as 'new car sales'. In regard thereto the defendant J undertakes to make available one senior guard and one 'patrolling' guard

Van Zyl J

A for seven nights a week, while an additional guard is provided over weekends. One digital radio is apparently to be made available for their use.

It appears from the plaintiff's further particulars for trial that the two motor vehicles aforesaid were parked in 'open parking bays' on the southern side of the building on the premises in question at the time of the alleged theft. The plaintiff alleges that the motor vehicles were, B at the time, 'in the possession and physical control of the defendant, represented by its employee, the guard on duty'.

According to the minutes of the pretrial conference held by the parties, the defendant admits the plaintiff's ownership of the motor vehicles and also the quantum of its claim. The guards on duty at the C relevant time were Samuel, Alpheus and William. Alpheus had been in the defendant's employ for some six months.

The plaintiff called two witnesses, namely one Postma, who had been a manager in the employ of Imperial Motors at the time of the alleged theft, and one Rieckhoff, the managing director of Imperial Motors. Both D of these witnesses confirmed the existence of the agreement between Imperial Motors and the defendant and described the conditions prevailing at the locus delicti at the relevant time. The rear area of the premises, to the north of the workshop building, was used for the servicing of heavy duty motor vehicles and contained a number of open parking bays, while the front area, to the south of such building, E contained parking spaces for motor vehicles which were waiting to be serviced or repaired, or in respect of which the service or repairs had been completed. The rear area was directly adjacent to a street and was not fenced in. The motor vehicles of the plaintiff had been parked there on the night of the alleged theft.

F According to Postma the said Alpheus had been the security guard on duty at the relevant time. He and Postma had inspected the motor vehicles on the premises to ensure that they were locked and otherwise in order. Provision had been made for him to sit on the first or second floor of the building of the premises, from where he had a view of the whole rear area of the premises. Alpheus had gone on duty at 18h00 and had remained on duty till approximately 06h20 the next morning, when G Postma once again came onto the scene. He noticed that two of the vehicles were no longer there. Alpheus informed him that the vehicles had been stolen, but that he did not know what had happened, since he and the other guards had been at the front of the premises. According to an entry in the defendant's 'daily occurrence book', Alpheus had H inspected the premises at midnight and had found two trucks missing. Postma's impressions was that one of the vehicles had been 'dragged away' ('weggesleep') and the other 'rolled away' ('weggerol'). When confronted, in cross-examination, with the aforesaid schedule to...