Determination of constitutional nature of contractual and delictual claims - strict contractual liability of security company - vicarious liability of security company for wrongful and negligent conduct of employee Loureiro and Others v iMvula Quality Protection (Pty) Ltd 2014 3 SA 394 (SCA) : recent case law
Author | T.J. Scott |
DOI | 10.10520/EJC166183 |
Published date | 01 January 2014 |
Date | 01 January 2014 |
Pages | 374-392 |
374 2014 De Jure
Loureiro and Others v iMvula Quality Protection
(Pty) Ltd
2014 3 SA 394 (SCA)
Determination of constitutional nature of contractual and delictual claims –
strict contractual liability of security company – vicarious liability of security
company for wrongful and negligent conduct of employee
1Introduction
The case under discussion is of general interest to those interested in the
law of contract and delict, and of particular interest to practitioners in the
private security industry field. It also provides a sterling example of the
risks involved in modern litigation in South African courts: Here the
plaintiffs who had succeeded fairly easily in the High Court and
subsequently had to bear the disappointment of seeing their judgment
overturned on appeal by a majority of the Supreme Court of Appeal,
finally won the day when the Constitutional Court granted them leave to
appeal and finally upheld their appeal against the judgment of the
Supreme Court of Appeal, in effect reinstating the judgment of the High
Court.
In this case note the focus will fall on certain aspects of the law
pertaining to breach of contract as well as on the application of the
principles of the law of delict dealing with wrongfulness and negligence
in the context of causing pure economic loss. The set of facts that
confronted the court would ordinarily be interpreted as an instance of
pure economic loss, seeing that the actions of third parties (robbers)
causing the damage in casu was made possible by the preceding conduct
of one of the defendant’s employees, which conduct was therefore
indirectly causally linked to the plaintiffs’ harm.
Van der Westhuizen J (with Moseneke ACJ, Skweyija ADCJ, Cameron
J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Nkabinde J and Zondo J
Onlangse regspraak/Recent case law 375
concurring) provided an interesting introduction to the judgment,
highlighting the growing importance of the private security industry in
contemporary South Africa. He referred to the high incidence of crime
and provided startling recent statistics of serious offences such as murder
and armed robbery and then remarked:
“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” (398A).
The court attributed this tendency to historical factors, pointing out
that it began developing since the late 1970s as one of the consequences
of the apartheid regime’s focus on state security and political control,
which caused a strain on the availability of members of the police to
perform their ordinary protective duties. The court continued to sketch a
scene where security officers in the private security industry nowadays
even outnumber the members of the South African Police Service (398B-
C). It is suggested that this phenomenon in particular should kindle the
interest in this judgment of anybody involved or associated within the
mechanisms – public as well as private – by means of which public safety
and security are maintained in our country.
2Facts and Judgment
The respondent, iMvula (defendant in the South Gauteng High Court
and appellant in the Supreme Court of Appeal), is a private security
company who was contracted to provide an armed guarding service for
the protection of the home of the appellants, Mr and Mrs Loureiro and
their two minor sons (plaintiffs in the South Gauteng High Court and
respondents in the Supreme Court of Appeal), on a 24-hour basis seven
days a week. In addition, Mr Loureiro had an extensive security system
installed at the property (electric fences, perimeter beams, multiple
alarm systems, a guard house with bulletproof windows, an intercom
system and closed-circuit television). Access to the property could be
gained through two entrances, namely an armoured pedestrian gate and
a driveway gate. Both gates could be observed from the guard house.
In terms of their agreement iMvula initially undertook, inter alia, to
take all reasonable steps to prevent persons gaining unauthorised access
and/or entry to the premises, to take all reasonable steps to protect the
appellants and their property and to take all reasonable steps to ensure
that no persons gained unlawful access to the premises. (These terms
were not put in writing and their content was reflected in clauses 6.5.1 –
6.5.2 and 6.5 7 of Mr Loureiro’s heads of argument presented to the High
Court.) As a result of a lapse of security due to one of the guard’s allowing
someone to enter the premises through the main gate without obtaining
Mr Loureiro’s prior approval, the latter had the intercom system partially
disabled to prevent the guards from opening and closing the main gate.
This arrangement unfortunately affected the movement of the armed
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