Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Booysen J
• Judgment Date: 15 May 1991
• Citation: 1992 (3) SA 643 (D)
• Hearing Date: 27 February 1991
• Court: Durban and Coast Local Division

Booysen J:

This case raises the interesting question of whether a master D who has not been at fault for employing an untrustworthy servant could be either personally or vicariously liable for theft committed by the servant solely for the servant's benefit and unbeknown to the master.

The plaintiff is a firm which sells electrical appliances. The defendant is a company which provides security services. In its particulars of claim as amended, plaintiff alleged:

'3.

E During the period 8-17 July 1989 the NBS House and Garden Show was held at the Durban Exhibition Centre, 11 Walnut Road, Durban.

4.

By agreement with the show organisers, the defendant was appointed to provide security services at the said exhibition centre for the duration of the said show. F

5.

The security services to be provided by the defendant included, inter alia:

(i)

the locking and securing of the exhibition centre at night after the show had closed;

(ii)

the patrolling of the outside perimeter of the exhibition G centre after it had been locked and secured for the night;

(iii)

the provision, in its discretion, of reasonable measures to protect the goods and property of exhibitors contained within the said exhibition centre.

6.

In the circumstances, the defendant owed a duty of care to H exhibitors at the said show to guard against the theft of exhibitors' goods from within the said exhibition centre, more particularly during times the said show was closed and the said exhibition centre was in the care and under the control of the defendant.

7.

The plaintiff was an exhibitor at the said show for its duration.

8.

Accordingly, the defendant owed the plaintiff a duty of care as I set out in para 6 above.

9.

During the period 8-17 July 1989, and at times when the show was closed and the said exhibition centre was under the care and control of the defendant, the goods listed below to the value of R46 288 were stolen from the plaintiff's storeroom within the said J exhibition centre:

A Goods stolen	Value
1 Electrolux Minivac	R79
1 National Food Processor	R 289
1 PD 2-82 Pioneer Compact Disk	R1 199
1 Avatex 88 Fax Machine	R2 599
B 1 National Video L10 BA serial No D9MM00847	R1 999
1 Sanyo Video M 804 serial No 0481700615	R899
1 Sanyo Video VMDP 5 serial No 81770282	R5 299
1 Sanyo Video VHRD 500 serial No 81130287	R3 299
1 Sanyo Video VHRD 500 serial No 81130273	R3 299
1 Sanyo Video VMDP 3 serial No 79810557	R4 999
C 1 Sanyo Video VS 26 serial No 31245-05498	R1 999
1 Akai W 35 Hi-Fi serial No 8010681	R1 599
3 Sharp WQT 2212 Portable Radio/Cassette Combinations at R329 each	R1 645
D 1 Sharp VCA 105 K Talking Video Machine serial No 311358	R1 999
1 Sanyo Video VHR 4100 serial No 81110668	R1 699
8 KIC Radio Tape Combinations Model BPR 7500 at R299 each	R2 392
2 L10 National Videos at R1 999 each	R3 998
1 L18 National Video	R2 999
E 1 Akai VCR Model VS 26 serial No 31245-04875	R1 999
1 Akai VCR Model VS 26 serial No 31245-5498	R1 999
	R46 288

10.

The said goods were stolen as aforesaid by employees of the defendant; alternatively the aforesaid goods were stolen by persons unknown to the plaintiff in collaboration with employees F of the defendant aforesaid; further alternatively the goods aforesaid were stolen by persons unknown to the plaintiff.

11.

The thefts aforesaid were allowed to occur by virtue of the negligence of the defendant, which was negligent in one or more of the following respects: G

(i)

It failed to take any or any adequate precautions to prevent the theft of exhibitors' goods, when by the exercise of reasonable care, it could and should have done so.

(ii)

It allowed the keys to the exhibition centre to be left at a place where they were accessible to the thief or thieves.

(iii)

H It failed to keep the keys to the exhibition centre in a safe place and/or under the care and control of a reliable person.

(iv)

Its servants, acting within the course and scope of their employment with the defendant, failed to secure and/or lock and/or guard and/or patrol the said exhibition centre after the show had closed each night. I

(v)

Its management failed properly to supervise and oversee the defendant's employees who were appointed by the defendant to carry out the functions entrusted to it, at the said show.

(vi)

Its management appointed dishonest and unreliable staff to carry out the security functions entrusted to the defendant by J the show organisers.

Booysen J

12.

A In the premises, the defendant breached the aforementioned duty of care it owed, inter alia, to the plaintiff.

13.

By reason of the aforegoing, the plaintiff has suffered loss and damage in the sum of R46 288.

14.

In the premises, the defendant is liable to compensate the plaintiff in the sum of R46 288. B

15.

The defendant has not done so.

16.

Alternatively, and in any event, if it is found that the theft of the goods occurred in the manner set out in para 10 of the plaintiff's particulars of claim, then the defendant is vicariously liable to the plaintiff for the theft of the C plaintiff's goods by the defendant's employees.'

In its plea, defendant admitted paras 3, 4, 5(i) and (ii), 7 and 15, and denied the rest of the allegations in the particulars of claim.

I do not propose to set out the evidence in detail as the relevant facts were during argument either common cause or not in dispute.

D It was clear on the evidence and accepted in argument by Mr Van Niekerk on behalf of the defendant that the plaintiff's goods appearing on the list, exh E, had been stolen and that plaintiff suffered damages in the amount of R44 530,99. It was furthermore proved on a balance of probabilities that these goods were stolen by the employees of defendant, E being the guards Godfrey Manyoni and Nicholas, who were assigned by defendant to guard the exhibition hall and its contents at night. They obviously gained entry to the hall by using the key which had been given to Manyoni for use in case of an emergency such as a fire or in case he had to enter the building in order to investigate any suspicious noise from within the hall. F

'In general the law allows me to mind my own business. Ordinarily I do not owe a legal duty to anyone to save him from harm. Sometimes the law requires me to be my brother's keeper.

This happens if a diligens paterfamilias in the position which I am in would:

(a)

foresee the possibility of harm occurring to him; and

(b)

take steps to guard against its occurrence.' G

(Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A) at 373E-H; Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A) at 12E-G.)

It follows that ordinarily I do not owe a legal duty to another to guard H or to protect his goods from theft or depredation. But sometimes the law does indeed require me to do so.

Mr Van Niekerk conceded that this is one of those cases and that the defendant did owe the plaintiff a legal duty or duty of care in all the circumstances. There seems to be no doubt that the diligens paterfamilias in the position of defendant would have foreseen the possibility that I plaintiff's goods could be stolen and taken steps to guard against that occurrence. (See Peri-Urban Areas Health Board v Munarin (supra at 373F-G).)

Indeed, the defendant was engaged to guard against such occurrences and could hardly contend otherwise. (Compare Compass Motors Industries (Pty) J Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W) at 526G.)

Booysen J

A Mr Van Niekerk submitted that the plaintiff had not established any breach of the duty of care on the defendant's part.

He submitted that I should accept Mr Rault's evidence to the effect that defendant took reasonable precautions in appointing staff to ensure that they should not be untrustworthy persons. Mr Broster, for the plaintiff, did not contend otherwise and I accept that this was so. Mr Van Niekerk B submitted further that defendant in general adequately trained and supervised its staff. I am also prepared to accept this on the evidence of Mr Rault.

Mr Broster submitted that the defendant breached the duty of care in one important respect and that was that it failed to ensure that access to the C key was restricted in such a manner that Manyoni could not gain access to it without the knowledge of his superiors. In this regard, he said that, had the key been given to Manyoni in a sealed envelope, then he would have been deterred from using it for any purpose other than a lawful one. Mr Rault, when this was suggested to him, said that putting the key in a sealed envelope would not have been a fail-safe method to prevent theft by D Manyoni. He said that where his company permanently guarded sites and needed a 'strategic key' and...