Loureiro and Others v Imvula Quality Protection (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Nkabinde J, Van der Westhuizen J and Zondo J
• Judgment Date: 20 March 2014
• Citation: 2014 (3) SA 394 (CC)
• Docket Number: CCT 40/13 [2014] ZACC 4
• Hearing Date: 06 November 2013
• Counsel: G Marcus SC (with N Ferreira) for the applicants. W van der Linde SC (with D Turner and K Serafino-Dooley) for the respondent.
• Court: Constitutional Court

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 D

[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 to the Constitution calls for our people to be protected. [3] Our police service is mandated — E

'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 F 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 G 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.

Van der Westhuizen J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Nkabinde J and Zondo J concurring)

A [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 B 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]

C [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 D 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. E 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 F against the decision of the Supreme Court of Appeal.

Issues

[6] The issues for determination are:

(a)

Should leave to appeal be granted?

(b)

G 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 H previous home, the Loureiro family moved to a new house in Melrose,

Van der Westhuizen J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Nkabinde J and Zondo J concurring)

Johannesburg. Mr Loureiro arranged for an extensive security system to A be installed at the house, including electrified fencing, perimeter beams, multiple alarm systems, a guardhouse 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 B 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 C 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]; D

. . .

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 E 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. F

[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. G

[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 H

Van der Westhuizen J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Nkabinde J and Zondo J concurring)

A [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 B 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, C 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 D 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.

Van der Westhuizen J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Nkabinde J and Zondo J concurring)

[15] At 19h47 an unmarked white BMW car with a flashing blue light on A the dashboard pulled up in 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 B examine it. When Mr Mahlangu tried to speak to the man through the intercom, he received no answer. He assumed that the intercom was 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 C 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 D 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. E

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...