Stallion Security (Pty) Ltd v Van Staden

• Jurisdiction: South Africa
• Judge: Leach JA, Mbha JA, Dambuza JA, Van Der Merwe JA and Hughes AJA
• Judgment Date: 27 September 2019
• Citation: 2020 (1) SA 64 (SCA)
• Docket Number: 526/2018 [2019] ZASCA 127
• Hearing Date: 27 September 2019
• Counsel: R Stockwell SC for the appellant. PG Cilliers SC (with PA Venter) for the respondent.
• Court: Supreme Court of Appeal

Van der Merwe JA (Leach JA, Mbha JA, Dambuza JA and Hughes AJA concurring):

[1] On Monday 3 November 2014 Mr Ronald Mkhululi Khumalo, an employee of the appellant, Stallion Security (Pty) Ltd (Stallion), murdered Mr Deon van Staden (the deceased), the husband of the respondent, Ms Daleen van Staden. The cardinal issue in the appeal is whether Stallion is vicariously liable for the resultant loss of support suffered by Ms van Staden. The Gauteng Division of the High Court, Pretoria (per Brand AJ), held that it was, but granted leave to appeal to this court.

The facts

[2] Stallion provides security services to its customers. For this purpose it employs security guards, supervisors and managers. Bidvest Panalpina

Van der Merwe JA (Leach JA, Mbha JA, Dambuza JA and Hughes AJA concurring)

Logistics (Pty) Ltd (Bidvest) contracted Stallion to provide security services at three of its premises, namely, two warehouses and its head office situated at 20 Wrench Road, Isando (the head office). The deceased was employed at the head office as a financial manager.

[3] The principal obligation of Stallion in terms of its contract with Bidvest was to provide access control to the premises. At the head office, five security guards were posted during the day and three were on duty for the night shift. A site supervisor oversaw the security guards at the head office. A site manager, in turn, supervised the Stallion personnel and operations at all three premises. None of these officers were issued with firearms. Unlike the other officers, the site manager did not wear a uniform. Bidvest employed a risk manager, who conveyed its requirements in respect of security services to the site manager.

[4] The Bidvest head-office staff gained access to the office area at the premises by way of a biometric security system. This system provided access (which was recorded) upon recognition of a fingerprint placed against a pad. It did not allow the security guards to access the office area. The site supervisor and site manager were, however, registered on the biometric system and were thus enabled to access the office area.

[5] By 2012 Mr Khumalo served as Stallion's site supervisor at the head office. He performed well in that position, to the extent that the risk manager of Bidvest (Mr Harmse) recommended him for the position of the site manager of the three premises. At about the end of 2013 Stallion promoted Mr Khumalo to this position.

[6] As the site manager, Mr Khumalo's duties included the regular inspection of the security guards on duty. In doing so, he was also required to make unannounced visits to the premises after business hours. Mr Khumalo was, in addition, tasked with inspecting the interior of the building, particularly to ensure that the emergency exits were closed at night (they were opened during the day for ventilation purposes). Mr Khumalo was provided with a bypass or override key for this purpose. The override key allowed access to the office area without the use of the biometric system and therefore without record thereof. The override key was also intended to be used to gain access to the office area in the event of a power failure. Only Mr Khumalo was entrusted with this override key.

[7] A month or so prior to November 2014, Mr Khumalo started to appear unkempt. He often did not turn up for work, claiming that he had been ill. He did not report for duty on 30 October 2014 or on any day thereafter. Upon an enquiry by Mr Harmse, Stallion informed him that Mr Khumalo was ill. On the morning of 3 November 2014 Mr Harmse requested Stallion to remove Mr Khumalo from his position. By then, however, Mr Khumalo had effectively been placed on sick leave. In his subsequent statement to the police, Mr Khumalo said that he had borrowed money from certain persons and that, when he failed to repay the money, those persons 'started hurting [him]'. It appears that this explained the change in Mr Khumalo's behaviour and had a significant influence on his decision to commit the unlawful acts that followed.

Van der Merwe JA (Leach JA, Mbha JA, Dambuza JA and Hughes AJA concurring)

[8] Mr Khumalo knew the deceased often worked late. He had also heard that Bidvest kept a petty-cash box in the office area. He decided to rob the deceased and to attempt to locate the petty-cash box. For this purpose he 'hired' a firearm from a co-employee. This took place on Wednesday 29 October 2014. He went to execute his plan both the next day and the day thereafter, but apparently did not have the heart to go through with it.

[9] On the fateful Monday Mr Khumalo went to the head office at about midday, armed with the firearm that I have mentioned. He observed that the deceased was at work. He waited until about 18h00, and then entered the head-office building via an emergency exit on the second floor. He moved to the first floor, where the office of the deceased was situated. He gained access to the office area on the first floor with the use of the override key. He entered the office of the deceased and demanded cash from him at gunpoint. The deceased knew Mr Khumalo from work. The deceased asked Mr Khumalo why he was doing this. According to Mr Khumalo he related 'the whole story of me owing people money' to the deceased. Mr Khumalo said that he needed the amount of R50 000. The deceased said that he did not have the keys of the safe with him and indicated that he could only assist him with an amount of R35 000 that he had in his personal bank account. Mr Khumalo coerced the deceased to make an electronic transfer of that amount into his bank account.

[10] Thereafter Mr Khumalo escorted the deceased out of the building. He walked behind the deceased and, carrying the firearm, forced the deceased to open a door of the office area with the use of the biometric system. They exited the building through a different emergency exit and moved to where the deceased's car was parked. Upon the instruction of Mr Khumalo, the deceased drove to the vicinity of the Eastgate shopping complex.

[11] When the car came to a standstill near Eastgate, so Mr Khumalo said, 'it came to [his] mind that [the deceased] was going to call the police'. Mr Khumalo then shot and killed the deceased, got out of the car and ran away. He was apprehended shortly afterwards, but later escaped from custody. Subsequent information caused him to be presumed dead.

[12] Ms Van Staden sued both Stallion and Mr Khumalo for delictual damages consisting of loss of support as a result of the death of the deceased. Her claim against Stallion was founded only on vicarious liability for the wrong committed by Mr Khumalo. For the reasons mentioned, the trial proceeded only against Stallion. Ms Van Staden presented the evidence of Mr Harmse and a police officer who introduced a detailed statement of Mr Khumalo into evidence. Video footage, of parts of the incident obtained from the security cameras at the head office, was also admitted into evidence. Stallion closed its case without leading any evidence.

[13] The court a quo, quite correctly, held that the intentional wrongs of Mr Khumalo were committed entirely for his own purposes. Citing authority that I shall return to, it held that the killing of the deceased was nevertheless sufficiently linked to Mr Khumalo's employment with

Van der Merwe JA (Leach JA, Mbha JA, Dambuza JA and Hughes AJA concurring)

Stallion for it to be held vicariously liable for the loss suffered by Ms Van Staden. In this regard the court a quo essentially relied on the strong causal link between the employment of Mr Khumalo and the murder of the deceased, the risk of abuse created by his employment and the contractual duties that Stallion owed to Bidvest through Mr Khumalo. The quantum of damages having been agreed, the court a quo granted judgment in favour of Ms Van Staden in the amount of R1 680 000, interest thereon and...