The Contract/Delict Interface in the Constitutional Court

• Jurisdiction: South Africa
• Citation: (2014) 25 Stell LR 501
• Pages: 501-510
• Date: 16 August 2019
• Author: Alistair Price
• Published date: 16 August 2019

501

THE CONTRACT/DELICT INTERFACE IN THE

CONSTITUTIONAL COURT

Alistair Price

BBusSc LLB BCL PhD

Associate Professor in the Department of Private Law, University of Cape Town*

In Loureiro v iMv ula Quality Protectio n (Pty) Ltd1 (“Loureiro”), the

plaintiffs (Mr L oureiro and his immediate fam ily) sued the defendant pr ivate

security company (iMvula) conc urrently in contra ct and delict after an

on-duty secur ity guard employed by iMvula h ad mistakenly allowed ar med

robbers, masquerading as police ofcers, into Loureiro’s residence where

they assaulte d him and hi s family and stole property allegedly worth R11m.

The issue of liability having be en separated from quantu m, the Constitutional

Court una nimously upheld both claims, “for whatever dam ages may be

proved”, overturni ng a majority of the Supreme Court of Appeal. The Court

held, rst, that the guard’s letting the robbers in put iMvula in breach of an oral

term of its contract w ith Mr Loureiro, which prohibited gua rds from allowing

anyone other than the im mediate Loureiro family into their r esidence without

prior permission f rom one of the parents.2 The Cour t accepted that, i n the

absence of a contrary st ipulation, the law of contract does not require fault for

breach,3 and there being no such stipulation, that whet her or not the guard

had been negligent was ir relevant to the contractual claim. Se condly, the Court

concluded, in any event, that the g uard had acted negligently and wrongfully,

in a delictual sense, i n the course of his employment with iMvula a nd therefore

the private secur ity company was vicariously liable to M rs Loureiro and the

children, who had not been pa rty to the cont ract with iMvula .4 The Court

thus considered it unne cessary to decide whethe r iMvula was direc tly liable

in delict for its own negligence.

The case is a good example of a concursus actionum permit ted by South

Af rica n l aw,5 and therefore provides an oppor tunity to r econsider this

issue, particula rly in the context of delictual claims aga inst companies who

provide security ser vices in ter ms of contracts.6 Although delicts and

breaches of contract are d istinct categories of civil wrong, w ith differing

* I a m grat eful t o Jaco Barnar d-Naudé, Anton Faga n, Dale Hutchiso n, Tjak ie Naudé, and Helen S cott

for critical en gagement with a n earlier version of t his note I alone bear respon sibility for the v iews

expressed

1 Loureiro v Imv ula Quality Prote ction (Pty) Ltd 2014 3 SA 394 (CC)

2 Paras 38-48

3 Para 42, citing Thoroughbred Breeders’ Association v Price Waterhouse 2001 4 SA 551 (SCA) para 66

and Administ rator, Natal v Edouard 1990 3 SA 581 (A) 597E-F

4 Loureiro v Imv ula Quality Prote ction (Pty) Ltd 2014 3 SA 394 (CC) paras 49- 66

5 Lillicrap, Wassena ar & Partners v Pilki ngton Brothers (SA) (Pt y) Ltd 1985 1 SA 475 (A) 496D-I

6 See, for example, Viv’s Tippe rs (Edms) Bpk v Pha Pham a Staff Serv ices (Edms) Bpk h/a Pha Phama

Security 2010 4 SA 455 (SCA); Compass Motor s Industrie s (Pty) Ltd v Callguar d (Pty) Ltd 1990 2 SA 520

(W); Long ueira v Securita s of South Africa (Pt y) Ltd 1998 4 SA 258 (W)

(2014) 25 Stell LR 501

© Juta and Company (Pty) Ltd