Top Security Sytems (Pty) Ltd v Samy's Wholesalers CC
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | CC Williams AJP and MC Mamosebo J and APS Nxumalo J |
| Judgment Date | 21 January 2022 |
| Docket Number | 236/2013 |
| Hearing Date | 18 October 2021 |
| Court | Northern Cape Division |
| Citation | 2022 JDR 0100 (NCK) |
Mamosebo J:
This appeal, with leave of the Supreme Court of Appeal (SCA), stems from an action for damages for breach of contract for security and armed response services against Top Security Systems (Pty) Ltd (TSS), the defendant, now the appellant, by Samy's Wholesalers CC t/a Samy's Wholesalers, the plaintiff, now the respondent. The issues of quantum and liability were separated in terms of Rule 33(4) of the Uniform Rules of Court.
Mamosebo J:
On 02 August 2019 O'Brien AJ found TSS liable to Samy's Wholesalers for the proven damages as a result of the burglary at Samy's Wholesaler's premises on 13 November 2011 in consequence of the breach of the agreement entered into between the parties on 21 June 2004. TSS, a private security company, concluded an agreement with Samy's Wholesalers to provide a 24-hour armed response and alarm monitoring service. The existence of the agreement is common cause.
The issue for determination before the trial court which still remains the issue in this Court, is whether there were reasonable, appropriate and adequate steps taken to investigate whether or not the burglary was in progress at Samy's Wholesalers. In short whether TSS is liable for breach of contract or not.
Factual background:
Mr Poobalan "Tom" PiIlay is a member of Samy's Wholesalers, a Cash and Carry supermarket or trade merchant, which sells groceries, confectionaries, snacks, airtime and cigarettes, amongst others. The store is open to the public from Mondays to Fridays 08:00 to 17:00 allowing staff to cash up until 18:00. On Saturdays the store opens from 08:00 to 13:00 with the staff cashing up until 14:30. The store does not operate at all on Sundays.
Samy's Wholesalers is situated at 78 Phakamile Mabija Street, Kimberley. In an effort to beef up its security it erected a 1.9 meter high palisade fence which served as its boundary. Two gates for access to the premises, one on the south and the other on the west, are provided. The installed alarm system comprising a 160 panel zone was monitored from the TSS control room. The alarm system was fitted with sensors, activation devices and beams which would be activated once there was movement in and around the store. The
Mamosebo J:
beams were placed in the front areas of the store and the warehouse whereas inside the building sensors were fitted in the offices, canteen, strategic room and the cash office. There was also a device manipulated to the safe in the safe room. In the event of an activation the control room would be alerted that the safe has been tampered with.
Should any sensor or beam be triggered the alarm would be activated and the siren would go off alerting the control room. The control room would, in turn, telephonically contact the keyholders to obtain instructions whether to respond or not. If the instruction is to respond, the control room would then dispatch a warden to investigate the cause and furnish feedback. Mr Pillay and his sons, Nivendran Pillay and Dhesigan Pillay, are keyholders to the store. TSS was at liberty to contact either one of the three keyholders.
It is the responsibility of a keyholder to open and lock up the store. When the main door gets opened an SMS signal is given to the keyholder. When the door is closed at the end of the business day, and not at the exact time, TSS would make contact with the keyholder confirming whether they are still on site. None of the keyholders received notification prior to or on the day of the incident that the alarm system was malfunctioning. There was regular testing, including on 12 November 2011 at 19:20:42 when same was conducted to confirm that the system was in working order.
On Sunday, 13 November 2011, it is common cause, a burglary took place at Samy's Wholesalers. It is also common cause that the alarm was triggered on four different occasions which ca used the control room to telephonically contact a keyholder on the supplied telephone number. According to the Client History Report furnished by TSS the first alarm was triggered through the front door beam at
Mamosebo J:
11:25:25 and at 11:25:48, still showing the front door beam. The entry states that it was escalated by burglary signal. The control room dispatched Mr Andre Fourie at 11:27:00 to respond and investigate the cause for the triggered alarm. Mr Tom Pillay was contacted at 11:27:28 on his cellphone which went straight to voicemail. At 11:29:39 the control room phoned the landline of Mr Tom PiIlay. His wife requested the warden to check and report back. A TSS response vehicle arrived at Samy's Wholesalers at 11:31:28. At 11:35:54 it is recorded that the control room acknowledged subsequent signals. At 11:38:42 Mr Andre Fourie checked and relayed a message to the control room that "All Is In Order" (AIO). At 11:41:19 Mr Tom Pillay was contacted and informed that all was in order.
The alarm was again triggered at 13:29:46 at the strategic store and recorded at 13:29:59 as escalated by burglary signal. At 13:30:32 it is recorded that subsequent signa Is were acknowledged. Warden Aaron Leburu was dispatched by the control room at 13:31:02. Mr Tom Pillay was contacted on his cellphone at 13:31:57. He gave an instruction for the warden to attend to Samy's Warehouse and check the front and back as well. The response vehicle arrived at 13:32: 00. It is recorded that Mr Hendrick Hapane assisted Leburu at 13:34:36. By 13:34:19 they reported to the control room that they have checked the front and the back and by 13:37:23 logged that the alarm was checked and all was in order.
At 16:28:36 the alarm was triggered yet again at the strategic store. At 16:28:55 it is recorded as escalated by burglary signal. The control room recorded that at 16:30:05 the wardens were busy with other calls and Mr Tom Pillay was telephonically contacted on his cellphone. His response was that the warden can check on his own.
Mamosebo J:
Warden Hendrick Hapane was dispatched at 17:01:08 and arrived at 17:05:11. At 17:08:11 he informed the control room that all was in order. At 16:28:55 the alarm was activated again at the strategic store and it is recorded as a burglary and again at 17:44:14 inside Nivendran's office. It was escalated by a burglary signal. Leburu was dispatched again at 17:46:14. The control room contacted Mr Tom Pillay on his cellphone. His instruction once again was that the warden must check on his own. At 17:56:43 the control room was notified that all is in order the warden has checked all around.
The activation continued inside Nivendran's office at 17:44:27. In all these instances the control room could see through its monitoring of the system which zones inside the store were affected because they are recorded on the Client History Report furnished to Mr Pillay by TSS. The alarm panel, located in Nivendran's office, was removed and destroyed as depicted in photos 22 and 23. The last alarm activation was at 17:44:34.
The following morning, Monday 14 November 2011, when Mr Pillay arrived at the business in the company of Mr Michael Miller to unlock the doors for staff to gain entry, they noticed that the infra-red light was off; even before they used their remote control to deactivate the alarm. It was discovered, upon entry, that there had been a burglary. This is also admitted by TSS. The South African Police Service (SAPS) members were summoned to the scene. The forensic division conducted a forensic investigation. The following goods were stolen or missing: airtime vouchers, cigarettes and an undisclosed amount of cash. Statements were obtained from the staff members as part of the criminal investigation. Upon inspection of the building and the premises it was discovered that access for the burglary was gained through two holes, one hole estimated to be 3½m on the neighbour's side of the...
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