Viv's Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security

• Jurisdiction: South Africa
• Citation: 2010 (4) SA 455 (SCA)

Viv's Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security
2010 (4) SA 455 (SCA)

2010 (4) SA p455

Citation	2010 (4) SA 455 (SCA)
Case No	132/09
Court	Supreme Court of Appeal
Judge	Lewis JA, Van Heerden JA, Cachalia JA, Tshiqi JA and Theron AJA
Heard	March 8, 2010
Judgment	March 25, 2010
Counsel	JHL Scheepers for the appellant.; N van der Walt SC (with L Malan) for the respondent.

Flynote : Sleutelwoorde E

Delict — Unlawfulness or wrongfulness — Duty of security firm to F vehicle owner — Security firm contracting with property owner to protect property, but excluding liability of firm for loss to owner — Vehicle stolen from property — Firm not owing duty to vehicle owner to prevent theft of its vehicle.

Headnote : Kopnota

An owner of a construction site had contracted with a security firm for it to G protect the site. The agreement excluded the liability of the firm for any damage or loss to the owner of the site. A truck was stolen from the site and the truck owner instituted an action in delict against the security firm for the truck's value. At issue was whether the conduct of the security firm was wrongful.

Held, that the terms of the contract had to play a role in assessing what public H policy, or the convictions of the community would be in respect of affording a claim for compensation to a non-contracting party. The undertaking by the security firm that it would prevent damage or loss to the best of its ability, but that it gave no guarantees, would be completely undermined if a claim against it by third parties were allowed. Community convictions and public policy would not permit the undermining of the contract in such a I way. (Paragraphs [13] and [21] at 462B - D and 464I - 465A.)

Held, further, as to other considerations of public policy, that if one were to recognise the general principle expressed in Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W) (that a security firm which contracts with a property owner owes a duty of care to the owner of a vehicle which is parked on the property), then security services for J

2010 (4) SA p456

A particular property might become unattainable. The spectre of limitless liability to a multitude of unknown plaintiffs should preclude such a claim. (Paragraphs [1] and [26] at 457E and 466B - C.)

Held, accordingly, that the conduct of the security guard was not wrongful, and that the security firm was not vicariously liable for the loss occasioned by the theft of the vehicle (Paragraph [27] at 466D.) Appeal dismissed.

Cases Considered

Annotations B

Reported cases

Southern Africa

Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) ([2002] 4 All SA 125): C referred to

Aucamp and Others v University of Stellenbosch and Others 2002 (4) SA 544 (C): referred to

Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A): referred to

Chartaprops 16 (Pty) Ltd and Another v Silberman 2009 (1) SA 265 (SCA): dictum in para [22] followed and dicta in para [47] considered

Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W): overruled D

Durban's Water Wonderland (Pty) Ltd v Botha and Another 1999 (1) SA 982 (SCA) ([1999] 1 All SA 411): dicta at 989G - J followed

First National Bank of SA Ltd v Rosenblum and Another 2001 (4) SA 189 (SCA) ([2001] 4 All SA 355): dicta in paras [6] and [7] applied

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA): dictum in para [22] applied E

Franschhoekse Wynkelder (Ko-Operatief) Bpk v South African Railways and Harbours 1981 (3) SA 36 (C): referred to

Galloon v Modern Burglar Alarms (Pty) Ltd 1973 (3) SA 647 (C): not followed

Holtzhausen v Absa Bank Ltd 2008 (5) SA 630 (SCA): referred to F

Johannesburg Country Club v Stott and Another 2004 (5) SA 511 (SCA): referred to

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A): referred to

Longueira v Securitas of South Africa (Pty) Ltd 1998 (4) SA 258 (W): dicta at 263H - J doubted G

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): dictum in para [21] applied

Pilkington Brothers (SA) (Pty) Ltd v Lillicrap, Wassenaar and Partners 1983 (2) SA 157 (W): referred to

Shell & BP South African Petroleum Refineries (Pty) Ltd and Others v Osborne Panama SA H 1980 (3) SA 653 (D): referred to

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): dictum in para [1] applied

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) ([2007] 1 All SA 240): dictum in para [12] followed

Van der Westhuizen v Arnold 2002 (6) SA 453 (SCA) ([2002] 4 All SA 331): referred to I

Walker v Redhouse 2007 (3) SA 514 (SCA): referred to.

England

Hedley Byrne & Co Ltd v Heller & Partners Ltd J [1964] AC 465 (HL) ([1963] 2 All ER 575): referred to.

2010 (4) SA p457

United States A

Ultramares Corp v Touche (1931) 255 NY 170 (74 ALR 1139): referred to.

Unreported cases

Pienaar and Others v Brown and Others (SCA case No 48/2009, 1 December 2009): referred to. B

Case Information

Appeal against a decision of the North Gauteng High Court, Pretoria (Du Plessis J). The facts appear from the judgment of Lewis JA.

JHL Scheepers for the appellant.

N van der Walt SC (with L Malan) for the respondent. C

Cur adv vult.

Postea (March 25).

Judgment

Lewis JA: D

[1] The primary issue in this appeal is whether the owner of a vehicle, stolen from premises protected by a guard employed by a security firm at the instance of the owner of the premises, has a claim in delict against the security firm for the loss, by theft, of its vehicle. In Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd [1] the court said, obiter, that in E principle such a claim was recognised. I shall deal more fully with this proposition later in the judgment. In Longueira v Securitas of South Africa (Pty) Ltd [2] the court found the security company liable in similar circumstances, but on the basis that the third party had relied on the existence of security provided by the owner of the premises protected. The statement by the court in Compass Motors and the decision in F Longueira have been subjected to considerable criticism. [3] And the High Court in this matter considered the statement of the general principle in Compass Motors to be incorrect. This court is thus called upon to deal with the issue directly.

The facts G

[2] But first, the facts. The appellant, Viv's Tippers (Edms) Bpk (Viv's Tippers) lets trucks to construction firms. In September 2004 it let several trucks to Lone Rock Construction (Pty) Ltd (Lone Rock) which was carrying out construction works on a site at Kibler Park, Johannesburg. H The site was guarded by security guards employed by the respondent, Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security (Pha Phama) in terms of a contract between Lone Rock and Pha Phama. Viv's Tippers was aware of the security provided. The evidence of Mr Viviers, a director of Viv's Tippers, was that it was a term of its contract with Lone Rock that the site should be secured. I

2010 (4) SA p458

Lewis JA

A [3] There was a long weekend from 23 to 26 September 2004. A Mercedes-Benz truck, belonging to Viv's Tippers, was parked on the site, which was enclosed, and which could be entered only through a locked gate. A security guard employed by Pha Phama was on duty. Two men arrived at the site on Sunday 26 September and presented a letter to the B guard, purporting to be from a firm of truck repairers. I shall deal with the terms of the letter more fully when dealing with the question whether the security guard acted negligently. In essence it stated that C mechanics would be sent to the site on that date to repair the diesel pump of the truck in question, for which the vehicle registration number was given. The letter also stated that, while the truck would be fixed on site, the mechanics would test-drive it. The guard allowed the men to drive the truck away from the site - and it was never seen again.

[4] Viv's Tippers instituted an action in delict against Pha Phama, claiming the value of the truck (which was agreed), contending that, as D owner of the stolen truck, it had suffered loss as a result of the theft; that Pha Phama was vicariously liable for the conduct of the security guard; and that Pha Phama owed it a legal duty, rendering it liable for the loss. Pha Phama denied liability on the basis that it had no legal duty and that, even if it did have, the guard was not negligent. Du Plessis J dismissed the claim, finding that there was no legal duty and that the E guard had not been negligent. The appeal to this court is with his leave.

Wrongfulness

[5] The first question before us is therefore whether the security guard's conduct, in allowing the two men to drive the truck away from the site F was wrongful (or, to use a synonym, unlawful), rendering Pha Phama vicariously liable. It is not disputed that the guard's conduct constituted a positive act. The question does not relate, therefore, to a wrongful omission. But the loss suffered is purely economic: so the law does not without more impose a legal duty on the guard to prevent loss. In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA G [4] Harms JA said that pure economic loss 'connotes loss that does not arise directly from damage to the plaintiff's person or property but rather in consequence of the negligent act itself, such as a loss of profit, being put to extra expenses, or the diminution in the value of property'. The loss, through theft, of property, would also fall into this H class.

Economic loss

[6] Where loss...