Wrongful and negligent conduct of security guard Summary: Constitutional issue – wrongfulness – role of private security industry Contract for guarding services – breach of contract – express prohibition – strict liability – liability of security companies Delict – wrongfulness – negligence – vicarious liability of security companies 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. The guard 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 more that 10 million. 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. Today the matter was finally resolved in the Constitutional Court. In a unanimous judgment written by Justice van der Westhuizen in Loureiro and Others v iMvula Quality Protection (Pty) Ltd [2014] ZACC 4 leave to appeal was granted, and the appeal was upheld with costs. The conclusion was that ‘the contract between Mr Loureiro and iMvula was breached when Mr Mahlangu gave the robbers access contrary to an express oral agreement not to allow anyone onto the premises without prior authorisation. iMvula is vicariously liable in delict because its employee acted wrongfully by opening a gate to robbers and negligently by failing to foresee the reasonable possibility of harm and to take the steps a reasonable person in his position would have taken to guard against it’. Extracts from the judgment with footnotes omitted [32] iMvula denies that there is a constitutional issue. It argues that there is no need to develop the common law and that the Loureiro family raises constitutional arguments for the first time on appeal to this Court. iMvula also rejects the notion that the amendment can apply retrospectively and argues that even if it were to apply, the Loureiro family has not identified an arguable point of law of general public importance. [33] The Loureiro family relies on the law of contract and the law of delict to protect their constitutionally recognised rights. It is well-established that the law of contract and of delict give effect to, and provide remedies for violations of, constitutional rights. However, the mere fact that a matter is located in an area of the common law that can give effect to fundamental rights does not necessarily raise a constitutional issue. It must also pose questions about the interpretation and development of that law and not merely involve the application of an uncontroversial legal test to the facts. . . . [36] A constitutional matter is therefore raised. Mr Mahlangu’s negligence and the interpretation of the contract are – in this case – issues connected to the required decision on a constitutional issue. There is no need to consider the Loureiro family’s arguments based on the recent amendment to section 167 of the Constitution. . . . Contract [42] In the absence of a contrary stipulation, the law of contract does not require fault (even in the form of negligence) for breach. The parties expressly agreed to a strict liability prohibition. Further, the express prohibition cannot be said to impose a reasonableness proviso, tacitly or otherwise, for a number of reasons. [43] First, contractual obligations are determined by the intention of the parties. The intention articulated by Mr Loureiro in his prohibition was unequivocal. The need for the prohibition to be express was triggered by the unauthorised admission of Mr Loureiro’s brother onto the property. It is also in line with the very reason for having guards at the gate, that is, to make the property more secure and act as a barrier to further entry, stationed to prevent anyone from gaining access without authorisation and to alert those in the home to persons at the gate. This is a strong reason to conclude that the prohibition does not, in fact, require fault for breach. [44] Second, iMvula argued that the prohibition should be understood to include a reasonableness standard because other obligations in the contract do include that standard. The argument must fail. Although the contract was oral, the evidence put forward by the parties on the nature of the obligations was fairly comprehensive. It establishes that the parties specifically agreed that the express prohibition would not be qualified. While contractual terms must be understood in context, this is no reason to think that all the terms must impose the same fault standard. And in this case, other obligations explicitly imposed a reasonableness standard and the prohibition deliberately omitted that standard. Exactly because of this, the conclusion that strict liability was imposed is compelling. [45] Third, some of the terms imposing obligations that do include a reasonableness qualification impose obligations of a different nature from the prohibition. These other terms govern active measures that iMvula and its employees must take to prevent third parties from gaining access to the premises. The prohibition, on the other hand, imposes a negative obligation not to admit third parties without prior authorisation. It makes sense that parties would contract to require a reasonableness standard for a positive obligation to do something, while not for a negative obligation not to do something – especially not to open the gate, which was at the very heart of iMvula’s contractual obligations. [46] Were these obligations breached and, if so, does contractual liability follow? Mr Mahlangu used the key to open the pedestrian gate for the imposters, without prior authorisation. This amounts to a breach of the contract. Whether or not he was negligent is irrelevant. iMvula is liable. [47] iMvula is furthermore not saved by the argument that Mr Mahlangu was compelled by law to allow the imposter access to the premises because the security guard was under an obligation to obey a lawful demand by a police officer. The demand was not lawfully made by a police officer. [48] Even if iMvula’s relevant contractual obligations were qualified by a reasonableness standard, it would in any event be liable, since this standard was breached. This is a consequence of the view I take on the delictual claim, which I now turn to consider. Delict [49] Delictual – in this case Aquilian – liability generally results from wrongful and negligent conduct which causes patrimonial damage. iMvula’s liability could be based on its own conduct, and thus be direct, or vicarious as a result of Mr Mahlangu’s conduct. . . . [53] Did Mr Mahlangu act wrongfully and negligently? The enquiries into wrongfulness and negligence should not be conflated. To the extent that the majority judgment of the Supreme Court of Appeal did not distinguish between these, it is incorrect. The wrongfulness enquiry focuses on the conduct and goes to whether the policy and legal convictions of the community, constitutionally understood, regard it as acceptable. It is based on the duty not to cause harm – indeed to respect rights – and questions the reasonableness of imposing liability. Mr Mahlangu’s subjective state of mind is not the focus of the wrongfulness enquiry. Negligence, on the other hand, focuses on the state of mind of the defendant and tests his or her conduct against that of a reasonable person in the same situation in order to determine fault. [54] I begin with the enquiry into wrongfulness, because “[n]egligent conduct giving rise to damages is not . . . actionable per se. It is only actionable if the law recognises it as unlawful”. . . . [56] There are ample public-policy reasons in favour of imposing liability. The constitutional rights to personal safety and protection from theft of or damage to one’s property are compelling normative considerations. There is a great public interest in making sure that private security companies and their guards, in assuming the role of crime prevention for remuneration, succeed in thwarting avoidable harm. If they are too easily insulated from claims for these harms because of mistakes on their side, they would have little incentive to conduct themselves in a way that avoids causing harm. And policy objectives (such as the deterrent effect of liability) underpin one of the purposes of imposing delictual liability. The convictions of the community as to policy and law clearly motivate for liability to be imposed. [57] Mr Mahlangu’s conduct was therefore wrongful. Was he negligent? [58] The test for negligence set out in Kruger v Coetzee remains authoritative. The questions in this case are whether (i) a reasonable person in the position of Mr Mahlangu would have foreseen the reasonable possibility of his conduct injuring another’s person or property and causing loss; (ii) a reasonable person in the position of Mr Mahlangu would have taken reasonable steps to guard against that loss; and (iii) Mr Mahlangu failed to take those steps. . . . [64] In addition, it is worth mentioning that Mr Mahlangu is an experienced security guard with a Grade-A qualification, and so perhaps it would be appropriate to raise the negligence standard to that of a reasonable security guard in his position to be commensurate with this expertise. The expected standard is the general level of skill and diligence possessed and exercised by professionals in that field. The more specialised a person is, the greater the general level of expected care and skill will be.
Posted on: Sat, 22 Mar 2014 08:29:16 +0000
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