By Duncan Wild on 23 March 2014

Imvula Quality Protection (Pty) Ltd (“iMvula“) was hired to provide security guards to guard the home of Lincio Loureiro (“Loureiro“) and his family. In January 2009, an armed robbery occurred at the house after a man pretending to be a police was allowed entry to the house by a guard employed by Imvula.

The Constitutional Court found that iMvula had breached its contractual duty, owed to Loureiro, not to allow access to the premises to any person without authorisation. In addition, that iMvula, as a security company, owed a duty to prevent harm, and in addition, the guard on duty had breached that duty by negligently failing to take the necessary precautions in allowing the disguised robber access.

After the robbery Loureiro’s insurance company paid certain claims and under the insurance agreement took cession of Loureiro’s claims. In addition, it was not clear whether a close corporation of which Loureiro was a member or Loureiro himself had the contract with Imvula. The South Gauteng High Court found that the cession did not apply to the claims brought by Loureiro, and that Loureiro had concluded that agreement with Imvula.  The Court also found that the guard on duty had acted negligently in allowing the armed robbers onto the premises.

On appeal, the Supreme Court of Appeal (“SCA“) agreed with the High Court on the issue of the cession and who had entered the contract with iMvula. The SCA, however, disagreed on the issue of the guard’s negligence, finding that there was no reason to doubt the evidence he had given, and that he had genuinely believed the man to be a policeman and had opened the gate to find out what the police man wanted. This was not negligent, according to the SCA. In addition, the SCA held that iMvula had not acted in breach of its contract, and so the SCA dismissed Loureiro and his family’s claims.

The Constitutional Court, in an unanimous judgment authored by Justice van der Westhuizen (and concurred in by Moseneke ACJ, Skweyiay ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Nkabinde J and Zondo J) disagreed with the SCA on these points.

As a preliminary issue, the Court found that the issue of whether iMvula had acted wrongfully, i.e. whether the legal convictions of the community required that liability be imposed in these circumstances, raised a constitutional issue. It did so as the legal convictions of the community are “underpinned and informed by the norms and values of our society, embodied by the Constitution”. This was necessary as the case began before the Constitutional Court’s jurisdiction was expanded to included non-constitutional issues by the Constitution Seventeenth Amendment Act 2012.

The Court then turned to consider both whether iMvula was liable for breach of contract to Loureiro himself, before turning to whether iMvula was liable in delict to Loureiro’s wife and children (who had not themselves entered a contract with iMvula).

The Court first considered what the the terms of the contract were.  The contract was an oral one, and the Court found that Loureiro had expressly instructed iMvula not to allow to access to any person (other than when the guards were changing shifts) without first seeking authorisation from whoever was present in the main house. The Court found that this obligation was a strict one, and it did not matter whether or not the guard had acted negligently in allowing the disguised robber access. The Constitutional Court therefore found that the iMvula had breached its contractual duty to Loureiro by allowing access without authorisation.

Turning to whether iMvula was liable in delict, the Court considered three aspects. The first was whether iMvula could be held liable for the conduct of the guard on duty. This aspect was not disputed by iMvula, and hence the Court found that iMvula could be held liable for the guard’s conduct. The second aspect was whether conduct of the guard was wrongful, i.e. whether the legal convictions of the community required legal liability to imposed in circumstances such as those present in this case. Finally, the Court had to consider whether the guard had acted negligently in allowing the disguised robber access.

The Court found that the guard’s actions were wrongful. It found that the rights to personal safety and security are important ones, and that there is great public interest in ensuring private security companies, who have undertaken an obligation of crime prevention for financial reward, succeed in preventing avoidable harm. In order to do so, these companies should not be able to easily escape liability where their mistakes have led to harm. Imposing liability will therefore encourage private security companies to act in a manner that avoids harm, and this would be in accordance with the legal convictions of the community.

Having found the actions were wrongful, the Court turned to consider whether the guard’s actions were negligent, and found that they were. The Court found the SCA was incorrect to consider whether the guard subjectively and genuinely believed the the person seeking access was a policeman, but that the correct enquiry was whether the it was reasonable to thought the person might not be.

In the circumstances, the car the the disguised robber arrived in was unmarked, and although it has blue light, the light was on the dashboard not fixed to the roof, the clothes worn were not a normal police uniform, despite the reflective police vest. In addition, the person had flashed his identity card in a manner that did not allow the guard to verify the person’s identity or whether the identity card appeared in genuine. In the circumstances then, and precisely because it would be unsurprising for a criminal to seek to pretend to be a policeman in order to gain access to premises, the guard should not have simply allowed the person access. Instead, he could have taken various simple steps, such as contacting the main house or his supervisors to check if the police were expected, he could have attempted to verify the identity card, and ascertain the nature of the person’s business. These steps were not taken and so the guard was found to have acted negligently.

The Court therefore upheld the appeal, finding iMvula liable to Loureiro in contract, and the Loureiro’s wife and children in delict. The matter may now go back to the High Court for the determination of the amount of damages to be paid.

Download the judgment here.