Spartan
Caselaw
CASE LAW UPDATE
4 December 2024
CONTRACT – Damages – Robbery and breach of SLA – Provision of security services to premises – Security control and security measures by defendant – Non-compliance with defendant’s obligations in respect of security measures stipulated in service level agreement – Acted in a grossly negligent manner – Put parties at risk – Caused or contributed to damages suffered – Breach of its duties owed – Indemnification clause finds no application – Defendant liable for loss suffered by plaintiff.
Facts: Rhenus Logistics, the first defendant, held the head lease of a property and sublet a portion of the offices to the plaintiff. Both leases were in writing. Rhenus entered into a written service level agreement with Servest (second defendant) for rendering security services to the premises. As sub-lessee, the plaintiff occupied 10% of the space of the second warehouse and offices on the premises. It shared the space with Rhenus. In terms of the service level agreement between Rhenus and Servest, the latter provided security services to the premises shared by the plaintiff and Rhenus. Rhenus refused to permit the plaintiff to arrange for its own security services to the premises in order to protect its own goods. Rhenus appropriated to itself the right to control and implement all security measures in respect of both it and that of the plaintiff. A notice informing all vehicles prior to entry through the first gate, that all vehicles would be searched on entry, was affixed and displayed on the outside of the first gate.
Application: The plaintiff instituted an action against the first and second defendants in terms of which it sought to claim damages from the defendants, suffered as a result of an armed robbery perpetrated on the property.
Discussion: A panel van entered the premises where the plaintiff occupied 10% of Rhenus’s Longmeadow Business Estate West. It moved through the main gate and the second gate, without being stopped in the vacuum. Both gates were open at the same time. From the security footage it is clearly observed that the second gate was open and the panel van moved through it. The vehicle was not escorted to the designated parking area. It is then observed that the driver of the vehicle approached the warehouse. A short while later, armed men, approximately 15 in number, were then seen emerging from the panel van and approaching the warehouse hurriedly. About half an hour later, a 10-ton Isuzu truck is seen moving through the open gates, briefly stopping after moving through the second gate. It then turned to the left and approached the warehouse and reversed into an open loading bay. It was further gathered from the security footage that Chubb Security Services arrived at the premises but were then dismissed by the guards. The plaintiff’s goods were loaded into the truck. Mr Naidoo, Mr Pretorius and the plaintiff’s staff, who were present, were locked in a vault. The robbers left. The witnesses on behalf of the plaintiff testified that searches of vehicles were regularly undertaken, contrary to Mr Morton’s evidence that it was not required by the service level agreement.
Findings: In view of Servest’s, although mistaken, belief throughout the period prior to the robbery that the plaintiff was part of Rhenus, it was obliged to afford the plaintiff the same protection as that in respect of Rhenus. Servest could hardly ignore the security measures in place as per the service level agreement in respect of the plaintiff, as it would impact negatively upon Rhenus. It is clear from the evidence recorded that none of the measures were followed on the fateful day. Servest failed dismally in complying with its stipulated obligations. It acted in a gross negligent manner, not only towards the plaintiff, but in particular towards Rhenus as its client. The guards were clearly oblivious to the destination of the vehicles once they moved through the gates. The flippant approach to Chubb’s arrival at the premises clearly shows the security guards’ lack of commitment to their duties. Servest, through the conduct or omissions by its security guards, put Rhenus, as well as the plaintiff, at risk. It had caused or contributed to the damages suffered by the plaintiff. Furthermore, it was in breach of its duties that were owed to Rhenus and by extension the plaintiff. Due to Servest’s breach of its obligations in terms of the service level agreement, it breached its duty of care towards Rhenus and acted in a gross negligent manner. The indemnification clause finds no application.
Order: It is declared that the second defendant (Servest) is liable for the loss suffered by the plaintiff. It is declared that the second defendant is not entitled to an indemnification by the third party.
VAN DER WESTHUIZEN J
FAMILY – Children – Guardianship – Provided for in will where both parents are deceased – Applying for guardianship of child that already has guardian – Reasons why child’s existing guardian is not suitable – Advanced age and poor health – Not able to discharge duties of primary caregiver – Living arrangements not optimal for children – Mismanagement of finances – Not suitable to continue to act as guardian to minor children – Removed as guardian – Children’s Act 38 of 2005, s 24(3).
Facts: The present case concerns not only the social, emotional and familial well-being and best interests of two minor children, but also the stewardship of their financial interests. The minor children are no strangers to tragedy. In their relatively short lives, they have had to confront and deal with the devastating loss of both of their parents and their maternal grandmother. During his lifetime, the late C (father), by all accounts a loving and caring parent and an astute financial planner, ensured that provision was made in his will for the care and wellbeing of his two children upon his death. The arrangements were twofold. Firstly, a trust was established to be administered by ABSA Trust Limited into which the inheritance of his children would be paid and administered for their benefit. In addition to this, provision was made for payment of a monthly pension for their ongoing maintenance and support. Secondly, to ensure continuity and a stable home, he provided that his in-laws, Mr and Mrs P, the first and second respondents, would be granted a right of habitatio in the family home until such time as R (minor child) reached the age of 18 as well as that they would be jointly appointed as guardians of his children. The terms of the will are not in issue.
Application: The issue concerns the arrangements made in regard to who would care for the children on a day-to-day basis and make decisions for them until they reach the age of majority and are able to do so for themselves. The case engages both guardianship but also the primary care and residence of the minors. The issues to be considered are whether the guardian, Mr P, should be removed and replaced in terms of section 24(3) of the Children’s Act 38 of 2005 by Mr C in his stead. Section 24, regarding assignment of guardianship by order of court, reads that in the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.
Discussion: While the right of habitatio and responsibility of guardianship and being the primary caregivers was awarded to Mr and Mrs P alone, they nevertheless, besides moving in themselves, allowed their adult daughter, M1, to also move in with them. While the reason for her moving in initially is unclear, it has over the passage of time become apparent that with the advancing age of both Mr and Mrs P, that they were unable, without M1’s assistance, to properly discharge their responsibilities of caring for the minor children. Initially, it seemed that the arrangements made by the late father were uncontroversial. However, it soon became apparent that they were not. When the applicants raised concerns with Mr and Mrs P, their contact with the minor children was terminated. A directive was issued which made provision for the minor children to receive therapy from a clinical psychologist, and furthermore, prohibited the parties from discussing the dispute with the minor children. Both Mr and Mrs P failed to comply with either the order or the directive. They terminated all contact between the minor children and the applicants. Additionally, they also prevented the children from participating in the therapeutic process that had been ordered.
Findings: Having regard to the information furnished by Mr P with regards to the expenditure of funds received from both the pension fund or the trust, which were ostensibly to be solely for the benefit of the minors, it is readily apparent that there has been a conflation of the living expenses of initially Mr and Mrs P and M1 and from 2021, M1’s fiancé, together with the living expenses of the minors. Leaving aside the R509,995.92 surplus over the 3 years which remains unaccounted for, it is self-evident that the costs of supporting, substantially if not wholly, four adults is significantly more than that of two minor children. Despite Mr P agreeing to provide an accounting of both the income received as well as the expenditure of the minor children, he has been unable to do so in a way that would enable the curatrix or the court to ascertain with any accuracy the actual living expenses of the minors. This is a direct consequence of the conflation of expenses and must have been deliberately done. The absence of any explanation as to what has happened to the R509,995.92 surplus, makes it abundantly clear that Mr P (and M1 insofar as she may have assisted him) has not conducted himself in a manner that displays a proper understanding of the role of a guardian and in particular, a guardian’s fiduciary duty to protect the assets of the minor children for whom he is responsible. Mr P is not suitable to continue to act as guardian to the minor children.
Order: The first respondent is removed as the guardian of the minor children with immediate effect. The first applicant is appointed as the guardian of the minor children as envisaged by the provisions of section 18(3) and 24 of the Children's Act and the last will and testament of the minor children’s father, with immediate effect.
MILLAR J
LABOUR – Contempt – Representative at arbitration – Respondent appeared on behalf of employee and was general secretary for trade union – Disrespectful and obstructive and unduly frustrated the process – Insulted and belittled the commissioner appointed by bargaining council – Improperly influenced the proceedings, rendering commissioner unable to continue with arbitration – Respondent suspended for period of four months from representing any party in CCMA or at any bargaining council – Labour Relations Act 66 of 1995, s 142(9)(b).
Facts: The Commissioner was appointed by the Transnet Bargaining Council to preside over the arbitration proceedings between an employee and his previous employer, Transnet Engineering. The respondent, who appeared on behalf of the employee at the arbitration, is employed as the General Secretary for the trade union, the National Transport Movement. During the course of the arbitration there were various instances of disrespect shown by the respondent towards the Commissioner and Transnet's representative, as well as towards the witness who testified. The Commissioner's complaint about the respondent's conduct included that: he showed "utter disrespect" towards the Commissioner; he did not allow any person to speak and he kept on interjecting; on more than one occasion the respondent was busy with a monologue of his own and he constantly educated the Commissioner on the process that she should follow; the Commissioner was accused of not following a fair process; and the respondent threatened the Commissioner that he would ask for her recusal and he then did apply for her recusal. The respondent did not heed her warnings and argued against her rulings.
Application: In terms of section 142(9)(b) of the Labour Relations Act 66 of 1995 for an order to confirm the Commissioner's findings against the respondent in the contempt ruling and to suspend the respondent's right to represent parties in the CCMA, any bargaining council and the Labour Court, for a period of 6 months.
Discussion: An examination of the records shows that the respondent's behaviour was impudent and insulting. He accused the hearing, and by inference the Commissioner, of being unfair and prejudicial, and his threat to leave the arbitration due to his dissatisfaction with the Commissioner was outright disrespectful. The manner in which the respondent addressed the forum was not acceptable and there was nothing to suggest that the respondent could not have been unaware of how he was behaving. Following the Commissioner's findings of contempt against the respondent, he was excused from the arbitration proceedings and the matter was adjourned to allow the employee to arrange alternative representation. The Commissioner thereafter issued her contempt ruling, which is now the subject of the present application. The Commissioner, in her ruling, stated that the respondent made it impossible for her to properly perform her duties and that the respondent had absolutely no respect for her or her position and authority during the proceedings.
Findings: The respondent was disrespectful, unduly frustrated the process, and was obstructive. He insulted and belittled the Commissioner and improperly influenced the proceedings, rendering the Commissioner unable to continue with the arbitration. The respondent wilfully hindered the Commissioner in the performance of her functions, wilfully interrupted the proceedings, was disruptive, and in doing so prejudiced the proceedings and misbehaved. The respondent refused to accept the Commissioner's authority on certain points or objections and embarked upon debates with the Commissioner that were either wholly unnecessary or without foundation. Like the CCMA, bargaining councils are dispute resolution bodies and are there for the sake of the public. The public must be able to have confidence in them and in the Commissioners who are appointed to preside over matters. Commissioners must be taken seriously in a civilized society and must be respected.
Order: The respondent is suspended for a period of four months from representing any party in the CCMA or at any bargaining council. There is no order as to costs.
DAVE AJ
LABOUR – Condonation – Response to statement of case – Employer filed 84 days late – Labour Court refusing condonation – Found that explanation for delay was entirely unreasonable and unacceptable and that prospects of success were immaterial – Employer’s prospects of success are excellent – Has concerns that it will contravene legislation by employing employee as security service provider – Interests of justice and fairness are best served by granting condonation – Order of Labour Court replaced with one granting application for condonation.
Facts: Mr Mojananga was employed by the Government Printing Works (appellant) as a chief security officer before being moved to the position of chief administration officer. He claims that this change was caused by utterances of the Minister of Home Affairs, amounting to harassment and discrimination on arbitrary grounds. The reason proffered by the appellant was that Mr Mojananga was not registered with the Private Security Industry Regulatory Authority (PSIRA) and was therefore unauthorised to render security services. Mr Mojananga instituted proceedings against the appellant, in terms of section 6 of the Employment Equity Act 55 of 1998. The appellant’s statement of response was later filed, coupled with an application for condonation, which was opposed. The response was 84 days late.
Appeal: In dismissing the application for condonation, the Labour Court found that the explanation given for the delay in filing the response was entirely unreasonable and unacceptable. The Labour Court granted leave to appeal. The notice of appeal was filed some 60 days late and the appeal record was filed 36 days late.
Discussion: The appeal is reinstated in the interests of justice. Was the Labour Court entitled to completely ignore any consideration of the prospects of success in refusing condonation? A response to a statement of claim must be delivered within 10 days of the date on which the statement of claim is delivered. In the present circumstances, the response was delivered 84 days late. The Labour Court cursorily determined that this period was excessive. The court is expected to grapple carefully with each of the relevant considerations. If the delay is to be assessed as excessive to the point that the court contemplates ignoring the prospects of success completely, this needs to be properly justified. It is insufficient, and at odds with the law, to simply arrive at the conclusion, as if the extent of the delay speaks for itself. Correspondence from PSIRA indicates that the appellant’s premises were subject to an inspection and that two unregistered security officers, including Mr Mojananga, had been employed by the appellant in contravention of legislation. As to Mr Mojananga’s removal from his position as a chief security officer, the appellant relied on various binding rules contained in the Code of Conduct for Security Service Providers to justify its conduct.
Findings: The respondents offered only a bare denial in response. Considering the legislation, the basis for the claim and what appears on the papers, the only conclusion is that the appellant’s prospects of success are excellent. It must also be accepted that the full ventilation of the dispute is important to the appellant and, given the legislative framework and the rationale behind the registration obligation, to broader society. The appellant’s concern that it will be forced to contravene the security legislation by employing Mr Mojananga as a security service provider cannot be ignored. On balance, the appellant has succeeded in proving that there is good cause to grant the indulgence sought. The uncontested prospects of success in particular, coupled with the importance of the issue, are such that these factors compensate for the excessive delay and complete inadequacy of part of the explanation. Considering the relevant factors in their totality, the interests of justice and fairness are best served by granting condonation.
Order: The appeal is reinstated and upheld. The order of the court below is set aside and substituted with an order where the application for condonation for the late filing of the response to the statement of case is granted. There is no order as to costs.
GOVINDJEE AJA (NKUTHA-NKONTWANA JA and SUTHERLAND AJA concurring)
AUTOCRATIC CONDUCT IN THE CHURCH
The applicant seeks orders declaring that two meetings held by the board of the Church were invalid and that all decisions and resolutions adopted at those meetings are void. The court finds that the respondents were a group of individuals meeting and not a meeting of the Church Board. In closing, the judge remarks: “Finally, the court feels compelled to offer the parties some gratuitous advice. It has worked through over seven hundred pages and produced this judgment. After all, it has earned the right to impart wisdom beyond its legal duties. You occupy the role of leaders of a Church in a democratic dispensation based on freedom, equality, and human dignity. There is no room for autocratic or unlawful conduct when steering the business and affairs of the Church. Be the role models that society expects you to be.”
SEWERAGE PIPELINE OVER PROPERTY
This case is, at its essence, about a sewerage pipeline, which the City constructed over the property of the applicant (Rosevean), and which has been described by Rosevean as the “unsightly pipe” and by the City as the “secluded pipe”. The key questions are whether the City constructed the sewerage pipeline across Rosevean’s property in Hout Bay irregularly or unlawfully; and if so, what should be done about that at this stage, slightly more than four years’ later. The high-water mark of the City’s position is that Rosevean should supposedly have been aware that the City’s contractor, Nejeni, had entered its property via a neighbouring erf and was constructing a sewerage pipeline, but did not object. It is declared that the installation of a sewer line across the property of the applicant was unlawful.
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