By Adnaan Dabhelia
The first (Zandspruit) and second (Devland) respondents’ are general merchandise and food product retailers and wholesalers who concluded written agreements with the appellant, G4S Cash Solutions (SA) (Pty) Ltd (formerly known as Fidelity Cash Management Services (Pty) Ltd), on 6 December 2006 and on 6 April 2005 respectively, for the collection, conveying and delivery of cash from the respondents’ premises. Both agreements were similarly worded, except for the personal details of the respective respondents. The appellant, is a company conducting the business of collecting, conveying, storing and delivering money on behalf of clients requiring such services.
The first respondent on 3 April 2010, and the second respondent on 12 March 2011, fell victim to thefts perpetrated by unknown third parties, whereby the employees of the first and second respondents believed that the perpetrators were authentic cash collection security guards of the appellant performing the services described above.
The perpetrators copied the exact procedures of the appellant in conducting cash in transit collections using vehicles, personnel uniforms, cash boxes, identification cards and receipt books that were similar to those used by the appellant deceiving the respondents’ employees into believing that they were dealing with employees of the appellant.
As a result of the aforementioned, the criminals collected and stole amounts of R 265 465,25 from Zandspruit and R 641 744 from Devland, respectively.
In order to recover the losses sustained, the respondents’ instituted action against the appellant alleging that their losses were attributable to the negligence and/or gross negligence of the appellant, in that it had failed in its duty of care to warn the respondents of similar incidents, which had occurred in the industry and to other clients’ of the appellant.
The respondents served summons on the appellant more than 12 months after the alleged events, which gave rise to the claim/s against the appellant. In addition to a plea on the merits, the appellant raised a special plea alleging that the respondents’ claims were time-barred by virtue of the provisions of clause 9.9 of the written services agreements concluded by the parties.
Clause 9.9 of the services agreements stated: ‘The Client shall notify Fidelity immediately of the discovery of a loss, which notification shall be confirmed in writing within 24 hours. Fidelity shall not be liable in respect of any claim unless written notice of the claim has been given within three (3) months and summons has been issued and served within 12 months from the date of the event giving rise to the claim.’
The respondents replicated to the special plea, alleging that its claims did not arise from the agreements, but by virtue of delict and, therefore, did not fall within the ambit of the aforesaid time-limitation clause. As a result thereof, the matter proceeded to trial and by agreement between the parties it was ordered in terms of Uniform r 33(4) the special plea be heard first, with the remaining issues to stand over to be determined at a later stage, if required.
In the court a quo, per Van Oosten J, it was held that the time-limitation in clause 9.9 of the agreements did not apply to the respondents’ delictual claims and that the claims were, therefore, not time barred. The trial court consequently dismissed the special plea.
The matter was then taken on appeal to the Full Court of the Gauteng Local Division, where the appeal was subsequently dismissed by the court.
The appeal against the judgment of the Full Court was heard in the Supreme Court of Appeal (SCA).
The delictual claims arose in circumstances where the respondents’ handed over the money to unknown third parties. The SCA held that it was common cause that the respondents’ claims were founded in delict for the loss suffered as a consequence of the theft of its money caused by the alleged wrongful or negligent conduct of the appellant. The appellant raised the special defence that the claims were time-barred by virtue of clause 9.9 of the agreements and accordingly bore the onus of proving this defence.
Furthermore, the SCA stated that to determine whether or not the respondents’ delictual claims are time barred, the agreements and in particular clause 9.9 would have to be interpreted.
The SCA emphasised that the starting point would be the wording of the agreements. However, as indicated by Lewis JA in Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA) at para 27 that ‘this court has consistently held that the interpretative process is one of ascertaining the intention of the parties – in this case, what they meant to achieve by incorporating clause 9.9 in the agreements. To this end the court has to examine all the circumstances surrounding the conclusion of the agreements, i.e. the factual matrix or context, including any relevant subsequent conduct of the parties’.
As a result of the aforesaid, should the appellant intend the time-limitation in clause 9.9 to also apply to delictual claims of this nature, it could have drafted the agreements to include such claims. The appellant’s failure to do so justified the inference that the parties did not intend clause 9.9 to encompass the respondents’ delictual claims.
The SCA subsequently dismissed the appeal with costs based on the fact that the appellant failed to discharge the onus of proving the special defence. Hence, delictual claims were held not to be subject to the time-limitation clause.
A former employee of the first appellant conceded under cross-examination that she had not verified the identity of the imposter from his identification card and that the appellant’s usual identification card was a cardboard type booklet and not the plastic identification card the imposter had.
The national investigations manager of the appellant, testified that falsified or stolen identification cards were used to satisfy the identification requirement in the appellant’s procedures. Similar cash boxes were used by criminals in cash collections, vehicles were made to look like the appellant’s vehicles and stolen or falsified receipt books were also used.
He conceded under cross-examination that if ‘bogus pick-ups’ were occurring in one area, it was just a matter of time before another area would also be targeted. He explained that it is procedure for an appellant’s branch to inform its client’s if there were incidents that occurred within that area.
A Director of the respondent, then testified that the appellant was specifically contracted to take cash from the respondents’ stores and deposit it safely with the specified bank.
In accordance with the pleadings and the evidence given by the investigations manager of the appellant, the appellant knew that its clients and that of other cash in transit service providers had been victims of bogus pick-up schemes in which criminals stole money by fraudulently impersonating the appellant’s employees had failed to advise the respondents thereof.
The main issue that the court had to decide on was whether the agreements’ concluded between the parties prevent the respondents from instituting an action in delict, where claims of this nature were not contemplated by the parties at the time when the contract was entered into.
Matojane J referred to Trio Engineered Products Inc v Pilot Crushtec International (Pty) Ltd 2019 (3) SA 580 (GJ), where the court held that delictual claims were competent where there was a contract concluded between the parties, thus a duty in delict separate from the agreement was recognised.
He further referred in para 27 of his judgment, that the loss the respondents had suffered originate from the services that the appellant was contracted to provide. He referred to para 14 of the SCA judgment, where the SCA held that ‘the wording of the agreements, and in particular clause 9 thereof read within the context of the agreements as a whole … clearly conveys that the loss or damage in respect of which the appellant wished to restrict its liability is a loss or damage suffered by the respondents pursuant to or during the provision of services by the appellant to the respondents’.
The court emphasised that the moral and legal convictions of the community required the appellant to warn its clients of the hidden danger of allowing its employees to enter its client’s premises to collect cash.
Furthermore, the failure by the appellant to warn its clients of the hidden danger of which it was aware was an omission, which grounded an action in delict.
Matojane J, also found that in regard to both incidents, the appellant had not informed the Director about the bogus pick-ups that occurred in the industry at the time, whereas should the employees at the first respondent have been timeously informed, they would have been on their guard and would have treated every collection with heightened scrutiny. For this reason, the employees of the respondents’ were held not to be contributorily negligent.
As a result of the aforesaid, judgment was granted in favour of the respondents.
In his judgment, Matojane J, found that a delictual claim is separate from the contract entered into between parties where a claim of this nature was not contemplated by the parties at the time when the agreement was entered into.
Adnaan Dabhelia LLB (Unisa) is a candidate legal practitioner at Ziyaad E Patel Attorneys in Johannesburg. Ziyaad E Patel Attorneys acted on behalf of the respondent.
This article was first published in De Rebus in 2020 (Aug) DR 35.
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