Heard
on: 2010
February 10; 2010 February 17-18; 2010 March 25; 2010
November 15; 2010 November 17 Delivered on: 2011 March 17
JUDGMENT
PARKER
J:
[1]
The plaintiff instituted action against the defendant in which the
plaintiff claims damages in the amount of N$53, 589.50 upon breach
of contract as treated infra;
alternatively,
upon the basis of delictual liability that the defendant's guards
(employees) were negligent in the performance of their duty as
treated below. The plaintiff carries on the business of, among other
things, storing on its premises and transporting therefrom all
manner of goods belonging to its clientele. The defendant is a close
corporation whose main business is providing security-guard services
to its clientele.
[2]
The plaintiff's case is simply the following. In terms of a contract
concluded between the parties, i.e. Exh. 'A', dated 26 May 2006
(annexed to the plaintiff's Particulars of Claim), for payment of an
agreed amount of money, the defendant provided security-guard
services at the plaintiff's business premises at 13 Holstein Street,
Lafrenz Township, Windhoek ('the premises') from Monday to Friday as
follows: that is, from 19H00 to 07H15 the following day ('night
shift'). I find that the terms of the said written agreement in Exh.
'A' were amended to include the defendant providing security-guard
services during weekends also. Thus, on the totality of the
evidence, I also find that the weekend time slot was from 19H00 on
Friday to 07H15 on the succeeding Monday (Sveekend shift').
According to Mr De Villiers, a driver of the defendant and a defence
witness, the drop-off time of the guards at the premises varied
between 07H15 and 08H30 and between 18H15 and 18H45 daily. This does
not detract from the reasonable factual finding I have made above
regarding the time slots of both shifts. I also find on the evidence
that the contract was partly written (Exh. 'A') and partly oral.
[3]
The claim resting on the contract is that the defendant breached the
contract in that between 4-13 September 2006 two cable drums,
containing copper cable rolls, disappeared from the premises and as
a result the plaintiff suffered damages in the sum of N$53, 589.50
being the cost of the aforementioned drums. The alternative claim is
delictual; that is to say, the plaintiff alleges that due to the
negligence of the defendant's guards in the performance of their
duty the drums disappeared from the premises. In this regard Mr
Jensen, the owner of the plaintiff, testified that the drums
disappeared from the premises during 4-13 September 2006, and the
disappearance of the drums was discovered during stocktaking on 13
September 2006.
[4]
The plaintiff called Mr Jensen and Mr Wrede, as plaintiff witnesses.
They testified that the drums could not have been stolen and carried
away from the premises during the daytime on a weekday when the
defendant's guards were not on duty at the premises, but during a
time when the defendant's guards were on nightshift or weekend shift
duty.
[5]
As respects the claim based on the allegation of breach of contract;
the singlemost issue to determine is this: did the defendant breach
the contract? This must in turn perforce be considered together with
the issue as to whether the drums disappeared when the premises were
under the charge of the defendant's security guards or when the
defendants were not on security-guard duty either on night shift or
weekend shift.
[6]
The testimonies on either side of the suit concerning the crucial
issue as to when the drums disappeared from the premises present
mutually destructive versions. In that event,
'I
must follow the approach that has been beaten by the authorities in
dealing with such eventuality; that is to say, the proper approach
is for the Court to apply its mind not only to the merits and
demerits of the two mutually destructive versions but also their
probabilities and it is only after so applying its mind that the
Court would be justified in reaching the conclusion as to which
opinion to accept and which to reject. (See Harold
Schmidt t/a Prestige Home Innovations v Heita 2006
(2) NR 555 at 559D.) Additionally, from the authorities it also
emerges that where the onus rests on the plaintiff and there are two
mutually destructive versions, as aforesaid, the plaintiff can only
succeed if the plaintiff satisfied the Court on a preponderance of
probabilities that the plaintiff's version is true and accurate and
therefore acceptable, and that the version on the opposite side is
false or mistaken and should, therefore, be rejected. (National
Employers' General Insurance Co. Ltd v Jagers 1984
(4) SA 437 (E); Stellenbosch
Farmers' Winery Group Ltd and another v Martell et Cie and Others
2003
(1) SA 11 (SCA); Shakusheka
and Another v Minister of Home Affairs 2009
(2) NR 524; U
v Minister of Education, Sports and Culture 2006
(1) NR 168)'
[7]
Jones J put it succinctly thus in Mabona
and Another v Minister of Law and Order and Others 1988
(2) SA 654 (SE) at 662 C-F:
The
upshot is that I am faced with two conflicting versions, only one of
which can be correct. The onus
is
on each plaintiff to prove on a preponderance of probability that
her version is the truth. This onus
is
discharged if the plaintiff can show by credible evidence that her
version is the more probable and acceptable version. The credibility
of the witnesses and the probability or improbability of what they
say should not be regarded as separate enquiries to be considered
piecemeal. They are part of a single investigation into the
acceptability or otherwise of a plaintiff's version, an
investigation where questions of demeanour and impression are
measure against the content of a witness's evidence, where the
importance of any discrepancies or contradictions are assessed and
where a particular story is tested against facts which cannot be
disputed and against the inherent probabilities, so that at the end
of the day one can say with conviction that one version is more
probable and should be accepted, and that therefore the other
version is false and may be rejected with safety (National
Employers' General Insurance Co Ltd v Jagers 1984
(4) SA 437 (E)).'
Those
approaches were applied recently by this Court in Ephraim
Kahorere and Others v Minister of Home Affairs and Others Case
No. A 292/2008; and that is the manner in which I approach the
resolving of the mutually destructive versions on both sides of the
suit.
[8]
It is not disputed that the cable drums were extremely heavy and
none of them can be lifted and thrown over the wall by personal
human effort. The small drum weighed 50.50 kg and the bigger one 387
kg. Indeed they are loaded unto trucks by the use of a forklift
which the plaintiff occasionally borrowed from a neighbouring
business house. In this regard it was the defendant's case that some
employees of the plaintiff could 'have used a forklift to lift the
drums over the wall'. As respects this; Mr Bugan, counsel for the
defendant, made a spirited submission that Mr Wrede confirmed in his
cross-examination-evidence that the possibility that such was done
existed. Mr Prinsloo, the owner of the defendant also testified. In
his evidence, Prinsloo testified that as he saw it, the drums
disappeared from the premises in the daytime on a weekday, that is,
when the guards were not on duty. Thus, for Mr Bugan, Wrede's
testimony supports Mr Prinsloo's testimony that the drums
disappeared from the premises during the daytime through the use of
a forklift or a vehicle which 'they', (i.e. the thieves) drove
through the gates of the premises and once out of the premises, they
(the thieves) 'threw it over the wall into the Trustco premises'. I
do not share Mr Bugan's enthusiasm: Mr Wrede's terse and forthright
answer was, 'It is possible, Yes'. Mr Wrede did not say it was
certain or probable.
[9]
The inspection in
loco revealed
that the open space of the premises is not a wide and large area.
And Mr Jensen testified that he had a very slim complement of
employees and a new business at the material time. I gained the
distinct impression that during working hours the open space would
not be abuzz with a multitude of employees going to-and-fro about
their business there; neither would visitors be wandering pell-mell
in the open space. The plaintiff is not in the manufacturing or
trading business, necessitating crowds of traders and shoppers going
in and out of the premises to sell or purchase goods. I have
mentioned previously the type of business the plaintiff was engaged
in.
[10]
Additionally, a forklift is not a non-motorized vehicular catapult
capable of hurling the heavy drums over the wall of the premises
with the height of 2.4 m in a split second without anybody on the
premises noticing the action - if it was done during the hours of
daytime on a weekday when the defendant's guards were not on duty.
The forklift is a motorized vehicular truck. Someone would have to
climb into the driver's seat, start the ignition, engage the
appropriate gear, drive the forklift to where the drums lay on the
ground, lift them - unto the forklift, drive the forklift for a
distance and drop the drums over the wall while the forklift is on
the premises or drive the forklift with its load of drums through
the gates of the premises; and nobody in the open space of the
premises noticed the motions and manoeuvres described. To accept
that that is how the drums were carried away from the premises
during the daytime on a weekday when the defendant's guards were not
on duty is to accept that some legal practitioners do not drive or
walk to the Court; they fly because they want to get to the Court
very quickly.
[11]
The other scenario emerging from the evidence is that the cable
drums were removed from the premises by unrolling the copper cable
rolls and thereafter cutting them up into pieces or pulling the
unrolled copper cable rolls over the wall. Such action will not take
less than two hours to complete. In this regard, I accept the
testimony of Mr Stynberg, a defence witness, that one drum casings
and pieces of casings and chips were found at the Trustco yard that
adjoins the premises. But his evidence does not add much to the
contest.
[12]
I have applied my mind not only to the merits and demerits of the
mutually destructive versions but also to their probabilities. I
have also weighed all that on the scales of common sense and human
experience. (See Bosch
v The State [2001]
BWCA 4 at 44 (Court of Appeal) where the relevance of common sense
and human experience are said to be crucial in the weighing of
evidence and applied by this Court in The
State v Manuel Alberto da Silva Case
No. CC 15/2005) (Unreported).) Having done all that I am impelled to
the following crucial factual finding. The drums disappeared from
the premises during the time that the defendant's security guards
were on duty in terms of the contract - either on night shift or
weekend shift.
[13]
Having so found; the question is: is the defendant liable? That is
the question I now proceed to answer. Mr Bugan's submission verbatim
is that 'if the defendant's guard(s) really wanted to steal these
copper cable drums, it would have been easier for them to just load
them on a truck or whatever and drive it to another place far away
from the plaintiff's premise and dismantle them at their own time
and pace ... That is why it is our submission that it was the
employees of this plaintiff who removed these items and hurriedly
threw it over the wall as they did not have the time to transport it
to another place'. With respect, Mr Bugan's argument falls to be
rejected as baseless for several reasons. It has not been shown that
the guards of the defendant have the same I.Q. as Mr Bugan who is a
legal practitioner; but more important, it is not the case of the
plaintiff that the guards of the defendant did 'steal' the drums and
their copper rolls. The plaintiff's case is rather that the
defendant in breach of its contractual obligation to guard the
premises and their contents, including the drums, failed in that
department of their contractual obligation and by so breaching their
contractual obligation, the plaintiff, as the innocent party to the
contract, has suffered damages caused by the breach. In my opinion,
therefore, there is a nexus between the breach and the damages (See
Christie, The
Law of Contract in South Africa 5th
edn.
p. 550 and the cases there cited.)
[14]
For all the aforegoing and the crucial factual finding I have made
previously, I have no difficulty in coming to the inevitable and
reasonable conclusion that the said breach is a material breach of
an essential term of the contract and therefore the plaintiff as the
innocent party was entitled to cancel the contract and sue for
damages, as it has done in the instant action. (See Christie, ibid.
pp. 538-542 and the cases there cited.) Accordingly, I hold that the
plaintiff has established on a preponderance of probabilities that
the breach of the said contract caused the damages suffered by the
plaintiff and the defendant is liable. It follows that in my
judgment, the plaintiff succeeds in its claim in contract. Having so
concluded, it serves no purpose to consider the plaintiff's
alternative claim based on delict.
[15]
Whereupon, I make the following orders:
(1)
Judgment for the plaintiff in the amount of N$53, 589.50, plus
interest thereon at the rate of 20% per annum, calculated from the
date of issuance of the summons, being 13 May 2008.
(2)
The defendant must pay the plaintiff its costs.
PARKER
J
COUNSEL
ON BEHALF OF THE PLAINTIFF:
Mr
S Horn
Instructed
by: M
B De Klerk & Associates
COUNSEL
ON BEHALF OF THE DEFENDANT:
Mr
D Bugan
Instructed
by: P
D Theron & Associates
Absolute Logistics (Pty) Ltd v Elite Security Services CC (I 1497/2008) [2011] NAHC 82 (17 March 2011);