Loureiro and Others v Imvula Quality Protection (Pty) Ltd (CCT 40/13) [2014] ZACC 4; 2014 (5) BCLR 511 (CC); 2014 (3) SA 394 (CC) (20 March 2014)

Key Facts

Transaction Type

Issues

• Whether leave to appeal was granted
• iMvula's liability for breach of contract
• iMvula's liability in delict for the Loureiros' loss

Holdings

• The court declared the respondent vicariously liable in delict to the second, third, and fourth applicants (Venessa Loureiro and children) for damages proven. The guard's conduct was found wrongful and negligent, as he failed to verify the imposter's identity and acted without reasonable precautions, despite his duty to prevent harm.
• The court declared the respondent (iMvula) liable in contract to the first applicant (Licine Loureiro) for damages proven, as the contract was breached when the guard allowed unauthorized access to the premises contrary to an express oral agreement. The breach was strict liability, not requiring proof of negligence.

Remedies

• The respondent is ordered to pay the applicants' costs in this Court, the Supreme Court of Appeal and the High Court including, where applicable, the costs of two counsel
• The appeal is upheld by the Constitutional Court of South Africa
• Leave to appeal is granted by the Constitutional Court of South Africa
• The respondent is declared liable in contract to the first applicant for whatever damages may be proved
• The respondent is declared liable in delict to the second, third and fourth applicants for whatever damages may be proved

Legal Principles

• The court emphasized the duty of care owed by security guards to protect property and persons. Mr. Mahlangu's failure to verify the identity of the intruders and take reasonable precautions (e.g., contacting the main house, checking the police ID) breached this duty, leading to delictual liability.
• The court held that the express prohibition in the contract (clause 6.8) imposed strict liability on iMvula for breach, as it was not qualified by a reasonableness standard. This strict liability arose from the explicit terms of the agreement, which required iMvula not to permit unauthorized access to the Loureiro premises.
• The court found iMvula vicariously liable in delict for the wrongful and negligent actions of its employee, Mr. Mahlangu. His conduct, including failing to verify the identity of the intruders and opening the gate without authorization, was deemed wrongful under public policy and constitutional values, despite his good faith belief that he was assisting the police.
• The court concluded that iMvula breached its contract by violating the express prohibition against unauthorized access. Additionally, Mr. Mahlangu's actions breached the duty of care required under delict law, as his conduct fell below the standard of a reasonable security guard.

Precedent Name

• Minister of Safety and Security v Luiters
• Phumelela Gaming and Leisure Ltd v Grundlingh and Others
• Trustees for the Time Being of Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
• Le Roux and Others v Dey
• Barkhuizen v Napier
• Fose v Minister of Safety and Security
• Steenkamp NO v Provincial Tender Board, Eastern Cape
• Imvula Quality Protection (Pty) Ltd v Loureiro and Others
• Lee v Minister of Correctional Services
• K v Minister of Safety and Security
• Ashcor Secunda (Pty) Ltd v Sasol Synthetic Fuels (Pty) Ltd
• Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another

Key Disputed Contract Clauses

• Clause 6.8 explicitly prohibited the security company from permitting any person to gain access to the Loureiro family's premises without prior authorization. The court determined this clause imposed strict liability on iMvula, as it was not qualified by a reasonableness standard, distinguishing it from other contract terms that required 'reasonable steps' to prevent unauthorized access.
• Clauses 6.5.1, 6.5.2, and 6.7 obligated iMvula to take 'all reasonable steps' to prevent unauthorized access and protect the Loureiro family. The court found these clauses qualified iMvula's obligations by reasonableness, but clause 6.8's strict prohibition was unqualified and directly breached when the guard allowed robbers entry.

Cited Statute

• Constitution of South Africa
• Private Security Industry Regulation Act 56 of 2001
• Criminal Procedure Act 51 of 1977

Judge Name

• Dambuza
• Van der Westhuizen
• Skweyiya
• Cameron
• Madlanga
• Moseneke
• Jafta
• Zondo
• Nkabinde
• Froneman

Passage Text

• The respondent is declared liable in contract to the first applicant for whatever damages may be proved. The respondent is declared liable in delict to the second, third and fourth applicants for whatever damages may be proved.
• A reasonable person in the position of Mr Mahlangu would have foreseen the possibility that the man at the gate was an imposter. The burden of eliminating this risk was slight. A reasonable person would have taken steps to ascertain the identity of the man at the gate including determining whether the card was legitimate and enquiring why he sought access. Mr Mahlangu failed to take these precautions.
• 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.

Damages / Relief Type

• Respondent declared liable in contract to first applicant for damages
• Respondent declared liable in delict to second, third and fourth applicants for damages