Chemalum (Pty) Limited v Servest (Pty) Limited t/a Gremick Security (14348/2009) [2016] ZAKZDHC 50 (9 November 2016)

Chemalum (Pty) Limited v Servest (Pty) Limited t/a Gremick Security (14348/2009) [2016] ZAKZDHC 50 (9 November 2016)

The court found that the theft of equipment from the plaintiff's secure storage container occurred on the night of 13 June 2007 and that the defendant's guards either were complicit or negligently failed to perform their duties, breaching the contractual obligation to minimise risk. The absence of forced entry and the use of a key suggested complicity. The plaintiff established on a balance of probabilities that the loss was caused by the guards' wilful or negligent conduct. However, the plaintiff was not entitled to recover the value of the two pumps and the bicycle, as it did not own these items and the contract excluded liability for third-party property stored without written agreement.

Citation
[2016] ZAKZDHC 50
Parties
Plaintiff: Chemalum (Pty) Limited; Defendant: Servest (Pty) Limited t/a Gremick Security
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
9 November 2016
Case Number
14348/2009
Procedural Posture
Civil Trial / Liability Phase; Quantum Reserved
Outcome
Plaintiff succeeds in part; defendant is liable for the value of lost items except for the two pumps and the bicycle. Costs reserved.
Judges
Olsen
Legal Topics
Breach of Contract, Security Services Liability, Negligence, Risk of Loss, Contractual Indemnity
Commercial and Corporate Land and Property Breach of Contract Security Services Liability Negligence Risk of Loss Contractual Indemnity

Case Brief

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Parties

Chemalum (Pty) Limited

Plaintiff

Servest (Pty) Limited t/a Gremick Security

Defendant

Procedural Posture

Civil Trial / Liability Phase; Quantum Reserved

Legal Issues

  1. 1 Whether the defendant breached its contractual obligation to minimise the risk of theft at the plaintiff's premises.
  2. 2 Whether the theft of equipment on the night of 13 June 2007 was caused by the wilful or negligent acts or omissions of the defendant's guards.
  3. 3 Whether the plaintiff is entitled to recover the value of all stolen items, including those not owned by it.

Ratio Decidendi

The court found that the theft of equipment from the plaintiff's secure storage container occurred on the night of 13 June 2007 and that the defendant's guards either were complicit or negligently failed to perform their duties, breaching the contractual obligation to minimise risk. The absence of forced entry and the use of a key suggested complicity. The plaintiff established on a balance of probabilities that the loss was caused by the guards' wilful or negligent conduct. However, the plaintiff was not entitled to recover the value of the two pumps and the bicycle, as it did not own these items and the contract excluded liability for third-party property stored without written agreement.

Court Disposition

Plaintiff succeeds in part; defendant is liable for the value of lost items except for the two pumps and the bicycle. Costs reserved.

Orders

  • It is declared that the defendant is liable to pay to the plaintiff such sum as the plaintiff may in due course prove to be the value of the lost items listed in paragraph 8 of the plaintiff's particulars of claim (as amended), save for the two pumps and the bicycle.
  • The costs to date are reserved.