Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited (21830/2014) [2020] ZAGPJHC 111 (25 March 2020)

Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited (21830/2014) [2020] ZAGPJHC 111 (25 March 2020)

The court found that the defendant, Schenker, is vicariously liable for the theft committed by its employee, Lerama, as the theft was sufficiently closely linked to the business and employment risk created by Schenker. The employee was granted unfettered access and authority to collect goods, which enabled the theft. The court applied the principles from Stallion Security, emphasizing that the creation of risk by the employer is a decisive factor in deviation cases. The exclusionary clauses in the contract were interpreted strictly and found not to exclude liability for intentional wrongful acts such as theft, as they pertain to losses arising from the execution of contractual services,...

Citation
[2020] ZAGPJHC 111
Parties
Plaintiff: Fujitsu Services Core (Pty) Limited; Defendant: Schenker South Africa (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 March 2020
Case Number
21830/2014
Procedural Posture
Commercial Claim / Final Judgment
Outcome
Judgment granted in favour of the plaintiff against the defendant for payment of the amount claimed and interest thereon.
Judges
L R Adams
Legal Topics
Vicarious Liability, Exclusionary Clauses, Condictio Furtiva, Contractual Interpretation, Theft by Employee
Commercial and Corporate Delict Vicarious Liability Exclusionary Clauses Condictio Furtiva Contractual Interpretation Theft by Employee

Case Brief

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Parties

Fujitsu Services Core (Pty) Limited

Plaintiff

Schenker South Africa (Pty) Limited

Defendant

Procedural Posture

Commercial Claim / Final Judgment

Legal Issues

  1. 1 Is the defendant vicariously liable for the theft committed by its employee?
  2. 2 Does the written contract between the parties exclude or limit the defendant's liability for the plaintiff's delictual claim?
  3. 3 Does the exclusionary clause in the contract apply to intentional wrongful acts such as theft by an employee?

Ratio Decidendi

The court found that the defendant, Schenker, is vicariously liable for the theft committed by its employee, Lerama, as the theft was sufficiently closely linked to the business and employment risk created by Schenker. The employee was granted unfettered access and authority to collect goods, which enabled the theft. The court applied the principles from Stallion Security, emphasizing that the creation of risk by the employer is a decisive factor in deviation cases. The exclusionary clauses in the contract were interpreted strictly and found not to exclude liability for intentional wrongful acts such as theft, as they pertain to losses arising from the execution of contractual services,...

Court Disposition

Judgment granted in favour of the plaintiff against the defendant for payment of the amount claimed and interest thereon.

Orders

  • The plaintiff shall pay the defendant’s costs of its action against the defendant under case number 18981/2014, which action the plaintiff formally withdrew during July 2019.
  • Judgment is granted against the defendant in favour of the plaintiff for payment of the sum of US$516,877.