M J Repapis Enterprises CC t/a Inyama Rama Butchery v Red Alert (Pty) Ltd (1879/2014) [2018] ZAECGHC 42 (24 May 2018)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case no: 1879/2014

Date heard: 10, 11, 21 May 2018

Date delivered: 24 May 2018

In the matter between

M J REPAPIS ENTERPRISES CC T/A

INYAMA RAMA BUTCHERY

Plaintiff

vs

RED ALERT (PTY) LTD

Defendant

JUDGMENT

PICKERING J:

[1] On the night of 27 April 2012 an unknown number of burglars broke into the premises of Inyama Rama, primarily a retailer of meat at 32 Buffalo Street, East London. Somewhat ironically, given the fact that the phrase “not a sausage” is originally derived from the Cockney rhyming slang “sausages and mash” meaning “cash”, they got away with not a sausage from the butchery but a great deal of cash. (See: Brewers Dictionary of Phrase and Fable).

[2] In due course the owner of the business, M. J. Repapis Enterprises CC t/a Inyama Rama Butchery issued summons against defendant, Red Alert (Pty) Ltd, a security service provider carrying on business in East London, alleging that in consequence of defendant’s breach of contract in certain respects it suffered damages as a result of the break-in.

[3] At the commencement of the trial before me it was ordered by agreement that the issues of the merits and quantum be separated and the trial proceeded on the issue of the merits only.

[4] The written agreement relied upon by plaintiff was entered into between the parties on 30 December 2005 and, as at 27 April 2012, was still in force. In terms thereof defendant undertook to provide to plaintiff monitoring, reaction, reporting and maintenance security services at plaintiff’s “protected premises” situate at 32 Buffalo Street at the corner of Buffalo Street and Caxton Street, East London. This contract was subject to the provisions of the Private Security Industry Regulations Act 56 of 2001 and the Regulations promulgated thereunder, in particular

Regulation 9(5) which provides that the security service provider:

“(a) must render the security service for which he or she has bound himself or herself contractually in accordance with the terms and conditions of the contract, the Act and this Code;

(b) must render the security service for which he or she has bound himself or herself contractually, and perform any related function or work, with such a degree of skill, diligence and care as may be expected of a reasonable, competent and qualified security service provider in the circumstances; and

(c) …”

[5] Clause 3.1.1 of the agreement provided as follows:

“3.1 When an alarm signal is received, Red Alert undertakes to:

3.1.1 For customers requesting Armed Response/Response to Panic Only, dispatch an armed response officer as soon as is practicably possible to the protected premises. If said response officer discovers a sign of forced entry Red Alert will contact the police, the customer and/or an emergency contact nominated by the customer as soon as is practically possible to inform them about said forced entry.”

[6] Clause 4.2.1 provides:

“The sole object and function of the Security Service and Security Personnel provided by Red Alert is to prevent or minimise the risk of loss or damage to property and injury to persons by fire, theft, burglary or vandalism and Red Alert gives no warranty or guarantee that its Security Personnel will be able to prevent or minimise such loss, damage or injury.”

[7] I will return hereunder to certain other clauses of the agreement concerning the alleged indemnification by plaintiff of defendant

against any liability resulting from any damage, injury, loss or theft.

[8] In terms of the contract plaintiff was obliged to nominate two so-called “key holders” and to provide defendant with their emergency contact numbers. As set out in clause 3.1.1 defendant was obliged, in the event of any forced entry into the premises which activated the alarm, to contact one or other or both of the nominated key holders in order to allow defendant’s

reaction officer to gain access to the premises.

[9] The contract, (A8) reflects the names of three key holders, namely “Dylan Micheal (sic) and Olifant.” It is common cause that Micheal is Mr. Michael Repapis and Olifant is Mr. Olifant Sijadu who was employed by plaintiff as its manager. It became common cause, however, that as at 27 April 2012 Dylan was not a key holder.

[10] It is common cause that the premises were protected by a number of alarm beams securing the inside roof and ceiling area thereof as well as by a number of so-called passive radio beams between the roof and ceiling. In the event of a beam being breached or a passive detector detecting motion a radio signal would be sent from the premises to defendant’s control room indicating in which particular zone the breach or motion had occurred. In this regard it is common cause that the defendant’s Control Room computers were equipped with software enabling the computer to interpret signals emanating from the alarm system at the premises. Each customer of defendant had their own transmitter, identified by a unique identity number, in the case of plaintiff this being 0384500.

[11] It is common cause that on the night of Friday, 27 April 2012, defendant received an alarm signal at its control centre emanating

from plaintiff’s premises as a result of an alarm beam securing the roof and ceiling area of those premises being activated. It was later discovered that the intruder or intruders had gained entry to the premises through the roof thereof.

[12] According to a computer printout (A18) the alarm was activated at 21.34.32. Thereafter, at 21.34.43 the control room operator, one Craig, advised Charlie Victor, this being the motor vehicle servicing the area and being driven at the time by a reaction officer Tony Rooi, of the activation of the alarm. According to the signal the passive infrared detector had been activated in zone 017, that being the right roof area of the premises. At 21.41.41 a control room operator, Keith Watkins, autodialled Mr. Olifant Sijadu. At 21.42.25 Mr. Watkins recorded that there was no answer from Mr. Sijadu. Mr. Rooi then arrived on site at 21.42.42. At 21.45.03 Mr. Rooi reported that “as far as he can see” all was in order and that he had left a slip in the door of the premises advising plaintiff of the incident and of the fact that all was in order.

[13] Thereafter at 21.51.09 Mr. Sijadu was again autodialled but at 21.51.48 it was recorded that there was again no response. At 21.59.56 an sms was sent from the control room to Mr. Sijadu advising him of the activation of the alarm.

[14] The following morning, Saturday 28 April 2012 at 07.28.37, Mr. Sijadu was again autodialled. This elicited a response from him. He returned the call advising that the office door in the premises which was normally left open had been closed and he could not open it. In consequence thereof Charlie Victor, being driven at this time by Mr. Sweetman, was advised via radio of the problem. Having investigated, Mr. Sweetman contacted the control room and advised that there had been a break-in at the premises and that a grinder had been used to open a safe. The police were then called.

[15] The aforesaid Mr. Olifant Sijadu confirmed that he was one of the key holders. He stated that on the night of 27 April his cellphone battery was dead and accordingly he had not received the calls from defendant’s control room. At approximately 7 am on the 28 April he arrived at the premises and discovered that the alarm was off. On entering he discovered that entry to the premises had been gained through the office roof and ceiling. He could not open the door to the office. There was a smell of smoke in the premises. He contacted defendant’s control room and advised them of the problem. It was thereafter discovered that two safes had been cut open with angle grinders and the money they contained had been stolen.

[16] The sole member of plaintiff, Mr. Repapis, confirmed in his evidence that he and Mr. Sijadu were the nominated keyholders who were to be contacted by defendant in the case of forced entry into the premises as set out in clause 3.1.1. He stated that if defendant was unable to contact Mr. Sijadu it was obliged in terms of the agreement to contact him. It had happened in the past that he had been contacted by defendant when it could not contact Mr. Sijadu. In such cases he would phone Mrs. Sijadu who would inform her husband accordingly. It was put to him under cross-examination that he had rudely instructed defendant’s staff never to contact him but he denied that he had ever done so.

[17] He stated that on 28 April 2012 he had inspected the premises and discovered that entry had been gained through the roof. It is common cause that the roof is pitched and that the side thereof through which entry was gained is not visible from Caxton Street which runs alongside the building. There was considerable debate and discussion during the course of his evidence as to whether, given the configuration of the building, it was at all possible to view the other side of the roof from a small alleyway leading off from Gilwell Street with which Caxton Street intersects at the bottom of the block.

[18] It is not necessary to deal with this evidence. Mr. Bester, who appeared for defendant, correctly conceded that if defendant’s

reaction officer who proceeded to the scene could not see the other side of the roof and therefore could not satisfy himself as to the absence of any forced entry defendant was obliged, in terms of clause 3.1.1, to contact one of the keyholders so that access to the building could be gained. The fact therefore that the reaction officer Mr. Rooi who had visited the scene and had found, after a 2 ½ minute inspection of the roller shutter doors and the Caxton Street side of the roof, that all was in order, was irrelevant.

[19] The defendant adduced the evidence of Mr. Bleach, presently the Regional Operations Manager of defendant, who was at the time of the break-in defendant’s Technical Manager. He stated with reference to A8 that as at the date of the incident the only key holder was Mr. Sijadu. He stated that if Mr. Repapis had been one of the key holders he would have been contacted. He then conceded that Mr. Repapis was in fact a key holder. He now stated that Mr. Repapis was not contacted because, so he was informed by staff at the control room, there was a note written in red on defendant’s system not to contact him. He reiterated that Mr. Repapis was previously a key holder but had instructed defendant not to phone him.

[20] In this regard Ms. Pretorius stated that she had worked in the control room of defendant from 2001 to 2011. She averred that on a previous occasion when an alarm had been activated in the roof of the premises she had contacted Mr. Repapis on a late Saturday afternoon. According to her Mr. Repapis had sworn at her in foul language and told her that he was not going to go and open up the premises and that if necessary defendant should get a helicopter to check the roof. She stated that she had seen a note on the computer that Mr. Repapis should not be phoned. She then conceded, however, that Mr. Repapis had never said that he did not want to be contacted at all. She conceded too that her evidence with regard to the use of foul language as well as the reference to a helicopter had never been put to Mr. Repapis under cross-examination.

[21] Mr. Keith Watkins who was, at the time of the incident, the newly appointed supervisor in the Alarms Department of defendant, confirmed that the alarm had been activated in zone 017 in the ceiling of the premises. He was not aware of any previous incidents involving similar break-ins. He confirmed too that on the night in question he had been on duty when the alarm at the premises was activated and that attempts to contact Mr. Sijadu had been unsuccessful.

[22] He stated that he had been told by his staff that Mr. Repapis had given instructions that he should only be called in the event of an emergency or a problem. After Mr. Rooi had reported that all was in order at the premises he did not think that there was an emergency or a problem and therefore did not contact Mr. Repapis. Under cross-examination, however, he conceded that although it could have been a false alarm it was still to be taken seriously because the activation of an alarm was something out of the ordinary and it could have been an emergency.

[23] Having said this he immediately stated that he did not regard it as an emergency at the time. He then conceded that all alarms were treated as emergencies. He conceded that Mr. Rooi had not been able to ascertain the reason for the alarm having been activated and that he knew that Mr. Rooi had not inspected the inside of the building. It was because of this that Mr. Sijadu had been phoned so as to get him out to the premises to meet Mr. Rooi. He conceded too that he could not be satisfied on Mr. Rooi’s report that there had in fact been no break-in.

[24] In a report (A16) written by him on 28 April 2012 to Mr. Harvey the Alarms Control Room Manager he had stated, inter alia, that Mr. Repapis was the second keyholder but that “he only wants to be phoned on emergencies or problems.” In the report he stated further that Mr. Repapis “gave a few of our controllers a hard time because he only wants to be called if there if an emergency.”

[25] Mr. Repapis made a very good impression on me as an entirely honest witness. I accept his evidence that he never rudely told defendant’s employees not to contact him.

[26] Whether the mostly hearsay allegations testified to by Mr. Bleach and Mr. Watkins were true or not the fact is that on Mr. Watkins’ own evidence defendant’s employees were fully cognisant of the fact that Mr. Repapis was to be contacted in the event of “an emergency or a problem.” And, on his own evidence, all alarms were treated as emergencies. There was, furthermore, at the very least, a problem in that one of the keyholders, Mr. Sijadu, could not be contacted. That being so defendant’s employees were obliged in terms of the contract to contact the second keyholder, Mr. Repapis.

[27] Defendant’s employees were aware that the alarm had been activated in zone 017 in the roof of the protected premises.

They knew that one side of the pitched roof was not visible to Mr. Rooi and that his assurances that all was in order after a hurried

inspection of 2 ½ minutes could therefore not be taken at face value. It was no doubt because of this that they tried to contact Mr. Sijadu in order to check the inside of the building. In these circumstances, in my view, plaintiff has established that defendant’s employees failed to take the next reasonable step such as would be expected in the security industry, of contacting Mr. Repapis in order to determine whether there had in fact been a forced entry at the premises and in order thereby to prevent or minimise any loss or damage suffered by plaintiff in consequence of a break-in.

[28] The evidence established that considerable time and effort must have been expended by the intruders in breaking open the safes after the alarm had been activated. Had defendant’s employees contacted Mr. Repapis immediately after they had failed in their attempts to contact Mr. Sijadu the intruders would in all probability have been thwarted in their own theftuous attempts. In the circumstances I agree with the submission by Mr. van der Linde S.C., who appeared for plaintiff, that they were clearly negligent in breach of defendant’s contract with plaintiff. That breach caused plaintiff loss.

[29] That, however, is not the end of the matter. I have referred above to the alleged indemnity in the agreement. Of relevance are clauses 4.2.2 and 7.1 thereof.

[30] Clause 4.2.2 provides:

“Red Alert and its Security Personnel shall not be liable to the customer or any Third Party for death of or injury to or illness sustained by any person (hereinafter referred to an “Injury”) or loss of or damage to property (hereinafter referred to as “Damages”) whether direct or consequential and howsoever caused and the customer will indemnify and hold harmless Red Alert and its Security Personnel in respect of all claims arising out of any such Injury or Damage unless and only in the extent that it can be proven that such Injury or Damage shall have been caused by the negligence of or disregard of duties by Red Alert or its Security Personnel. (My emphasis)

[31] Clause 7.1 provides:

“Red Alert and/or any of its employees shall not be liable for any delay in rendering any services and/or the breakdown of any equipment, nor may Red Alert and/or any of its employees be held responsible, or in any way liable for any damage, injury, loss or theft that may be suffered or experienced during the course of this agreement, notwithstanding the fact that such damages, loss or theft may have resulted directly or indirectly through the wrongful act, omission or error on the part of one or more of Red Alert employees, agents, servants or representatives, or have been caused by the failure of the alarm system to operate, or Red Alert to perform any of its obligations in terms of this agreement.

[32] It is immediately apparent that the above two clauses are contradictory in their effect. Whereas clause 7.1 contains a blanket indemnity absolving defendant from any liability whatsoever for any loss howsoever occasioned, the indemnity contained in clause 4.2.2 is only applicable in the absence of any negligence or disregard of its duties by defendant or its employees.

[33] In van der Westhuizen v Arnold 2002 (6) SA 453 Lewis AJA, as she then was, stated at para [40], page 469 E, that although there does not appear to be any clear authority for a general principle that exemption clauses should be construed differently from other provisions in a contract this did not mean that “courts are not, or should not be, wary of contractual exclusions, since they do deprive parties of rights that they would otherwise have had at common law.” The learned Judge stated further at 469 E – F that “where a provision does not offend public policy or considerations of good faith a careful construction of the contract itself should ensure the protection of the party whose rights have been limited, but also give effect to the principle that the other party should be able to protect himself or herself against liability insofar as it is legally permissible. The very fact, however, that an exclusion clause limits or ousts common law rights should make a court consider with great care the meaning of the clause, especially if it is very general in its application.”

[34] It is clear that clause 7.1 does not offend against public policy or good faith nor did Mr. van der Linde contend otherwise. Read in isolation clause 7.1 unambiguously exempts defendant from any liability arising from any cause whatsoever.

[35] Clause 4.2.2, however, which is also unambiguous in its meaning, whilst indemnifying defendant from loss or damage, does not exclude liability for negligence.

[36] It is somewhat difficult, in my view, to understand why two such different indemnity clauses should be contained in the same

contract. This is all the more so as one of them, clause 4.2.2, resorts under the rubric “Undertaking by Customer” whereas that sub-clause, in contradistinction to the other sub-clauses contained in clause 4, has nothing whatsoever to do with any undertaking by the customer and would more properly resort under the heading of “Indemnity”. In my view no purpose would be served in analysing the two clauses with a fine toothcomb in an effort to ascertain in what circumstances the one clause rather than the other might apply. In my view, no reason as to why both clauses are included in the contract springs readily to mind. What is apparent is that clause 4.2.2 is fully consonant with the provisions of Regulation 9(5)(a) and (b) to which I have referred above whereas clause 7.1 is not.

[37] Whilst each clause is unambiguous in its terms the presence of the two mutually exclusive clauses renders the contract ambiguous in this regard. That being so the contract should be construed contra proferentem against defendant for whose benefit the exemptions in clause 4.2.2 and clause 7.1 are included and at whose behest the contract was drafted. See in this regard Christie’s Law of Contract in South Africa and the cases referred to at 221 – 224.

[38] In all the circumstances I am of the view that effect must be given to clause 4.2.2 and that the submission, based on clause 7.1, that defendant’s liability is excluded, cannot be sustained.

[39] According the following order will issue:

1. Defendant is liable to pay to plaintiff such damages as plaintiff may prove it has suffered arising out of the break-in at its premises at 32 Buffalo Street, East London on 27 April 2012.

2. Defendant is ordered to pay the costs of suit.

_____________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing on behalf of Plaintiff: Adv. H. van der Linde S.C.

Instructed by: Lexicon Attorneys, Mr. Jansen

Appearing on behalf of Defendant: Adv. Bester

Instructed by: Gerhard J Laubscher Attorneys