Osman Tyres and Spares CC and Another v ADT Security (Pty) Ltd (2828/2010) [2017] ZANWHC 113 (7 December 2017)

Osman Tyres and Spares CC and Another v ADT Security (Pty) Ltd (2828/2010) [2017] ZANWHC 113 (7 December 2017)

The court found that the written agreement between the first plaintiff and the defendant contained clear exclusionary clauses (clauses 6.1, 6.2, 6.3, and 6.6) that expressly excluded the defendant's liability for any loss, injury, or damage arising from the rendering or non-rendering of security services, whether in contract or delict. The first plaintiff had irrevocably waived all such claims and indemnified the defendant against third-party claims. The second plaintiff, who was not a party to the agreement, failed to lead any evidence to establish emotional damages or a cause of action in delict, and no expert or medical evidence was presented. The plaintiffs did not discharge the onus...

Citation
[2017] ZANWHC 113
Parties
Plaintiff: Osman Tyres and Spares CC; Plaintiff: Shiraz Osman; Defendant: ADT Security (Pty) Ltd
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
7 December 2017
Case Number
2828/2010
Procedural Posture
Civil Trial / Absolution From the Instance After Close of Plaintiffs' Case
Outcome
Absolution from the instance granted in favour of the defendant. Costs awarded against the plaintiffs, jointly and severally.
Judges
R D Hendricks
Legal Topics
Contractual Exclusion of Liability, Absolution From Instance, Burden of Proof, Emotional Distress Claim, Waiver and Indemnity
Commercial and Corporate Civil Procedure Delict Contractual Exclusion of Liability Absolution From Instance Burden of Proof Emotional Distress Claim Waiver and Indemnity

Case Brief

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Parties

Osman Tyres and Spares CC

Plaintiff

Shiraz Osman

Plaintiff

ADT Security (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Absolution From the Instance After Close of Plaintiffs' Case

Legal Issues

  1. 1 Whether the defendant is contractually liable for damages suffered by the first plaintiff as a result of a burglary at its premises.
  2. 2 Whether the defendant is delictually liable for emotional damages suffered by the second plaintiff.
  3. 3 Whether the terms of the written agreement exclude or limit the defendant's liability for losses arising from burglary.

Ratio Decidendi

The court found that the written agreement between the first plaintiff and the defendant contained clear exclusionary clauses (clauses 6.1, 6.2, 6.3, and 6.6) that expressly excluded the defendant's liability for any loss, injury, or damage arising from the rendering or non-rendering of security services, whether in contract or delict. The first plaintiff had irrevocably waived all such claims and indemnified the defendant against third-party claims. The second plaintiff, who was not a party to the agreement, failed to lead any evidence to establish emotional damages or a cause of action in delict, and no expert or medical evidence was presented. The plaintiffs did not discharge the onus...

Court Disposition

Absolution from the instance granted in favour of the defendant. Costs awarded against the plaintiffs, jointly and severally.

Orders

  • Absolution from the instance is granted.
  • The First and Second Plaintiffs are ordered to pay the costs of suit, jointly and severally, the one paying the other to be absolved.