Malesela Taihan Electric Cable (Pty) Ltd v Fidelity Security Services (Pty) Ltd (17193/2014) [2017] ZAGPJHC 341 (18 April 2017)

Malesela Taihan Electric Cable (Pty) Ltd v Fidelity Security Services (Pty) Ltd (17193/2014) [2017] ZAGPJHC 341 (18 April 2017)

The court found that Fidelity's security guards were complicit in and facilitated the theft of copper coils from the plaintiff's premises, acting with gross negligence and in breach of contractual and statutory duties. Clause 9 of the contract entitled the plaintiff to reimbursement for the full extent of its loss where gross negligence or involvement was proven. The limitation of liability clause was held to be partially illegal and unenforceable to the extent that it purported to limit Fidelity's liability for intentional or grossly negligent acts, as prohibited by sub-regulation 9(3)(d) of the Code of Conduct and section 28(2) of the Private Security Industry Regulation Act. The...

Citation
[2017] ZAGPJHC 341
Parties
Plaintiff: Malesela Taihan Electric Cable (Pty) Ltd; Defendant: Fidelity Security Services (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 April 2017
Case Number
17193/2014
Procedural Posture
Specific Performance Action / Trial Judgment
Outcome
Plaintiff's claim for specific performance is granted. Defendant is ordered to pay the full quantum of loss plus interest and costs.
Judges
P.A. Meyer
Legal Topics
Specific Performance, Contractual Liability, Limitation of Liability, Gross Negligence, Security Services Regulation
Commercial and Corporate Civil Procedure Specific Performance Contractual Liability Limitation of Liability Gross Negligence Security Services Regulation

Case Brief

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Parties

Malesela Taihan Electric Cable (Pty) Ltd

Plaintiff

Fidelity Security Services (Pty) Ltd

Defendant

Procedural Posture

Specific Performance Action / Trial Judgment

Legal Issues

  1. 1 Whether Fidelity Security Services is contractually liable to reimburse Malesela Taihan Electric Cable for the full extent of its loss due to theft where gross negligence or involvement of security guards is proven.
  2. 2 Whether the limitation of liability clause in the contract is valid and enforceable in light of statutory and public policy prohibitions.
  3. 3 Whether the illegal portion of the limitation clause is severable from the rest of the contract.

Ratio Decidendi

The court found that Fidelity's security guards were complicit in and facilitated the theft of copper coils from the plaintiff's premises, acting with gross negligence and in breach of contractual and statutory duties. Clause 9 of the contract entitled the plaintiff to reimbursement for the full extent of its loss where gross negligence or involvement was proven. The limitation of liability clause was held to be partially illegal and unenforceable to the extent that it purported to limit Fidelity's liability for intentional or grossly negligent acts, as prohibited by sub-regulation 9(3)(d) of the Code of Conduct and section 28(2) of the Private Security Industry Regulation Act. The...

Court Disposition

Plaintiff's claim for specific performance is granted. Defendant is ordered to pay the full quantum of loss plus interest and costs.

Orders

  • The defendant is to pay to the plaintiff the amount of R2,198,648.25 plus interest thereon at the rate of 15.5% per annum a tempore morae from 19 February 2013 to date of final payment.
  • The defendant is to pay the plaintiff's costs of suit.