Van der Bijl and Another v Featherbrooke Estate Home Owners' Association (NPC) and Another; In Re: Featherbrooke Estate Home Owners' Association (NPC) v Van der Bijl (12360/2017) [2018] ZAGPJHC 544; 2019 (1) SA 642 (GJ) (23 August 2018)

Van der Bijl and Another v Featherbrooke Estate Home Owners' Association (NPC) and Another; In Re: Featherbrooke Estate Home Owners' Association (NPC) v Van der Bijl (12360/2017) [2018] ZAGPJHC 544; 2019 (1) SA 642 (GJ) (23 August 2018)

The court held that the particulars of claim do not disclose a cause of action against the Association for wrongfulness, as there is no legal duty established for the Association to protect residents from criminal harm. The mere employment of a security provider does not transfer the provider's duty to the employer unless such a duty is contractually or otherwise independently established. The Association, as a collective of homeowners, is not presumptively liable in delict for security breaches absent a specific undertaking. The infringement of constitutional rights, while grave, does not create a direct cause of action against the Association in the absence of such a duty. The common...

Citation
[2018] ZAGPJHC 544
Parties
Plaintiff: Lobbertus Jacobus van der Bijl; Plaintiff: Zena Maria Catherina van der Bijl; Defendant: Featherbrooke Estate Home Owners' Association (NPC); Defendant: Fidelity Security Services (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 August 2018
Case Number
12360/2017
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld; particulars of claim do not disclose a cause of action against the Association.
Judges
Unterhalter
Legal Topics
Aquilian Liability, Wrongfulness, Duty of Care, Constitutional Damages, Development of Common Law, Bodily Integrity
Delict Civil Procedure Constitutional Law Aquilian Liability Wrongfulness Duty of Care Constitutional Damages Development of Common Law +1 more

Case Brief

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Parties

Lobbertus Jacobus van der Bijl

Plaintiff

Zena Maria Catherina van der Bijl

Plaintiff

Featherbrooke Estate Home Owners' Association (NPC)

Defendant

Fidelity Security Services (Pty) Ltd

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the Association owed a legal duty to protect the plaintiffs from harm caused by third-party criminal conduct.
  2. 2 Whether the particulars of claim disclose wrongfulness sufficient for Aquilian liability against the Association.
  3. 3 Whether the common law should be developed to impose a duty on the Association to protect residents from criminal harm.

Ratio Decidendi

The court held that the particulars of claim do not disclose a cause of action against the Association for wrongfulness, as there is no legal duty established for the Association to protect residents from criminal harm. The mere employment of a security provider does not transfer the provider's duty to the employer unless such a duty is contractually or otherwise independently established. The Association, as a collective of homeowners, is not presumptively liable in delict for security breaches absent a specific undertaking. The infringement of constitutional rights, while grave, does not create a direct cause of action against the Association in the absence of such a duty. The common...

Court Disposition

Exception upheld; particulars of claim do not disclose a cause of action against the Association.

Orders

  • The exception is upheld.
  • The respondent is ordered to pay the costs, including the costs of two counsel.