BACKGROUND AND SUMMARY
|The Plaintiffs in the matter, Mr. and Mrs. van der Bijl, brought an action for damages against the Defendants, Featherbrooke Estate Home Owners’ Association NPC (“the Association”) and Fidelity Security Services (Pty) Ltd (“Fidelity”), the security company employed by the Association to safeguard and protect the estate and its residents. |
The Plaintiffs brought this action for damages subsequent to a robbery that occurred in their home, the consequence of same being that both Plaintiffs suffered physical injuries and mental distress from the attack by the robbers.
In bringing their action for damages, the Plaintiffs asserted that the Defendants wrongfully, in their breach of their duty of care, and with gross negligence failed to take steps so as to guarantee the safeguarding of the residents of the estate, and in particular the safeguarding of the Plaintiffs.
The Plaintiffs’ cause of action was twofold, first being premised upon delictual liability, and second being premised upon an infringement of their fundamental rights, such as the right to security of the person, as entrenched in Bill of Rights, Chapter 2 of the Constitution of the Republic of South Africa, 1996.
The Association excepted to the particulars of claim, challenging the alleged duty it had to protect the Plaintiffs and thus averred that no wrongfulness could be attributed to them. Additionally, the Association excepted to the counterclaim on the basis that if the law of delict does not provide for a cause of action, there is no reason to develop the common law, or to recognise a cause of action based on the infringement of the Plaintiffs’ Constitutional rights.
The question before the court was one of wrongfulness and whether the Association had a legal duty to protect the Plaintiffs from the home invasion that took place at their residence in the estate.
In coming to its conclusion, the court considered what was confirmed in Minister van Polisie v Ewels 1975 (3) SA 590 (A) and Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A), where it was then confirmed that actions and omissions for pure economic loss were actionable in the event of a defendant owing a legal duty to the plaintiff. Further, a legal duty would be determined by making reference to the legal convictions of the community.
However, the court held that there was a difficulty in applying the abovementioned formula, when one is to determine whether a specific duty is owed to the plaintiff by the defendant.
Counsel for the Plaintiffs submitted that Fidelity was employed by the Association to provide safeguarding to those residing within the estate. This duty was satisfied on behalf of the Association that employed Fidelity. Consequently, the Association was fraught with the same duty as that which Fidelity had undertaken. In light of the above, it was submitted that both Defendants had failed to discharge this duty. Additionally, counsel for the Plaintiffs relied on the decision in Loureiro and Others v iMvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC), wherein a private security firm was held to owe a duty to the residents to prevent avoidable harm, and it was further held that it was wrongful for the security guard to have given criminals access to the property. Counsel submitted that the same principle was applicable to Fidelity, and due to the fact that Fidelity assumed the duty on behalf of the Association, the Association should bare the same duty.
In this regard, the court held that the fact that the Association employed Fidelity to provide security for the estate did not confirm that the Association, as employer, owed the same duty to the residents of the estate, as that assumed by Fidelity. The court furthermore held that a duty to protect cannot be derived on the premise that Fidelity acted in the course and scope of its employment with the Association.
The further question before the court was whether the Association had a duty to safeguard residents by virtue of the fact that it was the Association of homeowners of the estate and the estate is a secured residential estate.
In this regard, the court held that the Association would have to determine the contractual liability they would incur in specific instances and therefore, such a duty could not be imposed upon them as an incident of delictual liability.
In dealing with the Constitutional rights of the Plaintiffs, the court held that although the Plaintiffs enjoy the fundamental rights to security of the person, bodily, physical and psychological integrity, dignity and privacy, and although those rights were indeed infringed by the invasion that took place at their residence, the Association was found to have no duty to secure those rights.
The Court held that the Plaintiffs particulars of claim did not disclose a cause of action which illustrated that the Association had a duty to protect, and consequently the Plaintiffs failed to demonstrate that the Association acted wrongfully. As such, the Defendants’ exception was upheld.
When a homeowners Association employs a private security company to provide security for a residential estate, this does not render the homeowners Association, as employer, to have owed the same duty to the residents of the estate, as that undertaken by the private security company. As such, a consideration of whether extending this legal duty to homeowners associations, resultant upon their employment of third party entities in relation to the estate over which they are responsible, is pertinent to the matter.
Written by Courtney Altmuner and supervised by Caitlin Wilde
9 July 2019