REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

                                                                                     CASE NO:  12360/2017

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:

LOBBERTUS JACOBUS VAN DER BIJL			     First Plaintiff

ZENA MARIA CATHERINA  VAN DER BIJL 
(MRS VAN DER BIJL)					   	Second Plaintiff

AND

FEATHERBROOKE ESTATE HOME OWNERS’ 
ASSOCIATION (NPC)						First Defendant

FIDELITY SECURITY SERVICES (PTY) LTD		      Second Defendant

In the exception of:

FEATHERBROOKE ESTATE HOME OWNERS’ 
ASSOCIATION (NPC)                                                                        Excipient 

AND

LOBERTUS JACOBUS VAN DER BIJL                                       Respondent 

J U D G M E N T  

UNTERHALTER J

INTRODUCTION

1.	The first and second plaintiffs, Mr and Mrs van der Bijl (“the van der Bijls”), bring an action against the Featherbrooke Estate Home Owners’ Association (NPC) (“the Association“) and Fidelity Security Services (Pty) Ltd (“Fidelity”).

2.	Mr and Mrs van der Bijl set out in their particulars of claim that on 8 April 2014 they resided on the Featherbrooke Estate. At 10.30 in the evening, robbers gained access to the Estate and the van der Bijl’s home. Mr van der Bijl was shot and suffered a  wound to his abdomen. Mrs van der Bijl was also assaulted and sustained injuries. Mr and Mrs van der Bijl both suffered mental trauma from the attack.

3.	Mr and Mrs van der Bijl allege that the Association and Fidelity wrongfully, in breach of their duty of care, and with gross negligence, failed to take various measures so as to ensure the safety of the residents of the Estate, and of Mr and Mrs van der Bijl in particular. As a result, the residence of the van der Bijls was invaded, Mr and Mrs van der Bijl were attacked by robbers and they suffered the injuries to which I have referred. They claim damages resulting from their injuries from the Association and Fidelity.

4.	Mr and Mrs van der Bijl frame their cause of action as one of delictual liability. They also contend for a cause of action based upon an infringement of their fundamental rights entrenched in Chapter 2 of the Constitution.

5.	Mrs van der Bijl has died since the action was instituted, and the litigation is now pursued by Mr van der Bijl alone.

6.	Fidelity has filed a plea. The Association excepts to the particulars of claim. It does so in the following way. First, in essence, it says that the Association had no duty to protect the van der Bijls from the robbery that took place at their home and thus no wrongfulness is attributable to the Association. Second, if the law of delict does not provide a cause of action, there is no warrant to develop the common law to do so, nor to recognize a cause of action predicated upon the infringement of constitutional rights.

7.	I consider these issues in turn. I make one preliminary clarification. The Association brings its exception on the basis that the Association had no legal duty to take steps to protect the van der Bijls from the robbery at their home. I therefore assume for the purposes of adjudicating the exception that the van der Bijls will be able to make out their case that the Association was negligent. That is so for two connected reasons. First, as I have indicated, the Association’s challenge goes to the question of its legal duty to protect the van der Bijls. Wrongfulness and negligence, as the Supreme Court of Appeal has been at pains to indicate, are separate requirements of Aquilian liability. Negligence concerns the defendant’s conduct judged against the standard of whether a reasonable person would have foreseen the harm in question and guarded against it. Wrongfulness concerns the issue as to whether the law imposes liability by recognizing a legal duty resting upon the defendant to prevent the harm that the plaintiff suffered. A defendant may be burdened with a legal duty to prevent a harm, but her conduct may be blameless because the harm was not reasonably foreseeable. In such a case, there is no negligence. So too, a defendant may be negligent, but does not act wrongfully because there was no duty to prevent the harm that was reasonably foreseeable. 

8.	Second, where, as in this case, the challenge by way of exception goes to the question of wrongfulness, the court assumes that the other elements of the cause of action will be capable of proof at trial so as to test the element of liability that is the subject of challenge.

WRONGFULNESS

9.	I commence with the question as to whether the Association had a legal duty to protect the van der Bijls from the robbery that took place at their home. The Association says that it had no such duty, and so the van der Bijls’ claim fails to make out a cause of action for Aquilian liability because there is no  showing of wrongfulness.

10.	 It is not much of an over-simplification to observe that the law of delict once proceeded from the following simple distinction: conduct that caused physical, emotional and reputational injury to the person or injury to property was presumed to be wrongful, whereas omissions and actions for pure economic loss were generally dealt with on the basis that there was no recovery recognised for a plaintiff.

11.	The modern law has however changed this binary position. Following the decisions in Trust Bank van Afrika Bpk and Ewels, claims predicated upon omissions and for pure economic loss may be actionable, if the court finds that the defendant owed a legal duty to the plaintiff. That issue is determined by reference to the resonant formulation: the legal convictions of the community.

12.	 The formulation has enjoyed some judicial interpretation. It has been rendered as the general criterion of reasonableness, based on considerations of morality and policy. In Indac, it was said that the court is required to exercise a value judgment embracing all relevant facts and involving considerations of policy.

13.	 The difficulty is how to apply these formulations in determining, as in this case, whether a particular duty is owed by a defendant. Three general answers are often given. First it is said that this a question of judicial discretion. Second, it is said, in the tradition of the common law, that guidance is to be found in the decided cases. Third, that it is precisely because the circumstances are so varied in which an omission or conduct causing pure economic loss must be considered that the guiding criteria  must perforce be somewhat abstract.

14.	 These answers are not altogether helpful. Determining what is wrongful should not be a matter of discretion but of reason and reasoning. Decided cases provide important reference points, but in order to lend coherence to the law some application of clear criteria would assist. Lastly, invoking policy, morality or the legal convictions of the community may be the domain in which wrongfulness is to be determined but provides little substantive guidance as to what the right answer is to a disputed question of wrongfulness.

15.	 Morality is simply reasoning about what is right and wrong; and policy is the practical means by which we implement values. Referencing morality and policy may tell a judge what exercise he or she is engaged upon, but not what moral content or set of values is informative to assist in deciding the case. The legal convictions of the community may be a judge’s sense of what the majority of people in our society consider right or wrong or perhaps what some theoretical community would believe to be right. However what the majority considers right and wrong is both hard to discern and is not always a sound guide to what is right and wrong in a constitutional democracy. And what a theoretical community thinks is right and wrong is simply one way of thinking about what morality requires. 

16.	 In my view, it is of assistance, within the parameters indicated by our appeal courts, to formulate a number of more specific considerations relevant to the determination of wrongfulness, where the case concerns an omission or conduct causing pure economic loss.

17.	 First, the law of delict has been principally concerned with liability for injury to persons and property. Such injury, it is generally considered, does not give rise to the problem of too many plaintiffs or indeterminate liability that is disproportionate to the defendant’s negligent conduct. In cases of omission and pure economic loss, the courts apprehend that these dangers are present and seek regulating principles to differentiate deserving plaintiffs from the plurality of potential plaintiffs who might have suffered foreseeable economic loss. The law thus proceeds from the precautionary premise of excluding liability for omissions and pure economic loss, unless there are good reasons to recognise liability.

18.	Second, injury to persons and property is a loss to society in two ways. It is a diminution of rights we recognize as fundamental in the constitution. That diminution harms those who hold those rights and it harms aggregate welfare because society as a whole is worse off when persons are injured and property is damaged. Claims based on omissions and pure economic loss are more ambiguous as to their effects. Apart from the problem of too many plaintiffs, referred to above, these claims do not necessarily give rise to the infringement of fundamental rights, nor to aggregate welfare losses to society but may involve a loss to one person being a gain to another. The question is then whether the law has any reason to interfere with the residual principle that the loss should lie where it falls. This in turn requires a consideration of deterrence and the question as to who might most efficiently have prevented the risk of  loss.

19.	Third, omissions and claims for pure economic loss should be considered in the light of the requirement of section 39(2) of the constitution to develop the common law in conformity with the rights and value system to be found in the constitution. If the common law falls short of what the constitution requires, then the courts must develop the common law.

20.	 Fourth, delictual liability for omissions has standardly proceeded from the premise that we are free of any duty to avert harm suffered by others, absent some special public or private duty of assistance that differentiates a defendant from the general norm of permissible indifference. And even such a public duty may not give rise to a cause of action in delict because other forms of accountability may  be found to suffice. The norm of indifference, however, may not have the presumptive pull that is sometimes assumed because  the  fundamental rights in the Bill of Rights may be of horizontal application, and thus give rise to duties that no longer permit of indifference. 

21.	 Turning to the pleadings of the van der Bijls, the following averments are made that go to the central features of their case. Fidelity was employed by the Association to safeguard and protect the Estate and the persons living on the Estate. The Featherbrooke Estate is a secured residential Estate. On 8 April 2014, burglars gained access to the Estate, invaded the residence of the van der Bijls, shooting Mr van der Bijl and assaulting Mrs van der Bijl. Both the Association and Fidelity owed the van der Bijls and the public a duty of care to prevent unauthorized access to the Estate, to ensure the safety of residents and do all things necessary to protect the residents of the Estate from burglaries and unlawful home invasions. The Association and Fidelity breached these duties by failing to take reasonable measures to safeguard the Estate, its residents and the van der Bijls from burglaries and home invasions. In addition, a constitutional remedy lies by reason of the conduct of the Association and Fidelity “as set out here in before” that infringed the rights of the van der Bijls to security of the person, bodily and psychological integrity, dignity and privacy. The law of delict stands to be developed by the courts with due regards to the spirit, purport and objects of the constitution. The van der Bijls are entitled to constitutional damages and the law of delict being developed by way of appropriate relief.

22.	 The cause of action rests on the failure of the Association and Fidelity to prevent the harm done to the van der Bijls by the assailants who invaded their home. And the central question that is raised by the exception is whether the Association owed the van der Bijls any duty to protect the van der Bijls.

23.	Counsel for the van der Bijls, Mr Coetzee SC, who appeared with Mr Kruger, put the matter this way. Fidelity was employed by the Association to secure the Estate. Fidelity owed a duty to provide security to the Estate and those residing on it. That duty was discharged on behalf of the Association that employed Fidelity. Consequently, the Association was burdened with the same duty that Fidelity had assumed. And both the Association and Fidelity failed to discharge their duty to the van der Bijls to prevent the harm that befell them.

24.	 Counsel placed much reliance on the decision of  Loureiro. In this case, the Constitutional Court held that a private security firm, having assumed the role of crime prevention for remuneration, owed a duty to thwart avoidable harm. It was wrongful for the guard to have given criminals access to the guarded property, even though the guard thought he was allowing the police to enter the premises. The finding of wrongfulness was made upon a consideration of public policy, and in particular “the compelling normative considerations” in favour of imposing liability by reason of the constitutional rights to personal safety and the protection from theft and damage to property. The Constitutional Court also expressed the opinion that there would be a wholesome deterrent effect if private security firms were not insulated from their own mistakes.

25.	 Mr Coetzee submits that if it was wrongful for the security firm in Loureiro to have permitted criminals access to the premises it had undertaken to guard, the same is true of Fidelity. Fidelity assumed that duty on behalf of the Association, and so the Association bears the same duty.

26.	In Loureiro, the duty of the security firm arises from its assumption of the role of providing protection for reward. That came about because the security firm had been contracted by Mr Loureiro to provide security services. The firm however was found to have assumed a legal duty not simply to Mr Loureiro but to his family as well. It follows that the contractual undertaking to protect for reward was the basis for the  assumption of a delictual duty to the Loureiros, even though Mr Loureiro alone was in privity with the firm.

27.	Following Loureiro, Fidelity might very well owe duties to those it has undertaken to protect. I am not asked directly to determine whether a cause of action has been made out against Fidelity because it is the Association alone that brings the exception. However, the van der Bijls’ cause of action against the Association proceeds from the averment that Fidelity was employed by the Association to provide security services at the Estate which included the safeguarding of property and the protection of persons present on the Estate. The van der Bijls also aver that Fidelity acted in the course and scope of its employment with the Association or as its agent.

28.	 For the purposes of determining the exception, I shall assume that Fidelity owed a duty to protect those persons it was contracted by the Association to protect and that those persons, according to the particulars of claim, included the van der Bijls, who resided on the Estate. That appears to me a necessary entailment of the holding in Loureiro.

29.	The central issue in this case is whether the Association owed the same duty as did Fidelity simply because the Association had employed Fidelity to provide security services for the Estate.

30.	This question is not answered by the holding in Loureiro. Loureiro did not decide that Mr Loureiro, by hiring a security firm to guard his house, was under any duty to secure the house.  Quite the reverse. It was the security firm that owed the duty to protect Mr Loureiro and his family.

31.	The mere fact that the Association employed Fidelity to provide security for the Estate does not establish that the Association, as employer, owed the same duty to the residents of the Estate as that assumed by Fidelity. Following Loureiro, it is Fidelity’s assumption of the role as a provider of security to the Estate that gives rise to its duty to the residents. That does not entail that because the Association employed Fidelity in this role, the Association had a duty to provide security to the residents of the Estate. Such a duty would have to be shown to exist apart from what Fidelity had undertaken to do. Either it must be shown that the Association was under a duty to secure the Estate and employed Fidelity pursuant to that duty or that the Association bore the duty quite apart from any role that Fidelity might have assumed to provide security. 

32.	It simply does not follow that because Fidelity was employed to provide security, the Association as employer was bound to do so. The Association may have employed Fidelity without an obligation to secure the Estate and without any obligation to protect persons on the Estate. Indeed, following the logic of Loureiro, it is Fidelity that owed a duty to the Association and the members it represents.

33.	 Nor can a duty to protect be derived from the averment that Fidelity acted in the course and scope of its employment with the Association or as an agent for the Association. The actions of Fidelity may have been taken pursuant to its legal duty to protect, but again it does not follow that by taking these actions Fidelity’s legal duty somehow becomes attributable to the Association. The Association must have had a duty to protect that is established independently of what the Association employed or authorized Fidelity to do. This is so, as I have indicated, because the Association  may have been at liberty to secure the services of Fidelity without being under any duty to the residents of the Estate to protect them. 

34.	  The question that then arises is whether the averments in the particulars of claim establish a basis for the Association’s duty to protect? The averment is made that the Association had such a duty, but what is the basis for that claim? It cannot be derived, as I have endeavoured to show, from the averment that the Association employed Fidelity. That does not entail the assumption of a duty by the Association; if anything, it gave rise to rights by the Association to exact a contractual performance from Fidelity. Nor is there any averment that the duty derives from any contractual undertaking given by the Association to its members. 

35.	 The particulars of claim are sparse as to the nature of the Association. The Association is simply said to be a non-profit company incorporated in terms of , “the acts and statutes of the Republic of South Africa”.  The role and responsibilities of such an Association under its memorandum and rules are not relied upon.  The Association procured the memorandum of incorporation of the Association and its residential regulations and has placed them before me. But since they form no part of the particulars of claim relied upon by the van der Bijls, I find no reason to have regard to them in order to determine the exception.

36.	Does the Association have a duty to protect residents simply because it is the association of the homeowners of the Estate and the Estate is a secured residential Estate? 

37.	In my view, these averments, without more, do not give rise to a duty on the part of the Association to protect the van der Bijls. This is so for the following reasons. 

38.	First, although there was grave injury to the persons of the van der Bijls, and hence this is not a case of indeterminate liability, the direct perpetrators of the harm are not sued. Fidelity is a defendant and the van der Bijls may have recourse against the security company that was responsible for providing security on the Estate. The Association stands in a different relationship to the van der Bijls. It exists for the benefit of its members, the homeowners of the Estate. Whether the Association has a duty to provide security as an incident of its memorandum  or  regulations forms no part of the pleaded case. However, it would be for the homeowners of the Estate to determine contractually what duties they wanted the Association to undertake, and more importantly, what liability the Association would incur as to the discharge of those duties. Each homeowner may wish to be the guarantor, through the Association, of every other homeowner’s safety. But that is an onerous liability and cannot simply be assumed to have been the wishes of the homeowners of the Featherbrooke Estate. In sum, the risk of a security breach is a matter that could and should be regulated by contract  between homeowners and not as some incident of delictual liability attaching presumptively to the Association.

39.	Second, although the van der Bijls unquestionably enjoy the fundamental rights to security of the person, bodily, physical and psychological integrity, dignity and privacy, and have had those rights infringed by reason of the grave assaults upon them in their home, the question is against whom can those rights be claimed? Most certainly against their assailants. And following Loureiro, in some measure against Fidelity. But, absent some contractual undertaking, I do not see how the Association, which is simply an incorporated extension of the collective will of the Estate’s homeowners, is burdened with duties to secure these fundamental rights.

40.	 If the Association has not undertaken to protect and safeguard homeowners on the Estate, then the Association is simply a proxy for the question whether my neighbour has a duty to protect me in my home from violent intruders? I think not. We may think that a neighbour who does so is valiant when she comes to my aid, but we do not require that she does so. The primary duty to protect rests upon the state. Such a duty may, for reasons given in Loureiro, be assumed by a private security firm operating for reward. But is it not a duty owed by one neighbour to another. Each homeowner may simply be indifferent to the protection of other homeowners, in the sense that the law does not require any conduct to be taken to protect our neighbours. And consequently, the injury suffered by the van der Bijls is not compensable by their neighbours because their neighbours had no duty to protect them. If that is so of neighbours, it is also so of homeowners on the Estate. The Association is simply, as I have indicated, an incorporated means by which the homeowners of the Estate choose to achieve common goods. Absent an agreement between the Association and its members as to the liability of the Association to protect those residing on the Estate, I can see no basis for holding that the Association assumed a duty to protect or that the law requires that the Association is so burdened.

41.	 Finally, there is no case made out as to why the imposition of delictual liability upon the Association would better deter the breach of security that gave rise to the assaults upon the van der Bijls. There is no showing that imposing liability on all homeowners for the protection of each homeowner is a more effective way of achieving security than requiring every homeowner to provide their own security or to remain liable for any loss, even if security jointly provided should fail. Of course, homeowners may choose to come together and make collective security arrangements but the law of delict is not a compulsory means by which this is to be done.

42.	For these reasons I find that the van der Bijls’ particulars of claim to not disclose a cause of action that the Association had a duty to protect, and consequently fail to make a showing that the Association acted wrongfully in failing to prevent the assaults upon the van der Bijls.

43.	The Association, in its exception, also relied upon provisions in the residential regulations of the Estate excluding liability. This would appear to me to be an issue that the Association should raise in its plea and is not a matter for exception. But given the conclusion that I have reached that the exception is to be upheld on other grounds, it is not necessary for me to decide this issue. 

THE CONSTITUTIONAL CLAIMS

44.	 I turn next to consider whether the constitutional claims made by the van der Bijl's in their particulars of claim are good in law.  

45.	The van der Bijls make two claims in addition to their claim based on Aquilian liability. They allege that the infringement of their fundamental rights in the Bill of Rights warrants the imposition of a remedy of constitutional damages. They also aver that there is reason to develop the law of delict so as to recognise the infringement of the van der Bijls’ fundamental rights.

46.	 The Association says on exception that the common law provides adequate remedies and there is no warrant for the extension of the  constitutional remedy that is sought by the van der Bijls.

47.	 Fose made it plain that courts must consider whether a litigant has access to an appropriate remedy for the protection and enforcement of their fundamental constitutional rights, and an appropriate remedy is an effective remedy.

48.	The difficulty in this case is not whether the common law provides a remedy to compensate the van der Bijls for their injuries. The common law does so. That is apparent from the damages that the van der Bijls claim, including general damages. The Association excepts to the particulars of claim on the basis that such damages suffice. That seems uncontroversial in the sense that if the Association had a duty to protect, and it was negligent and caused the van der Bijls’ injuries by failing to discharge that duty, the damages that can be claimed at common law and those sought in the particulars of claim would meet the constitutional standard of an adequate remedy.

49.	The exception taken on this aspect of the case is a little wide of the mark because it is not the damages sought by the van der Bijls that entail any innovation – the particulars do not distinguish the damages that result from the common law claim and those resulting from the constitutional claims.   Rather, the van der Bijls constitutional claims seek the recognition of a duty on the part of the Association to protect either as a development of the common law or on the basis that the Association bore duties to  safeguard the van der Bijls’ constitutional rights.

50.	Strictly speaking the exception does not squarely plead challenges to these aspects of the van der Bijls’ constitutional claims. However, since these matters were argued by counsel before me, it would be in the interests of justice to determine whether the particulars of claim make out a cause of action on either basis proposed to found a constitutional claim that the Association had a duty to protect.

51.	In my view,  the particulars do not do so. First, I do not consider that the common law requires development. I have already sought to explain that in determining whether a defendant has a legal duty to act when it has not done so, our courts take a very wide view as to what public policy requires. That capacious consideration includes how wrongfulness is to be understood in the light of a plaintiff’s fundamental rights as contained in the Bill of Rights. I have had regard to the grave infringement of the van der Bijls’ fundamental rights. But I am unable to derive a duty resting upon the Association to secure those rights. Consequently, there is no deficiency in the common law that requires correction. Rather, the most generous account of wrongfulness does not yield the conclusion that the Association had a duty to protect.

52.	For like reasons, a direct appeal to the infringement of the van der Bijls’ fundamental rights under the constitution does not yield a different conclusion. The reasons that I have set out as to why the Association had no duty to protect at common law serve equally to show why the Association is not under a duty to protect the van der Bijls’ fundamental  constitutional rights. The van der Bijls have had their rights to security, physical integrity and dignity infringed. But for the reasons set out above, a homeowner cannot look to an entity such as the Association to protect those rights.

53.	Accordingly, I find that the particulars of claim do not make out a cause of action either as an extension of common law delictual liability, or as a claim of direct infringement of constitutional rights. 

CONCLUSION

54.	 In the result, the exception must be upheld. It should be understood though that this result is predicated upon the findings that I have made and not the wider grounds of challenge that are found in the exception. In summary, my findings are these. First, the particulars of claim do not make out a case for wrongfulness and thus this necessary requirement for Aquilian liability is lacking. Second, there is no warrant to develop the common law to recognize a legal duty resting upon the Association to protect the van der Bijls from the assaults they suffered from the invasion of their home. Lastly, the particulars of claim do not disclose a cause of action against the Association on the basis that it had a duty to protect the van der Bijls from the infringement of their fundamental rights.

55.	The parties were agreed that the costs should follow the result, and, in a case of this kind, there was reason to employ two counsel. It was also agreed that Mr van der Bijl who now pursues the action should be afforded a month to effect any amendments to the particulars of claim.

 I make the following order :
(a)	The exception is upheld.
(b)	The respondent is ordered to pay the costs, which costs include the costs consequent upon the employment of two counsel.
(c)	The respondent is afforded 31 calendar days to bring an application to amend his particulars of claim.

_______________________________

David Unterhalter 
Judge of the High Court
Gauteng Local Division: Johannesburg.
Date of Hearing: 6 August 2018 
Judgment Delivered: 23 August 2018 

Appearances: 
For the Plaintiffs: Adv. Coetzee SC and Adv. Kruger instructed by Erasmus Motaung Inc.
For the Defendant: Adv Louw SC and Adv. Kloek instructed by J.J Badenhorst & Associates Attorneys Inc.