HIRING a private security company to guard your house was no ordinary contract, the Constitutional Court heard on Wednesday.
The case concerned just how far someone can hold a security company liable when it fails to protect him or his property. It will also be watched closely by lawyers because it may be the case in which the Constitutional Court first sets out guidelines for what would fall under its new jurisdiction — broader than before since a constitutional amendment came into force in August.
The Loureiro family hired Imvula Quality Protection to guard their house in Melrose, Johannesburg. Having experienced a traumatic robbery previously, the family was “extremely security conscious”.
The father, Licinio Loureiro, said part of the contract was not to let anyone onto the property without checking with the family, and that the guards could use the gate key only to change shifts and for nothing else.
But when a car with blue lights flashing approached the house and a man dressed as a policeman got out, the guard on duty at the time, July Mahlangu, opened the gate to see what the man wanted. A gun was pointed at him and he was tied up. The men, not policemen at all, proceeded to hold the children and staff hostage and empty the house of R11m worth of goods.
Advocate for the Loureiro family, Gilbert Marcus SC, said private companies played a crucial role in protecting people’s constitutional rights — the right to freedom and security of the person and the rights to property.
“We submit that holding Imvula liable for its conduct would be an appropriate and necessary vindication of the applicants’ constitutional rights,” Mr Marcus said in his written argument.
But advocate for Imvula, Willem van der Linde SC, said Mr Mahlangu had acted entirely reasonably and in fact had a duty to help the police. Even though the robbers turned out not to be policemen, he had been “duped good and proper” and the company could not be held liable.
Even in a society riddled with crime, it would be wrong to demand that the public should “second-guess a person who reasonably appears to be a policeman”, Mr van der Linde said.
In any event, Mr van der Linde said, this case should not even be at the Constitutional Court because there was no real constitutional issue to be decided. He said the Loureiro family was simply trying to get another bite at the cherry after losing its case at the Supreme Court of Appeal.
But in response to questions from Deputy Chief Justice Dikgang Moseneke and Justice Johan Froneman, Mr Marcus told the court that the Supreme Court of Appeal had “failed to have regard to the constitutional underpinnings” of the contract.
Mr Marcus agreed that not all contracts implicated constitutional rights but said “this one quintessentially does”.
Mr van der Linde said, however, that this case was a simple interpretation of a contract and did not implicate the constitution. He said Mr Marcus’s approach would mean that every contract could be interpreted to implicate the constitution.
Before a constitutional amendment, which came into force in August, the Constitutional Court was the highest appeal court in cases involving constitutional issues. In all other cases, the Supreme Court of Appeal was the last stop.
However, since August, the Constitutional Court can hear appeals in all cases that “raise an arguable point of law of general public importance”. What this phrase means has yet to be pronounced upon by the court.
Mr Marcus said in his argument that if the court decided there was no constitutional issue, the court should use its new, broader jurisdiction to decide the case. But Mr van der Linde said the case went to court before the amendment came into force and the case had to be determined under the old, narrower jurisdiction.
Judgment was reserved.
Published on BDLive on 7 November 2013