South Africa: The Legal Responsibilities Of Private Security Companies In South Africa: Duty Of Care And "Reasonable" Security Standards

Loureiro & Others v Imvula Quality Protection (Pty) Ltd [2011] JOL 27991 (GSJ)

The plaintiffs contracted with a private security company to provide them with a 24 hour Grade D armed security guard. This guard would be stationed in a guardroom at the entrance to the plaintiffs' premises.

The security company had been instructed by the plaintiffs to ensure that no one would be permitted onto the premises without the express permission of the occupants of the house or the staff. The security guard could not control the main gate, and was only allowed to open the pedestrian gate for visitors with the family's permission.

While one of the security guards employed by the security company was on duty, armed intruders (disguised as police officers) gained access to the plaintiffs' house, robbed the family of their belongings and held them captive at gunpoint for some time (the incident).

As a result of the incident, plaintiffs instituted action against the security company for:

• contractual damages resulting from its breach of the agreement and/or negligence with regard to such agreement; and
• delictual damages from its negligent failure to meet the duty of care owing to them and the standard of security services required of security service providers.

The security guard on duty did not ask the armed robbers for identification because he assumed that they were police officers. He opened the pedestrian gate in order to find out what they wanted. He was then confronted with a gun and held captive inside the house with the plaintiffs and their family.

It emerged that the security guard on duty at the time of the incident was an unarmed, Grade A security guard. The security company had not provided him with a means of contacting the security company in the event of him being under duress and requiring assistance.

From the evidence, it appears that the security guard was not properly instructed by the security company. He was not informed that he should not let anyone enter the property without authorisation.

On the strength of previous dicta of the Constitutional Court,¹ the South Gauteng High Court held that society has a significant interest in the control and training of the private security force. There is a need for regulation of the private security industry as well adherence by that industry to appropriate standards. The risk to the public if such standards are not maintained and regulated is considerable, if not life-threatening.

In this regard, security personnel must inter alia:

• have training in the use of weaponry;
• be licensed to carry firearms;
• not be convicted felons; and
• be registered as security officers.

Furthermore, the South Gauteng High Court held that:

• the private security industry must be diligent with regard the compulsory training and grading of security personnel;
• security companies must provide their security personnel with the particular instructions related to each of their postings, and such instructions, whether written or oral, would necessarily have to be clear, understandable and accessible;
• clear lines of communication are required between security personnel and the security companies, especially in cases of emergency, and security companies must provide the means to enable such communication; and
• security personnel (and Grade D security officers in particular) are expected to have been trained in the nature of the criminal trends in the areas where they have been posted as well as the appropriate security responses thereto.

More specifically, it was held that security guards must, at a minimum, have the following attributes and competencies:

• honesty, integrity and loyalty to both their employers and the persons and property being guarded by them;
• ability to receive instruction and act in accordance therewith;
• wakefulness and alertness during the hours of a shift;
• mindfulness of the responsibilities of guarding the post which entails watchfulness, wariness and lack of gullibility; and
• visibility, physical mobility and the ability to respond appropriately.

Finally, security companies are required to take all reasonable steps to ensure security personnel receive the appropriate recruitment and training and that they operate in an enabling working environment.

In applying these legal principles to the facts, the court found that the security company in this case was in breach of the agreement with the plaintiffs in a number of respects, including the following:

• the security guard on duty was unarmed and was not a Grade D security guard; and
• the security company had not provided the security guard with clear and comprehensive instructions to enable him to comply with the terms of the agreement.

The court held that the security company failed to take reasonably appropriate steps and had been negligent. It had not met the standards required of a security company and the duty of care which it had assumed. This conclusion was based on the court's view that a reasonable security company would reasonably have foreseen the following possibilities:

• that unlawful intruders might attempt to gain access to the premises and that such intruders might use disguise and guile to facilitate such unlawful access (especially given the media publicity around the "Blue Light" gang which posed as the South African Police Services);
• that clear, understandable or accessible instructions had to be given and remain available from the security company to the employee; and
• that security guards require means to contact a supervisor for guidance or backup.

The court also held that the security guard on duty had failed to act reasonably in the circumstances. He had, amongst other things, not asked for identification to verify that they were indeed police officers and he had not attempted to contact the main house to authorise their entry.

Ultimately, the security company was found liable for both contractual and delictual damages suffered by the plaintiffs as a result of the incident, as well as legal costs.

This judgment by Satchwell J underlines the tendency of the courts to take into account the socio-economic environment as well as the interests and convictions of the broader South African community when deciding whether certain conduct attracts delictual liability.

South Africa is a country which is burdened with high incidences of crime. One may argue that society, to some extent at least, has lost faith in the ability of the police to protect them effectively and that the private security industry is being asked to fill this gap. It is therefore unsurprising that closer scrutiny has been placed on the private security industry and the conduct of its members.

Matters are further compounded by the reality that private security personnel carry an air of authority vis-à-vis the public and this means that society at large is vulnerable to abuse by them. Accordingly, security companies bear an even greater responsibility to train, instruct, control and discipline their employees appropriately.

It is of utmost importance that security companies remain abreast of criminal trends and other social developments in their areas of operation, as this will ultimately have an impact on their legal obligations to clients and the "reasonableness" of their actions in providing security services.

Footnote

1. Union of Refugee & Others v Director: Private Industry Regulatory Authority and Others 2007 (4) SA 395 (CC) and Probe Security CC v The Security Officers Board (case 98/13942, 17 August 1998 (unreported))

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.