Estate Living Magazine Connection - Issue 43 July 2019 | Page 50

C O M M U N I T Y
L I V I N G
THE
SMOKING
GUN
If you’re attacked in your home on a residential estate,
who’s responsible for your protection? The answer –
and the legal technicalities around private security and
personal firearms – might surprise you.
Spare a thought for Mr and Mrs Smith*. One night in 2014, three
robbers broke into their home in an upmarket Gauteng estate. Mr
Smith was shot in the abdomen, and his family were threatened
with pangas. Mrs Smith was hit over the head with a gun during the
attack. It was every estate resident’s worst nightmare. After all, one
of the big selling points of estates is the promise that you’re safer
there than you’d be if you stayed in the suburbs.
The Smiths were angry, and they sued – bringing action against both
the homeowners association and the estate’s security company,
claiming that they were wrongful in their duty of care, and were
negligent as they failed to take measures to ensure the safety of
residents.
One of the rare benefits of living in a crime-troubled country is that
you have a fair amount of legal precedent to draw on. The Smiths
and their attorneys cited the infamous Loureiro case, in which a
family sued their private security company after one of their guards
opened their pedestrian gate, allowing a gang of robbers (dressed
as cops) access to the property. The Loureiros were attacked,
and millions of rands’ worth of goods were stolen. The Loureiros
took the security company to the High Court, and won. The
judgement was overturned in the Supreme Court of Appeal, but
the Constitutional Court restored the original judgement.
According to the Constitutional Court ruling, ‘The contract
between Mr Loureiro and the security company was breached
when the guard at the gate gave the robbers access contrary to
an express oral agreement not to allow anyone onto the premises
without prior authorisation.
The security company is vicariously liable in delict because its
employee acted wrongfully by opening a gate to robbers, and
negligently by failing to foresee the reasonable possibility of harm,
and to take the steps a reasonable person in his position would
have taken to guard against it.’ So the Smiths would have been
reasonably confident of a ruling in their favour.