J PAAR & COMPANY (PVT) LTD v FAWCETT SECURITY ORGANISATION (BULAWAYO) (PVT) LTD 1986 (2) ZLR 255 (S)

Flynote

Delict — duty of care — security firm — whether owes duty of care to third party on premises being guarded in accordance with contract between guards and owner of premises — contractual duty — breach of — whether gives rise to cause of action in delict.

Headnote

The respondent, a security organisation, contracted with an oil company to guard its premises. The appellant, a transport company, had on the premises as part of its contract with the oil company certain vehicles. One of these vehicles was stolen by an employee of the oil company and destroyed. Appellant instituted action in delict against respondent claiming damages in delict for the loss of the vehicle alleging the negligent breach by the respondent of a duty of care owed by it to the appellant to prevent the theft of its vehicle.

Held, that the respondent's guard was not negligent in failing to prevent the theft of the vehicle.

Held, further, that Obiter: negligent infringement of a contractual obligation may give rise to delictual liability even where there would have been no initial obligation to act but for the contract.

Held, further, that Obiter: a duty of care arises where there is sufficient proximity of relationship between the parties concerned. Such proximity did not exist between the parties in this case.