NOT REPORTABLE 
CASE NO.: I 1497/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

	2010 November 15; 2010 November 17 Delivered on:    	2011 March 17

JUDGMENT

[2] The plaintiff's case is simply the following. In terms of a contract concluded between the parties, i.e. Exh. 'A', dated 26 May 2006 (annexed to the plaintiff's Particulars of Claim), for payment of an agreed amount of money, the defendant provided security-guard services at the plaintiff's business premises at 13 Holstein Street, Lafrenz Township, Windhoek ('the premises') from Monday to Friday as follows: that is, from 19H00 to 07H15 the following day ('night shift'). I find that the terms of the said written agreement in Exh. 'A' were amended to include the defendant providing security-guard services during weekends also. Thus, on the totality of the evidence, I also find that the weekend time slot was from 19H00 on Friday to 07H15 on the succeeding Monday (Sveekend shift'). According to Mr De Villiers, a driver of the defendant and a defence witness, the drop-off time of the guards at the premises varied between 07H15 and 08H30 and between 18H15 and 18H45 daily. This does not detract from the reasonable factual finding I have made above regarding the time slots of both shifts. I also find on the evidence that the contract was partly written (Exh. 'A') and partly oral.

[3] The claim resting on the contract is that the defendant breached the contract in that between 4-13 September 2006 two cable drums, containing copper cable rolls, disappeared from the premises and as a result the plaintiff suffered damages in the sum of N$53, 589.50 being the cost of the aforementioned drums. The alternative claim is delictual; that is to say, the plaintiff alleges that due to the negligence of the defendant's guards in the performance of their duty the drums disappeared from the premises. In this regard Mr Jensen, the owner of the plaintiff, testified that the drums disappeared from the premises during 4-13 September 2006, and the disappearance of the drums was discovered during stocktaking on 13 September 2006.

[4] The plaintiff called Mr Jensen and Mr Wrede, as plaintiff witnesses. They testified that the drums could not have been stolen and carried away from the premises during the daytime on a weekday when the defendant's guards were not on duty at the premises, but during a time when the defendant's guards were on nightshift or weekend shift duty.

[5] As respects the claim based on the allegation of breach of contract; the singlemost issue to determine is this: did the defendant breach the contract? This must in turn perforce be considered together with the issue as to whether the drums disappeared when the premises were under the charge of the defendant's security guards or when the defendants were not on security-guard duty either on night shift or weekend shift.

[6] The testimonies on either side of the suit concerning the crucial issue as to when the drums disappeared from the premises present mutually destructive versions. In that event,

[8] It is not disputed that the cable drums were extremely heavy and none of them can be lifted and thrown over the wall by personal human effort. The small drum weighed 50.50 kg and the bigger one 387 kg. Indeed they are loaded unto trucks by the use of a forklift which the plaintiff occasionally borrowed from a neighbouring business house. In this regard it was the defendant's case that some employees of the plaintiff could 'have used a forklift to lift the drums over the wall'. As respects this; Mr Bugan, counsel for the defendant, made a spirited submission that Mr Wrede confirmed in his cross-examination-evidence that the possibility that such was done existed. Mr Prinsloo, the owner of the defendant also testified. In his evidence, Prinsloo testified that as he saw it, the drums disappeared from the premises in the daytime on a weekday, that is, when the guards were not on duty. Thus, for Mr Bugan, Wrede's testimony supports Mr Prinsloo's testimony that the drums disappeared from the premises during the daytime through the use of a forklift or a vehicle which 'they', (i.e. the thieves) drove through the gates of the premises and once out of the premises, they (the thieves) 'threw it over the wall into the Trustco premises'. I do not share Mr Bugan's enthusiasm: Mr Wrede's terse and forthright answer was, 'It is possible, Yes'. Mr Wrede did not say it was certain or probable.

[10] Additionally, a forklift is not a non-motorized vehicular catapult capable of hurling the heavy drums over the wall of the premises with the height of 2.4 m in a split second without anybody on the premises noticing the action - if it was done during the hours of daytime on a weekday when the defendant's guards were not on duty. The forklift is a motorized vehicular truck. Someone would have to climb into the driver's seat, start the ignition, engage the appropriate gear, drive the forklift to where the drums lay on the ground, lift them - unto the forklift, drive the forklift for a distance and drop the drums over the wall while the forklift is on the premises or drive the forklift with its load of drums through the gates of the premises; and nobody in the open space of the premises noticed the motions and manoeuvres described. To accept that that is how the drums were carried away from the premises during the daytime on a weekday when the defendant's guards were not on duty is to accept that some legal practitioners do not drive or walk to the Court; they fly because they want to get to the Court very quickly.

[11] The other scenario emerging from the evidence is that the cable drums were removed from the premises by unrolling the copper cable rolls and thereafter cutting them up into pieces or pulling the unrolled copper cable rolls over the wall. Such action will not take less than two hours to complete. In this regard, I accept the testimony of Mr Stynberg, a defence witness, that one drum casings and pieces of casings and chips were found at the Trustco yard that adjoins the premises. But his evidence does not add much to the contest.

[14] For all the aforegoing and the crucial factual finding I have made previously, I have no difficulty in coming to the inevitable and reasonable conclusion that the said breach is a material breach of an essential term of the contract and therefore the plaintiff as the innocent party was entitled to cancel the contract and sue for damages, as it has done in the instant action. (See Christie, ibid. pp. 538-542 and the cases there cited.) Accordingly, I hold that the plaintiff has established on a preponderance of probabilities that the breach of the said contract caused the damages suffered by the plaintiff and the defendant is liable. It follows that in my judgment, the plaintiff succeeds in its claim in contract. Having so concluded, it serves no purpose to consider the plaintiff's alternative claim based on delict.

[15]   Whereupon, I make the following orders:
(1) Judgment for the plaintiff in the amount of N$53, 589.50, plus interest thereon at the rate of 20% per annum, calculated from the date of issuance of the summons, being 13 May 2008.
(2) The defendant must pay the plaintiff its costs.

PARKER J
COUNSEL ON BEHALF OF THE PLAINTIFF:
Mr S Horn

COUNSEL ON BEHALF OF THE DEFENDANT:
Mr D Bugan