Kogana v SBV Services (Pty) Ltd

SBV Services (Pty) Ltd, a security company, delivered cash to automated teller machines on behalf of banks using specially protected vehicles with armed crews. On 28 June 2007, a vehicle with a crew of four, supervised by the appellant Mr Kogana, set out to deliver cash. While unloading cash at an ATM at a petrol service station at Bluewater Bay, they were robbed by an armed gang. The vehicle was carrying 23 bags containing R5,084,000. The robbery occurred while Mr Dunywa (the driver) was outside the vehicle attending to a diesel cap issue that Mr Kogana had called him to address, and while Mr Mdlalisa (the 'long gun man') was not in an optimal strategic position. The robbers, who appeared to have inside knowledge and had set a trap, overpowered the crew and stole the money. SBV sued Mr Kogana for the loss, initially alleging conspiracy (which was not pursued) and then negligent and wrongful performance of duties. The trial court in Port Elizabeth found in favour of SBV.

• Whether a causal link existed between the appellant's alleged breach of duties and the loss suffered by the respondent
• Whether the loss would probably not have occurred had the appellant properly performed his supervisory duties
• Whether the respondent discharged the onus of proving that the robbery would have been averted had the crew members been properly positioned

The appeal was upheld with costs. The order of the Eastern Cape High Court, Port Elizabeth was set aside and substituted with an order absolving the first defendant (Mr Kogana) from the instance with costs.

In a claim for damages arising from an employee's breach of duty (whether in contract or delict), the employer bears the onus of establishing a causal link between the breach and the loss suffered. The test for causation requires proof on a balance of probabilities that the loss would not have occurred had the employee properly performed his or her duties (in contract) or acted reasonably (in delict). Mere speculation, unsupported by sufficient evidence, is insufficient to establish causation. Where the evidence does not disclose the critical circumstances that would determine whether proper performance of duties would have averted the loss, the causal link is not established and the claim must fail.

The Court noted that by the time of the appeal, SBV had changed its legal basis from delict to contract, possibly in light of Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) and AB Ventures Ltd v Siemens Ltd 2011 (4) SA 614 (SCA), which may bar delictual claims in certain employment contexts. However, the Court found it unnecessary to determine whether the contractual claim was properly before it or whether employees can be liable in contract for damages for failure to fulfil employment duties, as the claim failed on causation in any event. The Court observed that expert opinion, while helpful, does not bind the court, which must evaluate whether such opinion is properly grounded. The Court also noted that Mr Kogana's supervisory duties required him to exercise judgment as to positioning of crew members, and there was no basis to assume he would have made the same decisions as the expert witness would have made.

This case is significant in South African law for clarifying the requirements of causation in claims against employees for breach of employment duties, whether framed in delict or contract. It demonstrates that even where an employee has breached duties, an employer must prove on a balance of probabilities that the loss would not have occurred but for the breach. The case establishes that speculation is insufficient to discharge this onus, and that expert opinion on causation must be properly grounded in the factual circumstances. It also illustrates the court's approach to evaluating causation in the context of armed robberies where sophisticated criminal planning is involved, recognizing that criminals may anticipate and plan around standard security measures.