REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: HC-MD-CIV-ACT-DEL-2018/02888

In the matter between:

NAMIBIA PROTECTION SERVICES (PROPRIETARY) LIMITED PLAINTIFF

and

MICHAEL HUMPHRIES DEFENDANT

Neutral Citation: Namibia Protection Services (Proprietary) Limited v Humphries

(HC-MD-CIV-ACT-DEL-2018/02888) [2019] NAHCMD 509 (20

November 2019)

CORAM: SIBEYA, AJ

Heard: 16 - 19, 29 - 30 July; 09, 12, 19 August; 16 September; 01, 16 October 2019.

Delivered: 20 November 2019

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Flynote: Contract Law- Law of Delict- Liability from employment contract- Fiduciary

Duty- Non-compliance with established procedures- Test for absolution from the

instance- Burden of proof- Evidential burden- Failure to cross-examine opposing

witnesses- Damages claimed for negligence of employee.

Summary: The plaintiff claims damages from the defendant, which were suffered as

a result of the conduct of the defendant, who was employed by the plaintiff when the

damage occurred. The plaintiff based its claim on the fact that the defendant was

employed in a senior position, however he breached his duties and obligations towards

the plaintiff and is therefore liable because a fiduciary duty existed as a result of the

employment relationship. The defendant denied being liable to the plaintiff for any

damages suffered by the plaintiff as he merely performed his duties in good faith.

Held that, he who alleges must prove the allegation on a balance of probabilities. The

plaintiff bears the evidential burden to establish a successful claim.

Held further that, at the consideration of an application for absolution from the instance,

the application should not be granted where, at the very least, there is potential to find in

favour of the plaintiff.

Held further that, although the claim originated from an employment contract, it is

delictual in nature and thus the principles of delict apply.

Held further that, failure to cross-examine an opposing witness on a material aspect is

indicative of acceptance of such evidence.

Held further that, a witness’s sudden change of evidence on a particular matter without

a satisfactory explanation, can affect his or her credibility.

Held further that, an employee owes a fiduciary duty towards the employer and that

breach of such fiduciary duty may result in liability for damages. There must however be

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a close causal link established between the wrongful conduct and the damages

suffered.

ORDER

______________________________________________________________________

1. The plaintiff’s main claim is upheld.

2. The alternative claim is dismissed.

3. The defendant is ordered to pay an amount of N$282 240.45 as damages

suffered by the plaintiff.

4. The said defendant is ordered to pay interest on the aforesaid sum at the rate of

20% per annum from 8 August 2017 to the date of final payment.

5. The said defendant is ordered to pay the costs of suit consequent upon the

employment of one instructing and one instructed counsel.

6. The matter is removed from the roll and regarded as finalized.

______________________________________________________________________

JUDGMENT

______________________________________________________________________

SIBEYA A J:

The context

[1] At the centre of this action is the question as to what extent does an employee

owe a fiduciary duty to his employer and what consequential remedies are available to

the employer in the event of the employee’s breach of such duty.

[2] A cash in transit box loaded with cash which was collected by the employee (‘the

defendant’) for banking purpose during the performance of his employment duties with

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the employer (‘the plaintiff’) was not banked in time and the cash ended up being stolen.

Resultantly the plaintiff dismissed the defendant and subsequently instituted action

against the defendant for damages suffered as a consequence of money being stolen.

The parties

[3] The plaintiff is Namibia Protection Services (Proprietary) Limited, a private

company with limited liability registered and incorporated in accordance with the

applicable company laws of the Republic of Namibia. The plaintiff is in the business of

rendering security services.

[4] The defendant is Michael Humphries, a major male, formerly employed by the

plaintiff as the southern area manager.

Summary of pleadings

[5] The matter hails from the year 2017, when the plaintiff represented by its

authorized representative and chief executive officer, a certain Mr Jacobus Hendrik

Visser, entered into a written employment agreement and a written cash in transit

procedure agreement (‘CIT’) with the defendant. These agreements were tendered as

exhibits in court and form part of the record.

[6] The relevant part of these agreements is that the defendant was employed to,

inter alia, render CIT services to the plaintiff’s clients located outside Keetmanshoop,

which includes Namibia Wildlife Resorts, /Ai-Ais Hotsprings Spa Resort (herein after

referred to as ‘/Ai-/Ais’).

[7] The plaintiff in its particulars of claim alleges that the said agreements included

the following provisions that:

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‘4. The material express, alternatively tacit, further in the alternative implied terms of the

agreement are as follows:

4.1 The plaintiff employs the defendant where he shall serve the plaintiff as an area

manager of the southern region of Namibia based Keetmanshoop.

4.2 The defendant, in his position as area manager, must also render CIT services to the

plaintiff’s clients located outside Keetmanshoop, which includes Namibia Wildlife Resorts, /Ai-

Ais Hotsprings Spa Resort.

4.3. During the course of his employment and during any CIT operation, the defendant is

obliged to comply with the CIT procedures which includes:

4.3.1. Hourly updates with the Keetmanshoop regional office and control room during a CIT

operation.

4.3.2 No CIT pick-up may be carried out in the absence of at least 2 armed guards in the

employ of the plaintiff.

4.3.3 No CIT pick-up may be delivered to the relevant financial institution in the absence of at

least 2 armed guards in the employ of the plaintiff.

4.3.4 No other persons, except those in the employ of the plaintiff, designated and authorised

to escort and accompany the CIT vehicle, are allowed inside the CIT vehicle.

4.3.5 All CIT pick-ups by the defendant, on behalf of the plaintiff and within the scope of his

employment, must be escorted and delivered, on the same day, to the relevant financial

institution.

4.3.6 Notwithstanding the express, alternatively tacit, further in the alternative, implied term of

the Agreement that all CIT pickups must be delivered on the same day to the concerned

financial institution, in the event a CIT pick-up cannot be delivered, for any reason

whatsoever, on the same day, the defendant must:

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4.3.6.1 Immediately inform the general manager of the plaintiff thereof;

4.3.6.2 Inform the plaintiff’s Keetmanshoop regional office thereof;

4.3.6.3 In the event a CIT pick-up must be stored at the plaintiff’s offices’, overnight, the

defendant must ensure that:

4.3.6.3.1 A minimum of 2 armed guards, in the employ of the plaintiff, are stationed at the

concerned regional office for the duration of the storage until such time the CIT pick-

up is delivered to the concerned financial institution;

4.3.6.3.2 All security and alarm systems of the regional office are switched on and in good

working order;

4.3.6.3.3 Ensure the CIT pick up is safely stored in the regional office’s vault.

4.3.6.3.4 That all reasonable measures are taken to ensure the safety and secured storage of

the CIT pick-up until the defendant can deliver the CIT pick-up at the relevant

financial institution as soon as reasonably possible.’

[8] It is alleged that on 04 August 2017, the defendant conducted a CIT operation

and collected an amount of N$282 420.45 (Two Hundred and Eight-Two Thousand Four

Hundred and Twenty and Forty-Five Cents Namibian Dollars), (hereinafter referred to

as ‘the pick-up’).The said ‘pick-up’ was subsequently stolen from the premises of the

plaintiff.

[9] The plaintiff claims that the defendant intentionally and maliciously, or

alternatively, gross negligently caused the plaintiff to suffer loss as the pick-up was not

banked and or handled as per the prescribed CIT procedures. In the alternative claim

the plaintiff further alleges that the pick-up was stolen by the defendant on 08 August

2017.

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[10] The plaintiff claimed relief in respect of both claims in the following terms against

the defendant, namely payment in the amount of N$282 420.45 plus interest, and cost

of suit on a scale of attorney and own client.

[11] The defendant disputed the plaintiff’s claims. For the sake of brevity I will not set

out his plea, save to state that the essence of his defence is that he reasonably carried

out his duties and that the rule regarding same day delivery was not cast in stone and

where it was impossible to bank the pick up on collection day then it could be kept in the

safe at the premises of the plaintiff to be banked on the subsequent banking day.

[12] The parties filed a signed joint pre-trial report dated 12 April 2019 the contents of

which were adopted in the pre-trial order of 25 June 2019. The material part of the pre-

trial order is the following:

‘1 ALL ISSUES OF FACT IN DISPUTE TO BE RESOLVED DURING THE TRIAL

1.1. All cash in transit ("CIT") pick-ups by the defendant, on behalf of the plaintiff and within

the scope of his employment, must be escorted and delivered, on the same day, to the

relevant financial institution.

1.2. The defendant intentionally and maliciously, in the alternative, gross negligently

breached the terms of the Agreement as follows:

1.2.1 He failed and/or neglected to engage with the Keetmanshoop regional office,

providing hourly status updates of the CIT pick-up.

1.2.2 He failed and/or neglected take all reasonably steps to deliver the CIT pick-up to

the relevant financial institution on the same day by driving to Noordoewer to

pick up his girlfriend to provide her with transportation to Keetmanshoop and as

direct consequence thereof, delaying the CIT operation with approximately three

(3) hours.

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1.2.3 He failed and/or neglected to inform the general manager of the plaintiff that he

was unable to deliver the CIT pick-up to the relevant financial institution on the

same day.

1.2.4 He failed and/or neglected to ensure that one (1) armed guard, in the employ of

the plaintiff or at all, are stationed at the Keetmanshoop regional office for the

storage duration of the CIT pick-up.

1.2.5 He failed and/or neglected to ensure that all security and alarm systems of the

Keetmanshoop regional office are switched on and in good working order.

1.2.6 He failed and/or neglected to take all reasonable measures to ensure the safety

and secured storage of the CIT pick-up in the Keetmanshoop regionals' office

concerned vault / strong room.

1.2.7 He failed and/or neglected to deliver the CIT pick-up at the relevant financial

institution as soon as reasonably possible.

1.3. That due to the defendant's intentional and malicious, in the alternative, gross negligent

breach of the terms of the Agreement, the plaintiff suffered damages in the amount of

282, 240.45 NAD being the amount the plaintiff was held liable to refund Namibian

Wildlife /Ai-/Ais Hotsprings Spa Resort. A true copy of the proof of payment comprises

annexures "NPS 2 A – C to the plaintiff's particulars of claim.

1.4. The amount of 282, 240.45 NAD being paid through the plaintiffs' insurance brokers

(National Insurance Brokers ("NIB")) held under the plaintiff's contingency policy fully

described as Alexander Forbes Alternative Risk Transfer (Policy Number: 20260). A

true copy of the afore-pleaded contingency policy comprises annexure "NPS 3" to the

plaintiff's particulars of claim.

1.5. That a fiduciary relationship existed between the parties.

1.6. That the defendant was under a duty and obligation to ensure that the CIT protocol and

procedures were followed to ensure the safeguard of the CIT pick-up during

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transportation, storage up until the same was delivered to the relevant financial

institution.

1.7. That the responsibility ultimately rests with the defendant to ensure CIT protocol is

followed and the safeguard of the CIT pick-up until delivery thereof to the financial

institution.

1.8. That the defendant instructed Ms. Marita Minnies to deposit the CIT pick-up on the 7

August 2017.

1.9. That Ms. Marita Minnies indicated that she could not bank the CIT pick-up because the

banks were closed.

1.10. Whether it was acceptable for the defendant not to place the CIT pick-up in the strong-

room / vault but in his offices' safe.

1.11. Whether it was within the defendant's duties to ensure that the alarm system was in

good working order and to have the same repaired when necessary.

1.12. Whether the defendant made numerous reports to the plaintiff that the alarm system

was not working.

1.13. Whether there were fire-arms available to furnish a guard with the same to safeguard

the CIT pick-up during storage.

1.14. Whether there were any guards available to be stationed at the plaintiff's premises by

the defendant until the CIT pick-up has been delivered to the relevant financial

institution.

1.15. That the defendant travelled to Noordoewer to conduct guard rotation.

2. IN THE ALTERNATIVE TO CLAIM 1, IN THE EVENT THIS HONOURABLE COURT FINDS THAT THE DEFENDANT DID NOT BREACH THE AGREEMENT INTENTIONALLY AND/OR MALICIOUSLY AND/OR IN THE ALTERNATIVE, GROSS NEGLIGENTLY, AND/OR THAT THE DEFENDANT IS NOT TO BE HELD LIABLE FOR THE PLAINTIFF'S DAMAGES:

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2.1. That on or around the 8 August 2017 the defendant, during the currency of his

employment, stole the amount of 282, 240.45 NAD from the plaintiff.

2.2. As a direct result of the defendants' actions the plaintiff suffered damages in the amount

of 282, 240.45 NAD being the amount the plaintiff was held liable to refund Namibian

Wildlife /Ai-/Ais Hotsprings Spa Resort.

3. ISSUES OF LAW IN DISPUTE TO BE RESOLVED DURING THE TRIAL

3.1. That the defendant is liable and indebted to the plaintiff in the amount of 282, 240.45

NAD which amount is due, owing and payable by the defendant to the plaintiff.

3.2. That the plaintiff suffered damages in the amount of 282, 240.45 NAD.

4. ISSUES NOT IN DISPUTE

4.1. That on 29 May 2017 and at Windhoek, Namibia, the plaintiff and the defendant,

entered into a written employment agreement and a written cash in transit ("CIT")

procedure agreement. That a true copy of the Agreement comprises annexure "NPS1"

to the plaintiff's particulars of claim.

4.2. That an employee/employer relationship existed between the plaintiff and the

defendant.

4.3. That the material expresses, alternatively tacit, further in the alternative implied terms of

the Agreement are as follows:

4.3.1. The plaintiff employs the defendant where he shall serve the plaintiff as an area

manager of the southern region of Namibia based in Keetmanshoop.

4.3.2. The defendant, in his position as area manager, must also render CIT services to the

plaintiff's clients located outside Keetmanshoop, of whom, specifically includes the

Namibian Wildlife Resorts, /Ai-/Ais Hotsprings Spa Resort.

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4.3.3. During the course of his employment and during any CIT operation, the defendant is

obliged to comply with the CIT procedures which includes:

4.3.3.1. Hourly updates with the Keetmanshoop regional office and control room during a

CIT operation.

4.3.3.2. No CIT pick-up may be carried out in the absence of at least 2 armed guards in the

employ of the plaintiff.

4.3.3.3. No CIT pick-up may be delivered to the relevant financial institution in the absence

of at least 2 armed guards in the employ of the plaintiff.

4.3.3.4. No other persons, except those in the employ of the plaintiff, designated and

authorised to escort and accompany the CIT vehicle, are allowed inside the CIT

vehicle.

4.3.4. In the event a CIT pick-up cannot be delivered, for any reason whatsoever, on the

same day, the defendant must:

4.3.4.1 Immediately inform the general manager of the plaintiff thereof;

4.3.4.2 Inform the plaintiff's Keetmanshoop regional office thereof;

4.3.5. In the event a CIT pick-up must be stored at the plaintiff's offices', overnight, the

defendant must ensure that:

4.3.5.1. A minimum of 1 armed guard, in the employ of the plaintiff, are stationed at, are

stationed at the concerned regional office for the duration of the storage until such

time the CIT pick-up is delivered to the concerned financial institution;

4.3.5.2. All security and alarm systems of the regional office are switched on and in good

working order;

4.3.5.3. Ensure the CIT pick up is safely stored in the regional office's safe.

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4.3.5.4. That all reasonable measures are taken to ensure the safety and secured storage

of the CIT pick-up until the defendant can deliver the CIT pick-up at the relevant

financial institution as soon as reasonably possible.

4.4. On the 4 August 2017, the defendant, during the currency of his employment,

conducted a CIT operation and collected an amount of 282, 420.45 NAD ("the pick-up")

from Namibian Wildlife /Ai-/Ais Hotsprings Spa Resort.

4.5. That the defendant provided access and transported an un-authorised private individual

with the plaintiff's CIT vehicle to Keetmanshoop.

4.6. That the defendant travelled to Noordoewer from Tech Mine which is 35 km from Tech

Mine.

4.7. That the defendant was stationed in Noordoewer from 13:28. pm until he left

Noordoewer at 15.21 pm.

4.8. That the defendant made a stop near B1, 5.1km West of Vastrap (padstal) at 16:35 until

he left at 16:46.

4.9. That the defendant arrived in Keetmanshoop at 18:28 pm.

4.10. On or around 8 August 2017, the Ais-Ais CIT pick-up / money box was stolen from the

Keetmanshoop regional office totaling in the amount of 282, 240.45 NAD.’

The plaintiff’s evidence

Mr Salmon Jacobus Etsebeth

[13] Mr Etsebeth, the general manager of the plaintiff, testified that the defendant

was employed in the most senior position as area manager in the southern region and

that he also rendered ‘CIT’ services to the plaintiff’s clients. In fact, by virtue of his

position, the defendant was the head of the ‘CIT’ operations in the southern region.

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[14] He further testified that the defendant knew the CIT procedures, as these were

explained to him at his job interview, during the conclusion of his employment

agreement, and during a management meeting conducted by the witness. It was his

testimony that the defendant was expected to follow CIT procedures as well as ensure

that those employed under his authority strictly complied with the said procedures.

[15] He further testified on the CIT operations and procedures as alluded to above,

thus same will not be repeated herein. It was further his testimony that part of the

requirements was that the pick-ups collected should be banked on the same day as the

clients are indemnified from carrying any risk of loss and storage costs where the pick-

up is not banked on the same day. Clients refuse to be pay the charges for overnight

pick-ups.

[16] He further testified that on Friday 04 August 2017, the defendant and two

reliever guards (Mr Willem Cloete and Mr Rodney Swartbooi) left Keetmanshoop at

around 06h00 for Hobas Camp, /Ai-/Ais and Tech Mine to rotate guards and to conduct

CIT pick-ups from Hobas and /Ai-/Ais, to be banked the same day.

[17] It was further his testimony that at Hobas, the defendant was informed that their

system was offline and that they were unable to give him the money for banking on that

day. The defendant then left Hobas and drove to /Ai-/Ais, where he collected a pick-up.

Thereafter, the defendant proceeded to Tech Mine and rotated the guards stationed

there, being Mr Revival Goagoseb and Mr Abraham Kaffer, with the two reliever guards

that he took along.

[18] He testified that the defendant concluded with all the CIT pick-ups and the

rotation of guards between 10h40 and 11h23. The defendant then broke protocol by

making an unsanctioned trip to Noordoewer, which is located approximately 35

Kilometres south of Tech Mine. This trip took about 21 minutes.

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[19] He further testified that in Noordoewer, the defendant spent 1 hour 53 minutes

waiting for his fiancé, to give her a lift back to keetmanshoop. It was his testimony that

this conduct was irregular and extremely worrisome, as the transportation of

unauthorized private persons in the plaintiff’s vehicles, especially a designated CIT

vehicle storing cash, is prohibited as clearly indicated in the CIT procedures. The

defendant was aware that the said conduct is prohibited.

[20] He testified that the defendant only left Noordoewer at around 14h21 for

Keetmanshoop where he arrived at 17h28, while the banks close at 15h30. The

defendant then proceeded to drop off the two guards at their residences and then drove

to the plaintiff’s office, where he stored the pick-up in his office safe. It was his testimony

that the defendant knew that in the event that a pick-up could not be banked the same

day, it should be stored in the office’s vault/strong room. He testified that besides having

this knowledge, the defendant neglected procedure and stored the pick-up in the safe in

his office. The safe does not offer the same protection and resistance to an attempted

burglary. He testified that the vault/strong room was installed for overnight storage of

cash, valuable items and weapons, as it is reinforced with a heavy-duty steel door, a

concrete surface and seismic detectors in the roofs which alerts the control room of any

activity.

[21] He testified that the safe stood free and did not offer any safety features to

make it protective for storing large amounts of cash, as it was mainly used to store

office petty cash.

[22] It was further his testimony that the defendant failed to inform him and the

Keetmanshoop office that there was a pick-up which couldn’t be banked on the same

day and had to be stored at the office. The defendant was untruthful when he informed

a certain Ms Marita Minnies that there were no pick-ups as the systems at the Hobas

Camp and Ai-Ais were down.

[23] He testified that the defendant was negligent in that after deciding to store the

pick-up at the office overnight, he failed to ensure that he placed at least one-armed

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guard at the office and he failed to make routine check-ups at the office during night

time. The defendant was also negligent in that, on Saturday 05 August 2017, Ms

Minnies and Mr Moses Jossop conducted CIT pick-ups and banked the money,

however, the defendant failed to seize this opportunity to instruct them to bank the pick-

up which he had stored in his office’s safe. This pick-up therefore remained in the

unguarded office for the entire weekend.

[24] On Monday morning, 07 August 2017, around 09h19 Ms Minnies forwarded a

weekly management report regarding all the southern branches to the head office and

the defendant was carbon copied in the report. This report included the information that

“….Hobas and Ais-Ais didn’t had any banking due [to] their system had a problem and

Humphries return[ed] without any deposits on Friday.” It was his testimony that the

defendant received and read this report and said nothing to correct the statement that

there were no pick-ups done on Friday 04 August 2017.

[25] He testified that knowledge of the pick-up only came about when at around

12h00, the Monday, Ms Minnies opened the safe in the defendant’s office, in order to

access money from the petty cash, and noticed a blue sealed and locked CIT pick-up.

He testified that when Ms Minnies asked the defendant who the pick-up belonged to, an

argument arose between them, however besides this occurrence, the pick-up remained

at the unguarded office on the day and night of Monday 07 August 2019.

[26] It was further his testimony that on Tuesday, 08 August 2019 and around

06h50, he received a call from the defendant informing him that there had been a break

in at the office and specifically the defendant’s office. He enquired from the defendant

as to whether there was any money kept at the office which could have been stolen and

the defendant responded that: “GM I am not sure, I will have to find out from Marita”,

this was while he knew that he had stored the Ai-Ais pick-up in his office.

[27] He testified that he informed the Chief Executive Officer of NPS of the break-in,

who instructed him to travel to Keetmanshoop to conduct an investigation into the

incident. He testified that upon his arrival at the office in Keetmanshoop, he observed

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that the defendant seemed nervous and avoided making eye contact with him. He

proceeded to question the defendant about the stolen pick-up and why he had

mentioned earlier that he had no knowledge of money in the office and that he would

have to ask Ms Minnies.

[28] He testified that after conducting his investigation he concluded that the break

in appeared to have been from inside the defendant’s office. He reached this conclusion

because most of the broken glass from the window was found on the outside of the

building, the window blinds were bended towards the outside on the window. He further

found that there were two sealed containers however only the Ai-Ais box was neatly

opened and the money taken from it. The lock that was attached to the Ai-Ais box was

also not found.

[29] It was further his conclusion that the defendant broke protocol when he made

an unauthorized trip to Noordoewer which resulted in delaying the CIT operation with

three hours and thirty minutes. That, as a result of his intentional delay, the banks

closed and the pick-up could not be banked on the same day. The defendant failed to

ensure that the office was properly guarded and that the alarm system was in good

working order after he stored the pick-up at the office. The defendant further failed to

ensure that the money was banked as soon as practically possible.

[30] He testified that due to the defendant’s negligence, the plaintiff suffered

damage to its reputation, as it created the perception that the plaintiff could not be

trusted to carry out its duties. The plaintiff further suffered damages as it had to

reimburse Namibia Wildlife Resort for the stolen money which was in the plaintiff’s care

and custody.

[31] It was put to him in cross examination that the alarm system was not in working

condition and that the vault could not open, these averments were denied. It was further

put to him that the banking on the same day rule was not cast in stone. He explained

that where it was impossible to bank the pick up on the same day, then he and the client

should be informed of such failure to bank the money.

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[32] It was put to Mr Estebeth that the defendant’s route to Noordoewer was

authorized by the plaintiff, which He disputed and testified that the only authorized route

was from Keetmanshoop to Hobas, Hobas to Ai-Ais and Ai-Ais to Tech mine to change

guards and return back to Keetmanshoop. Noordoewer was never authorized. Following

the response provided, the defendant changed and stated that the reason for

proceeding from Tech mine to Noordoewer was to get refreshments for the rotated

guards and to put fuel in the vehicle. Mr Estebeth emphasized that the defendant was

not authorized to drive to Noordoewer and that delayed the banking of the pick-up.

[33] It was further put him that the defendant gave a lift to his fiancé from

Noordoewer to Keetmanshoop. To this he repeated that the defendant was not

authorized to load his fiancé on the CIT vehicle.

[34] It was further put to him that he is not available over the mobile phone after

17:00, which assertion was disputed. It was also put to him that the system was off at

Hobas and as a result there was no pick-up from there, whereby the Hobas position

was confirmed but the defendant did not inform anyone that he made a pick-up at Ai-

Ais.

[35] A question was posed to him that on Monday, 07 August 2017 Ms Minnies

removed the pick-up from the safe to which he said that indeed Ms Minnies (who was

second in charge) removed the pick up from the safe after she discovered same while

searching for petty cash to buy toilet paper and she asked the defendant to bank the

money.

[36] It was put to him that during the telephone call of the morning of Tuesday, 08

August 2018, when the defendant was asked as to whether there was money in office

broken into he respondent that he was not sure as he was under the impression that the

money in the safe was already banked. This was disputed as it was contrary to the

content of the email of 07 August 2019 at 09:19AM received from Ms Minnies where it

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was recorded that the defendant visited Ai-Ais on Friday but there was no pick-up due

to their system failure.1

Mr Abraham Kaffer

[37] The plaintiff then called Mr Abraham Kaffer, a guard employed by the plaintiff,

who testified that on Friday, 04 August 2017, just before 12h00, the defendant picked

him and Mr Revival Goagoseb from Tech Mine and drove to Noordoewer. The

defendant dropped Mr Kaffer and Mr Goagoseb at Engen Service Station and informed

them that he was going to check for his fiancé at the buses and he was gone for an

hour and a half. His fiancé arrived and the defendant on his own volition decided to

purchase two coca cola soft drinks for Mr Kaffer and Mr Goagoseb.

[38] He testified further that while in Noordoewer the CIT vehicle was not fueled. He

also testified that on the previous occasions when they drove from Tech Mine they

never traveled to Noordoewer and never fueled the same vehicle (a Toyota VVTI pick

up) on the way back to Keetmanshoop.

[39] At around 15:30 they strangely drove slowly from Noordoewer to

Keetmanshoop. On the way they stopped at the road side stall at Grunau for about 15

minutes and they arrived back in Keetmanshoop around 18h00, as it was becoming

dark.

[40] In cross examination it was put to Mr Kaffer that on 04 August 2017 the

defendant drove from Tech Mine to Noordoewer and fueled the vehicle in order to

minimize the risk of running out of fuel on the way. This assertion of was disputed by Mr

Kaffer who insisted that the vehicle was not fueled in Noordoewer. It was also put to him

that the other reason to drive to Noordoewer was to buy refreshments requested by Mr

Kaffer and Mr Goagoseb, to which he disputed and stated that the defendant bought

soft drinks for them out of his own accord and without being requested to do so.

1 Exhibit E.

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Mr Revival Goagoseb

[41] The plaintiff then called Mr Revival Goagoseb, a guard employed by the plaintiff,

who testified that on Friday morning, 04 August 2017, the defendant picked him and Mr

Kaffer up from Tech Mine at around 11h40.

[42] He testified that from Tech Mine the three of them drove to Noordoewer to pick

up the wife/fiancé of the defendant. When they reached in Noordwoewer, the

defendant’s fiancé had not yet arrived and they waited for more than two hours and

eventually after her arrival at around 15h30, they left Noordoewer for Keetmanshoop.

[43] He further testified that they drove very slowly, and estimated the speed to be

about 80-90km per hour, which was very strange to him as he knew that the banks

close early and that the money box still had to be banked. By and large he corroborated

the evidence of Mr Kaffer.

[44] He testified that they arrived in Keetmanshoop at around 17h20 and the

defendant dropped them off at their respective homes.

[45] It was his testimony further that he did some work at Nampower and on the

morning of Tuesday 08 August 2017 at around 05h15, he left in search for a cigarette,

when he saw the defendant’s CIT vehicle at the office of the plaintiff with the vehicle

doors open. He did not enter the office to see what the defendant was doing at that

time, in fear of reprimand as he had left the site without permission.

[46] He testified that later that morning, he received a text message from Ms Minnies

stating that there had been a break in at the office, and should he have any information

he should inform her.

[47] In cross examination the aspect of the evidence of Mr Goagoseb that on 08

August 2017 at around 05:15 he saw the defendant’s CIT vehicle with doors open at the

offices was left unchallenged. In its quest to attain justice the court sought an

20

explanation from the defendant on the allegation that his vehicle was seen at the offices

of the plaintiff in the morning around 05:15 just before the alleged breaking in and

inquired from Mr Engelbrecht, who appeared on behalf of the defendant, whether he

needed to take instructions from the defendant on the issue. Mr Engelbrecht took

instructions and still left the said allegation unchallenged.

Mr Moses Jossop

[48] The plaintiff then called Mr Moses Jossop, a supervisor and CIT driver employed

by the plaintiff. He testified that the defendant was the head of the CIT operations in the

southern region and that both the defendant and himself knew that they had to comply

with the CIT procedures as set out in the CIT agreement.

[49] He collaborated Mr Etsebeth’s version that on Friday 04 August 2017, the

defendant left Keetmanshoop to Hobas Camp and Ai-Ais to do CIT pick-ups and rotate

guards at Tech Mine.

[50] He testified further that on Saturday, 05 August 2017, whilst together with Ms

Minnies they collected CIT pick-ups from the plaintiff’s clients in Keetmanshoop, where

after he sent a text message to the defendant to enquire if there were any additional

pick-ups which the defendant needed to bank that morning. He testified that the

defendant responded that there were no pick-ups done the previous day as the systems

at the respective places were off. He testified that had the defendant told him that there

were pick-ups for banking then he would have banked the money as he does pick-ups

and banking on Saturdays. They completed the CIT pick-ups, banked them and retired

home around 11h00.

[51] It was further his testimony that on Monday afternoon, 07 August 2017, before he

knocked off from work Ms Minnies asked him whether he knew about the Ai-Ais pick-up

in the defendant’s office that needed to be banked, to which he responded that he did

not know as he remembered that defendant said to him that there were no pick-ups

collected as the systems were off.

21

[52] He further testified that on Tuesday, 08 August 2017 and around 07h00, he

received a call from the defendant informing him to hurry to the office as there was a

break in. He found it strange that the defendant was at the office that early, as he

usually reported for duty at around 08h00 since he commenced employment with the

plaintiff.

[53] It was further his testimony that when he arrived at the office, in the company of

others they entered the defendant’s office and observed papers scattered around next

to the safe on the floor, he also noted a screwdriver. He noted that the window to the

defendant’s office was broken and a certain Mr Selvin Seister looked out of the window

and saw two money boxes outside and alerted the others. They proceed to the boxes

outside where they noted that only the Ai-Ais box was opened by someone with a key

as the box was not damaged while the other box for Aroab was not open and there was

no money in the Aroab box because it was already banked by the defendant.

[54] He testified further that the defendant appeared to be very nervous that morning

and was walking in and out of office. He suggested that they look for footprints at the

dirt road behind the office, however, the defendant said that it wasn’t necessary and that

they should rather carry out the CIT operations for the day. He testified that the

defendant then called the police.

[55] During cross examination he was asked as to who remained in the CIT vehicle

on Saturday when Ms Minnies and himself went in the bank to deposit the money to

which he respondent that the CIT vehicle was left unattended contrary to Item 9 of the

CIT Procedure.2

[56] It was put to him that on Saturday, 05 August 2017 when the defendant informed

him that there was no money collected as the system was off, he was referring to Hobas

and not Ai-Ais, which assertion was disputed. He further testified that the money at the

2 Item 9 CIT Procedure.

22

plaintiff’s offices used to be stored in the vault but at times the money boxes were

stored in the office of the defendant.

[57] It was put to him that there were firearms in the safe and Ms Minnies should have

booked out a firearm for him to carry along during the pick-ups and banking. This the

defendant claimed violated clause 2 of the CIT procedures. Mr Jossop testified that he

was never given a firearm during the tenure of the defendant’s employment with the

plaintiff. He further testified that the alarm system was not working but was activated

only after the break in. It was further put to him that he at times used the CIT vehicle to

transport the children of Ms Minnies to which he agreed but stated that during such time

there would be no money on the CIT vehicle.

Ms Marita Minnies

[58] The plaintiff then called Ms Marita Minnies, an office administrator employed

plaintiff. She testified that Ai-Ais pick-ups were carried out on Wednesdays. She

however collaborated the versions of the previous witness, that on Friday 04 August

2019 at around 06h00, the defendant left Keetmanshoop to Hobas Camp and Ai-Ais to

do CIT pick-ups and rotate guards at Tech Mine.

[59] It was her testimony that, she did not receive any calls or hourly updates

regarding the CIT operation from the defendant, as required by the CIT procedure

during a CIT operation, throughout the whole day. At 17h00 upon leaving the office, she

noted that the defendant had not returned from his trip, notwithstanding, she was not

worried as the defendant was the most senior employee at the office and she was

confident that the operation went according to schedule.

[60] She testified that on Saturday morning, 05 August 2017, Mr Jossop picked her

up for work and informed her that two of the crew members did not report for duty. She

then instructed Mr Jossop to inform the defendant and ask him what they should do. Mr

Jossop sent a text message to the defendant, requesting the defendant to call him, and

the defendant called him back. While Mr Jossop was on the phone with the defendant,

23

she told him to also ask the defendant whether there were any CIT pick-ups from Hobas

or Ai-Ais that needed to be banked that morning. She overheard the defendant saying

that there were no pick-ups because the systems were offline. Had the defendant said

that there was a pick-up in his safe to be banked then they would have easily driven to

him and fetch the keys to collect the pick-up for banking. This was the last time that they

communicated with the defendant on that day, as they completed the CIT operations at

around 11h00 and went to their respective homes.

[61] She further collaborated the testimony of Mr Etsebeth, that on Monday, 07

August 2017 at around 09h19, she forwarded her weekly management report to the

head office, carbon copied the defendant, in which she recorded that no pick-ups were

done by the defendant on Friday 04 August 2017 as the systems were offline.

[62] She contradicted Mr Jossop and stated that she had no knowledge of an

occasion where the pick-up was not banked and was kept in the defendant’s safe. She

testified further that at around 12h00 on Monday, 07 August 2017 she opened the safe

in the defendant’s office, to access the petty cash, when she noticed a blue sealed and

locked money box inside the safe. She asked the defendant as to which client did the

pick-up belong to and an argument erupted as the defendant informed her that it is the

Ai-Ais pick-up while on Saturday, 05 August 2017 he informed her and Mr Jossop that

there was Ai-Ais Pick-up. She took the box out, placed it next to him and told him to

bank it immediately.

[63] She testified that at around 15h45, she enquired from the CIT crew and Mr

Jossop whether the defendant had told them about the presence of Ai-Ais pick-up in his

office. They had no knowledge of it. She then left the office at 17h00.

[64] It was further her testimony that on Tuesday morning, 08 August 2017 at around

06h40, she received a call from the defendant informing her that she needs to hurry to

the office as there was a break in. She collaborated Mr Jossop’s testimony that, it was

unusual for the defendant to be at the office that early, as he usually came in at around

08h00 since he commenced employment at plaintiff.

24

[65] She testified that upon her arrival she went in the defendant’s office, where she

saw papers laying on the floor as well as a blue screwdriver, similar to the ones that

form part of a tool set found in all Plaintiff’s CIT designated vehicles. She testified that

the defendant’s office window was broken and money was stolen from the Ai-Ais pick-

up. The defendant then called the police and she later accompanied him to the police

station to report the break in.

[66] It was further her testimony that the defendant had breached protocol as he was

the most senior employee in the Keetmanshoop office and knew that the CIT procedure

needed to be adhered to at all times. She testified that he failed to inform the general

manager about the Ai-Ais pick-up which could not be banked on the same day of

collection, he failed to keep the money in the office vault but opted for the safe in his

office, he failed to place an armed guard at the office, he misled her and Mr Jossop

when he told them that there were no pick-ups as the systems were offline when they

could’ve easily banked this money on Saturday morning, and that he failed to bank the

money on the Monday when she found it and informed him to bank it immediately.

[67] She further testified that whenever she had a problem and required to contact Mr

Estebeth, she would call him on his phone and would reach him.

[68] She testified further that the CIT vehicle was not fueled at Noordoewer and there

were no petrol receipts for fuel from Noordoewer. She disputed the assertion that the

alarm system was not working and stated that it is just the plug which was not attached

to a power source for the battery to charge. He was aware of this position of the alarm

system as she told him before and it was his duty plug in the alarm system. She testified

further that there were times when the alarm system was plugged in and it worked.

[69] She testified that as a result of the defendant’s conduct, the plaintiff suffered loss

because it had to reimburse Namibia Wildlife Resorts for the stolen money.

25

[70] In cross examination she testified that the round pick-up trip from Keetmanshoop,

Hobas and Ai-Ais, including the change of guards at Tech Mine and back to

Keetmanshoop takes about 4 hours.

[71] It was put to her that on Saturday, 05 August 2017 during the CIT deposits she

did not follow the CIT procedure to the core and did not comply with clause 2 of the CIT

procedures, to which she agreed. She further testified that they had no firearms with

them and they did not wear protective vests. The defendant further put to her that he

instructed her to bank the money, which instruction she disputed.

[72] When questioned whether the vault was in working condition she answered in

affirmative and proceeded to state that she used to put the pick-us for Shoprite in there

as they always overnighted and during that process an armed guard would be placed at

the office.

[73] She testified further that the defendant served her with a written warning for

insubordination as she reported directly to head office without involving the defendant.

[74] It was put to her that her husband assaulted the defendant and warned him that

should she be dismissed because of the break in then he would kill the defendant. This

was disputed and she proceeded to state that the reason for the assault was private

and not related to the plaintiff.

Mr Hendrik Van Starden

[75] He testified that he is a chief insurance broker and that the plaintiff had an

alternative risk transfer contingency policy.3 He further testified that in casu it is the

funds of the insurer that paid the loss suffered by Namibia Wildlife Resorts.

3 Exhibit A1, A2, A3 and A4.

26

[76] The plaintiff then closed its case. The defendant applied for absolution from the

instance which application was opposed by the plaintiff. This court dismissed the said

application with costs and stated that the reasons will form part of the main judgment.

[77] The test applicable at this stage has been restated in several cases. In Claude

Neon Lights (SA) Ltd v Daniel4, the test to apply in an application from the instance was

laid down that:

‘When absolution from the instance is sought at the close of the plaintiff’s

case, the test to be applied is not whether the evidence led by plaintiff establishes what would

finally be required to be established, but whether there is evidence upon which a court, applying

its mind reasonably to such evidence, could or might (not should nor ought to) find for the

plaintiff.’

[78] In the same vein but with a lower tone Silungwe J (as he then was) in the matter

of Aluminium CC V Scandia Kitchens & Joinery Ltd stated the following regarding the

test that applies at this stage:5

‘It is often said that, in order to escape absolution from the instance, a plaintiff has to

make out a prima facie case in that it is on prima facie evidence – which is sometimes reckoned

as evidence requiring an answer (Alli v De Lira 1973 (4) SA 635 (T) at 638B-F – that a court

could or might decide in favour of the plaintiff. However, the requisite standard is less stringent

than that of a prima facie case requiring an answer. Prima facie evidence does not necessarily

have to call for an answer, it is sufficient for such evidence to at least have the potential for a

finding in favour of the plaintiff.’

[79] It was my considered view that at the end of the case for the plaintiff, there was

sufficient evidence to, at least, require an answer from the defendant. It is inescapable

to find that the test set out in the Aluminium CC6 matter is of a lesser standard and

applying it to this matter, I find that when the whole evidence led thus far is accounted

4 1976 (4) SA 403 (A) at 409G-H.5 2007 (2) NR 494 (HC) at 496 para 12.6 2007 (2) NR 494 (HC).

27

for, there are prospects of finding in favour of the plaintiff. Consequently, the application

for absolution from the instance was dismissed with costs.

The defendant’s case

Mr Micheal Humphries

[80] The defendant was the sole witness for his case and testified that he was

previously employed as the area manager of the southern region by the plaintiff. He

testified that on 29 May 2017 and at Windhoek, he entered into a written employment

agreement with the plaintiff through its chief executive officer Mr Jacobus Hendrik

Visser. He was employed to serve as the branch manager of the Keetmashoop branch

and the southern region of Namibia, based in Keetmanshoop. As the area manager, he

also rendered CIT operations to the plaintiff’s clients located outside Keetmanshoop,

inter alia, Ai-Ais.

[81] He testified that on 04 August 2017 and at 06h00 he departed for Hobas Camp

and Ai-Ais to pick up CIT boxes as per normal routine. As part of his duties, he had to

transport guards to and from Ai-Ais and change guards at Tech Mine, 20km near

Noordoewer.

[82] It was his testimony that upon reaching Hobas, the supervisor informed him that

the computer system was offline and money could not be released to him. He

proceeded to Ai-Ais where he collected a CIT box, which was locked and sealed, after

which he proceeded to Tech Mine to rotate the guards.

[83] He testified that at Tech Mine he picked up Mr Kaffer and Mr Goagoseb, who

asked him whether they could buy food in Noordoewer. He drove to Noordoewer to buy

refreshments and to fuel up the vehicle at Shell Service Station. In Noordoewer, he

gave a lift to his fiancé who was hitch hiking back to Keetmanshoop.

28

[84] He testified that the drive from Noordoewer to Keetmanshoop is approximately

three hours and thirty minutes long and they only arrived back in Keetmanshoop at

16h30. He proceeded to drop off the guards at their homes and then drove to the office

to lock-up the CIT box in the safe before he drove to his residence.

[85] It was further his testimony that, this respective weekend was his off weekend and

that whenever he was off, the office administrator Ms Minnies would take over his duties

and Mr Jossop would assist her. On Saturday, 05 August 2017 and at around 07h00 he

spoke to Mr Jossop, on his mobile phone, to confirm whether everything was in order at

the office, and Mr Jossop informed him that the two CIT crew members, Mr Seister and

Mr Conrad De Kock, did not show up for work and that he was at the office with Ms

Minnies. He then informed Mr Jossop about the CIT box from Ai-Ais which he had

locked up in the safe, and asked him and Ms Minnies to bank it. Mr Jossop then

informed him that they were only two at the office and would not be able to make the

deposit.

[86] He further testified that on Monday, 07 August 2017 and at around 09h00 Ms

Minnies, in his presence, discovered the Ai-Ais box as she opened the safe to look for

petty cash. He informed her that Mr Jossop was supposed to deposit the CIT box during

the weekend, upon which she informed him that she had no knowledge of the box or

any such arrangements.

[87] It was further his testimony that Ms Minnies removed the CIT box and left it next

to the safe. He then ordered her to give the CIT box to the CIT crew members for

banking and she informed him that it will be done after lunch. He then left the office to

meet with clients. He returned to the office to collect a list of guards, and he was under

the impression that the CIT box was banked as he ordered. He left around 16h00 to

pick up guards and place them at their respective sites and then he went home. He did

not lock up the office because Ms Minnies also had a set of office keys and she could

lock up the office at 17h00.

29

[88] He testified that on Tuesday morning, 08 August 2017, while in the company of

Ms Minnies and Mr Jossop they discovered that the office was broken into. He also

testified that after Ms Minnies and Mr Jossop arrived at the office, they immediately

contacted the general manager and reported the break in upon which the general

manager informed them to report the incident to the police.

[89] He testified that the police conducted investigations at the office and Mr Estebeth

came to Keetmanshoop. During the period of these investigations, he carried on with his

duties as he normally would.

[90] It was his testimony that on or about 15 August 2017, Mr Estebeth informed him

that he is suspended with immediate effect without pay. On 24 August he was

dismissed after a disciplinary hearing, he then appealed against such dismissal. An

award was granted in his favour and the plaintiff was instructed to pay to him two

months’ salary within seven days as a result of unfair dismissal.

[91] He further testified that he did not steal the money as alleged and that he gave

direct orders to his subordinates for the CIT box to be banked, which orders were

disregarded.

[92] During cross examination he testified that he did not make hourly updates to Mr

Estebeth and to the regional office as there was no strict adherence to the CIT

procedures.

[93] When pressed in cross examination that the two guards Mr Kaffer and Mr

Goagoseb did not request him to drive to Noordoewer to get refreshments, he testified

that they had a standing arrangement to get food from Noordoewer. Upon instance from

Mr Jacobs, who appeared for the plaintiff, that this statement was a fabrication, the

defendant then said on that particular day the guards did not request him to drive to

Noordoewer but he rather used his discretion.

30

[94] From his plea, the defendant stated that he drove to Noordoewer to fuel the

vehicle and to obtain refreshments. When it was pointed out with documentary evidence

in cross examination that the vehicle was never fueled in Noordoewer, he abandoned

this foundation for his trip to Noordoewer.

[95] He testified that notwithstanding his knowledge of the CIT procedure that he

should provide hourly updates to Mr Estebeth and that if the pick-up is not banked on

the same day it is collected, he should inform Mr Estebeth, in casu, he did not update

nor inform Mr Estebeth. His explanation was that he used his own discretion. He further

did not inform Mr Estebeth of the pick-up stored at the office over the weekend as he

assumed the Mr Estebeth would not be available, because in his own words, the bosses

usually go to Swakopmund for the weekend.

[96] The issue to be decided is whether due to his intention, maliciousness, and or

gross negligent the defendant is liable and indebted to the plaintiff in the amount of

N$282,240.45 as damages suffered by the plaintiff.

The burden of proof

[97] It has been settled in our law that he who allege bears the burden of proof of

such allegation on a balance of probabilities to sustain his claim. While discussing the

burden of proof and evidential burden Damaseb JP in Dannecker v Leopard Tours Car

and Camping Hire CC7 stated the following:

‘It is trite that he who alleges must prove. A duty rests on a litigant to adduce evidence

that is sufficient to persuade a court, at the end of the trial, that his or her claim or defence, as

the case may be should succeed. A three-legged approach was stated in Pillay v Krishna 1946

AD 946 at 951-2 as follows: The first rule is that the party who claims something from another in

a court of law has the duty to satisfy the court that it is entitled to the relief sought. Secondly,

where the party against whom the claim is made sets up a special defence, it is regarded in

respect of that defence as being the claimant: for the special defence to be upheld the

7 (I2909/2016) [2016] NAHCMD 381 (5 December 2016) at para 44-45.

31

defendant must satisfy the court that it is entitled to succeed on it. As the learned authors Zeffert

et al South African law of Evidence (2ed) at 57 argue, the first two rules have been read to

mean that the plaintiff must first prove his or her claim unless it be admitted and then the

defendant his plea since he is the plaintiff as far as that goes. The third rule is that he who

asserts proves and not he who denies: a mere denial of facts which is absolute does not place

the burden of proof on he who denies but rather on the one who alleges. As was observed by

Davis AJA, each party may bear a burden of proof on several and distinct issues save that the

burden on proving the claim supersedes the burden of proving the defence.8

[45] In South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd1977

(3) SA 534 (A) at 548A-C, Corbett JA discusses the distinction between the burden of proof and

the evidential burden as follows:

‘As was pointed out by DAVIS, A.J.A., in Pillay v Krishna and Another, 1946 AD 946 at

pp. 952 - 3, the word onus has often been used to denote, inter alia, two distinct concepts: (i)

the duty which is cast on the particular litigant, in order to be successful, of finally satisfying the

Court that he is entitled to succeed on his claim or defence, as the case may be; and (ii) the

duty cast upon a litigant to adduce evidence in order to combat a prima facie case made by his

opponent. Only the first of these concepts represents onus in its true and original sense. In

Brand v Minister of Justice and Another, 1959 (4) SA 712 (AD) at p. 715, OGILVIE

THOMPSON, J.A., called it "the overall onus". In this sense the onus can never shift from the

party upon whom it originally rested. The second concept may be termed, in order to avoid

confusion, the burden of adducing evidence in rebuttal ("weerleggingslas"). This may shift or be

transferred in the course of the case, depending upon the measure of proof furnished by the

one party or the other. (See also Tregea and Another v Godart and Another, 1939 AD 16 at p.

28; Marine and Trade Insurance Co. Ltd. v Van C der Schyff, 1972 (1) SA 26 (AD) at pp. 37 -

9.)’

[98] In order to succeed with the claim, the plaintiff was required to adduce evidence

which proves on a balance of probabilities that the defendant intentionally, maliciously

or gross negligently caused the pick-up to be stolen as a result of which the plaintiff

suffered damages. Notwithstanding that the claim emanates from an employment

contract it has a delictual claim written all over it and the plaintiff retains the burden of

8 Supra at 953.

32

proving that the damages suffered resulted from the intention, maliciousness or gross

negligence of the defendant.

Analysis

[99] It is common cause from the evidence that:

[99.1] The defendant signed the CIT procedures and agreed to same as set out in the

pre-trial order;

[99.2] The defendant was the area manager and the officer in charge at the office of the

plaintiff in the southern region;

[99.3] On Friday, 04 August 2017 the defendant collected the Ai-Ais pick up which

should have been banked on the same day;

[99.4] From Ai-Ais, the defendant proceeded to Tech Mine to change guards and

instead of returning to Keetmanshoop to bank the money, he drove to Noordoewer;

[99.5] In Noordoewer the defendant gave a hike to his fiancé after waiting for her for a

considerable period of time;

[99.6] On the way back from Noordoewer to Keetmanshoop the defendant drove slowly

and arrived in Keetmanshoop after 17:00;

[99.7] Instead of putting the pick-up in the vault, the defendant stored the pick-up in the

safe;

[99.8] On Saturday, 05 August 2019 the pick-up was not banked despite the banks

operating;

33

[99.9] On Monday, 07 August 2017 the pick-up was not banked after being discovered

by Ms Minnies;

[99.10] On 08 August 2017 the defendant was the first to arrive at the offices of the

plaintiff and it is the same day on which the money in the pick-up was stolen.

[99.11] The defendant appeared nervous in the morning of 08 August 2017.

[100] In the further analysis of the evidence it is important to reflect on the fact that

some of the material evidence raised by the defendant during his case was not put to

the plaintiff’s witnesses during their cross examination and amounted to new evidence

surfacing during the defendant’s case. Such evidence is, inter alia, the following:

[100.1] That after collecting the pick-up from Ai-Ais he did not make hourly updates or

reports to Mr Estebeth or the Keetmanshoop regional office contrary to the CIT

procedures as he used his discretion following previously occasions when Mr Estebeth

informed him to use his discretion;

[100.2] That there was a standing arrangement that when guards are picked up from

Tech Mine, they would drive to Noordoewer to obtain food and refreshments and Mr

Estebeth was aware of this arrangement. This arrangement was therefore not unusual.

[100.3] That on Monday, 07 August 2017 he gave an instruction to Ms Minnies for the

pick-up to be banked before lunch;

[100.4] That on 08 August 2017 he reported for work around 07:15 as he usually

reported early around 07:10 to 07:15.

[101] There is no plausible explanation from the defendant why these material aspects

of his evidence were not put to the plaintiff’s witnesses neither did he attempt to render

such explanation.

34

[102] The following evidence from the plaintiff remained unchallenged by the

defendant:

[102.1] That around 05:15 on Tuesday, 08 August 2017 Mr Goagoseb saw the

defendant’s vehicle at the office of the plaintiff with doors open;

[102.2] That it was strange for the defendant to call Mr Jossop and Ms Minnies from the

office in the morning of 08 August 2017 as he always arrived late at work after 08h00.

[103] Hoff JA in Namdeb (Pty) Ltd v Gaseb9 said the following in respect of not

challenging the version of the opposing witness:

‘It is trite law that a party who calls a witness is entitled to assume that such a witness’s

evidence has been accepted as correct if it has not been challenged in cross-examination. In

Small v Smith 1954 (3) SA 434 (S.W.A) at 438E-G the following was said in respect of this

aspect:

‘It is, in my opinion, elementary and standard practice for a party to put to each opposing

witness so much of his own case or defence as concerns that witness and if need be to

inform him, if he has not been given notice thereof, that other witnesses will contradict

him, so as to give him fair warning and an opportunity of explaining the contradiction and

defending his own character. It is grossly unfair and improper to let a witness’s evidence

go unchallenged in cross-examination and afterwards argue that he must be disbelieved.

Once a witness’s evidence on a point in dispute has been deliberately left unchallenged

in cross-examination and particularly by a legal practitioner, the party calling that witness

is normally entitled to assume in the absence of a notice to the contrary that the

witness’s testimony is accepted as correct.

. . . unless the testimony is so manifestly absurd, fantastic or of so romancing a

character that no reasonable person can attach any credence to it whatsoever.’10

9 (SA 66/2016) [2019] NASC (9 October 2019) at para 61. 10 See also President of the Republic of South Africa & others v South Africa Rugby Football Union and others 2000 (1) SA 1 CC at 36J-38B – ‘cross-examination not only constituted a right; it also imposed certain obligations’.

35

[104] I find that the trip to Noordoewer contributed immensely to the defendant

arriving in Keetmanshoop after banks have closed. It is spellbinding to note that whilst

the delay to bank the pick-up on Friday 04 August 2017 was mainly necessitated by the

trip to Noordoewer, the defendant generously tendered three conflicting versions as to

why he drove to Noordoewer. These are: that the purpose was to fuel the CIT vehicle

but when documents produced revealed that the vehicle was not fueled in Noordoewer,

the defendant had another arsenal in his string and stated that he drove to Noordoewer

on the request of the guards to buy refreshments, when the said guards denied making

such requests, the defendant in a theatrical manner stated that actually the guards did

not request him to drive to Noordoewer to buy refreshments but he used his discretion

to proceed to Noordoewer to buy refreshments for them and further that there was a

standing instruction to obtain food and refreshments in Noordoewer.

[105] With respect to the events of Saturday, 05 August 2017, it is Mr Jossop who first

sent an SMS to the defendant to inquire if there were any pick-ups to be banked that

morning. To which the defendant respondent that there were no pick-ups as the

previous day the systems were off. This is corroborated by Ms Minnies. Mr Jossop’s

intention was to bank the money collected and Ms Minnies said that had the defendant

informed them about the pick-up in the safe, they would have easily banked the money.

True to their words in all probabilities, Mr Jossop and Ms Minnies proceeded to collect

other pick-ups that same day and banked the money just as they intended to bank any

other available pick-up. The probabilities therefore weigh heavily in favour of the

version of Mr Jossop and Ms Minnies that the defendant did not tell them about the

pick-up on Saturday, 05 August 2017 as opposed to that of the defendant.

[106] On Monday 07 August 2017 Ms Minnes testified that it was the first time that she

saw the pick-up from Ai-Ais. The defendant, as per his own words, said that on Monday

when Ms Minnies opened the safe in his office she discovered the Ai-Ais pick-up. The

ordinary dictionary meaning of “discover” is to unearth or locate something new. It is

inconceivable how Ms Minnies could discover the pick-up if she had knowledge of the

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storage of the pick-up at the office of the plaintiff. It follows as a matter of logic that Ms

Minnies “discovered” the Ai-Ais pick-up in the safe because she had no prior knowledge

of the existence of such pick-up.

Fiduciary duty

[107] The better part of the arguments from both parties were devoted to whether the

defendant owe any fiduciary duty to the plaintiff.

[108] I state without fear of contradiction that an employee has a fiduciary duty or a

duty of trust towards the employer and this includes the obligation not to work against

his employer’s interest. Such fiduciary duty is well established in labour law. Smuts J, in

Novanam v Willem Absalom & others11 quoted a passage with approval from Daewoo

Heavy Industries (SA) (Pty) Ltd v Banks & others12 at 462G-463A where it is stated that:

‘There is in most, if not all contracts of service, whether it be an employment contract or

a contract of agency, an implied fiduciary duty on the part of the employee or agent

towards the employer or principal as the case may be. In Premier Medical and Industrial

Equipment (Pty) Ltd v Winkler & another 1971 (3) SA 866 (W) at 867, Hiemstra J,

quoting with approval Hawkins J in Robb v Green [1895] 2 QB1 at 10-11, said as follows

at 86H-868A:

“There can be no doubt that during the currency of his contract of employment

the servant owes a fiduciary duty to his master which involves an obligation not

to work against his master’s interests. It seems to be a self-evident proposition

which applies even though there is not an express term in the contract of

employment to that effect. It is stated thus in the leading case of Robb v Green

(1895) 2 QB 1, per Hawkins J at 10-11:

11 An unreported judgment of the labour court delivered on 30 April 2014 in the case no’s LC 101/2013 and LCA 47/2013.12 2004 (4) SA 458 (C).

37

“I have a very decided opinion that, in the absence of any stipulation to

the contrary, there is involved in every contract of service an implied

obligation, call it by what name you will, on the servant that he shall

perform his duty, especially in these essential respects, namely that he

shall honestly and faithfully serve his master; that he shall not abuse his

confidence in matters not appertaining to his service, and that he shall, by

all reasonable means in his power, protect his master’s interests in

respect to matters confided to him in the course of his service.”’

[109] For damages to be successfully claimed in casu, there must be a causal link

proven between the wrongful conduct and the damages suffered by the plaintiff. Put

differently the plaintiff must prove that the wrongful conduct is sufficiently linked to the

loss suffered for legal liability to exist.

[110] Prinsloo J in Shoprite Namibia (Pty) Ltd v Petrus13 while discussing fiduciary duty

said the following:

‘[67] This position of trust brought about a legal relationship with legal consequences.

The defendant owed the plaintiff a duty of good faith and in the discharge of his duties was

required to exercise certain care. This includes a duty to render faithful and loyal service

towards the employer; a duty to obey lawful instruction; a duty to exert reasonable degree of

competence and skill; a duty to protect employer’s property; and a duty in exercising trust

placed on him by the employer.

….

[73] Apart from subjecting the employee to appropriate disciplinary action up to and including

dismissal from employment, an employer may also bring a civil suit against its employee or

former employee to recover the amount of money that the employer lost or was misappropriated

as a result of the employee’s negligence, dishonesty or carelessness.’

13 (HC-MD-CIV-ACT-OTH-2017/02057) [2019] NAHCMD 20.

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[111] The Supreme Court, although dealing with a labour matter, discussed the

possibility of a claim for damages arising from contracts of employment in Nghikofa v

Classic engines CC14 and said the following:

‘There is nothing in the Act that expressly purports to exclude the jurisdiction of the High

Court in relation to damages claims arising from contracts of employment. Indeed, as pointed

out above s 86(2) of the Act provides that a party may refer a dispute to the Labour

Commissioner, and is thus not compelled to do so. A court will ordinarily be slow to interpret a

statute to destroy a litigant’s cause of action (see Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA

49 (SCA) at para 16). In the absence of a clear rule that if a litigant fails to counterclaim for

damages arising from a contract of employment that has been placed before the Labour

Commissioner in relation to a different dispute, the court will rarely conclude that such a rule is

implicit in legislation.’

[112] I harbour no doubt that the defendant in casu owed a fiduciary duty to the plaintiff

and was therefore duty bound to act in the best interest of the plaintiff. At all times from

the moment of collecting the pick-up from Ai-Ais the defendant transgressed the CIT

procedures, did not observe protocol, did not act in a reasonable manner to protect the

interest of the plaintiff, was content with causing the plaintiff damages or at the very

least was grossly negligent in his conduct as a result of which the plaintiff directly

suffered damages in respect of the stolen money.

14 2014 (2) NR 314 (SC) at para 18 – 19.

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[113] I pause to observe that the defendant’s evidence is marred with contractions,

divergence whenever such evidence was to reach a brick wall, and ultimately the

defendant struck me as a witness who is not credible.

Conclusion

[114] I am therefore satisfied that the plaintiff proved on a balance of probabilities that

the defendant caused damages to the plaintiff, where the plaintiff suffered monetary

loss in the amount of N$282, 420.45. At the very least the plaintiff proved that such

damages resulted from the defendant’s gross negligence. In the premises of the

conclusion it becomes unnecessary to deal with the alternative claim of theft of the

money.

Orders

1. The plaintiff’s main claim is upheld.

2. The alternative claim is dismissed.

3. The defendant is ordered to pay an amount of N$282 240.45 as damages

suffered by the plaintiff.

4. The said defendant is ordered to pay interest on the aforesaid sum at the rate of

20% per annum from 8 August 2017 to the date of final payment.

5. The said defendant is ordered to pay the costs of suit consequent upon the

employment of one instructing and one instructed counsel.

6. The matter is removed from the roll and regarded as finalized.

___________________

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O SIBEYA

ACTING JUDGE

APPEARANCES:

FOR THE PLAINTIFF:

Adv J Jacobs together with J H Visser

Instructed by Koep & Partners

Windhoek

FOR THE DEFENDANT:

H ENGELBRECHT

Of Brockerhoff & Associates

Windhoek

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