Norton Rose Fulbright South Africa successfully represents Lloyd’s in R93 million claim

On March 04, 2024 the Pretoria High Court gave judgment in favour of The Underwriters at Lloyd’s of London against the Minister of Safety and Security (the Minister) for R93 919 298.47 based on its finding that the conduct of police employees who participate in a major robbery and cover-up was sufficiently closely connected to their employment to make the Minister vicariously liable.

The case arises from a robbery which occurred at the SBV cash centre at Emalahleni in April 2014. In criminal proceedings against the robbers, the high court found that two South African Police Service (SAPS) employees were involved in the planning and execution of the robbery and that the SAPS employees were on duty at one or more times before, during, and after the robbery.

The stolen cash was the property of Nedbank, and three other banks. Nedbank, as the host bank at the cash centre, suffered the bulk of the loss. Nedbank was also required to make good the losses suffered by the other banks. Nedbank in turn claimed an indemnity from SBV for its loss.

SBV was indemnified by Lloyd’s for the loss. Lloyd’s took cession of the rights of SBV against the Minister, as well as any rights of the banks as the owners of the stolen money against the Minister.

The claim was based on the Minister’s vicarious liability for the conduct of its employees who were alleged to be acting in the course and scope of their employment in participating in the planning and execution of the robbery and in preventing the detection and proper investigation of the robbery and frustrating the recovery of the stolen cash. In the civil proceedings, the Minister was found to have admitted the involvement of the SAPS employees in the robbery as set out in the judgment in the criminal proceedings.

The Minister argued that:

1. As Nedbank had been indemnified for its loss, it had no claim left to cede, with the result that Lloyd’s had no locus standii to proceed with the claim based on the Nedbank cession. In dismissing this defence, the court found that whilst Nedbank had a contractual right against SBV to be indemnified for its loss, this did not mean that it was not able to cede a claim in delict against the Minister. That claim remained valid and enforceable against the Minister.
2. The SAPS employees were not acting in the course and scope of their employment and that the requirements for vicarious liability were not established because evidence was not led to support precisely how and when the employees participated in the planning and execution of the robbery, what they did while on duty to plan the robbery, whether they actively participated in the actual robbery while on duty or whether they used their position of police officers to create trust with individuals and in so doing, further the robbery. The court found that there was a sufficiently close connection between the employment of the police officers and their involvement in the robbery. The court also found that the intentional criminal conduct by the police was sufficiently closely connected to the Minister’s business for the Minister to be held vicariously liable.

The court awarded Lloyd’s damages of R93 919 298.47 as well as interest at the prescribed rate from April 2014 until date of payment and costs, including the costs of two counsel. Interest was awarded because the amount of the damages was known from the date of demand.

Lloyd’s was represented in the proceedings by Andrew Strachan from the commercial litigation team, assisted by Yishika Moodley and Lara Thom.