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Security companies and their clients face multiple liability risks

7 March 2017: With the increased demand for private security services in South Africa, Johannes du Plessis, legal advisor at RBS (Risk Benefit Solutions Pty Ltd), an authorised financial services provider, warns that security companies and their clients face significant civil and criminal liability risks.

“A security company, as well as its client, can be held liable for damages or personal injury that occur while a security guard is performing his duties. The costs arising from such incidents can drive a security service provider or their client into insolvency,” Du Plessis says.

He adds that the ways in which these risks manifest are vast. “In the case of armed security, personnel need to be well trained and capable of maintaining the balance between an attack or possible attack and how they carry out their defence,” Du Plessis explains.

“There are three legal criteria that determine if an already commenced attack requires a reaction, three criteria for whether a possible attack requires a reaction, and four criteria the defender must adhere to under these circumstances. Each of these legal criteria has various sub-criteria which must be considered before the defender may react and should be adhered to while carrying out the defence. It may, therefore, be difficult at times to understand whether a guard reacted correctly, and a guard’s actions can very easily be interpreted as unlawful.

It is further very easy to cross the line between appropriate and excessive levels of force. If an intruder or attacker suffers injuries due to a disproportionate defence, the guard, security company and client could be held liable for the value of the attacker’s injuries.

The liability risk is however not only limited to the use of force, as Du Plessis points out. These parties are equally liable if security guards who control access to a property, negligently make a mistake by granting access to a person who causes injuries, damages or even death to residents.

In the case of unarmed security staff operating in shops and malls, Du Plessis states that professional behaviour is paramount. “Human dignity is a major component of South Africa’s Constitution and shoppers who are publicly accused of shoplifting, have to cause to institute massive claims against security companies and their clients. The same is true for shoplifters who are treated in an undignified manner.”

Even guards who have minimal contact with members of the public are not without significant risk. Du Plessis states that if a security guard accidentally causes a fire or other damage to a building while watching the property, the security guard and the security company are likely to face civil and criminal liability for the value of the damages or loss of the building which could amount to millions.

“To ensure the financial stability and continued existence of all parties involved, security companies should conduct surprise visits to guards on duty, have the security guards undergo both theoretical and simulated training, and have both its security guards and the company insured for the values of such possible damage, loss and injuries. Clients should, in turn, insist on proof that their service providers are adequately training and insuring their staff, and enter into service level agreements with the security service providers that include indemnity, non-agent and independent contractor clauses,” Du Plessis concludes.

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