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[2016] ZAWCHC 158
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Potgieter v University of Stellenbosch (16936/2010) [2016] ZAWCHC 158; [2017] 1 All SA 282 (WCC) (4 November 2016)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 16936/2010
In
the matter between:
IZAK
POTGIETER
Plaintiff
v
UNIVERSITY
OF STELLENBOSCH
Defendant
Court
:
Justice J Cloete
Heard
:
31 August 2015, 1-2 September 2015, 25-26 and 28 April 2016, 3-5, 9
and 11 May 2016, 1-2, 4, 8, 10-11, 16, 18 and 22 August
2016, 12
and 13 September 2016
Delivered
:
4 November 2016
JUDGMENT
CLOETE
J
:
Introduction
[1]
The
plaintiff’s claim against the defendant is for damages arising
out of serious and permanent injuries he sustained on 9
August 2007
when, as a 21 year old third year student at the Eendrag men’s
hostel of the defendant, he had to escape a fire
through the window
of his top floor room. The merits and quantum having been separated,
the trial proceeded on the merits only.
[2]
The
plaintiff testified and adduced the evidence of 11 witnesses of which
7 were called as experts. The defendant called 6 witnesses
of which 2
testified as experts. For reasons that will appear later it is not
necessary to deal with all of this evidence.
[3]
The
plaintiff’s case ultimately boiled down to the following. The
defendant was obliged to ensure that proper and reasonable
measures
and procedures were in place, and were implemented, for the safety of
students in its hostels, including in the case of
fire. The absence
of fire stops in the common roof void of Eendrag posed a real and
imminent fire risk to the residents of the
top floor (referred to as
the third floor) immediately below the roof void, given that once a
fire reaches a roof void it will
spread rapidly unless proper
preventative measures are in place.
[4]
The
plaintiff contends that the defendant was aware of the risk which a
fire in non-compartmentalised roof voids posed to the residents
in
such hostels, and actually took steps between 1984 and 1987 to
mitigate the risk, after a similar fire at a women’s residence,

Huis Ten Bosch, in 1983.
[5]
It
is common cause that other fires also occurred at the defendant’s
various buildings in 1981, 2005, 2006 and 2007 in the
Polymer Science
Building, Sonop women’s residence, Neelsie student centre and
Huis Visser men’s residence respectively,
although Huis Ten
Bosch was one of the most devastating (it had a similar roof
structure to Eendrag, which is a pitched roof with
clay/cement roof
tiles). Two others occurred after the Eendrag fire, in the Wilcocks
Building in 2010 and the Helderberg men’s
residence in October
2015.
[6]
The
plaintiff alleges that the steps taken by the defendant, namely to
install smoke detectors in the roof void of Eendrag, linked
to an
alarm, were completely inadequate. He maintains that the defendant
failed and/or neglected to take reasonable and proper
cognisance of
the development of best building practices in the years following
Eendrag’s construction in 1966 (and other
hostels with similar
roof structures, including Huis Ten Bosch) with regard to fire safety
measures. As a result it failed to implement
reasonable measures
which were well-known years before the Eendrag fire to make such
hostels safer for occupants in the case of
a fire.
[7]
He
also alleges that it was only in 2011 that the defendant implemented
a Roof Risk Mitigation Project at those hostels where there
was a
real risk to life and safety of residents, which included the
installation of fire stops in pitched roof voids. He submits
that, at
the latest, after the Huis Ten Bosch fire 24 years earlier, such
steps should have been taken. Had the defendant done
so he would not
have been forced to escape the fire through the window of his top
floor room.
[8]
The
defendant appointed the resident warden and house committee members
of Eendrag (and other hostels) to carry out and enforce
its risk
management policy. This policy stipulated that there had to be
reasonable and effective training of all occupants for
the emergency
evacuation plan, and all house committee members were required to
undergo training in the various disciplines for
which they were
appointed such as fire fighting and evacuation.
[9]
The
plaintiff alleges that the defendant failed in numerous respects to
implement its own rules in respect of risk management at
Eendrag
during 2007. In particular, it failed to ensure that house committee
members received proper training. Had it done so the
plaintiff would
not have been placed in the situation that he was.
[10]
The
defendant made various admissions in its plea, principally that it
was under a legal duty to take and implement adequate and
reasonable
safety measures to protect occupants of its hostels from the risk of
fire and its consequences. However it alleged that
it took such steps
by installing smoke detectors coupled to an alarm in the roof void of
Eendrag, and by adopting a risk management
policy for its hostels to
comply with its obligations under the Occupational Health and Safety
Act 85 of 1993 (the OHS Act) and
the regulations issued thereunder,
and/or in fulfilment of its legal duty. In the alternative, the
defendant relied on an indemnity
clause contained in the plaintiff’s
enrolment application to exempt it from any liability.
The
statutory framework in respect of building regulations
[11]
At
the time Eendrag was built in 1966 its construction was regulated by
the local authority by-laws in existence at the time, i.e.
municipal
by-laws pertaining to building regulations for the Stellenbosch area.
Neither party was able to procure these.
[12]
On
23 October 1970 the Standard Building Regulations were issued in
terms of s 14 bis (1) of the Standards Act 33 of 1962 (the

Standard Building Regulations). Local authorities were permitted to
adopt these regulations or any part thereof but they were not

compelled to do so. Again, neither party was able to procure evidence
as to whether the Standard Building Regulations, or any part
thereof,
were at any stage adopted by the Stellenbosch Municipality. The
Standard Building Regulations were not retroactively enforceable.
The
plaintiff did however present evidence that after the promulgation of
the Standard Building Regulations they were generally
seen as best
practice in the building/safety industry.
[13]
On
22 June 1977 the National Building Regulations and Building Standards
Act 103 of 1977 was assented to (the NBR Act), but it only
came into
effect on 1 September 1985. Section 17 of the NBR Act made
provision for National Building Regulations to be issued,
after
consultation with the council of the SABS.
[14]
The
first publication of the National Building Regulations occurred in
1987 (SABS 0400:1987). The first revision of these regulations

occurred in August 1990 when the SABS 0400:1990 was published and put
into effect. SABS 0400:1990 remained in place until it was
superseded
by the SABS 10400:2011 during 2011.
[15]
The
National Building Regulations were also not retroactively enforceable
at any stage. Local authorities were not required to adopt
or enforce
them. Nothing however prevented an owner of a building to upgrade his
building to comply, or partially comply with the
1970 Standard
Building Regulations or, after 1990, with the National Building
Regulations, thus SABS 0400:1990. At the time of
the fire at Eendrag
the National Building Regulations (SABS 0400:1990) had already been
in existence for 17 years. Again, evidence
was led by the plaintiff
that after its acceptance the National Building Regulations (the SABS
0400:1990) constituted best building
practice.
[16]
It
is common cause that both sets of regulations dealt also with fire
safety and fire protection in buildings and contained measures
as to
how these could be adequately achieved (the 1970 regulations were
more stringent in relation to fire stops than the later
1990
regulations). The regulations were well known in the industry for 13
years before the Huis Ten Bosch fire and (in their 1990
form) for
17 years before the Eendrag fire. Cumulatively they were well
known in the industry for some 30 years before the
fire at Eendrag.
Applicable
legal principles
[17]
In
order to succeed with his claim the plaintiff must show that the
defendant was guilty of conduct (in the form of an omission)
which
was negligent, wrongful and the cause of the plaintiff’s
injuries. It is convenient to first outline the applicable
legal
principles against which the relevant evidence must be assessed.
[18]
The
starting point is the dictum of Harms JA in
Telematrix
(Pty) Ltd v Advertising Standards Authority SA
2006 (1) SA 461
(SCA) para [12]:
‘
The
first principle of the law of delict, which is so easily forgotten
and hardly appears in any local text on the subject is, as
the Dutch
author Asser points out, that everyone has to bear the loss he or she
suffers. The Afrikaans aphorism is that “skade
rus waar dit
val”. Aquilian liability provides for an exception to the rule
and, in order to be liable for the loss of someone
else, the act or
omission of the defendant must have been wrongful and negligent and
have caused the loss. But the fact that an
act is negligent does not
make it wrongful although foreseeability of damage may be a factor in
establishing whether or not a particular
act was wrongful.’
[19]
The
test for negligence is to be found in
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-G:
‘
For the
purposes of liability culpa arises if –
(a)
A
diligens paterfamilias in the position of the defendant -
(i)
Would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss;
and
(ii)
Would
take reasonable steps to guard against such occurrence; and
(b)
The
defendant failed to take such steps.
…
Requirement
(a)(ii) is sometimes overlooked. Whether a diligens paterfamilias in
the position of the person concerned would take
any guarding steps at
all and, if so, what steps would be reasonable, must always depend
upon the particular circumstances of each
case…’
[20]
In
Ngubane
v South African Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A) 776G-I Kumleben JA said that, once it is
established that a reasonable person would have foreseen the
possibility of harm,
the answer to whether he or she would have taken
measures to prevent its occurrence, although always dependent upon
the circumstances
of each case, entails four basic considerations,
namely: (a) the degree or extent of the risk created by the
actor’s
conduct; (b) the gravity of the possible consequences
if the risk of harm materialises; (c) the utility of the actor’s

conduct; and (d) the burden of eliminating the risk of harm.
[21]
In
Za
v Smith and Another
2015 (4) SA 574
(SCA) para [30] Brand JA, referring to the test for
factual causation said:
‘
What
it essentially lays down is the enquiry – in the case of an
omission – as to whether, but for the defendant’s

wrongful and negligent failure to take reasonable steps, the
plaintiff’s loss would not have ensued. In this regard this

court has said on more than one occasion that the application of the
“but-for test” is not based on mathematics, pure
science
or philosophy. It is a matter of common sense, based on the practical
way in which the minds of ordinary people work, against
the
background of everyday-life experiences. In applying this
common-sense, practical test, a plaintiff therefore has to establish

that it is more likely than not that, but for the defendant’s
wrongful and negligent conduct, his or her harm would not have

ensued. The plaintiff is not required to establish this causal link
with certainty.’
[22]
Fault
would be established if a reasonable person in the defendant’s
position would have realised that harm to the plaintiff
might be
caused, even though the exact nature of the ensuing harm fell outside
that realisation:
Groenewald
v Groenewald
1998 (2) SA 1106
(SCA) 1112I-J.
[23]
As
to wrongfulness, in
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and Another
2000 (1) SA 827
(SCA) para [19] Scott JA said:
‘
If
the omission which causes the damage or harm is without fault, that
is the end of the matter. If there is fault, whether in the
form of
dolus or culpa, the question that has to be answered is whether in
all the circumstances the omission can be said to have
been
wrongful…To find the answer the Court is obliged to make what
in effect is a value judgment based, inter alia, on its
perceptions
of the legal convictions of the community and on considerations of
policy.’
[24]
This
was dealt with as follows in
Za
v Smith
at paras [20] and [21]:
‘
Reverting
to the enquiry into wrongfulness – properly understood –
in this case, it will be remembered that prior to
the watershed
decision of this court in
Minister
van Polisie v Ewels
1975
(3) SA 590
(A), liability for omissions was confined to certain
stereotypes. One of these was referred to as relating to those in
control
of dangerous property, who were said to be under a duty to
render the property reasonably safe for those who could be expected
to visit that property. After
Ewels
,
those stereotypes did not become entirely irrelevant. They still
afford guidance in answering the question whether or not policy

considerations dictate that it would be reasonable to impose
delictual liability on the defendant in a particular case, although

these stereotypes no longer constitute the straitjackets that they
were before
Ewels…
Having
regard to this stereotype of those in control of dangerous property,
as well as other considerations of policy finding application
in this
case, I am satisfied that the element of wrongfulness had been
established by the appellant.
Broadly speaking
my reasons for this finding are as follows. In determining
wrongfulness, the other elements of delictual liability
are usually
assumed. Hence the enquiry is whether – on the assumption (a)
that the respondents in this case could have prevented
the deceased
from slipping and falling to his death; and (b) that he died
because of their negligent failure to do so –
it would be
reasonable to impose delictual liability upon them for the loss that
his dependants had suffered through their negligence…’
[25]
In
H
v Fetal Assessment Centre
2015 (2) SA 193
(CC) it was said at paras [51] and [67] that:
‘
[51]
Our pre-constitutional law of delict is not couched in terms of a
duty to protect fundamental rights.
It is clear, however, that many
interests and rights protected under the common law quite easily
translate into what we now recognise
as fundamental rights under the
Constitution…
[67]
In addition to the general normative framework of constitutional
values and fundamental rights,
our law has developed an explicitly
normative approach to determining the wrongfulness element in our law
of delict. It allows
courts to question the reasonableness of
imposing liability, even on an assumption that all the other elements
of delictual liability
– harm, causative negligence and damages
– have been met, on grounds rooted in the Constitution, policy
and legal convictions
of the community…’
[26]
In
South
African Hang and Paragliding Association and Another v Bewick
2015 (3) SA 449
(SCA) para [23] Brand JA said:
‘
Even on
the assumption that the appellants had failed to perform a duty
imposed on them by statute, the question remains whether
their
omissions were wrongful in the delictual sense…’
[27]
The
reverse is also true. Albeit dealing with the element of negligence,
Neethling et al: Law of Delict (7
th
ed 2014) para 4.8, p158, fn 188 state that:
‘
It must
also be pointed out that the mere adherence to a statutory rule does
not necessarily prevent a person from acting negligently.
Where there
is eg. a speed restriction of 100 km/h and X drives at 95 km/h under
circumstances where he should have driven at 60
km/h (because of a
slippery road surface, etc) X cannot be heard to say that he did not
act negligently because he stayed within
the speed limit. To hold
otherwise would be to adopt too mechanical an approach to negligence
and for this reason the test of the
reasonable person still applies
as described above. The existence of a statutory provision is thus
only one factor to be taken
into account in the determination of the
possible negligence of a wrongdoer.’
[28]
See
also Van der Walt and Midgley: Principles of Delict (4
th
ed 2016) para 164 p263:
‘…
thus
a breach of a statutory duty does not necessarily constitute
negligence and, vice versa, compliance with a statutory regulation

does not
ipso
iure
exclude
negligence.’
[29]
Referring
to
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para [21], Brand JA in
Bewick
went
on to say at para [25]:
‘
Accountability
is therefore just one of the considerations which should, amongst
other things, be taken into account…’
[30]
In
Le
Roux and Others v Dey
2011 (3) SA 274
(CC) para [122] the Constitutional Court also pointed
out:
‘
Incidentally,
to avoid confusion it should be borne in mind that, what is meant by
reasonableness in the context of wrongfulness
has nothing to do with
the reasonableness of the defendant’s conduct, but it concerns
the reasonableness of imposing liability
on the defendant for the
harm resulting from that conduct.’
The
issues on the merits
[31]
During
closing argument the defendant made certain important concessions.
These were that: (1) it would be vicariously liable
for
negligent acts and/or omissions of those responsible for the
implementation of its risk management system at Eendrag; (2) after

the fire in the roof void and uppermost floor at Huis Ten Bosch in
1983 it reasonably foresaw that such roof fires were a hazard
that
could lead to loss of life, limb and property; and (3) at all
relevant times it had the financial resources, or access
to such
resources, to install fire stops, hose reels and smoke detectors in
communal areas below ceiling at Eendrag. The defendant
also abandoned
any reliance (as pleaded) on contributory negligence on the part of
the plaintiff.
[32]
It
was also ultimately not in dispute that, post the Huis Ten Bosch fire
and given its realisation of the risk, the defendant took
steps
towards making Eendrag (and other buildings) safe, to prevent roof
fires and to manage risk, by installing smoke detectors
in the roof
void coupled to an alarm.
[33]
In
addition, it was undisputed by the end of the trial that the fire was
the direct cause of the plaintiff’s injuries. The
central issue
for determination thus crystalised into whether or not the steps
taken by the defendant in relation to Eendrag were
reasonable. If
they were, then no negligence can be attributed to the defendant and
the question of wrongfulness does not arise.
However, if they were
not, then negligence is necessarily established in the particular
circumstances of this matter (given the
‘
but-for
test’
)
and it is then required to determine whether or not the defendant’s
conduct was also wrongful.
[34]
With
this in mind, I turn to deal first with the events of 9 August
2007, and second, the evidence on the disputed issues.
The
Eendrag fire – 9 August 2007
[35]
In
2007 there were 276 students in Eendrag, housed on three floors, with
first year students on the ground floor (referred to as
the first
floor), second year students on the second floor and third year and
other more senior students on the third floor. The
head student (the
primarius or ‘
prim’
)
and vice-head student (the onder-primarius or ‘
onder-prim’
)
could select rooms of their choice. At the time of the fire the prim
was De Wet Spies and the onder-prim was Andre Coetzee.
[36]
Each
floor is divided into three wings. These wings were referred to in
the trial as the eastern, northern and western wings. The
plan
depicts the northern wing in the middle with the eastern wing (or
arm) at an angle of about 45° to the left and the western
wing at
about 45° to the right. House committee members were each
designated a section under their supervision on each floor
(4 house
committee members per floor).
[37]
On
each floor there are relatively large, roofed but otherwise open,
balconies at the furthest tip of each of the eastern and western

wings, as well as at the intersections of the eastern and northern
wings, and northern and western wings, respectively. The fire
started
in the early morning of 9 August 2007 on the third floor balcony at
the intersection of the northern and western wings
(referred to as
the north western balcony). Adjacent to each balcony is a flight of
stairs leading to exits from the building.
Other such stairwells are
located in the middle of the eastern and western wings.
[38]
The
plaintiff and his roommate, Servaas Fick, shared room 117 in the
middle of the northern wing on the third floor, 5 rooms away
from the
north western balcony. Their immediate neighbours, P J Engelbrecht
and Bernard Bravenboer, occupied room 115, which was
the next room
further away from the north western balcony. The house committee
member in charge of the plaintiff’s section
was Linsen Loots
who occupied room 100, which is roughly in the middle of the eastern
wing adjacent to another flight of stairs
leading to an exit. Loots
was in charge of rooms 100 to 117, known as Swingel section.
[39]
In
addition to the plaintiff, Engelbrecht, Loots and Coetzee gave
evidence about the events of that morning. Engelbrecht and Loots
were
called by the plaintiff and Coetzee by the defendant. These four
witnesses were patently honest and gave consistent accounts
which
were not dented in cross-examination, including the testimony which
they give on the disputed issues which I will deal with
later. Their
testimony was credible and reliable and there is no basis to reject
it.
[40]
It
is convenient to start with Coetzee’s evidence because, by
having noted times on his cell phone, he was able to place a
reliable
time frame on what happened. Coetzee occupied room 41 close to the
furthermost tip of the eastern wing on the second floor.
He was woken
by the alarm at 06h47. He went down to the control panel on the
ground (first) floor and silenced it.
[41]
The
control panel indicated that the alarm had been activated by a smoke
detector in the western section of the roof void (‘
dakruimte
wes’
).
He went upstairs to this section (it took him less than a minute) and
found a smallish group of students attempting to extinguish
a fire on
the north western balcony by using hand held fire extinguishers. By
then the alarm had reactivated.
[42]
The
fire had not yet breached the ceiling of the balcony although flames
were starting to lick the ceiling boards. They were visible
on the
balcony side of the window between the balcony and the third floor
passage. Coetzee could see that it was a very serious
fire. He
grabbed a few fire extinguishers but they had already been emptied.
Another he grabbed had been jammed. Coetzee recalled
how loud the
noise was (the alarm was sounding, the fire was roaring and students
were shouting and running around).
[43]
Coetzee
ran downstairs in search of more fire extinguishers and, after
finding none, then outside to gauge the extent of the fire.
In the
process he called campus security (USBD) to inform them that this was
not a false alarm but in fact a fire. That happened
at 06h52. Outside
Coetzee realised that, given that the fire was now raging out of
control, only the fire brigade would be able
to extinguish it. He was
outside for no more than 10 seconds.
[44]
He
ran back into the building in search of the prim, Spies, who occupied
the room directly opposite or immediately adjacent to his
(he could
not recall exactly which) to report the severity of the situation. He
found Spies awake in the corridor and together
they ran down to the
first floor to evacuate the first year students. En route (i.e.
whilst on the second floor) they banged on
doors and shouted for
students to evacuate. He and Spies then ‘
started
pulling people out of bed’
on the first floor. Their concern was with the first floor students
and not with those on the third floor, as each section had
a house
committee member responsible for that section. Coetzee and Spies were
not assigned sections although the first year students
were their
responsibility. He said ‘
So
my concern was not with the third floor, but just to make sure that
the rest of the building also evacuated’.
[45]
Once
all the first year students were evacuated, Coetzee returned briefly
to ‘
his’
wing on the second floor (i.e. the eastern wing, and thus furthest
away from the north western balcony). He found it empty and
again
returned outside. By now it was just before 07h00.
[46]
He
said ‘…
by
that stage the fire had spread already quite extensively across the
roof on the third floor, and had already reached the side
opposite
from where it had started. So it would have already been closer to
the east side of the building’.
[47]
After
quickly retrieving his computer containing his thesis from his room,
Coetzee again returned outside. He estimated that by
then 90 to 95%
of all students had evacuated. No formal roll call was held, but an
attempt was made to ascertain whether there
were students left in the
building, and some students were sent back inside to look for those
still missing. One was woken by a
brick hurled through his window.
The fire brigade arrived shortly before 07h00 but according to
Coetzee ‘
it
was quite some time before they started spraying water or anything’
(there was apparently a difficulty with access to fire hydrants).
[48]
Coetzee
was uncertain whether at a stage he also returned to the third floor.
At a point he testified that ‘
I
don’t think I went back after that. The smoke by that stage
was, anyway, you couldn’t breathe on the third floor’.
At another stage he recalled having also briefly returned at some
point to the third floor of the northern wing where he noticed

students leaving. However nothing turns on this given his evidence
that the third floor was not his primary concern.
[49]
Engelbrecht
testified that he was studying on the evening of 8 August 2007
and thus consumed no alcohol. A number of other
students were
socialising and drinking, given that 9 August 2007 was a public
holiday. He and his roommate, Bravenboer, went to
sleep at around
23h00.
[50]
Engelbrecht
was woken by screams from the adjoining room. Opening his window he
saw the plaintiff and his roommate Fick on the windowsill
of the room
next door, screaming for help. He could see the red glow of flames in
the room behind them. He turned back and saw
his own room filling
with smoke and hot ‘
kooltjies’
of burning debris swirling around. Realising that the building was on
fire he woke the still sleeping Bravenboer. Engelbrecht’s

immediate instinct was to open the door to their room and to run next
door to assist.
[51]
However
the brass knob of the door was too hot. Grabbing a hand towel for
protection, Engelbrecht managed to get his door open only
to be
confronted by what he described as a ‘
inferno
brand vlamme wat in die gang af is…’
outside the plaintiff’s room. Engelbrecht realised that he
would not be able to reach them and had to focus on getting himself

and Bravenboer to safety.
[52]
He
picked up Bravenboer (who was barefoot) because the floor of the
corridor was littered with burning debris. The smoke was so
dense
that he could barely see his hand in front of his face and as a
result first missed the stairwell exit. Turning around and
feeling
his way along the wall, he found the stairwell and he and Bravenboer
ran outside. According to Engelbrecht it would have
been impossible
for the plaintiff and Fick to exit their room through the door and
thus the building down the stairwell. Although
Engelbrecht did not
wish to commit to a specific timeframe, his evidence was that it had
felt as if less than 40 seconds elapsed
between opening his window
and reaching the outside of the building.
[53]
Engelbrecht
then saw that the plaintiff and Fick were still trapped on their
windowsill with flames rapidly spreading around them.
He shouted to
the fire brigade for help. However the flames were by now threatening
to engulf the pair and they jumped. Underneath
their windowsill
(adjacent to the first floor) was a small roof tiled canopy visible
on the photographs introduced in evidence,
of not more than about
1 metre wide. Engelbrecht saw Fick’s foot breaking through
the canopy and ‘
catching’
him: ‘
Hy
het op die dakkie bly lê, ek het gedog hy is dood’
.
(Fick ultimately managed to fall or jump to safety). The plaintiff
jumped but hit the canopy and tumbled off.
[54]
Asked
to describe what he saw upon arrival outside the building Engelbrecht
replied:
‘
Die
hele boonste vloer het, dit het gelyk of iemand petrol uitgegooi het
en aan die brand geslaan het. Die vlamme was onmenslik
hoog, ons het
op die gras gesit of gestaan en soos wat ons daar gestaan het die
yskaste se gasbottels begin ontplof. Ja, ek self
was in 'n moeilike
posisie want ek het gaan slaap in die aand met 'n onderbroek
Edelagbare en dit is al wat ek aangehad het met
'n handdoek. So ek
het nie eers tyd gehad om enigiets te vat nie, ek was net met 'n
onderbroek en 'n handdoek op die gras gewees
sonder 'n foon of
sleutels, ek kon niemand kontak nie, ek het letterlik niks gehad
nie.’
[55]
Engelbrecht
had not heard the alarm sounding or anyone knocking on his door to
alert him to the fire, nor had he heard any shouting
or other
warning. After his arrival outside there was no orderly procedure to
identify students who might still be trapped in the
building. There
was no roll call or head count.
[56]
The
plaintiff testified that he went out on the evening of 8 August
2007 and had a glass of punch and a few beers. There is
no suggestion
that he was intoxicated. He thereafter walked back to Eendrag just
after 01h00. Fick had not yet returned and so
he left the door to the
room closed but unlocked.
[57]
He
does not know what exactly woke him that morning. However he
immediately heard ‘
'n
hengse lawaai’
(the roar of fire and people shouting and running further down the
corridor). He does not recall hearing the alarm siren. He saw

‘
kooltjies’
burning the ceiling of his room and falling into the top shelf of his
cupboard (its door was standing open, setting his clothing
alight).
Realising immediate danger, he shook Fick awake. They tried to open
the door but the doorknob was too hot. One of them
grabbed a hand
towel and (like Engelbrecht) used it to turn the doorknob. Upon
opening the door they were confronted by a wall
of flames and
overpowering heat, rendering it impossible for them to exit.
[58]
The
only other way out was through the window. Fick, being smaller in
build than the plaintiff, was able to crouch on the windowsill
facing
forward. The plaintiff had to position himself facing into the room
(i.e. with his back to the outside). Looking over his
shoulder the
plaintiff saw the fire brigade arriving. As he looked back the
ceiling in his room collapsed and the entire room became
engulfed in
flames. He still held on for as long as he could until the heat from
the flames began to burn his hands and arms. He
decided to try to
jump backwards onto the canopy and from there onto the ground. That
is the last he can remember until regaining
consciousness in hospital
two weeks later, rendered a paraplegic, with burn wounds to his
hands, arms, back, legs and feet.
[59]
Loots
testified that on 8 August 2007 he went to sleep at about midnight.
He awoke to the sound of the fire alarm siren. He is a
light sleeper
and was accustomed to reacting to the siren because he knew that
house committee members were required to do so.
He pulled on some
clothing and ran from his room with the intention of going to the
alarm control panel.
[60]
On
his way, and when he reached the stairwell at the intersection of the
northern and eastern sections on the third floor, he noticed
the fire
on the north western balcony. He could see the glow of flames through
its window into the corridor. He grabbed a fire
extinguisher and ran
along the northern wing corridor (past the room of the plaintiff) to
the balcony. However in his attempt to
douse the flames, he
mistakenly jammed the fire extinguisher by pressing the handle
without releasing the pin. He had not been
shown or trained how to
use a fire extinguisher.
[61]
There
were others at the balcony, including Coetzee, trying to extinguish
the fire. Loots ran down to the second floor and, having
found
another fire extinguisher, returned. Although he was able to activate
it, he almost immediately realised that the fire was
too large to be
brought under control by the students, and that he would have to
start waking the occupants to get them out. His
reaction was to run
back to his own room (thus again past the room of the plaintiff) to
put a piece of white clothing on the doorknob
of his room to indicate
he had vacated it (I will refer again to this later). He then began
to alert those in his section, banging
on their doors and shouting
for them to leave. This he started doing in his section from the
furthest point away from the fire.
Some of the occupants were still
asleep and he had to wake them up.
[62]
About
2 to 3 rooms before the plaintiff’s, i.e. just after the north
eastern stairwell, the smoke in the third floor corridor
became
overwhelming and Loots struggled to breathe. The fire (and smoke) was
proceeding towards him from the opposite direction,
and the rooms of
both the plaintiff and Engelbrecht were located in between. Loots was
not able to reach their rooms. He realised
his own life was in danger
and thus fled the building.
[63]
When
Loots reached outside, he saw that the fire had proceeded rapidly
from the roof above the north western balcony, and within
a minute or
two after his exit from the building, the roof collapsed over the
eastern section (i.e. that furthest away from the
fire). He described
the situation outside as follows:
‘
Daar
was toe nog redelik chaos. Mense – daar was heelwat HK lede en
mense het soort van stadig begin almal in seksies laat
aantree, maar
dit was nog nie enigsins georganiseerd nie…
En kort nadat ek
uitgekom het by die gebou, seker 'n minuut of twee, onthou ek, ek het
op die Bun gestaan en gesien hoe die vuur
deur die kamers op hierdie
voorste – waar my kamer was – op daai gang, hoe die vuur
deur die gang beweeg en die kamers
se plafonne een vir een inval soos
wat die vlamme dit – die kamers sou oorneem…
Omdat dit 'n
vakansiedag was, was daar 'n klomp mense wat nie in die koshuis was
nie, so dit – en niemand weet presies wie
daar behoort te wees
nie, so dit was moeilik om te weet wie is moontlik nog in die gebou.
Maar ek weet daar was mense wat, veral
in die onderste twee vloere,
nog in die gebou was, wat ons toe mense ingestuur het om hulle to
gaan wakker maak en uitkry…
En ek onthou Ian
Burger, wat in een van die kamers in Katstraat was op die derde
vloer, het by die middelste trap, so die een langs
my kamer, het hy
afgehardloop tot die – tussen die onderste vloer en die tweede
vloer, en van – daar is 'n venster,
en hy het by daai venster
uitgespring op die Bun.’
(Katstraat
was the section in the eastern wing furthest from where the fire
started).
[64]
Loots
estimated that no more than 7 minutes elapsed between him realising
that the students would not be able to extinguish the
fire and his
exit from the building.
[65]
He
was asked ‘
What
sort of time did you have on your hands to make these kinds of
decisions about whose door you were going to knock on?’
and he responded ‘
Probably
seconds, because the whole fire felt like it happened in minutes…’
[66]
Ms
Anina Burger, a forensic fire investigator appointed to investigate
the fire by the defendant’s insurer, testified on the

plaintiff’s behalf. Although the cause of the fire could not be
established with certainty, her opinion as to its probable
cause and
spread was accepted as correct by all of the fire experts who gave
evidence.
[67]
It
was Ms Burger’s opinion that a discarded cigarette in an empty
bottle had probably been left to smoulder in a municipal
rubbish bin
in the northern corner of the north western balcony. The bin itself
had been destroyed (only the handles were still
intact), but a
cigarette butt was discovered amongst its remains, leading her to
believe that it was probably ‘
protected’
by
having been placed in a bottle in the bin.
[68]
Students
had smoked on the balcony before the fire and no ashtrays were used.
Cigarettes were reportedly stubbed out or discarded
‘
in
any possible manner’
.
Several sofas on the balcony comprised polyurethane foam, covered
with cotton type material, and would have been susceptible to

smouldering ignition by a burning cigarette.
[69]
It
was not possible to determine how long the cigarette butt had been
smouldering before spontaneous ignition occurred, but when
it did,
the fire would have spread rapidly. All indications were that the
fire had been burning undetected for an extended period
and had
progressed to a well-developed stage upon its discovery, although at
that point it was still restricted to the north western
balcony. The
combustion of the extremely high fuel load on the balcony (i.e. sofas
and the like), as well as the balcony’s
soft board ceilings,
contributed immensely to the rapid spread of the fire into the roof
void. In addition, a strong northerly
wind was blowing at the time of
the fire’s discovery.
[70]
Although
reinforced concrete slabs separated the first, second and third
floors, this was not the case above the third floor, apart
from
reinforced concrete slabs over the stairwells (which would have
prevented the drop down of burning roof and ceiling material
in these
limited areas only). The building had a pitched timber roof clad with
cement tiles. The third floor had a double volume
ceiling which was
constructed of two layers, with flammable soft board panels above and
combination gypsum plaster and asbestos/cement
below. These were
fitted to inverted metal T’s. Ms Burger explained that in
older buildings soft board was traditionally
used as ceiling material
because of its insulative and noise reduction properties. It is not
fire resistant. Gypsum on other hand
has moderate fire resistant
properties, and will contain fire spread for a limited period until
it collapses. (Dr De Vos later
explained: ‘
The
only thing that a non-combustible ceiling is, it doesn’t
contribute to the fire load, that’s almost all it does.
It has
very low fire resistance integrity value’).
[71]
The
combustion of the timber roof construction and soft board panels
resulted in rapid fire spread through the roof void. The fire
burnt
with great intensity and its spread was enhanced by the prevailing
northerly wind. Visible fire damage in the rooms on the
third floor
was extensive, widespread and largely homogenous, and the fire
consumed virtually all of the combustible content in
these rooms. The
entire roof collapsed (in flames) within 20 minutes of the fire
reaching the roof void.
[72]
The
damage resulted from the drop-down of burning roof and ceiling
material and the subsequent ignition of the incidental fuel loads.
In
addition there was evidence to indicate that the fire had ventilated
through the door and windows linking the balcony and third
floor, and
then spread under the ceiling along that corridor, although its main
thrust would have been upwards into the roof void.
[73]
Ms
Burger explained that a fire’s direction is always “up
and out” and it will move to the highest point that
it can.
Once the ceiling is breached it will spread vertically to the highest
point, filling the roof void with hot flammable gas,
and then
laterally, while also radiating downwards onto the ceiling below. In
Eendrag, the uppermost point of the roof (the apex
truss positioned
directly above the third floor corridor) would have been compromised.
Then as the purlins fell the heavy concrete
roof tiles would have
done so as well. All of this burning material would have fallen down
onto the ceiling above the corridor
and rooms, and once the ceiling
collapsed, into the corridor and rooms below along with the burning
ceiling embers.
[74]
She
was also of the opinion that, while gypsum was installed as a bottom
ceiling layer on the third floor, it had not also been
installed
under ceiling in the cupboard in the plaintiff’s room, which
meant that all that separated the cupboard and the
roof void was a
combustible soft board ceiling.
[75]
With
reference to photographs taken while Eendrag was in flames, Ms Burger
demonstrated how the absence of fire stops in the
roof void was
evident: ‘…
die
vlammevuur is omtrent die hele lengte van elke vleuel, dit is een
vlammevuur, een kontinue vlammevuur. Waar as jy brandmure
gehad het
op sekere punte, sal jy verwag dat jy 'n konsentrasie van brand het,
en dat die brand sal lyk of hy beperk is tot 'n
sekere area, en dan
skielik sal hy oorgaan, en jou volgende area sal brand, en met die
dieselfde intensiteit, en tot die brandmuur
tot niet is of geval het,
en dan sal dit aanskuif. Jy sal nie verwag dat jy een, kontinue
vlammevuur het as jy brandmure gehad
het wat effektief was nie…Enige
tiepe brandmuur, of dit nou…baksteen, sement is, en of dit
giepsbord is, of –
dit maak nie saak nie. Iets wat daar is om
die brand te – tydelik te vertraag.’
[76]
Once
the fire breached the ceiling it thus spread unhindered and very
rapidly in both directions. The roof began collapsing within
a minute
or two after the ceiling was breached. A further exacerbating factor
would have been the accumulation of dust in the roof
void, which
accelerates combustion.
[77]
The
following passage of her evidence places the significance of fire
stops in a roof void in perspective:
‘
As daar
byvoorbeeld
fire
walls –
ek
gebruik die Engelse uitdrukking – of
fire
stops
in
die dak was, sou dit daarteen vasgebrand het aanvanklik? --- Hy sal.
Hy sal in 'n kompartement gebrand het, van muur tot muur,
en
afhangend van die brandbestrydingseienskappe van jou mure, of hy 20
minute brandbestand is of 30 minute, sal hy in daai kompartement

brand, as dit effektiewe mure is.
Ja. --- En dan
behoort jy te kry – die rede vir die brandmure is om die brand
te vertraag. So hy perk hom in vir 'n tyd; hy
hoop in daai tyd gaan
jou dak val, en al daai hitte wat andersins horisontaal sou versprei
het in jou dakruim, kan uitgaan, gaan
deur jou dak. Jou dakteëls
het geval. Sou hy die muur op een of ander manier vernietig of hy sou
geval het, het jy weer jou
volgende kompartement, wat dan nou weer
moet begin brand. Hy begin dan nou stelselmatig brand, en dan het jy
dieselfde brandgroei
in hom, tot jy dak-val het. Maar in daai tyd gee
jy die brandweer kans om dalk die brand te blus tot op 'n stadium,
en/of mense
om uit te kom. Dis die doel van die brandmuur, is nie om
jou brand te blus nie, is om jou tyd te gee om die brand te bestry en
om te kan uitkom, en jou skade te – jou verlies to verminder.’
[78]
Ms
Burger also explained that what predominates in a fire is the
accumulation of smoke which is why smoke detectors play a crucial

role in fire detection. Accordingly, the higher the positioning of
the smoke detectors, the longer it will take for them to activate.
It
is common cause that in Eendrag the smoke detectors had only been
installed at the highest point of the roof void (which is
where they
are usually installed in a pitched roof).
[79]
It
was also Ms Burger’s evidence that, once the fire breached
the ceiling, any attempts by the students to extinguish
it with the
use of fire extinguishers, hose reels and the like, would have been
futile. Only the fire brigade would have been able
to bring it under
control. The other fire experts who testified agreed.
The
evidence on the disputed issues
[80]
Ms
Marieta Nel was called by the plaintiff to testify about her
experience of the Huis Ten Bosch fire on 9 September 1983 when

she was a student in that hostel.
[81]
Ms
Nel occupied a corner room on the top floor, furthest away from where
the fire started in another student’s room on the
same floor
(bedding in that student’s room caught fire from a heater). A
few feet away from Ms Nel’s room was
a stairwell leading
to an exit from the building. In the early hours of that morning she
awoke to voices outside in the corridor
but paid them no heed because
‘
dit
is tipiese naggeluide in 'n koshuis’.
Her sister, also an occupant of the hostel, then came to tell her
that it had caught fire.
[82]
She
pulled on clothing and together with her sister and roommate ran
towards the stairwell. As they emerged from their door she
saw thick
black smoke at the end of the corridor. Immediately after exiting the
building she and her roommate decided to return
to their room to save
their year’s work, cash and important documents. They ran back
upstairs but as they reached the top
of the stairwell they were
confronted by intense heat (her roommate’s hair was singed) and
smoke so dense that it was impossible
for them to proceed further,
and they were forced to run back downstairs.
[83]
Once
outside again, Ms Nel saw the roof of the building engulfed in
flames: ‘
jy
kon sien hoe hardloop die vuur’.
It is not disputed that the fire destroyed the entire roof as well as
the contents of the rooms on the third floor, and that about
50
students occupying these rooms lost all their possessions.
[84]
Ms
Nel was referred to a front page article that appeared in the
Eikestadnuus, the Stellenbosch local publication, on 16 September

1983 in which details of the Huis Ten Bosch fire were reported. The
relevant portion reads as follows:
‘
Dit
was die derde oudste koshuis vir meisies en die daksolder
[i.e.
roof void]
was
nog op die ou manier sonder afskortings
[i.e.
fire stops]
gebou
sodat dit baie gou heeltemal aan die brand was en ingestort het…’
[85]
This
article was introduced in evidence not for the purpose of proving the
truth of its contents, but to show that already on 16
September 1983,
a week after that fire, it was front page news in the local newspaper
that the cause of the rapid fire spread was
that the roof void was
without compartmentalisation.
[86]
The
expert evidence adduced by the plaintiff on the disputed issues
(apart from Burger’s), was that of Mr Anthony Young
(fire
investigator), Dr Phillip de Vos (fire, forensic and structural
engineer) and Mr Rod de Witt (occupational health and
safety
consultant). Mr Cornelius Moir (development and fire consultant)
testified on behalf of the defendant. The plaintiff, Engelbrecht,

Loots and Coetzee also gave evidence on these issues, as did Mr
Christiaan Munnik (who was called by the defendant). He was
previously
the defendant’s Chief Director: Facilities
Management, having been appointed to this position in April 2009,
some 20 months
after the Eendrag fire and before the Wilcocks
Building fire in 2010. He retired during 2014.
[87]
As
previously stated, it is common cause that at the time of the Huis
Ten Bosch fire the Standard Building Regulations 1970 (which
inter
alia
prescribed the installation of fire stops in roof voids for buildings
such as Eendrag), although not retrospectively enforceable,
had
already been in place for 13 years.
[88]
From
1990 the National Building Regulations became effective, albeit again
not retrospectively. The latter regulations (SABS 0400:1990,
Part T)
prescribed
inter
alia
the following in respect of a building such as Eendrag (with a
classification of occupancy class H2). First, rule TT 12.5(a)
stipulated
that a roof space be divided into areas of a maximum of
300m
2
by non-combustible fire stops (the only exception being where a
sprinkler system was installed above and below ceiling, which all
the
experts agreed was hugely expensive, and did not feature in Eendrag).
Second, rule TT 34 prescribed that hose reels of 30m
in length be
installed at a rate of one per 500m
2
of floor area, such that the end of the hose would reach any point in
the area to be protected. Third, rule TT 31.1(c) prescribed
the
installation of a fire detection system with an emergency evacuation
system of type L1, L2 or L3 (as appropriate). The evidence
of De Vos
was that, because people sleep in such a building, the most
appropriate system is deemed to be a type L1 – i.e.
smoke
detectors linked to an alarm in each room throughout the building.
However, as a minimum, and taking into account considerations
of
expense and practicality, a type L2 system, with smoke detectors
installed at ceiling soffit level in all communal areas (such
as
lounges, balconies and the like) as well as the common escape
corridors should be combined with smoke detectors in each
compartmentalised
section of the roof void. (In a roof of the size of
Eendrag, there would be 6 such compartments). As previously stated,
at the
time of the fire, Eendrag had no fire stops, or hose reels,
and smoke detectors were only installed in the roof void.
[89]
It
is also common cause that in 1981 (i.e. two years before the Huis Ten
Bosch fire) the defendant appointed a risk manager to develop
systems
and procedures to ensure,
inter
alia
,
the safety of students in its hostels.
[90]
A
memorandum dated 20 March 1998 issued by the defendant’s
vice-rector at the time, Prof Christo Viljoen, and headed
‘
Risikobestuursbeleid’
,
contains: (a) the defendant’s acknowledgement of its
responsibility to protect students from any form of physical risk
as
far as practically possible, and the consequent imperative to develop
and implement an effective risk management policy; and
(b) its
undertaking to bind itself to fulfil all statutory and other legal
obligations in this regard (including the OHS Act),
and ensuring that
all persons appointed for this purpose did so as well. A memorandum
in almost identical terms was issued by Prof
J. F. Smith, the
vice-rector (management), on 20 October 2003.
[91]
During
his testimony De Witt referred to the defendant’s rule booklet
titled ‘
Koshuisreëls’
which accompanied the memorandum issued on 20 March 1998 (‘
the
1998 booklet’
),
as well as the defendant’s manual titled ‘
Risikobestuur
in Koshuise’
addressed to all heads of hostels,
primarii
,
primaria
and house committee members on 20 October 2003 (‘
the
2003 rule booklet’
)
i.e. on the same day as the memorandum issued by Prof Smith.
[92]
Clauses
4.1 to 4.4 of the 1998 rule booklet deal with the various duties and
functions of hostel personnel. The resident warden
is obliged, in
conjunction with the prim and house committee, to ensure adherence to
hostel safety rules. Clause 4.2 deals with
the responsibilities of
the prim and that he:
‘
4.2.13 Is
oorhoofs persoonlik aanspreeklik om te verseker dat die Universiteit
se Risikobestuursbeleid streng toegepas word en veiligheidsmaatreëls

afgedwing word.’
[93]
Clause
4.3 deals with the duties and responsibilities of the onder-prim,
including (at clause 4.3.4) co-ordination of the hostel’s
risk
management system in his capacities as chief co-ordinator and manager
of the hostel’s emergency plan. Clause 4.4 prescribes
the
duties and responsibilities of house committee members, in particular
(at clause 4.4.18) that he or she:
‘
Is 'n
persoonlike hoedanigheid aanspreeklik om toe te sien dat die
Universiteit se Risikobestuursbeleid toegepas word en
veiligheidsmaatreëls
afgedwing word in daardie gedeelte van die
koshuis wat as sy/haar verantwoordelikheidsgebied geïdentifiseer
is.’
[94]
Clause
1.4.2 of the 2003 rule booklet records that the risk management
system includes the emergency plan and training for its
implementation. Clause 1.8 deals with the various role players in the
hostel responsible for implementation of the risk management
program.
The persons to be appointed by the university to carry out the risk
management system were the resident warden, the prim,
onder-prim and
house committee members.
[95]
Clause
2.4 of the 2003 rule booklet makes it incumbent on the prim and house
committee members to ensure that each student in the
hostel is
properly trained in all safety and risk management rules and
procedures. Clause 2.10 stipulates that:
‘
Brand
is 'n belangrike risiko en maatreëls in hierdie verband is van
die grootste belang:
·
Brand
gevare en optrede tydens 'n brand moet deel vorm van die opleiding
van inwoners van die koshuis…
·
Die
Primarius/Primaria en alle H.K.-lede moet opgelei en vaardig wees om
brandblusapparaat te gebruik.  'n Voldoende aantal
inwoners in
elke seksie moet ook in die gebruik van brandblusapparaat opgelei
word.’
[96]
Clause
2.11 deals with the early detection/alarm system. It prescribes that:
(a) the
primarii
and each house committee member must receive training and are
required to know ‘
presies
…hoe om 'n alarmtoestand te hanteer’
;
(b) when a false alarm occurs campus security must immediately be
informed; and (c) false alarms are a criminal offence and
when
they occur the
primarii
must immediately launch an investigation and ensure disciplinary
action is taken against perpetrators.
[97]
Clause
8.3.2 sets out the procedure to be followed in case of fire, as
follows: (a) raise the alarm; (b) use fire extinguishers,

unless the fire is already too large or becomes too large, in which
event evacuate and contact campus security to notify the fire
brigade
(i.e. so as not to place one’s life in danger); (c) restrict
access to the area; and (d):
‘
8.3.2.5
Ontruim stelselmatig-
(i)
eerste
mense in direkte gevaar;
(ii)
dan
mense bo-, onder-en langs gebied
(iii)
slegs
indien werklik nodig moet hele gebou ontruim word.’
[98]
Finally,
clause 8.5 sets out the rationale for the need to practise
implementation:
‘
'n
Noodplan sonder inoefening is sinneloos en gevaarlik. Verwagtinge
word geskep en sukses word aanvaar wat nie sonder gereelde
inoefening
haalbaar is nie.’
[99]
I
will first deal with the evidence of most of the lay witnesses
because it helps to contextualise some of the expert evidence.
[100]
The
testimony of the plaintiff, Engelbrecht, Loots and Coetzee
established the following. Evacuation drills at Eendrag traditionally

took place once each term (i.e. 4 times per annum).
Students were notified in advance when the drills were to take place

as they always coincided with a house meeting which all students were
required to attend immediately thereafter. Only the first
year
students were expected to respond and to evacuate the building (i.e.
those occupying the first/ground floor). The other students
did not
have to respond or follow any procedure. Provided they arrived in
time for the house meeting they were at liberty to wander
down to the
common room where these meetings were held at a leisurely pace.
[101]
The
alarm would be activated about 15 minutes before a house meeting.
When the alarm sounded the first year students followed the
procedure
of vacating their rooms and leaving a white sock on the outside
doorknob to indicate that the room was empty. They then
exited the
building and assembled on the ‘
Bun’
(a lawn next to Eendrag) in their ‘
sections’
.
The relevant house committee member in charge of each section would
then tick their names off a list. The only individuals involved
in
the co-ordination of the first year students’ evacuation drill
were the prim, onder-prim and the 3 responsible house committee

members on the ground floor.
[102]
Other
than being given a brief overview of what was required for an
evacuation drill during orientation week for first year students,

this was the sum total of what occurred in respect of student
training and practicing in fire fighting and evacuation. No
unscheduled
evacuation drills ever took place in the years that these
four students resided in Eendrag before the 2007 fire, nor were any
of
them properly trained in how to evacuate or to use fire
extinguishers (which was the only fire fighting equipment available
in
the hostel). Loots, a house committee member, had never used a
fire extinguisher. Coetzee only knew how to use one because he had

fortuitously gained this knowledge elsewhere.
[103]
False
alarms caused by student pranks were a regular occurrence to the
point where students did not take the alarm siren seriously.
The
night before the Eendrag fire there were two such false alarms. The
established modus operandi was for the alarm to first be
silenced by
the relevant individual (i.e. the prim, onder-prim or house committee
member) before investigating the cause, and for
the students to
continue whatever they were doing until notified over the public
address system what was happening (invariably,
that it was a false
alarm).
[104]
Loots
testified as follows:
‘
Oor
die algemeen het studente nie gereageer daarop nie. Dit het, soos ek
sê, gereeld genoeg gebeur, en was amper altyd iemand
wat dit –
wat 'n brandglasie gebreek het sonder 'n rede. So dit word nou maar
ignoreer, en die – ek dink die aanname
was, as dit 'n ernstige
probleem is, sal iemand soos 'n HK lid dit besef en dan later vir jou
sê jy moet nou reageer.’
[105]
During
the almost 3 year period that the plaintiff resided in Eendrag before
the fire there had not been a single incident of a
real emergency.
Furthermore, neither Loots nor Coetzee (nor Spies or any other house
committee member) received specific training
in evacuation or fire
fighting in the year that they were responsible for these duties
(from the commencement of the 4
th
term 2006 until the end of the 3
rd
term in 2007).
[106]
Apart
from the little they gleaned from their respective predecessors
during portfolio handovers, according to Coetzee the training
was
generally conducted by the prim and onder-prim at the first meeting
of the new house committee members. He explained that ‘…
and
that training would have included a broad discussion of our
responsibilities and then instructions specifically on how the fire

alarm worked.’
Neither Coetzee nor Loots had ever read clause 8.2.3 of the 2003 rule
booklet which dealt with the manner of evacuation required
in an
emergency, nor was this procedure ever conveyed to them. Neither
received any formal training by the defendant.
[107]
Although
the defendant maintained that a general evacuation plan was affixed
to the communal notice board, it clearly did not receive
any
particular attention from these students. Although in
cross-examination the plaintiff accepted that after the briefing
(such
as it was) during orientation week he knew what was expected of
him in case of a fire, it was clear from his testimony, as well
as
that of Engelbrecht, Loots and Coetzee, that his knowledge (and that
of other students) did not come close to what was required
by the
defendant’s 1998 and 2003 booklets.
[108]
The
defendant did not produce the specific evacuation plan which it
contended was affixed to the notice board at Eendrag in 2007.
However
what was referred to by the defendant was a ‘
similar
plan’
.
This makes no reference whatsoever to the order of evacuation of
students in the case of an emergency such as a fire. Instead
it
instructs students to: (a) react to the alarm; (b) close
doors and windows; (c) switch off lights and electrical
points;
(d) collect important personal effects; (e) wait for
instructions to evacuate; and (f) when they are given,
place a
cloth over the doorknob outside one’s room and proceed outside.
[109]
This
was also Coetzee’s understanding of what was required. It also
supports the evidence of Loots that all he had was a general
idea on
how to evacuate those in his section: ‘
Net
baie breedweg…Ek sou geweet het, kry mense uit die gebou so
gou as moontlik en gaan na die Bun toe’.
Loots was never informed that those closest to the danger must be
evacuated first. As he explained, his instinctive reaction in
the
emergency of the fire was to follow what he had been told, which was
to first run to his room, place a white sock on the doorknob,
and
then start evacuating students. In the process he ran past the
plaintiff’s room twice without alerting him to the danger.
He
said:
‘…
in
hindsight, it’s easy for me to say that going to rooms from the
fire, moving outwards, would have been the better angle
of approach.
I don’t think, given the time, I was really able to make very
well thought through or considered decisions,
so I relied on instinct
and whatever I remembered from fire drills and sort of the system
that I should be following.’
[110]
Despite
the fact that false alarms were a regular occurrence in the years
that these four students resided in Eendrag none, apart
from Coetzee,
recalled a single perpetrator being apprehended or disciplined.
Coetzee remembered ‘
at
least 2 or 3 people’
being caught during the 6 years he resided in Eendrag, although he
accepted that the disciplinary records of Eendrag did not reflect

these incidents. He was also unable to comment on what punishment
they received, but mentioned that a fine of R200 could be imposed
for
breaking an alarm glass. According to both Loots and Coetzee it was
almost impossible to apprehend a culprit because he was
long gone by
the time the alarm was silenced at the control panel on the ground
floor and no-one readily came forward.
[111]
The
evidence also showed that apart from the general established apathy
in responding to alarm sirens most students, who became
accustomed to
the noise in a hostel such as Eendrag, often slept through an alarm.
Indeed, on the morning of the fire Engelbrecht,
Bravenboer, the
plaintiff, Fick and a number of other students did so. When Coetzee
made his written report to the defendant after
the fire, he urged it
to consider the installation of a second, louder alarm that could
only be activated by the house committee
in the case of a ‘
real
emergency’
because ‘
living
in residence you become accustomed to sleeping through noise, and
….because of the situation with false alarms in
the past…’
this would help people to wake up and alert them to an actual
evacuation.
[112]
De
Witt (the occupational health and safety expert called by the
plaintiff) testified that, while the defendant’s written
risk
management policy was a good one, there were some serious
shortcomings in its implementation in the period leading up to the

Eendrag fire. These were chiefly as follows.
[113]
First,
it was the responsibility of the defendant (and not its students) to
provide proper training for those charged with its implementation

which, at least in 2007, the defendant clearly had not done,
particularly in respect of fire fighting and evacuation procedure.

Second, the defendant should have ensured that its system was
rigorously enforced because the safety of its students depended on

this. It was unacceptable for the defendant to have allowed the
regular occurrence of false alarms to continue without putting
in
place measures (such as CCTV cameras) to identify culprits and to
discipline them severely, so that other students would not
only
realise the serious consequences, but also the danger of being
apathetic. Third, the established apathy of students in reaction
to
an alarm signal, coupled with the modus operandi of first silencing
the alarm and then having students wait for further instructions

before evacuating (reinforced by the defendant’s own emergency
plan displayed on Eendrag’s communal notice board) created
a
serious risk to life, limb and property. In response to the
defendant’s contention that it had acted reasonably in its

handling of student behaviour De Witt said:
‘
No, I
don’t think so. I think they know very well the animal that’s
called the student…I think they know what
students do, and I
think they didn’t handle an emergency procedure well enough,
although they knew what a student is.’
[114]
It
was De Witt’s opinion that, had the risk management system been
properly implemented: (a) the alarm would have been
taken
seriously by those who awoke; (b) those responsible for fire
fighting would have had at least a chance of extinguishing
the fire
or bringing it under control before it breached the ceiling; and
(c) evacuation would have commenced earlier and
would have
occurred systematically, starting with those in direct danger (such
as the plaintiff) and progressing to those in least
danger (such as
those on the ground floor). While accepting in cross-examination that
proper implementation of the system would
not have ensured a positive
result, he responded that it would have increased its likelihood.
[115]
It
was also his opinion that based on the defendant’s experience
of the Huis Ten Bosch fire as well as its own rules and memoranda

issued in 1998 and 2003 the defendant was fully aware of the risk
that a fire in a hostel (where a large number of occupants may
be
asleep when a fire breaks out) represented. It was also clearly aware
of the relevant statutory provisions applicable to occupational

safety (which he explained apply not only to employees of the
defendant but also its students), but to a large extent merely paid

lip service and failed to ensure proper practical implementation and
enforcement of its own risk management system and rules. This
failure
impeded the effective management of the risk caused by the fire to
students.
[116]
De
Witt was a good witness, who gave reliable, credible and objective
testimony, at times to the point of being diffident. His opinions
and
the reasons therefor were not materially challenged. Moreover, there
was no like expert called by the defendant to gainsay
his testimony.
I accept it.
[117]
Young
(the other fire investigator called by the plaintiff) testified at an
early stage of the trial. He too was a good witness
even if a little
rigid at times. As it turned out, much of his evidence overlapped
with, and supported, that of Burger and De Vos,
and it is therefore
not necessary to deal with it in any detail.
[118]
De
Vos accepted at the outset that Part T of the 1990 regulations did
not apply retrospectively to Eendrag. However he was consistent
in
his opinion that a reasonable university in the position of the
defendant would have taken certain minimum steps, envisaged
by the
regulations, to ensure the safety of students in its hostels. His
reasons were as follows.
[119]
First,
the defendant’s prior knowledge of, at the least, the
devastating effect of the 1983 Huis Ten Bosch fire. Second, its
prior
knowledge of the reason for the rapid spread of that fire once it
reached the roof void. Third, the defendant’s appointment
of a
suitably qualified professional in the form of the risk manager to
assess and address risk of this nature. Fourth, the overwhelming

probability that the risk manager (and his successors) would have
been well acquainted with best practice in relation to measures
to
prevent rapid spread of fires in buildings, and the shortcomings in
respect of buildings such as Eendrag. Fifth, the defendant,
being one
of the foremost institutions of higher learning in the country, had
ready access to expertise of this nature. Sixth,
the defendant’s
own express recognition of its obligations in respect of the safety
of its hostel residents, as encapsulated
in the memoranda and rules
issued by it in 1998 and 2003.
[120]
He
explained this as follows:
‘
I mean my
opinion is based, M’Lady, on the fact that we have, at the
university, some unfortunate incidences of fire and the
destructive
nature of fires. We have a risk manager that one would assume is
quite aware of the current best practice standards,
an assessment of
that building against those standards would show that the building is
alien from that standards
[sic]
,
and my opinion is that if that were to be known, the minimum –
in an ideal world you would rip everything out and try to
conform the
building to current standards, but that’s not economically
feasible, and it’s not practical
[but]
to
create some kind of retrofit systems, that would at least seriously
mitigate the fire risk in the building.’
[121]
The
minimum measures which in the opinion of De Vos were necessary to at
least partially achieve this goal were installation of
the following:
(a) fire stops in the roof void; (b) smoke detectors under
ceiling as well in common areas, including
balconies; and (c) hose
reels (as prescribed by rule TT34).
[122]
De
Vos explained that with the third floor area of Eendrag being about
1640m
2
,
the roof void should have been divided into 6 zones by retrofitting
non-combustible fire stops (12.5mm thick gypsum board). The
most
practical locations of these fire stops would have been at each
stairwell/ablution facility with one additional fire stop
in the
centre of the northern wing of the hostel. These boards could simply
be screwed to the existing timber trusses. Installation
of these fire
stops would have implicated temporary removal of certain suspended
ceiling panels to provide access to the roof void,
and making good on
completion. He pointed out that the 1990 regulations only required
non-combustible material (unlike the later
2011 regulations which
prescribe material with a 20 minute fire rating). De Vos was not
prepared to commit to precisely how long
fire stops of the kind he
proposed would have delayed the spread of the fire because of the
range of possible variables involved
in the rate of fire spread.
However the following passage of his evidence is relevant:
‘
But
as you explained earlier, if the fire is contained between two
firewalls and the roof fails, what is the probability of the
fire
spreading laterally? --- Well significantly lower. Significantly
lower.’
[123]
At
the time of providing his initial report (in January 2014) De Vos was
not aware of the defendant’s Roof Risk Mitigation
Project which
was later driven by Munnik and to which I refer below. Once he had
sight of the documentation relating to this project,
and conducted an
inspection of Eendrag shortly before he testified, he established
that all of the measures that he had earlier
proposed had in fact
been implemented (although obviously not on his recommendation) by
the defendant. The only differences were
that the fire stops
installed at Eendrag were made of brick (an even better option, and
feasible, given that Eendrag’s roof
had been destroyed in the
2007 fire), and one of the fire stops had been erected in a
different, but equally acceptable, position
(i.e. in the middle of
the northern wing but on the western instead of the eastern side of
the plaintiff’s former room).
This had the result that two fire
stops had been erected between the north western balcony and the
plaintiff’s room.
[124]
It
was the opinion of De Vos that the measures taken by the defendant
prior to the Eendrag fire were irrational in the management
of the
known fire risk and the risk to life and safety of occupants.
[125]
He
employed the following metaphor:
‘
If
you drive around in a 1954 Anglia, because you’re a vintage car
owner, lover, which does not have a safety belt or ABS
brakes or
airbags or crumple zones, you’re an enthusiastic vintage car
owner and you care for the car well, but you do realise
that you do
live in an environment of modern cars that have these safety features
to protect your life. In other words if you drive
that car, you know
that you are exposed to a higher risk if you get involved in an
accident. What I tried to do in my presentation,
in my reports, is
show that these are the rules that apply now, or 1990, from 1990 to
2006/2007, these were the safety belts and
the airbags, these were
the rules, and if you know what the real rules are, because you have
a risk manager and you are in a university
that teaches your science
and…engineering students to the latest world developed
technology, you know how alien you are
from those risk mitigation
features. That’s what I tried to implicate, that you, as an
Anglia driver, do not comply. And
there’s nothing also that can
force you as a driver, to comply, nobody can force you to put in
airbags as far as I know,
but you are aware of the risk that you’re
exposed to…’
[126]
During
his testimony Young referred to the fire that occurred at the
Helderberg men’s residence in October 2015. The fire
started on
a balcony where students had been lying on a bed with a foam mattress
with a table alongside them. They had been smoking.
They left the
balcony for the canteen. The bed and/or papers adjacent to it caught
alight. The fire developed on the balcony and
spread both into the
adjacent room (through windows facing onto the balcony) as well as
into the roof. There was early detection
and an early response and
the fire was suppressed before it could cause any significant damage.
A total of about 3 rooms were affected.
However in the roof void it
was fully contained between the fire walls.
[127]
Munnik
(the defendant’s former chief director of facilities
management, who testified on its behalf) spent his entire career
in
property and related facility management. After his appointment in
April 2009 his primary task was to assess the condition of
the
defendant’s buildings (thus also its hostels), including
backlog maintenance and risk mitigation. He both conceptualised
and
was the driving force behind the defendant’s roof risk
mitigation project which commenced in 2011.
[128]
He
explained that what kick-started this was his witnessing the fire in
the Wilcocks Building at the end of 2010:
‘
I
was called out to Stellenbosch and everybody rushed out there to find
the building in flames and what made the biggest impression
on me,
was that one of the staff members was a lady on the third floor of
the building, was being hauled out of a window, the office
window, by
– and somebody on the second floor stood on his windowsill, so
that she could lower her feet on his shoulders,
and that way they
actually saved her from death, because the fire reached the outside
of her office, she couldn’t open the
door, the door was stuck
already, twisted and distorted, the only way was through the window,
and fortunately somebody was there
to get hold of her and take her
down. It made a huge impression on me, and I actually started to
investigate now what is the real
situation, and what I discovered, I
learnt all about the roof spaces and I heard there were no fire
walls, I actually knew it,
because of the old buildings. I was told
about Eendrag, I learnt about Eendrag. I knew about Eendrag because
my son-in-law was
in that building when it burnt. I wasn’t at
the university then, but I knew about it. And thirdly, the insurance
company
actually informed us that, or asked us what are our plans to
mitigate the risk, because this is becoming a real financial risk now

to the insurance company, seeing that the Wilcocks is only a few
years after Eendrag…’
[129]
After
making his investigation Munnik identified non-compartmentalised roof
voids as being a particular risk in rapid fire spread,
with the
consequent risk to occupants being unable to escape safely. This he
conveyed to the defendant as deserving the utmost
priority to prevent
the loss of life. Munnik also testified about how he had to persuade
the defendant to make available the necessary
funds to finance the
project (as previously stated it was only during closing argument
that the defendant eventually conceded that
at all material times it
had been able to finance at least the minimum measures which were
included in the project and which De
Vos had coincidently
independently recommended).
[130]
His
evidence was further that the defendant’s insurers were
becoming concerned about what it was going to do to mitigate this

risk ‘
because
one fire after the other, it’s a huge claim to the fund’.
He explained that Huis Ten Bosch was one of the residences included
in the roof mitigation project, as it still had no fire stops
or the
other minimum measures recommended by De Vos.
[131]
The
following passage of his evidence in cross-examination is also
relevant:
Ja.
Were you – before the Wilcocks fire, and seeing your years of
experience in managing buildings, I presume you were aware
of
firewalls in roof voids and what their purpose is. --- Yes.
And I presume
that you were also aware of that in terms of the building
regulations, such as they were, the old building regulations,
they
prescribe firewalls in buildings. --- Hmm.
And also the
SABS, the 0400 of 1990. --- That’s right.
…
they
described, or rather prescribed firewalls in buildings, but old
buildings, they’re not applicable to them. --- Correct.
But that did not
deter you, you wanted to  - you realised the risk and you wanted
something done about it, would that be right?
--- That would be
right, but qualified.
Qualify it. ---
I qualify by saying that, I think the impact of the fire of Wilcocks
on me was quite difficult, because I actually
witnessed what happened
there. And bearing in mind that it happened so soon after Eendrag,
and my son-in-law was in Eendrag when
the fire actually happened, it
made me go into this problem, and think about it, and see is there
anything we can do. Now on the
other hand, I was actually forced to
that by the system, because I was put on a block now to say identify
the major risk in your
environment and come and report it to the
committee.’
[132]
Munnik
added that, in fairness to the defendant, the necessity for these
measures to be taken was not resisted but the difficulty
lay in
having the defendant make the funds available. What requires mention
however is that, unlike the defendant, Munnik himself
was not aware
of the devastating consequences of the Huis Ten Bosch fire until a
few days before he testified. Munnik was also
not aware at the time
that the defendant had previously addressed this risk by installing
only smoke detectors coupled to an alarm
in the roof voids of certain
buildings (including Eendrag). Having investigated, Munnik realised
these measures were inadequate.
It was also his evidence that during
the rollout of the roof risk mitigation project hostels were
identified as a first priority
because students slept there.
[133]
Moir
(the development and fire consultant called by the defendant) tried
to be a lone voice against the weight of the other evidence,
but was
ultimately forced to make a number of important concessions. Unlike
De Vos (an impressive witness who understood the role
of an expert
and who was completely objective throughout his testimony), Moir
mostly tended to be evasive and expedient, and was
reluctant to make
obvious concessions, for example seeking to draw a semantic
distinction between ‘
good’
and ‘
best’
building practice in relation to fire safety measures at the time of
the Eendrag fire.
[134]
I
will highlight a few of the most notable instances. Moir initially
maintained that gypsum fire stops with a thickness of 6.5mm
installed
on one side of a roof truss every 30 metres would have been compliant
had the defendant been obliged to comply with the
1990 regulations,
while at the same time claiming that these would have had virtually
no effect (a matter of only one to two minutes)
in delaying the
spread of fire in the roof void.
[135]
He
maintained that the 12.5mm gypsum fire stops recommended by De Vos
would have been prohibitively expensive for the defendant
to install.
When asked what purpose the installation of the 6.5mm gypsum boards
would on his version have served, he changed his
evidence and said
that he would have installed two of these boards for each fire stop,
one on either side of each truss (thus effectively
proposing a
marginally thicker fire stop than De Vos, with the attendant
additional cost). This, Moir said, would have delayed
the spread of
fire by 3 to 4 minutes per side (thus 8 to 10 minutes per fire stop),
although he then sought to minimise this with
the qualification that
it would depend on the point that the fire had reached in the roof.
This again changed and he said (but
with a different qualification)
that an installation of this nature would delay the spread of fire by
about 10 minutes per fire
stop. This qualification was that once the
ceiling started collapsing, the fire would also start spreading
beneath.
[136]
Moir
then had to concede that the 1990 regulations did not stipulate any
particular width for a fire stop, and that the only requirement
was
that it be non-combustible. Furthermore, in one of the rough diagrams
he prepared and referred to in his evidence on alternative
fire stop
installation scenarios at Eendrag, he positioned two of these between
the north western balcony and the plaintiff’s
room. It is
therefore fair to accept on his own version that, had these been
installed at the time of the Eendrag fire, this would
have delayed
the spread of the fire to the plaintiff’s room for somewhere
around 10 to 15 minutes, even taking into account
collapsing ceilings
(as opposed to what actually happened, namely the collapse of the
entire roof in flames within 20 minutes from
it first breaching the
roof void on the north western balcony).
[137]
Moir
gave an explanation about industry norms for evacuation distances and
evacuation times but, it turned out, within the context
of rational
building design (it is common cause that Eendrag was built according
to generic design principles and Moir’s
area of expertise is
rational design).
[138]
One
of his grounds for contending that the plaintiff should have been
able to safely evacuate within 10 minutes of the alarm first
sounding
(i.e. before the fire even breached the ceiling) was that the
distance between the plaintiff’s room and the
nearest exit
point was 45 metres. When it was pointed out that the distance was in
fact about 65 metres (De Vos had measured this
distance from the
drawings discovered by the defendant and his evidence in this regard
had not been challenged) Moir had to concede
that he had not
physically measured the distance himself but had also only had regard
to the plans.
[139]
As
regards a reasonable evacuation time, Moir’s evidence was that
this was calculated as follows. 30 Seconds is allowed for
an initial
reaction period from the time the alarm first goes off. A ‘
buffer’
of only 15% to 20% (i.e. 4.5 to 6 seconds) is allowed for the initial
reaction period for those individuals who are ‘
slow’
to react. 20 Seconds are then allowed for the individual to grab
a few valuable possessions and leave his room. A maximum
of 10
minutes (at a stage Moir mentioned 7 minutes) is allowed between
the time the alarm first goes off and the individual
exits the
building, because that is usually how long it takes for fire smoke to
become dangerously toxic. Moir made it clear that
no allowance is
made for apathy in responding to an alarm, although at the same time
he found it acceptable practice for an alarm
to first be silenced and
then allowed to reactivate only in the case of a real emergency.
[140]
This
testimony does not assist the defendant for the following reasons.
First, the evidence showed that student apathy was the norm
as a
response to the alarm, and that this was reinforced by the
modus
operandi
of those responsible for implementing the emergency plan at the time.
Second, it was Loots’ unchallenged estimate that not
more than
7 minutes elapsed between him first spotting the fire (on his way to
silence the alarm after it initially sounded), when
it was still
contained under ceiling on the north western balcony, and having to
leave the building because he was no longer able
to breathe. Third,
as a matter of fact, the plaintiff (along with a number of other
students) in any event slept through both alarms,
and the defendant
no longer contends that he was in any way negligent in this regard.
[141]
When
asked what he suggested the plaintiff should have done when
confronted with a wall of flames and smoke upon opening his door,

Moir’s startling response was that ‘
he
has to go through that door’.
Apparently the window was not an option because ‘
Ja,
well the window is not a good choice’.
[142]
Moir
also initially testified that the Huis Ten Bosch building ‘
was
entirely different’
in structure to Eendrag, only to concede in cross-examination that
it’s style of construction was similar and that: ‘
Fire
in a roof – all fires in roofs tend to behave – in wooden
roofs like that, tend to behave similarly’.
[143]
Moir
finally conceded that a roof fire, especially where there are
students sleeping if it happens at night, is a serious risk to
their
safety. He conceded that without the fire stops that even he
proposed: ‘
if
you look at the scenario room 117
[i.e.
the plaintiff’s room]
is
the furthest room away from the stairs and you needed about
approximately four minutes – if you responded to the alarm

approximately 4 minutes to get out…Yes, and it could have
posed a risk if they didn’t…move immediately, yes.’
[144]
The
following passage of his cross-examination is also relevant:
‘
Eendrag,
it’s a risk for those sleeping in the building. You have to do
something. If there’s a fire in that roof void,
it’s a
risk to the people sleeping in that building. Do you think the
University could then just say oh well, we don’t
need to
comply, why should we? --- No, they would consider any report you
gave them, yes…
That is just one – what one
would expect if they are aware of the problem that they will do
something about it. --- That’s
correct.
They won’t say legislation
doesn’t apply, why do we need to spend money on fire walls, you
will expect them to do something.
--- If it’s brought to their
attention you’d expect them to do something.
Yes. And
especially the spreading of the fire in a roof void because that is
dangerous, would you agree with that? --- Ja, the spreading
of the
fire is dangerous but also a greater loss of property too.’
[145]
Moir
was not a credible witness. To the extent that his evidence differed
from that of De Vos, Young, Burger and De Witt, I reject
it and
accept theirs.
Evaluation
[146]
Having
regard to the evidence as a whole there is little doubt in my mind
that the plaintiff has discharged the onus resting upon
him to show
that, on a balance of probabilities, the defendant was negligent. A
diligens
paterfamilias
in the position of the defendant would have foreseen, after the Huis
Ten Bosch fire, that its failure to take reasonable steps
to guard
against a similar occurrence would cause injury to students in its
hostels. A
diligens
paterfamilias
in the position of the defendant would also have taken reasonable
steps to guard against such an occurrence. The steps taken by
the
defendant were not reasonable and fell far short of the
reasonableness standard, both in relation to the installation of fire

safety measures at Eendrag and in the implementation of its own risk
management policy, to which it merely paid lip service.
[147]
The
evidence established that, as a matter of common sense, based on the
practical way in which the minds of ordinary people work,
against the
background of everyday life experiences (see
Za
v Smith
(
supra
)),
the defendant’s failure to take reasonable steps caused the
plaintiff injuries. The risk of fire spreading unhindered
through a
roof void was a severe one. The gravity of the possible harm to
students if the risk materialised was serious. The defendant
was
financially able to take reasonable steps to adequately address that
risk. The defendant had a risk manager and access to the
necessary
expertise to adequately address that risk. The burden of adequately
addressing the risk was not unduly onerous (see
Ngubane
(
supra
)).
In these circumstances, there is no reasonable basis to arrive at any
conclusion other than that the defendant was negligent.
[148]
The
defendant’s conduct was also wrongful. The authorities to which
I earlier referred make it clear that compliance with
a statutory
obligation is not itself determinative of this issue, and that other
considerations of policy such as accountability,
industry norms and
constitutional imperatives are equally important. Stereotypes such as
those relating to persons in control of
dangerous property are not
entirely irrelevant, and they still provide guidance to answering the
question whether or not policy
considerations dictate that it would
be reasonable to impose delictual liability on a defendant in a
particular case (
Za
v Smith
).
Foreseeability may also be a factor (
Telematrix
(
supra
)).
[149]
As
pointed out in
H
v Fetal Assessment Centre
(
supra
)
our law has developed an explicitly normative approach to determining
the wrongfulness element in our law of delict, on grounds
rooted in
the Constitution, policy and legal convictions of the community. As
pointed out in
Le
Roux and Others v Dey
(
supra
)
reasonableness in the context of wrongfulness has nothing to do with
the reasonableness of the defendant’s conduct, but
rather
concerns the reasonableness of imposing liability on the defendant
for the harm resulting from that conduct.
[150]
During
closing argument the defendant’s counsel urged me to exercise
caution in making the required value judgment because
of the
potential consequences to other owners of buildings such as Eendrag
in its pre-August 2007 condition. I have given this
careful
consideration, but believe that the answer lies in what the
Constitutional Court said in
H
v Fetal Assessment Centre
at
para [70]:
‘
A
further general objection is that of the possibility of indeterminate
liability. That is a bogey often raised when the law needs
to cater
for new circumstances and one that almost always fails to materialise
in the wake of innovation…’
[151]
In
referring to this passage I do not suggest that what I am dealing
with in this matter are ‘
new
circumstances’
.
The point is rather that, by finding that it is reasonable to impose
liability on the defendant, the finding is based on the particular

circumstances of this individual case. All cases such as these are
fundamentally fact bound and a finding of wrongfulness will
depend on
each particular set of proven facts. To my mind therefore a finding
of wrongfulness in this matter will not have the
automatic
consequence of opening the floodgates of potential liability for
others.
[152]
In
finding wrongfulness I have taken into account the following. What
constituted reasonable and adequate safety measures had been
well
known in the industry for 30 years before the Eendrag fire. Not only
the defendant but many affected students had the experience
of the
Huis Ten Bosch fire in 1983. The primary cause of its spread was
publicised in the community. The plaintiff and other students
who
reside in hostels such as Eendrag have a constitutional right to
bodily integrity. Institutions such as the defendant should
be
accountable for the safety of those who live and sleep in the
premises which they own and manage. Students are, after all, students

and for most of them residence in a hostel is just one step further
away from parental care and supervision. They are generally
not
mature adults in the true sense. Their parents should be able to
place their faith in these institutions to have adequate measures
to
address the safety of their children. These parents and students
represent a not insignificant sector of society. These considerations

have led me to conclude that it would be reasonable to impose
liability on the defendant in the particular circumstances of this

case.
The
indemnity clause
[153]
The
defendant’s alternative defence is that it is relieved of any
reliability by virtue of an indemnity clause, being clause
G(1)(f) of
the plaintiff’s written application for enrolment. It is common
cause that he signed this application at the age
of 17 and was
therefore assisted by his mother who was his guardian reads that:
‘
(f)
dat ek onderneem om geen eis van enige aard teen die Universiteit of
enige werknemer
van die Universiteit in te stel nie en om op geen
wyse hoegenaamd die Universiteit aanspreeklik te hou vir enige skade
of verlies
wat ek persoonlik of aan eiendom van my mag ly en wat
regstreeks of onregstreeks spruit uit my deelname gedurende my
studietydperk
aan die Universiteit aan enige aktiwiteit van watter
aard ook al, wat te doen het met my studie of opleiding of met sport
of ontspanning
van enige aard, hoe sodanige skade of verlies ook al
mag ontstaan en dat ek aan enige van die gemelde bedrywighede op my
eie verantwoordelikheid
sal deelneem en die risiko daaraan verbonde
vrywillig aanvaar…’
[154]
In
essence the defendant contends that ‘
enige
aktiwiteit’
includes sleeping in its hostels, because ‘
ontspanning’
includes rest and relaxation.
[155]
To
my mind the interpretation which the defendant seeks to place on this
clause is both strained and artificial. Having regard to
the
principles in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA), the plain language of the clause (which is the
starting point) reflects that in order for the indemnity to have any
effect
the plaintiff must first have voluntarily participated in an
activity relating to the period of his study. Sleep is an essential,

involuntary, biological function. It is also not an activity which
flows from the plaintiff’s ‘
studietydperk’
.
[156]
Moreover,
the clause cannot merely be considered in isolation. The context in
which it was produced, and the material known to those
responsible
for its production (i.e. the defendant) must also be taken into
account. At the time the plaintiff signed the
enrolment application
(on 21 June 2004) the defendant had already identified fire as a
real risk to students sleeping in its
hostels and had issued both its
1998 and 2003 rule booklets. If it was ever the defendant’s
intention that a student, while
asleep, would be regarded by it –
contrary to the very tenor of its own risk management policy –
as voluntarily participating
in an activity linked to his period of
study then, peculiar though it would be, the defendant would surely
have specifically included
‘
sleep’
in its indemnity clause. There is no merit in this defence, and it
must fail.
Conclusion
[157]
In
the result I make the following order:
1.
The
plaintiff’s claim succeeds.
2.
The
defendant is declared liable to the plaintiff for such damages as
might be agreed upon or proven in consequence of the injuries
he
sustained in the fire at the defendant’s Eendrag mens residence
on 9 August 2007.
3.
The
defendant shall pay the plaintiff’s costs, including the costs
of two counsel and the qualifying fees and expenses of
the following
expert witnesses:
3.1
Ms
Anina Burger;
3.2
Dr
Phillip De Vos;
3.3
Mr
Anthony Young;
3.4
Mr
Rod De Witt;
3.5
Mr
Mark Carstens;
3.6
Mr
Richard Ward; and
3.7
Mr
Peter Holman.
____________________
J I CLOETE