Folley v Pick 'n Pay Retailers (Pty) Ltd and Others (15559/2009) [2017] ZAWCHC 86 (23 August 2017)

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[2017] ZAWCHC 86
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Folley v Pick 'n Pay Retailers (Pty) Ltd and Others (15559/2009) [2017] ZAWCHC 86 (23 August 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 15559/2009
In the matter
between:
JACQUELINE
FOLLEY
Plaintiff
and
PICK ‘n PAY
RETAILERS (PTY)
LTD
Defendant
MOONSTONE
INVESTMENTS (PTY) LTD
t/a ZAMA CLEANING
SERVICES
Third

Party
Delivered: 23 August
2017
JUDGMENT
BOQWANA, J
Introduction
[1]
The plaintiff, a 68 year old woman, brought an action
alleging that she slipped and fell at Pick ‘n Pay Tokai
supermarket
(“Tokai supermarket”), on Sunday 13 April
2008 while shopping with her friend, Mrs Ilse Garrard. She was 59
years old
at the time of the incident.  She sustained injuries
as a result of the fall.
[2]
She initially caused summons to be issued, for payment
of damages, only against the defendant, on 09 August 2009. In
paragraphs
3 and 4 of her amended particulars of claim, dated 22
April 2014, she alleged that she slipped on water present on the
defendant’s
supermarket floor, as a result of which she fell
and that such fall was caused by the sole and exclusive negligence of
the defendant
and its employees in that it/they were negligent in one
or more of the following respects:
“4.1.
They
permitted
water and/or
a slippery spot caused by moistness
to be present on the supermarket floor in the aisle where Plaintiff
was walking, and by doing so permitted the supermarket to become

slippery;
4.2  It
permitted the
cleaners to wash
the supermarket floor
without cordoning off
that particularly [sic] area and/or
without putting up visible
warning signs
,
warning shoppers
against slippery floors;
4.3   It
failed
to take reasonable steps to prevent harm
to its customers whilst,
by
the exercise of reasonable care, it could and should have done
so
.”
(Own
emphasis)
[3]
It was highlighted on behalf of the defendant that the
allegations pleaded by the plaintiff did not state that such cleaners
were
employed by the defendant and were acting within the course and
scope of their employment, which allegation, according to the
defendant,
would have been essential in a claim to hold the defendant
vicariously liable for any negligent act or omission by those
cleaners.
[4]
According to the defendant’s counsel, Mr Crowe
SC, had the plaintiff positively alleged that the cleaners were
employed by
the defendant, the defendant’s representative would
have been obliged to take instructions on that allegation and it is
probable
that the defendant would have denied that allegation in its
plea and would have pleaded over to allege that the cleaners were
employed
by an independent cleaning contractor, namely the third
party.
[5]
The defendant denied the allegations and further
alleged that the fall was caused by the plaintiff’s own
negligence, in that
she failed to keep a proper lookout and to take
any or adequate steps to avoid the fall, when by exercise of
reasonable care she
could and should have done so.
[6]
It was further submitted on behalf of the defendant
that to be extra careful and in order to ensure that the plaintiff
could not
allege in due course at the trial that she had been taken
by surprise by the evidence that was to be adduced, the defendant
indicated
to the plaintiff its intention to amend its plea to insert
the following new paragraphs, 4.2.4 and 4.2.5, therein:
“
4.2.4.   In
the
further alternative
:
at all material times
the
Defendant had contracted with a specialist independent contractor,
Moonstone Investments 15 (Pty) Limited t/a Zama Specialised
Cleaning
(“Zama Specialised Cleaning”), to keep the Defendant’s
Tokai supermarket clean, neat and tidy.  In terms
thereof,
inter
alia:
4.2.4.1   Zama
Specialised Cleaning was obliged to, and did, place fully trained
employees at the Defendant’s Tokai
supermarket in order to keep
the floors clean, neat and tidy on a daily basis and generally to
ensure that the floors were safe
for use of members of the public;
4.2.4.2   Zama
Specialised Cleaning employed a supervisor who was in control of and
supervised the cleaning staff whom
it placed at the Defendant’s
Tokai supermarket;
4.2.4.3  The Defendant paid
Zama Specialised Cleaning a monthly fee of R24 608.09 to provide such
cleaning services.
4.2.5. In the premises, the
Defendant denies that it is liable to the Plaintiff in the event that
the employees of Zama Specialised
Cleaning were negligent as alleged
or at all.”
[7]
The plaintiff objected to this proposed amendment and
this resulted in the defendant filing an application for leave to
amend its
plea.  The matter was set down for hearing on 26
November 2014, but did not proceed as the parties took an order by
agreement
that the defendant may amend its plea by introducing the
paragraphs that I have already referred to.
[8]
The costs of that application stood over for later
determination at the trial. The defendant claims that the plaintiff
ought to
be ordered to pay these costs.  I will deal with this
issue later.
[9]
The plaintiff served a third party notice on the third
party on 2 February 2015, as indicated in the letter written to the
third
party by the plaintiff’s attorneys on 23 February 2015.
That notice, however, does not form part of the record.  Another

third party notice was served on 12 March 2015, which was more than 6
years after the incident. This, whilst irregular, was not
contested
by the third party.
[10]
In paragraphs 4 and 5 of the amended annexure to the
third party notice, the plaintiff alleged that she slipped on water
present
on the defendant’s supermarket floor, as a result of
which she fell and that her fall was caused by the sole and exclusive

negligence of the defendant and/or the third party and its employees
in that it/they were negligent in one or more of the following

respects:
“
5.1
It
permitted water and/or a slippery spot caused by moistness to be
present on the supermarket floor
in the aisle where Plaintiff was walking, and/or permitted the floor
to be wet and/or moist, and by doing so permitted the supermarket

floor to become slippery;
5.2
It
permitted the cleaners to wash the supermarket floor without
cordoning off that particularly
[sic] area and/or without putting
up visible warning signs, warning shoppers against slippery floors;
5.3    It failed
to take reasonable steps to prevent harm to its customers whilst, by
the exercise of reasonable
care, it could and should have done so
.”
[11]
Once again, so it was submitted by the defendant’s
counsel, the plaintiff failed to make essential allegations to hold
the
third party vicariously liable for any negligent act or omission
on the part of the cleaners, referred to in paragraph 5.2 of the

annexure to the third party notice: namely that they were employed by
the third party and were acting within the course and scope
of their
employment when they committed the alleged negligent act or omission
in question.  It is the defendant’s view
that the
plaintiff will have to overcome this defect in the pleading before
she can succeed in any claim to hold the third party
vicariously
liable for the damages that she allegedly suffered as a result of the
fall.
[12]
Upon being threatened with a notice of bar, on 19 May
2015 the third party filed a special plea of prescription, submitting
that
the plaintiff’s claim fell due on 12 April 2011 (being
three years after the date on which the claim arose) and accordingly

it had become prescribed against the third party, as the third party
notice was issued on 29 January 2015 and served on it on 27
March
2015.  The third party also pleaded to the plaintiff’s
notice.  In its plea it denied the allegations in
paragraphs 4
and 5 of the plaintiff’s notice and alleged,
inter alia
,
that the fall was caused solely through the negligence of the
plaintiff, who was negligent in that she failed to keep a proper

lookout and to avoid injury to herself when, through the exercise of
reasonable care, she could and should have done so.
[13]
During the pre-trial stages the parties entered into an
agreement, which was endorsed by the case management judge, Roger J,
and
made an order of court on 12 November 2015.  In terms of the
order issues of liabilities and quantum were separated.  The

only issues that stood to be determined during the trial were whether
it was the defendant or the third party that carried the
risk of
liability at the date of the plaintiff’s injury and, only in
the event of the third party being found to have been
at risk at the
date of the plaintiff’s injury, the merits of the third party’s
special plea of prescription would be
determined.
[14]
The matter was set down for trial on 15 August 2016.
At the inception of the trial Mr Nel, who appeared for the plaintiff,

advised the Court that his client was in Scotland and could not
travel to South Africa, on medical advice. He requested that the

plaintiff be allowed to her give evidence via video-link and that
this could only take place at an outside venue.  An impression

was created that the parties were all in agreement that this could be
done. It became apparent, however, during the morning before
the
trial would commence, that there were outstanding issues that needed
to be resolved.
[15]
It was apparent that the plaintiff’s attorney had
already secured a venue at the Cape Town International Convention
Centre
(“CTICC”), incurred expenses and made
arrangements, without first checking with the other parties and
obtaining leave
of the Court.  Mr Nel submitted that the CTICC
was the only reasonably feasible alternative, since the Court did not
have
the facility required to conduct video-link proceedings where
the plaintiff would be able to see all those present in Court. The

Office of the Chief Registrar was not notified timeously so as to
arrange recording facilities and this caused a lot of inconvenience

to all concerned and delayed commencement of the proceedings.
[16]
Furthermore, Mr Seale, who appeared for the third
party, indicated that his client wished who raise a point
in
limine -
that it was not properly joined as a party to these
proceedings, in compliance with Rule 13 (3) (b), as the plaintiff had
not sought
leave of the Court to join it as a third party, after
pleadings had closed.
[17]
Mr Seale submitted that in view of the fact that the
third party was not properly a party to the proceedings, its
participation
in the hearing of the plaintiff’s evidence might
create an impression that it conceded to having been properly joined,
if
the matter proceeded prior to that issue being resolved.
[18]
It was agreed that, because of the fact that the
plaintiff’s legal representatives had gone ahead and secured a
venue, with
video linkage, which was paid for, and that the plaintiff
had driven to a studio in Glasgow, where the facilities were
connected,
the point
in limine
would be heard on 17 August
2016.  It was further agreed that the plaintiff’s evidence
would be ring-fenced for purposes
of convenience and the third party
would cross examine her without waiving its right to raise its point
of law.
Proceedings
via video-link and at a venue other than a court room
[19]
In
Uramin (Incorporated in British Columbia) t/a
Areva Resources Southern Africa v Perie
[1]
,
Satchwell J dealt with the use of a video-link to procure the
evidence of witnesses who were based in Paris and Dubai, and who
were
not available to attend Court in Johannesburg.  In her judgment
she found for the use of video-linkage in appropriate
cases.
Her view was that South African courts should be attuned to
modernised technology and use it if it is absolutely impossible
to
procure the attendance of witnesses in Court.
[2]
In her opinion, Courts have recognised the need to accommodate
witnesses to meet the interests of justice in many instances such

evidence being received on affidavit or by way of closed-circuit
television.
[3]
[20]
In my view, there were compelling reasons for the Court
to allow employment of video-linkage in this case.  As the
principal
witness in her case, it was imperative that the plaintiff’s
evidence be procured. Having been satisfied about the surroundings
of
the venue from where she testified, and there being no objection, the
Court allowed the matter to proceed. Both the visual and
verbal
evidence was clear.  There were no time delays or lapses.
The screen was initially focused on the upper body
of the plaintiff,
including her face, and later enlarged onto the face.  The
Court’s portable recording facilities were
used to record the
proceedings.
Third Party’s
point
in limine
and Plaintiff’s Conditional Condonation
Application
[21]
The proceedings resumed at the Court premises on 17
August 2016.  Argument on the point
in limine
lasted for
two days and the plaintiff was granted an opportunity to file an
application for condonation in the event the Court were
to find that
leave of the Court was necessary, prior to the service of the notice
to the third party joining it to the proceedings.
By agreement
between the parties the matter was postponed to 13 October 2016 to
allow for the filing of papers and hearing
of argument on the
condonation application.
[22]
Having considered the papers and submissions made by
the parties, I upheld the point
in limine
and condoned the
plaintiff’s non-compliance with Rule 13 (3) (b) for the reasons
that follow.
[23]
Mr Seale submitted that the third party’s
attorneys wrote numerous letters to the plaintiff’s attorneys,
requesting
a copy of the application that would have had to have been
brought in terms in terms of Rule 13 (3) (b), seeking the leave of
the
Court prior to the serving of the third party notice.
According to him, the third party’s attorneys had also made
several
attempts to locate the Court file to obtain these documents.
[24]
It must be noted that the third party did not file a
formal application with an affidavit to explain these attempts.
Mr Seale
raised the point
in limine
from the bar and submitted
that such an application was not necessary, because correspondence
between the parties’ attorneys
bear these attempts out.
Furthermore, whether or not a formal application was made was neither
here nor there, as the crucial point
of whether the third party was
properly before the Court was a legal one which would not be changed
by the fact that such argument
was not supported by any application.
[25]
Mr Seale submitted that according to the pre-trial
minute of Thursday 12 August 2016, the third party requested the
plaintiff to
admit that it did not bring an application in terms of
Rule 13 (3) (b) for permission to join the third party after close of
pleadings.
The plaintiff’s legal representatives
undertook to revert and in their response they admitted, for the
first time, that there
was no application to join the third party.
They further recorded in the pre-trial minute that the third party
had not raised
any such defence in its plea and was precluded from
doing at that late stage.  The third party stated in the
aforesaid pre-trial
minute that it wished to raise a point
in
limine
that it had not been properly joined in the matter.
[26]
According to Mr Nel, the reason for filing the third
party notice in March 2015 was patent from the pleadings read with
the third
party notice.  He submitted that long after the
initial close of pleadings the defendant amended its plea and by so
doing,
for the first time, introduced the existence and/or relevance
of the third party to the plaintiff and to the proceedings.

Prior to this, the plaintiff had no knowledge of the possible
involvement of any third-party and/or the existence of the third

party as cited and therefore it was not possible for it to have
issued the third party notice earlier. He submitted further that
by
introducing the amendment, the defendant had re-opened the pleadings.
[27]
After hearing the point
in limine
, the plaintiff
was afforded an opportunity to file a condonation application in the
event the Court were to find that indeed leave
of the Court should
have been sought. The plaintiff subsequently filed a conditional
condonation application, after which the third
party filed answering
papers.
[28]
Rule 13 (3) (a) provides that:
“
The third party notice,
accompanied by a copy of all pleadings filed in the action up to the
date of service of the notice, shall
be served on the third party and
a copy of the third party notice, without a copy of the pleadings
filed in the action up to the
date of service of the notice, shall be
filed with the registrar and
served
on all other parties before the close of pleadings in the action in
connection with which it was issued
.”
(Own emphasis)
[29]
Rule 13 (3) (b) specifies that:
“
After close of pleadings,
such notice
may be
served only with the leave of the court
.” (Own
emphasis)
[30]
Mr Seale argued that, in view of the fact that leave of
the Court was not obtained, the service of the notice to the third
party
amounted to a nullity.  In other words, it was as if it
was never served and it was immaterial that the third party
participated
in the pre-trial process by filing a plea and becoming
involved in pre-trial conferences and exchange of pleadings between
the
parties.
[31]
A lot of unhappiness was voiced by both the plaintiff’s
and the defendant’s counsel regarding the manner in which the

point
in limine
was raised, including the fact that the third
party waited until the commencement of the trial to raise the
issue.
[32]
Much debate ensued as to whether pleadings had indeed
closed before the notice was served on the third party and whether
the Court’s
leave was required. Rule 29 stipulates that
pleadings shall be considered closed if:
“
1(a) either party has
joined issue without alleging any new matter, and without adding any
further pleading;
(b) the last day allowed for
filing a replication or subsequent pleading has elapsed and it has
not been filed:...
”
[33]
It is clear from the chronology of events that after
the defendant filed its plea during September 2009, no replication
was filed
15 days thereafter as required by the Rules. The filing of
the replication would have lapsed during October 2009. It was alleged

on behalf of the plaintiff that the pleadings had “initially
closed”. According to the plaintiff issues were re-opened
in
December 2014 when the defendant introduced an amendment to its
plea.  In
KS v MS
[4]
,
the Court held as follows at paras 16-18:
“[
16] … It is when
the parties ‘add to or alter the issues they are submitting to
adjudication’, by amendment or
agreement, that ‘a new
obligation’ comes into existence and a fresh situation of litis
contestatio arises.
[17] In casu the issue to
be determined has remained the same, notwithstanding the late
amendment of the pleadings.
[18] The question therefore
still remains – whether the date for determination of accrual
is at litis contestatio or the date
of divorce.
”
[34]
The pleadings were deemed to have closed during October
2009 after the period in which to file the replication had lapsed.

Even if Mr Nel were correct that they were re-opened by the amendment
to the defendant’s plea, the amended plea was filed
in December
2014 and no replication was filed 15 days thereafter. Accordingly,
even if pleadings could have been considered re-opened
by the
defendant by virtue of an amendment to the plea, they closed again in
January 2015.
[35]
The plaintiff’s reason for not having served the
third party with the notice prior to close of pleadings, is that she
did
not know about its existence. A notice of amendment of plea was
filed in June 2014, at least by then it was clear that there was
a
third party involved, the plaintiff did not file the notice then
either.
[36]
Be that as it may, on the facts before the Court
pleadings had already closed when the third party was served with a
notice joining
it to the proceedings and the leave of the Court was
required prior to service of the third party notice, in compliance
with Rule
13 (3) (b), and this was not done by the plaintiff.
[37]
The next question is whether failure to comply with
this Rule can be condoned by the Court.  In terms of Rule 27 (3)
“
[t]he court may, on good cause shown, condone any
non-compliance with these rules.”
[38]
Mr Seale argued that the Court would be condoning a
nullity if it condones non-compliance in this case.
Furthermore, it cannot
condone non-compliance retrospectively.
He referred to the decision of
Orion Real Estate Limited v Cobra
Watertech (Pty) Limited and Others In re: Orion Real Estate Limited v
Cobra Watertech (Pty) Limited
and Others
[5]
.
This judgment does not, in my view, support the third party’s
proposition.  The Court in that matter stated that: “
...a
party cannot...seek retrospective condonation for an irregularly
served third party notice - i.e.
such a notice served after
the close of pleadings but without the antecedent leave of the court
”
(at para 6). The Court then went on to say at para 8:
“I
fully accept, as
counsel for the applicant invited me to do, that, as was said in
Mynhardt v Mynhardt, in addition to the provisions
of Rule 27 (3),
the court has, in any
event, inherent jurisdiction derived from common law to condone
non-compliance with its rules
.
In summary, I accept that the court has a wide discretion in a matter
such as this – a discretion that must nevertheless
be exercised
judicially. In other words, ultimately the niceties of interpretation
of Rule 13 (3) (b) and Rule 27 (3) do not really
matter in an
application such as this.
What
matters is whether, in all the circumstances, justice will be better
served by condoning a non-compliance with the court’s
ordinary
rules or by granting an indulgence
.
” (Own
emphasis)
The application for
condonation was dismissed in that case, due to the inadequate
explanation for the delays in failing to serve
the third party notice
before close of pleadings and to apply for condonation in a
reasonably good time.
[39]
I find the bulk of the explanation given by the
plaintiff irrelevant to the question of why leave of the Court was
not sought
prior to serving the third party with the notice joining
them in the proceedings after close of pleadings. It could not be
said
that the plaintiff laboured under the impression that pleadings
had not closed. Mr Nel spoke about a loose agreement that the parties

had regarding the filing of documents.  That, however, has
nothing to do with the plaintiff’s failure to ask the Court
for
permission to serve notice on the third party.
[40]
Be that as it may, this must be balanced with other
factors, namely, that the third party’s involvement was key to
the resolution
of the case at hand, there being an allegation that it
was contracted to clean the Tokai supermarket at the time of the
incident.
Furthermore, it waited until the commencement of the
trial to raise the issue of its ‘irregular’ joining into
the proceedings,
having filed its plea and participated in all trial
preparations at the pre-trial level and agreed with the other parties
before
Rogers J as to which issues would be determined by the Court,
as per Court order dated 12 November 2015.  Having asked the

attorneys of the plaintiff for a copy of the application in April
2015, it could not sit and wait for almost one year before sending

another letter requesting that application. It appears from the
answering affidavit to the condonation application that attempts
to
obtain the Court file were made on 15 April 2015 by the third party
and the filing clerk said they are waiting for the file
from the
service provider and that it was expected to be back by 22 April
2015.  On 22 April 2015, another attempt was made
and the hand
written note attached to the answering affidavit records that the
file had not arrived. It states thus: “
Clerk said file
should arrive next week –
28 April 2015
, I
will attempt to uplift the file again
.”  There is no
record that the person who attempted to uplift the file went again on
or after 28 April 2015 to uplift
it. Having sent another request to
the plaintiff’s attorneys for a copy of a joinder application
almost 10 months later,
on 25 February 2016, the third party’s
attorneys received a response that there was no “
further
joinder application”
. It boggles the mind why, if that
response was ambiguous, the third party did not seek further clarity
thereon and uplift the Court
file, as it would have been long after
28 April 2015.  The question posed to the plaintiff’s
counsel at the pre-trial
conference of 11 August 2016 about the
existence of the application, was months after the response given by
the plaintiff’s
attorneys on 26 February 2016 and a few days
before the trial was to commence on 15 August 2016.
[41]
Refusing condonation under these circumstances would
not serve the interests of justice and would be prejudicial to the
other parties.
It would mean that the third party is released from
the proceedings. It was submitted that a strong possibility could
arise that
the plaintiff’s claim against the third party had
prescribed and if it was granted leave to serve the third party
notice
afresh, only then would the running of prescription be
interrupted.  In this instance, all the parties had already
filed all
the pleadings and participated in pre-trial procedures. I
also could not ignore the rule 37 minute dated 22 October 2015 which
was signed by all parties, including the third party, recording that:
“
2. No party feels it has been prejudiced for want of
compliance with the Rules of Court by any other party
.” The
defendant might also be prejudiced in that if it were to be found to
be a joint wrongdoer, the other alleged joint
wrongdoer would no
longer be available.  It was plain in my view that the most
appropriate order was to condone plaintiff’s
non-compliance
with Rule 13 (3) (b).
The further
conduct of the matter
[42]
The leading of further evidence proceeded from 17 to 19
October 2016 and the matter was then postponed for argument to 09
February
2017. On the day of argument, Court management issued a
directive that all courts be adjourned at 12:45, in view of the State
of
the Nation Address proceedings that were to take place in
Parliament, which would have affected the Court’s personnel.
Parties
agreed that it was imperative that the Court adhered to this
directive and adjourn proceedings. It was agreed that argument by all

parties would be truncated and a reply would be furnished in writing
by Mr Nel on an agreed date.  Upon the filing of these
written
submissions by the plaintiff, Mr Crowe requested an indulgence to
file brief submissions to deal with aspects that arose
from the
replying heads of argument, which he felt would be prejudicial if it
was not granted an opportunity to address in view
of the oral
argument having been considerably curtailed. I granted the indulgence
and pointed out that such rebuttal must be limited
to ‘new’
issues raised in reply. The defendant filed a 50 page document. The
plaintiff filed a further reply thereto.
The defendant then asked to
file ‘surrebutting’ heads on the basis that the
plaintiff’s further replying heads
of argument contained
various false and misleading misrepresentations. This obviously
interfered with the finalisation of the matter.
[43]
I called the parties to my chambers to resolve any
outstanding issues so as to bring an end to the filing of further
submissions.
Parties advised me,
inter alia
, about an intended
further amendment to the particulars of claim, which was later
withdrawn. The defendant also advised that the
plaintiff had included
an incorrect set of particulars of claim as part of the record. The
parties advised that they would converge
and agree as to what set of
pleadings ought to have been placed in the bundle. Indulgences were
sought by the parties, on compassionate
grounds, which delayed their
convergence to sort out the record and place the correct set of
pleadings in the bundle. All these
intervening issues were finally
resolved on 01 June 2017.
Plaintiff’s
case
[44]
The plaintiff testified in support of her case and also
called Mrs Garrard, her friend who was with her at the time of the
incident.
The plaintiff’s testimony was in essence that she had
formerly been an actress, director, stage manager, theatre manager
and teacher.  She was currently not employed, as she had had an
operation and could not walk properly. On Sunday [13 April
2008], she
had gone out for lunch with Mrs Garrard and on their way home they
decided to go to the defendant’s Tokai supermarket
to buy
coffee.  The supermarket was the biggest near to where she
lived. They went into the supermarket, with Mrs Garrard
following
behind her.  The plaintiff went up to what she believed was the
third aisle.  At the end of the aisle, near
the cashiers, she
turned to her right.  As far as she could remember she did not
have anything in her hands and she had not
yet gotten what she was
looking for.
[45]
As she turned, her feet slipped out from underneath
her; her whole body twisted and she landed on her left knee. From
that moment
onwards she was in such pain that she lay screaming on
the floor. She stated that due to the extreme pain, her recollection
of
the event may not be wholly accurate in terms of details. She
testified that: “
it would be coloured with pain”
.
She was unable to move her leg, and became aware of one, possibly
two, people with mops standing to her left. She “briefly
saw
the mop”. Her next awareness was of a female customer who had
come to her assistance and was leaning over her. Mrs Garrard
then
approached; she was very worried. Someone she did not know sent for
the manager. When the manager eventually arrived he spoke
to her, but
she could not recall the content of that conversation. The manager
sent for a wheelchair and when it arrived two people,
possibly Mrs
Garrard and the manager, helped her into it. She was then wheeled
across the store to the manager’s cubicle
where she was given a
glass of water.  She was obviously quite shocked.
Eventually she was wheeled out and loaded into
the vehicle.
[46]
As she was unable to drive, Mrs Garrard drove her home
and, with great difficulty, helped her upstairs to her apartment and
into
bed, where she put “something” on her knee.
She took pain medication, but was unable to sleep that night and went

to Constantia Berg Clinic the following morning.  At the time of
the incident she had been wearing flat, rubber soled walking
shoes,
which she had had for some time (having purchased them for a hiking
trip through Loch Lomond in Scotland) and which had
never before
caused her any grief.  When asked about the cause of her fall,
she indicated that due to her profession she was
very nimble, and
would not have fallen had the floor not been slippery. She seemed to
think that Mrs Garrard felt the floor and
it was damp. Prior to
moving to Scotland the plaintiff had taught movement at the
University Opera School in Cape Town, and movement
and acting in
Durban. She stated that during a controlled fall on stage, one would
know exactly how to land. She described her
fall on the day of the
incident as being an uncontrolled fall, as she had no control over
her legs and was unable to help herself.
She instituted action
against the defendant because the incident occurred in its store and
she therefore believed that it was its
responsibility that she fell.
She did not have the opportunity to inspect the floor surface where
she slipped. She dismissed the
possibility that her fall had been
caused by her own negligence, stating that she had walked along the
aisle as any normal person
would and had not caused herself to fall.
She stated further that had there been signs to indicate that the
floor was wet, she
would have known to take care, as, having lived in
Scotland; she was accustomed to walking on wet surfaces.
However there
had not been any signs.
[47]
In cross-examination by Mr Crowe, she conceded that she
fell at 13:55, as per the video footage. The shoes she wore that day
were
brown, flat, slip on court shoes, which were not laced, but
which were suitable for walking. She had purchased them approximately

two or three years prior to the incident. She denied that the shoes
had been worn out at the time of the incident. Before the fall,
she
had been in aisle 3, near the entrance of Pick ‘n Pay, for no
longer than five minutes. She conceded that she had not
seen any sign
of wetness on the floor, as she had been looking at the shelves
rather than the floor. She testified that, had she
looked at the
floor, she would have seen that there was something wrong with it and
she would have been careful
.
Although she had not personally
confirmed that the floor was wet, from her experience that is all
that could have caused her to
fall on an otherwise normal tiled
surface. It was an assumption that was later confirmed by Mrs Garrard
and the fact that she had
seen somebody with a mop, as one does not
mop up dry goods. She must have disposed of the shoes she had been
wearing sometime in
2012, because her walking days were over.
She recalled her attorney, Louis de Villiers, advising her to hang on
to the shoes.
[48]
She had reached the end of the aisle and was in the
process of turning to her right when she fell.  It was not a
sharp turn.
It is very hard to say whether the fall would have
taken place had she not been turning, but she thought she would have
fallen
anyway.  Mrs Garrard told her she had knelt down and felt
the floor.  She could not remember the exact moment that Mrs

Garrard told her, but it was probably in the supermarket.  She
conceded that that was a pure guess; it could have been afterwards.

Mrs Garrard told her that the floor was damp and wet.  She was
referred to a letter she had written to the manager of Pick
’n
Pay shortly after she had been to the clinic, presumably in 2008.
In that letter she stated that she slipped on
some water on the
floor. She was challenged that that was contrary to her evidence in
Court, because at that time she referred
to water while in testimony
she referred to liquid.  She responded by saying that there had
been some form of liquid on the
floor and water is liquid. She
testified that perhaps she had written the letter without Mrs Garrard
having spoken to her. She
conceded that liquid could be a substance
other than water, such as liquid soap.  She did not know all
that, it was an assumption.
[49]
On 9 April 2010 she wrote a letter to Mrs Ackerman,
wife of the defendant’s chairman, Mr Raymond Ackerman, in which
she stated
that she had slipped on some water at the defendant’s
store and injured her knee.  It was put to her that this letter

was written long after she had spoken to Mrs Garrard and had been
told by Mrs Garrard that it was liquid rather than water.
She
responded by saying that it was probably because she considered water
and liquid to be the same thing.  If it could have
been oil, she
would have said oil.  Mrs Garrard had told her that she felt the
floor so whether it was visible or not, she
was not sure.  She
had not been walking on leaves or mud or any other sodden surface,
prior to the incident.
[50]
She doubted very much that something had been stuck on
her shoe, as suggested to her by Mr Crowe. She had examined the shoes
afterwards
at home, because she would not put dirty shoes away.  She
wore the shoes afterwards because it was her knee and not her foot

that was compromised.
[51]
A surveillance video from the Tokai supermarket, dated
13 April 2008, was shown in Court. A female cleaner is shown carrying
an
object with a stick.  There is a bit of commotion at 13:55:51
and that is when the parties believe the fall took place. The
same
cleaner comes back after the plaintiff had fallen, carrying what the
plaintiff believes to be a mop. The cleaner goes away
and someone
goes to the plaintiff, appearing to be attending to her.
According to the plaintiff, the person bending over
her with the
light coloured top was Mrs Garrard.  There is a person standing
behind a wheelchair wearing a blue shirt.
Another person
wearing a blue shirt arrives.  A person believed to be Mr Mackay
kneels and talks to the plaintiff.  Later
the plaintiff is
pushed away in a wheelchair.  The plaintiff conceded that there
were two managers from the defendant, but
disputed that the person
bending over her with a light coloured top was a manager.
[52]
In cross examination by Mr Seale, the plaintiff
testified that her body twisted to the right and she fell that way.
She landed on
her left knee. She had not taken a step towards
turning, her intention was to turn.  Mrs Garrard had been behind
her. She
had not seen any of the “defendant’s”
cleaning staff before she fell. She had not seen anybody working or
mopping,
she had been looking at the shelves. It was pointed out to
her that she had mentioned in her undated letter, addressed to the
defendant,
that Mrs Garrard had pointed out skid marks to the
representative of the staff.  She testified that Mrs Garrard
must have
told her this, as she herself had not seen it.  The
soles of her shoes had been made of good solid brown rubber.  As
she hit the ground, (facing the right-hand side) she saw a person
standing with a mop, at the end of the aisle to her “right-hand

side”, not at any T-junction.  When she fell her feet went
to the left and her head to the right. She must have been
caught by
the camera as she came out of the aisle; with her back towards the
cross of the T-junction.  The cleaner would have
been on her
“left-hand side”. She did not know what the cleaner had
been doing before she fell, but when she fell,
“he” was
there.
[53]
She remembered going to the manager’s office in a
wheelchair, but could not swear to any information she gave there.

She was referred to an incident report where a certain Nikita Gouws,
who is alleged to be an independent person, indicated:

“
Statement of witness. Did not mop there. Just saw customer
fall.
” She testified as to that report that she would not
know whether a contractor working for a company was independent of
that
company or whether they were an employee of that company.
She agreed that the information contained in the report that
“…
customer had had an op on left knee previously and
that was the same knee”
must have been obtained from her.
She had had an operation on her knee 30 years ago, but how the
information was transferred
to that form she did not know.  She
agreed that she was not in a position to contradict what was written
on the document that:
“
We as management checked the floor
and area as well the camera and found no issue or cause to cause the
fall
.”
[54]
She agreed that she gave instructions to her attorney,
for the purpose of summons, to the effect that she had slipped on
water,
she however stressed that she did not see the difference
between water and liquid.  She did not know why, after summons
was
issued in August 2009 and the defendant’s plea was filed in
September of that year, nothing happened for a very long time.

She made enquiries as to what was happening.  She conceded that
a period of five years had gone by before anything significant

happened, but mentioned that she kept phoning and asking for
something to be done to move the case forward and that was when she

met Advocate Nel and Mr De Villiers handed the case over.  She
had a feeling that Mr De Villiers had a lot on his plate and
she was
at the bottom of the pile.  She continued going to the Tokai
supermarket where she fell, as it was the nearest big
supermarket,
before she went to Scotland on 17 November 2012.  She agreed
that during that time she saw that the defendant’s
staff wore
blue uniforms.  She did not recall seeing cleaners in the store
during that four year period.  She did not
take interest in
seeing cleaners at the store.  She knew that Mr De Villiers had
received a video in about June 2010, because
she had asked him to
request it.
[55]
She confirmed that in the video clip she saw a female
cleaner with a dustpan and stated that one could use a scoop with a
mop if,
for instance, there was a broken glass with liquid on it.
She also saw a gentleman with a mop in the video and confirmed that

the mop held by that cleaner hung vertically.  She agreed that
the person appearing on the video at 13:45 was carrying a broom.

The video was again started at 13:55, which was two minutes after the
man with a mop was seen going down an aisle.  At 13:55
a female
cleaner was seen walking from right to left.  The plaintiff
maintained that that cleaner who was making side to side
movements
was carrying a mop.  She disagreed that that cleaner was walking
down the aisle and not in the same area where she
fell.
[56]
She did not know that the defendant outsourced the
cleaning functions; she thought the cleaners were the defendant’s
employees.
In retrospect she would agree that the different
uniform is an indication that they were employed by a different
entity and it
was a simple matter to establish the identity of their
employer.
[57]
In re-examination, she confirmed that nobody from the
defendant contacted her to say that a cleaner (that may have caused
the fall)
was not in the employ of the defendant.  In response
to her letter to the defendant’s manager and a letter of demand

issued by her attorneys she was never informed that she was suing the
wrong people.  When summons was issued and served in
August
2009, she received no notification from the defendant that an
independent cleaning company was involved.  The first
time she
became aware of this, was when she was living in Scotland already.
She could vaguely remember that Mr De Villiers
handed over his file
to the present attorneys because he was retiring.  The operation
she had had on the knee was 30 years
from the day she testified, but
22 years from the day she fell.  Prior to the fall she had not
experienced any problems with
instability.  She relocated to
Scotland because she could no longer continue to work as a movement
instructor.
[58]
Mrs Garrard testified that she was a retired opera
singer.  She and the plaintiff were great friends and at the
time of the
incident they stayed next to each other in a security
complex.  They had lived as neighbours for four years.  On
Sunday
13 April 2008, she and the plaintiff had gone for lunch and
thereafter decided to go and have coffee at one of their houses.

They stopped at the defendant’s Tokai supermarket to get
coffee.  They went in the plaintiff’s car and the
plaintiff
was driving.  At the supermarket the plaintiff walked
in first and Mrs Garrard went and got a little cart, as they did not

have a lot of shopping to do.  The plaintiff went up to the
right of the shop, which she thought was aisle 6, looking for
the
coffee.  The plaintiff was walking about one and a half to two
metres in front of her.  Mrs Garrard was not shopping,
she just
followed the plaintiff.  They turned into and walked up aisle
5.  The plaintiff was still looking left and right
for coffee
and they came to the end of the aisle 5.  As she was watching
her, the plaintiff turned the corner to the right
side and came out
of aisle 5.  The plaintiff just went down; crashed down onto the
floor.  She did not know what had
happened.  It happened so
fast and there was no doubt in her (Mrs Garrard’s) mind that
the plaintiff had slipped.  The
plaintiff was turning to the
right and looking up and just went down like a sack of potatoes.
Both her legs slipped out from
under her.  She did not fall over
anything.  Mrs Garrard looked to where the plaintiff would have
stepped, and there
was “a girl” standing with a mop at
the corner of the aisle.  There was also a male employee on his
haunches,
on the floor
.
She did not know what this
gentleman was doing, whether he was perhaps putting things on the
shelf.
[59]
Mrs Garrard referred to what she called a very rough
drawing (sketch plan) that she drew [to illustrate what she saw], but
pointed
out that she was not an artist.  There was no objection
to this drawing or rough sketch plan being used and it was admitted

as an exhibit.  She pointed out that the figure at the corner of
the aisle in the sketch plan, by the supervisor’s desk,
was the
plaintiff.
[60]
In terms of the sketch plan, the plaintiff’s head
is lying on the right, at the corner of the aisle, while her feet are
lying
on the left hand-side, inside a circle which Mrs Garrard
depicted to be the slippery patch which she said she tested.  A
female
person with a pony tail, carrying a mop, is to the left of the
plaintiff by her feet, in an area Mrs Garrard depicted as the main

corridor (that is where the aisle and the main corridor intersect).
In the aisle is the man sitting on his haunches.
According to
Mrs Garrard, the female person with the mop was just standing,
looking at the plaintiff, because she had just fallen.
There
were quite a lot of people around the plaintiff.  The only thing
she could remember was that the person with the mop
had a pony tail
or a bun on the back of her head.  That is all she saw.
The gentleman on his haunches had no uniform
on, but was definitely
the defendant’s employee. This gentleman was about a metre away
from the person with the mop.
The impression she got was that
these individuals were stunned.  At that point she thought the
lady standing with a mop must
have been wiping where the plaintiff
fell.  She bent over the plaintiff to see if she could help her,
but the plaintiff was
in such agony that Mrs Garrard was actually
afraid to try and get her to stand up.
[61]
Mrs Garrard then wanted to see why the plaintiff had
slipped.  She went more or less to the patch where the
plaintiff’s
feet were, or had, or must have been, and there was
no water on the floor; there was also no bucket of water anywhere,
but she
put her foot out on the spot and it was very slippery.
Mrs Garrard was wearing sandals because it was summer.  She
tested
the floor with just one foot and thought “ooh that’s
slippery”.  Somebody called the manager, who came to

investigate.  He spoke to the plaintiff.  A wheelchair was
brought and the manager helped the plaintiff into the wheelchair.

This manager sat on his haunches and spoke to the plaintiff.  He
was very polite to her.  There was another man there
whom she
was not aware at the time was also a manager.  The first manager
wheeled the wheelchair away to his office.
He told the other
man to go and inspect the spot that Mrs Garrard had said was
slippery.  This man did that.  He went
down on his haunches
and felt it with his hand.  He did not say anything to her at
that point, but she did read his “affidavit”
afterwards
in which he said it was bone dry.  She stated that anybody who
had ever mopped a tiled floor would know that it
actually dries
within five to six minutes. So, she believed that it was probably dry
when the man felt it, but that was at least
five or six minutes
later.  When this man was testing the floor, she was standing,
watching him. The plaintiff and the first
manager had gone to the
manager’s office. After everybody had dispersed, she followed
the wheelchair and went to be with
her friend.  The manager
helped the plaintiff to the vehicle, after which Mrs Garrard drove
the two of them home as the plaintiff
could not drive.
[62]
She was close to the plaintiff and nothing impeded her
vision.  The yellow warning signs usually put up when a floor is
wet,
were not in place.  She confirmed that she had seen and
studied the video footage and that the person bending on the video

with a light coloured top was her. (Mr Crowe indicated that this
issue was no longer placed in dispute.)
[63]
In cross examination by Mr Crowe, Mrs Garrard testified
that there was nothing shiny on the floor and there was no water
lying there
and so she went and put her foot on it and it was very
slippery. She then went on to state that before she put her foot
down, she
bent down and saw that it was shiny. The man sitting on his
haunches had a sweater on and the lady with a mop was wearing a dark

or navy blue uniform. There may have been a logo but she did not
notice it.  The lady was slightly turned away from her so
she
would not have been able to see it.  The lady was definitely
carrying a mop because she saw it splayed out.
[64]
According to Mrs Garrard the female cleaner in the
video moving left and right was carrying a mop, as one would not make
those movements
with a broom. According to her, the female cleaner in
the video could have been the one she saw standing after the
plaintiff had
fallen.  In the video there were two female
cleaners, one with a ponytail and one without. She confirmed that she
saw the
cleaner with a ponytail. She then stated that she thought she
remembered a ponytail but she was not sure.  Later on she
testified
that: “
I may have been influenced with the
ponytail by looking at the video…I cannot in all honestly say
that the day I saw her
standing there, I actually saw a ponytail
.”
[65]
She stated that the plaintiff probably erroneously said
that she had slipped on water, in the letter she wrote to the
defendant.
According to her, the plaintiff did not know what
she slipped on. She agreed that many things like oil, cream, butter
and water
could make the floor slippery. She stated that feeling the
floor with a shoe is just as good as feeling it with a bare hand.
[66]
In cross examination by Mr Seale she testified that
there was only one person with a mop, and not two as indicated by the
plaintiff
in her letter to the defendant.  She disagreed when it
was put to her that what the male cleaner was seen carrying on the
video was different to that which the female cleaner was seen
carrying, stating that the pictures were too unclear to come to a

conclusion like that.  She testified that though it was unclear
what the lady was carrying, the movement she was making looked
like
she was mopping.
[67]
She conceded that in the video the female cleaner with
the ponytail was not at the corner that she drew in the rough sketch
plan.
It was put to her that her recollection seemed to be from
what she viewed in the video rather than of the events.  She
testified
that the video underlined her recollection of what
happened.
[68]
She also conceded that the two people the plaintiff
said she saw in her letter must have been two people in uniform, the
lady with
a mop and the gentleman crouching.  She confirmed that
there were a number of people walking in that aisle before the
plaintiff
and no one slipped before her.  Having agreed that the
plaintiff walked on the right side of the aisle, she was then asked

how it was possible for the plaintiff to slip from the patch in the
middle of the aisle as depicted in her rough diagram.
She
testified that the drawing was not quite correct and that she should
have made the patch a bit bigger. She tested the area
where she
thought the plaintiff’s feet would have slipped and the aisle
was not that wide.
[69]
She was asked whether she tested more or less in the
centre of the aisle and she answered that it was about the spot where
she tested.
When it was put to her that the area she tested was
not the same as the area that the plaintiff had been walking, she
stated that
as the plaintiff went around the edge she did go out a
little bit, she did not stay right next to the shelves.  It may
be
that the whole area was wet; where she walked right next to the
shelves may also have been damp.  She had tested just about

where the spot she drew was but that did not mean that that was the
only spot that was damp.  She tested that little spot
because
there were people all over the rest of that area.
[70]
She did not see the skid marks the plaintiff referred
to in her letter to the defendant. She stated that it could be the
plaintiff’s
imagination that there were skid marks.  She
agreed that it would actually be extraordinary for someone to push a
mop right
down the centre of the main aisle in a busy area,
especially if they did not have a warning sign.  She agreed
that, logically,
it would make more sense if the female cleaner was
carrying a broom through the store than pushing a wet mop.
Defendant’s
case
[71]
Mr Edward George Schwartz and Mr Jonathan McMillian
gave evidence on behalf of the defendant. Mr Schwartz testified that
he presently
worked at the defendant’s family store in Fish
Hoek as a senior receiving manager.  He worked at the Tokai
supermarket
between 2006 and 2008 and was there for several years
before. He was employed as a store manager when the plaintiff fell on
13
April 2008.  He viewed the security camera video of that
incident and noted that he appeared in the video several times.  He

was on the floor assisting customers and to see to it that things
were running properly.  The manager’s office was along
the
main corridor.
[72]
As he was patrolling around on the day in question and
checking things like stock lying around, somebody approached him and
told
him that one of the customers had fallen in aisle number five.
Relevant to the incident, in the video he appears at 13:57:43 which

is after the plaintiff’s fall.  At 13:58:37 to 13:59:10 he
went to till number twelve to assist a customer that had
a problem.
At 13:59 he appears to the right of a wheelchair. On the left of the
wheelchair is the assistant manager, who was in
the same position on
duty as the store manager, Mr Sean MacKay. Mr Schwartz and Mr MacKay
helped the customer to get into the wheelchair.
Mr Schwartz
bent down and to check the floor.  He asked the customer what
actually happened and she mentioned to him that
she slipped, that the
floor was wet.  It was part and parcel of his duty to check and
see whether the floor was wet.
He felt the floor with his hand
and it was bone dry.  He confirmed this to her and she stated
that it must then have been
something else that she slipped on.
When the plaintiff was picked up, he checked if it was wet underneath
her, just to make
100% sure.  On this second inspection, he did
not notice anything. Mr MacKay, who was the man on the left of the
wheelchair,
also confronted the plaintiff and asked her what was
wrong.  Mr MacKay also went back to go and check the floor
himself.
Mr Schwartz was standing behind him.  Mr MacKay
wheeled the plaintiff away with the wheelchair.  After they had
left
Mr Schwartz came back to check if it was not rice or something
else that may have caused the fall, but there was nothing on the

floor.  He knew he had to issue a report on this incident.
When he went out of the view (that is, of the video), he
just browsed
around to see if there was something that he might have overlooked.
[73]
The cleaners were contracted by the head office on a
two-year contract and if they performed well their contract would be
extended.
They were not the defendant’s employees.
They wore specific uniforms with a Zama Zama logo to show that they
were employed
by that company. There were five Zama Zama employees on
the day of the incident (on different shifts).  Two cleaners
started
in the morning at 7.00 and their supervisor at 08.00.
Two other staff members would start at 14.00, relieving the other two

who then leave at 15:00.  Their supervisor left at 17:00.  The
two staff members’ job description was to make sure
that the
floors were cleaned, that the toilets, the backup areas, the canteen,
the manager’s office and the front line areas
were mopped.
They had to make sure that everything was clean before the store
opened.  The crew that started in the
afternoon worked until
20:00.  They followed up the same duties as the earlier cleaners
and made sure that the store was clean
and that there were no
spillages by customers and they were also called to clean up.
Occasionally they would use an extra
man on duty when required, for
instance to clean the men’s toilets if the female cleaners
could not go in.
[74]
When the store opened, two cleaners and a supervisor
would be on duty.  They would not operate on the shop floor;
they got
called if there were issues.  There was one person
walking around the store to see if everything was in order.  At
17:00
the supervisor would go off duty and two cleaners would be in
the store until closing time.  The cleaners knew exactly what

had to be done.  They were trained for that by Zama Zama.
They used a broom with a sweeping scoop, (which was a pan
clipped
onto the broom).  They also used a mop, which was horizontal
with long hair hanging on it.  When they did the
mopping, they
had a four wheeled bucket with water where they would squeeze the mop
to dry.
[75]
They carried warning signs at all times when they
mopped to indicate to customers to be aware that the floor was wet.
If the
defendant had issues with the cleaning staff they would take
it up with the supervisor on duty.  When the store closed and

all the customers had gone, it would be the duty of the cleaners to
clean the store in preparation for the next day.  Zama
Zama
cleaners were very competent.
[76]
The female cleaner in the video carried a scoop and the
male cleaner carried a mop.  The object he carried was
definitely horizontal
with strands hanging on it.  The object
carried by the female cleaner was a broom because it did not have the
horizontal looking
feature.  Brooms used at the Tokai
supermarket had long handles with a plastic clip on.
[77]
In cross examination by Mr Seale, he testified that the
cleaners would be called over the microphone, if there was a
spillage.
They would use water to clean dirty marks.  They
mixed it with chemicals to clean spillages like oil.  They would
mop
directly with a wet mop on the floor.  They dried the mop
before use on the floor and used the water to clean it.  If
they
wet the floor, they had to put up signage.  No worker aimlessly
wondered around.  They were trained not to drag
wet mops on the
floor.  If they walked around with a mop, it would be bone dry.
The broomsticks were covered with an
off-white shiny plastic.
The mop had a wooden handle in a pinewood natural colour.  The
mops had handles longer than
a broom.  He knew that because when
the cleaning equipment came to the store, it was checked by the
managers.  The uniform
of the cleaners on the photographs
belonged to Zama Zama.  Cleaners were employed by Zama Zama at
the Tokai supermarket for
up to two years.  He could not confirm
whether employees were employed by Zama Zama for less than two years.
[78]
A person packing on the shelves would be working for
the defendant.  The defendant’s employees wore light blue
shirts
and darkish trousers if they were male.  The female
cleaner with a ponytail in the video was carrying a broom, because
she
was keeping it on the floor when she swept whereas they would
normally keep the mop in the air so that it did not touch the
ground
.
When sweeping a person would normally move
forward, but when they mopped they would move backwards, making side
to side movements.
[79]
When he checked the floor, he put his hand down and
rubbed on the place where the plaintiff indicated she had fallen just
to see
if there was anything sticky or slippery on it.  He found
it to be bone dry.  He did not see anyone mopping in the
intersection
of aisle 5 and the corridor, either on the day of the
incident or in the video.
[80]
In cross examination by Mr Nel, he testified that the
Tokai supermarket was bigger than the normal supermarket; it served a
high
concentration of customers.  There were about twelve to
fourteen aisles.  The aisles were fairly long for a store of
that size.  The cleaning, security and trolley staff members
fell under him and Mr MacKay was his senior.  The Zama Zama

supervisor was not visible on the video. The cleaners were fully
trained, it was not necessary for them to be supervised by the

defendant’s managers; supervisors are there to ensure that
cleaners perform their duties properly.  There were normally

three female cleaners and one male, one who was the supervisor.
He would not know where the supervisor would have been the
time of
the incident; she may have been on lunch.
[81]
Mr MacMillan testified that he was employed as the
chief accountant in the defendant’s Western Cape Region. The
Tokai supermarket
was a store within the defendant’s stable.
During the period that the plaintiff fell, the defendant had a
cleaning
contract with Zama Cleaners trading under the name Moonstone
Investments. The defendant outsourced its cleaning to professional

cleaning companies.  He referred to an agreement entered into
between the third party and the defendant dated 1 December 2008.

He confirmed that annexure “A” was an annexure to the
agreement, and had columns detailing the names of defendant’s

stores, contract prices and periods.  He was not the person who
signed the contracts, he simply administered them, but the
dates in
annexure “A” would normally illustrate the starting of a
relationship with the third party.  Various
stores are indicated
in that Annexure.  Next to the Tokai store the date indicated is
01 August 2007.  This would have
been a starting date for the
third party to clean in the Tokai store.  The next column of the
annexure, next to the Tokai
name, indicated the dates of 1 March 2008
to 31 August 2008, which would be the period within which the
plaintiff’s fall
had happened.  Under the column of
“Contract Price”, and during this period there is an
amount of R24 808.09
indicated.  That would have been the
contract amount that was due and payable to the third party for the
services rendered
at the Tokai store.  That amount was paid to
the third party monthly.
[82]
He referred to a general ledger which showed payment of
an amount of R24 608.09 from the Tokai supermarket cost centre
to the
third party for cleaning services of April 2008, which is the
same month the plaintiff slipped and fell.  In terms of the
written agreement dated 1 December 2008, the third party would supply
the customer with the services as per prior quotation accepted
by the
customer, which would be incorporated into the agreement.  The
defendant could not find the quotation for the Tokai
store.  He
referred to a quotation received in respect of another store,
Eersterivier, which was alleged to be similar.
[83]
The commencement date of the written agreement was 1
September 2008, but the agreement contained an annexure with dates
preceding
the commencement date.  This showed that there was an
agreement prior to the written agreement as indicated by annexure
“A”.
The defendant, however, could not find a
written agreement to that effect.  He knew that there was an
agreement, if
not written then verbal; otherwise the defendant would
not have paid the third party (for cleaning).  The written
agreement
also stated that the contract would continue on an
evergreen basis, which meant it could continue indefinitely,
terminable by either
party on 90 days written notice, prior to the
anniversary date of the contract.
[84]
The quotation would include services provided by the
third party.  They paid the third party under one account for
all the
stores.  Services rendered would be the same from store
to store.  The third party cleaners were very competent.

Staff complement would differ from store to store.  They
employed professional companies to clean their stores.  He
referred to the third party’s proposal to clean, dated 26 April
2007, which indicated compliance with the South African Bureau
of
Standards (‘SABS’) requirements and that the third party
trained and developed its staff.  He testified that
the third
party was tried and tested, had cleaned many of the defendant’s
stores and had received additional stores because
of that.  He
confirmed that to the best of his knowledge the defendant was not
able to provide any further details about the
contract between it and
the third party prior to the conclusion of the written agreement.
[85]
In cross examination by Mr Nel, he stated that he was
not involved in the conclusion of the contract.  This would be
done by
the operations department, and he was in finance.  He
could not tell the Court what the terms and conditions were between
the third party and the defendant, regarding the Tokai branch.
He could not tell how many cleaners were covered by the amount
of
R24 808.09 and whether it included a supervisor.  He could
not state why it had taken so long for the insurers to
be told that
there was a third party cleaning company involved.
Third party’s
case
[86]
The third party called Mr Conan Cole as a witness. Mr
Cole testified that he was the managing director of the third party.

Zama Cleaning Services was the former trading name of Moonstone
Investments.  He had about 22 years’ experience in the

cleaning industry.  The third party had about 50 clients in its
books and employed 600 cleaning staff in the Western Cape
alone.
[87]
The third party looked after commercial, industrial and
retail types of businesses, such as the defendant.  Tokai was
out of
his area.  They worked for seven of the defendant’s
stores at present.  The third party started working for the

defendant in 2005, but he was not sure when it started cleaning at
the defendant’s Tokai branch.
[88]
The third party changed the staff compliment once every
four years.  It had a 24% staff turnover in the business per
annum.
The average could be three to four years.  They had
an induction programme regarding the cleaning methodology, on how to
clean
different surfaces, followed by extensive and continuous on the
job training. Depending on the requirements of a site, there would
be
general cleaners and a supervisor or a team leader who would
co-ordinate events on the site on a daily basis with regards to

cleaning standards.  The supervisor worked as a cleaner in
addition to supervising the staff.
[89]
He was aware of the incident that occurred in 2008.
The staff members that were employed at that time were no longer in
the
third party’s employ.  He did not know where those
people were.  He had made efforts to trace them and even offered

a reward of R5000 amongst the staff members to try and locate these
individuals, but had been unable to find them.
[90]
The staff in 2008 were dressed in a company uniform,
which would be  black with a Conti suit top,  a yellow band
on the
chest and Conti suit bottoms with a yellow stripe on the
outside of the pants.  There was small company logo, “Zama
Cleaning”, at the front and a big print logo at the back of the
uniform.  The third party kept records for a period of
five
years, as prescribed by law, and then discarded them.  It did
not have records of the staff members employed at the time
of the
incident.  The third party had never appeared in Court in matter
like this before.  Annexure “A” of
the written
agreement commencing on 01 September 2008, was a pricing schedule for
work done by the third party at a number of the
defendant’s
stores.  The third party had worked for the defendant from at
least 1 March 2007.
[91]
Before September 2008 when the written agreement
commenced, the contractual relationship between the third party and
the defendant
was a verbal one.  Therefore during April 2008, at
the time of the incident, there was a verbal agreement between the
third
party and the defendant. He could not say what “1 August
2007” stood for in annexure “A”.  It could
be
a starting date or some other change in the business.  The
column indicating an increase represented a legislative labour

increase due to staff in September of every year.  The figures
were largely determined by the number of staff members on site.
[92]
The female cleaner appearing in the video footage was
the third party’s cleaner, wearing a black uniform (with a pony
tail).
She carried a broom and a dustpan.  Another person
(the male cleaner) carried a mop.  The distinguishing feature
between
a broom and a mop was that a mop had a horizontal clip and
hair hung down that horizontal clip.  It had a wooden stick
which
was traditionally longer than a broomstick.
[93]
The female cleaner appearing in the video clip was
carrying a broom because there were two stabiliser bars at the end of
the broom
handle which stabilised the broom head.  The broom had
a black V at the bottom which was a clasp that fitted over the handle

and then secured itself onto the wooden part on top of the broom, the
bristle holder.
[94]
As part of the scope of their work, the cleaners would
move around the floor of the shop on a continuous basis to pick up
papers,
debris and look for things that may need cleaning. Mr Cole
was informed about the plaintiff’s claim when they received the

third party notice in early 2015.
[95]
In cross examination by Mr Nel, he testified that he
did not know why his company was never notified by the defendant that
it received
a letter of demand and a summons.  This was the
first claim they have had in their company.  Records such as
payroll
registers, correspondences and quotes from 2008 would have
been destroyed by 2013.  The third party notice was sent to its

insurance company upon receipt.  The insurance company is
dealing with this case.  The company (Zama) changed its name
to
Moonstone Investments a few years ago.  He was not privy to the
discussions between the plaintiff and the defendant, prior
to the
receipt of the third-party notice.  He was neither called to any
meetings nor received any correspondence from the
defendant.  It
was put to him that the female cleaner in the video footage who was
making side to side movements was carrying
a mop, to which he
disagreed and said a person working with a mop worked in reverse,
moving in a figure 8 motion backwards, whilst
with a broom, he or she
moved forward.  With a mop, the implement itself would be moving
from left to right.  A person
would be walking backwards,
because if they mopped forward they would be walking over the patch
that they had just mopped.
If they were working with a mop,
they would always walk in reverse.
[96]
A broom was pushed forward from left to right to keep
the dirt in the path of the broom.  The reason one went from
left to
right was to cover a wider area from left to right to reduce
the cleaning time and make it more effective in a large area.

The purpose of the scoop was to collect the dirt that was swept up.
The sweeper would pile the dirt in a certain area where
the operator
with a scoop was.  The manner in which the female cleaner in the
video used the instrument made sense to him,
because dirt would have
been moved to a particular point to be collected.
[97]
A double bucket system was used for pre-opening
standard cleaning, before the store was opened for customers and if
there was a
very large spillage one would call for a bucket and a
ringer, but mops were used to spot mop.  Buckets were not just
carried
around in a busy store.  They would be stationed
somewhere and called for on request.  The mop carried around by
the
male cleaner in the video was more than likely dry.  If it
was needed to clean a sticky spillage, one would just wet that little

spillage with a spray bottle or rub it hard with a dry mop. Cleaners
walked around with dry mops on the floor to allow for maximum

absorption if there was a spillage.  A wet mop would be used
when, for instance, there was stickiness on the floor.
When a
cleaner was called up via the PA system to attend to a particular
spill, they would carry the wet floor sign with them and
position it
at the spill.  They would continue to manage the spill from the
personnel perspective until it was cleaned up.
A number of
factors would determine how quick the floor would dry.  Those
would be humidity, the volume of the spill,
ambient temperature of
the surface below the tile and the airflow.  It was not possible
to determine how quickly a damp mopped
area would dry.  If there
was moistness on the floor, there would be somebody supervising that
area.  A moist area was
not left unattended.  The cleaners
were trained.  A team leader was a liaison between them and the
defendant.  If
the team leader (or supervisor) was absent from
the floor, one of the cleaners was trained as a second in charge.
Smaller
stores had no supervisors.  Tokai supermarket was a
medium-sized store.  He was in charge of the operation to try
and
trace the cleaners on the floor at the Tokai store on the day of
the incident.  He physically made phone calls to cell numbers
he
thought were relevant; to no avail.  The managerial team from
that time was no longer in his employ; he asked his executive
team to
assist, right down to the cleaners.  He did not employ a tracing
agent to trace Nikita Gouws.  He thought that
should be done by
the attorneys.
[98]
In cross examination by Mr Crowe he testified that
cleaners were taught how to mop in reverse.  Mopping forward
meant a person
would walk on the wet area they had just cleaned and
then they would have to clean it again.  If someone mopped
forward it
would be against their training.  He admitted what
had been pleaded by the defendant in relation to the third party,
namely
that the third party employed the cleaners and a supervisor
who was in control and supervised the cleaning staff it placed at the

Tokai supermarket.  He, however, mentioned that the word
“supervisor” should be corrected to read “team

leader”.  In further cross examination by Mr Nel, he
denied that the reference to a supervisor (as read from the
defendant’s
amended plea) sounded more like a dedicated
supervisor than a team leader.  He testified that the cleaning
staff in 2008 at
Tokai supermarket were employed, deployed, paid and
trained by the third party.
[99]
In re-examination he testified that one could not tell
from the video footage whether one of the cleaners was a supervisor
by what
they were wearing.  When dirt was swept from side to
side with a broom, it stayed at the head of the broom and got
collected.
Discussion
[100]
It makes more sense, in my view, to first deal with the
issue of whether delictual liability has been established in this
case.
If it has been found to exist the next logical question to
determine would be who bears the risk of liability between the
defendant
and the third party.  If the third party is found to
have been negligent, whether jointly and severally with the defendant

or individually, then the issue of whether the claim against it had
prescribed, prior to it being served with a summons, would
have to be
determined.
Negligence
[101]
The test for the existence or otherwise of negligence
was expressed in the oft quoted case of
Kruger v Coetzee
[6]
where Holmes JA said the following :
“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.
This has been constantly stated
by this Court for some fifty years. 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. No hard and fast basis can
be laid down.
”
[102]
The plaintiff bears the onus of proving such negligence
on the balance of probabilities.  In some situations where the
plaintiff
is not in a position to produce evidence on a particular
aspect, the evidentiary burden is placed on the defendant to
demonstrate
what steps it had taken to comply with the standards to
be expected.  In this instance less evidence showing a
prima
facie
case might suffice if the matter is uniquely in the
knowledge of the defendant. The onus however remains with the
plaintiff. (See
Monteoli v Woolworths (Pty) Ltd
[7]
).
[103]
Cases of customers slipping and falling in shopping
malls and supermarkets have been dealt with in numerous matters
before our Courts.
In a number of those cases the substance
that caused the fall was firmly established or the facts from which
inferences could
be drawn proven.  In this case, however those
matters are not as straightforward.
[104]
Perhaps one of the cases with the closest facts to the
present matter is that of
Avonmore Supermarket CC v Venter
[8]
.
In that case the respondent, who was shopping with her
colleague, Ms Loumeau, at a supermarket owned by
Avonmore
,
slipped and fell on a damp floor.  She sustained bodily injuries
and consequently instituted a delictual action for damages
against
the appellant. The trial court concluded that the sole cause of the
respondent’s fall was the damp floor and that
the appellant had
failed to give adequate notice to its customers warning them of the
potential danger.  It found that the
appellant was liable as it
exercised full control over the cleaners and no acceptable evidence
had been presented to suggest that
it had indeed contracted with DBU
Cleaning Services CC (“DBU”).  Evidence had been
adduced by the respondent and
her colleague Ms Loumeau, that she was
about two metres into the aisle when she slipped and fell.  She
saw a sign indicating
that the floor was wet, but it was on the far
side of the aisle.  There was a cleaner in close proximity to
that sign.
The floor was wet and the respondent surmised that
the floor must have been wet on account of the cleaner in the
vicinity. The
evidence on behalf of the appellant was that it had
conducted a routine cleaning operation.  Its witness, Mr Slater,
testified
that a male cleaner, who had since died, had recently
mopped the area where the respondent had fallen.  He stated that
he
was at the butchery section when he saw the respondent.  She
was alone and when she rounded the corner entering the aisle she

slipped and fell.  An issue of importance in that case, which is
in dispute in this case, was the testimony of Mr Slater that
when he
went to the respondent’s assistance, the floor was damp.
It was common cause that he arrived later.
[105]
Regarding the inquiry posited in
Kruger v Coetzee
supra, there was no doubt in the
Avonmore
case that the
reasonable possibility of a person slipping and falling as a result
of the damp floor was foreseeable.  That
was conceded by Mr
Slater, the witness of
Avonmore
, in his evidence.  It was
then found that
Avonmore
was obliged to take such precautions
as were reasonable to guard against the eventuality.
[106]
The court found that the appellant’s conduct
caused the danger in that case, in that the routine cleaning
operation was done
during a busy period and the cleaner left behind
him a damp floor.  In the court’s view the cleaning
operation should
have been conducted in such a manner that the
cleaner ought to have worked on a small area and ensured that the
area was dry before
moving on. That would not have placed an onerous
burden on him or his supervisor. This routine cleaning operation
created a potential
hazard to customers and in particular the
respondent in that case.  It was found that the appellant had a
duty to regulate
its conduct in order to minimise or eliminate the
risk of harm.  The court accordingly concluded that the
negligence had been
established.
[107]
There are a number of similarities between the present
matter and
Avonmore.
The plaintiff was with her friend,
Mrs Garrard, as in
Avenmore
, who also walked behind her.  Mrs
Garrard was the first one to attend to the plaintiff, according to
her evidence.  She
and the plaintiff stated that they saw a
person carrying a mop within close proximity of where the plaintiff
fell (although the
plaintiff said she saw two).  The difference
between this case and
Avonmore,
however, is that it was
accepted by
Avonmore
that the floor was damp and that it
caused the respondent to slip and fall. Negligence was therefore
indisputably established.
Similarly in the case of
Gordon v
Shoprite Checkers (Pty) Ltd and Another
[9]
where a plaintiff, who was wearing shoes with rubber soles, slipped
and fell on a floor of a supermarket while headed towards the
fridge
to buy cool drinks. When she stood up she noticed that her pants were
wet and she noted that the substance that caused her
fall was
colourless.  She saw a person with a mop in hand in the next
aisle. The plaintiff drew an inference that the water
must have come
from the fridges. She saw someone with a mop standing and talking.
Crucially, in that case, it was put to the plaintiff
that the person
she saw with a mop was placed there permanently to deal with a
constant leakage from the fridges.  A supervisor
also checked
the area every hour to check that no water or moisture was deposited
on the floor.  In that case there was no
need to speculate as to
the source of the water.  It was unavoidable but to infer, based
on the probabilities that the plaintiff
fell because of the water
that originated from the fridges that were leaking constantly and
which were close to where the plaintiff
intended to buy her cool
drink.
[10]
[108]
Another important case is that of
Probst v Pick ‘n
Pay Retailers (Pty) Ltd
[11]
in which a shopper unexpectedly put her foot in a pool of cooking
oil which had formed on the floor in front her trolley and which
she
had not noticed.  She slipped, lost her balance and fell.
She sustained certain bodily injuries which caused her
to suffer
damages.  The court found at page 201, point number 9, that:
“
The evidence of the
plaintiff’s fall as a result of the oil on the floor, in
circumstances in which she was not shown to have
failed to take
proper care for her own safety, justifies the inference,
prima
facie
…, that
the accident must have been caused by a negligent failure of the
defendants, or their servants or agents acting within
the course and
scope of their employment, to perform their duty to take reasonable
steps to maintain the premises in a reasonably
safe condition
.”
[109]
The evidence of the defendant’s system of keeping
the floor clean and safe during trading hours was found to be
insufficient
to displace that
prima facie
inference.
[110]
In another case,
Brauns v Shoprite Checkers (Pty)
Ltd
[12]
,
a shopper fell on a slippery surface and hurt her right shoulder.
She alleged that she fell and injured herself as a result
of the
negligent conduct of the defendant’s servants acting in the
course and scope of their employment and claimed damages
from the
defendant in consequence thereof. It was common cause that there was
a sufficient quantity of water on the supermarket
floor where the
plaintiff fell to constitute a foreseeable danger to customers.  The
diligens
paterfamilias
in the position of the defendant
would have foreseen and guarded against the reasonable possibility of
the plaintiff slipping and
falling on the quantity of water which had
found its way onto the floor of its supermarket and injuring her in
the process.
Like anybody else who walks in a walkway where the
general public not only has access but indeed is invited to enter,
the plaintiff
was entitled to expect that she would walk on it with
safety.
[111]
I take note of the fact that the
Probst,
Brauns
and other matters were concerned with the danger created by spillages
that went undetected.  The focus there was on the adequacy
of
the system to detect and deal with spillages.  In the present
matter the plaintiff alleged that the hazard was created
by the
cleaner who mopped and left the area in which she fell, damp.
Mr Nel was sure to point that out in his argument. According
to Mr
Nel, this is not a classic spillage case. He submitted that the basis
of the plaintiff’s claim was that the cleaner
may have spotted
something unclean on the floor, mopped it, thereby introducing a new
danger being the slippery floor; the cleaner
then failed to take
reasonable care to protect shoppers against this newly created
danger.
[112]
The first inquiry therefore, in this case, is whether
the plaintiff fell as a result of moisture or water on the floor
(caused by
the cleaners).  In other words it is important to
determine whether or not there was such moistness or water on the
floor
as alleged by the plaintiff.
[113]
In a full bench decision of this
division,
Gilson v Shoprite Checkers
Ltd
[13]
Cleaver J said the following:
“
[15]
It was submitted that failing to accept what plaintiff had averred in
her letter of 7 July as to what the defendant's employees
had said to
her after the incident would mean that she had made this up. Although
the letter cannot simply be ignored,
it
still remains for the plaintiff to prove what had caused her to slip
and fall on the day in question
…
[18] ...In this connection it is
necessary to point out that since the plaintiff bore the onus
[footnote omitted], it was not incumbent
on the defendant to
establish at which till the appellant slipped and fell nor did it
have the onus to establish that there was
no dust in the aisle of
that till.
…
[20] ...
At the risk of
stating the obvious, it must be remembered that the issue as to
whether or not there were adequate cleaning facilities
in place on
the day in question will only arise if the plaintiff has been able to
establish, on a balance of probabilities, that
sufficient quantities
of dust had accumulated on the floor to cause it to be slippery and
that the defendant ought to have been
aware of this.
…
[26] The
trial judge concluded that in the light of the evidence given by Day,
De Waal and Ruiters [on behalf of the respondent]
and the
unlikelihood of dust having entered the supermarket in the relatively
short time-span which applied,
the
evidence of the plaintiff that the floor was extremely slippery was
not sufficient to discharge the onus which rested on her.
This was
for her to establish, on a balance of probabilities, that sufficient
dust had accumulated on the floor of the store where
she fell to make
it reasonably foreseeable that a customer might slip and fall on the
dust.
The
mere fact that the defendant slipped is no evidence of negligence on
the part of the defendant, for
‘
People
slip and fall daily, due to some negligence or inadvertence or
oversight on their part or for other reasons.
’”
[14]
[Underlined for emphasis]
Has the
plaintiff been able to show that the floor was moist/damp?
[114]
The Court must look at all the evidence that has been
presented to determine the cause of the fall.  Mr Nel submits
that, on
the facts before the Court, the most reasonable inference
that the Court should make is that: (1) the floor was moist; and (2)
the moist slippery spot on which the plaintiff fell was caused by the
cleaner using a wet mop.
[115]
Looking at the plaintiff’s evidence on its own,
it is clear that she neither saw nor felt water or moistness when she
fell.
She testified that as she turned her feet slipped out
from underneath her.  She could not independently say what
caused her
fall.  The plaintiff was told by Mrs Garrard that the
floor was moist.  All the plaintiff could say was that she fell

because the floor was slippery.  She saw a person (or two)
standing to the left carrying a mop and assumed that the person
must
have been mopping where she fell - and her assumptions were confirmed
by Mrs Garrard who told her that she felt the floor
and it was damp
and wet.  It must be accepted that on its own, the plaintiff’s
testimony is not very useful in answering
the key question as to what
caused her to slip and fall.
[116]
It is therefore imperative to analyse Mrs Garrard’s
evidence, as well as the alleged presence of cleaners carrying mops
and
whether an inference can be drawn that they mopped in the area
where the plaintiff fell, thereby creating a hazard without warning

members of the public about the damp floor.
[117]
In regard to the cause of the fall, Mrs Garrard stated
in her examination in chief that she looked to where the plaintiff
would
have slipped and saw “
a girl standing with a mop on
the corner of the aisle. There was a gentleman on his haunches on the
floor
.”  She tested the floor with just one foot and
thought “
ooh that’s slippery
.”  In
cross examination she stated that there was no water visible nor was
it shiny; she later added that before she
put her foot down, she bent
down and saw it was shiny. Mrs Garrard was quizzed during
cross-examination as to the spot she investigated.
With
reference to her rough sketch she initially testified that she tested
the spot at the feet of the plaintiff.  It must
be noted that
the patch from the drawing appears to be at the centre of the aisle.
When challenged about the fact that that
could not have been the area
that the plaintiff fell from, as the spot where her feet were was
where she landed, Mrs Garrard stated
that her drawing was not quite
correct; the patch should have been a bit bigger.  She then
stated that the plaintiff did not
stay right next to the shelves, she
went out a little bit.  She added further: “
it may be
that the whole area was wet,
where she walked right next to
the shelves
may also have been damp
.”  She
went on to say she tested just about where the spot she had drawn
was, but that that did not mean that that was
the only spot that was
damp; finally she stated that she tested a little spot because there
were people all over the rest of that
area.
[118]
There appeared to have been acknowledgements during
this exchange between Mr Seale and Mrs Garrard that the area she
tested may
not have been the same spot the plaintiff had been walking
on.  Mrs Garrard’s evidence on this issue gave an
impression
of a person who was not certain as to which area of the
floor she tested, upon being presented with possible inconsistencies
between
her sketch plan and the evidence of where the plaintiff was
walking and slipped.
[119]
In my view the lack of clarity brought by Mrs Garrard
in her evidence as to which spot she actually tested did not assist
the plaintiff’s
case at all, because it did not bring clarity
as to whether or not she tested the place where the plaintiff walked,
which was the
right hand side of the aisle.  Even assuming that
the entire area which was at the corner of aisle number 5,
intersecting
with the main corridor, was damp, it was evident from
the video that many people walked in the main corridor close to aisle
5 but
none of them experienced any difficulties with walking.
It is also clear from the video that a number of people came out of

the aisle before the plaintiff fell and none of them seemed to have
experienced difficulties.  I accept that one cannot conclude

solely from this that there was no dampness in that area of the
floor.
[120]
What compounds the difficulties between the evidence of
Mrs Garrard and the plaintiff’s, is the plaintiff’s
correspondence
that she wrote to the management of the defendant, as
well as to Mrs Ackerman, stating that she slipped on some water on
the floor.
These letters were written as if the plaintiff had
direct knowledge of what had caused her fall.  It only becomes
apparent
later that in fact she was told by Mrs Garrard that there
was moistness on the floor and that what was written in her letters
must
have been what Mrs Garrard told her.  The amended
particulars of claim also referred to water.  Be that as it may,
this
was contradicted by Mrs Garrard who stated that there was no
water on the floor.  I understand that water is fluid, but it

must be accepted that whilst water is liquid that can cause
moistness, there is some difference between a person specifying what

kind of liquid they fell from and making a general allegation that
they fell on a damp floor.  Dampness can be caused by a
number
of things.  This was conceded.
[121]
The plaintiff also mentioned skid marks in her letter
to the defendant, which Mrs Garrard stated were not present.
That takes
me to the presence of cleaners with mops next to where the
plaintiff fell.  Both the plaintiff and Mrs Garrard alleged that

they saw a person / persons carrying a mop/s.
[122]
Starting with the plaintiff’s observations.
First, in her evidence in chief, the plaintiff testified that after
her
fall, the first thing she became aware of was that “
there
was somebody or one or two people with mops standing to my left, I
saw briefly the mop
.”  She appears not be certain as
to how many people she saw with mops.  Later in her evidence in
chief she moved
from seeing “people” to seeing “somebody”
with a mop.
[123]
In cross examination by Mr Seale it first appeared as
though the cleaner the plaintiff had seen was a female, as she
referred to
a ‘she”, but then as the questioning
continued she referred to the cleaner as a “he” a few
times, as if
she had seen a male cleaner and that he was on her left,
not at her feet but at the top of the gondola from where she had
come.
Initially, the cleaner was described to have been on her
right.  This was not corrected as being a mistake or clarified.

Apart from these internal contradictions in the evidence of the
plaintiff, the plaintiff had mentioned during her evidence in chief

that the evidence she gave would be coloured by the pain and she may
not be wholly accurate in terms of the details.
[124]
The plaintiff had also stated in a letter written to
the defendant that there were two persons with mops. Her evidence was
further
contradicted by Mrs Garrard’s evidence with regard to
the number of people with mops, the gender of the person with a mop

and where that person was standing.  Mrs Garrard stated that she
saw a female cleaner at the corner of the aisle. In her drawing
the
cleaner is standing at the corner of the aisle, in the main corridor,
next to the plaintiff’s feet. The male person she
saw was on
his haunches as if doing something on the shelves and was not
carrying any mop.  As the plaintiff’s head
was on the
right hand side, if the cleaner was standing where Mrs Garrard said
she was, it is not clear how the plaintiff would
have been able to
see the person.  Secondly, if the person was on the right hand
side as stated by the plaintiff initially,
that would be in
contradiction with Mrs Garrard’s evidence.
[125]
The plaintiff, Mrs Garrard, as well as Mr Schwartz did
not see the cleaners mopping before the plaintiff fell.  The
plaintiff
seeks the court to infer from the video footage, firstly,
that the cleaners appearing therein were carrying mops, in particular

the female cleaner and that her movements indicated that she was
mopping, shortly before the fall, the area the plaintiff fell
on.
Alternatively, that the male cleaner seen carrying a mop and walking
into the aisle opposite where the plaintiff fell and then
out of
the aisle where the plaintiff fell, must have been mopping where the
plaintiff fell, shortly before then.
[126]
What is observed in the video footage is a male cleaner
carrying a mop (this is common cause) entering an aisle at 13:53:18.

He then comes out of the next aisle (where the plaintiff fell) at
13:54:39 still carrying a mop facing down (but not touching the

floor).  What he was doing with the mop is out of sight but as
he emerges out of the aisle, he exchanges the mop from one
hand to
the other as if he was doing something with it, but it is difficult
to tell from the footage  exactly what he was
doing or whether
the mop ever touched the floor.  A female cleaner appears at the
corner of the aisle intersecting the main
corridor at 13:55:32 and
makes some movements with the object she is carrying, which according
to the defendant and the third party
is a broom, appearing to be
cleaning.  She then walks up the main corridor and comes back
again, making left and right movements
with the item she is
carrying.  Shortly before she reaches the corner of the aisle
again, there is commotion which is said
to be the plaintiff’s
fall at 13:55:50.
[127]
As regards the mopping by the male cleaner, it is hard
to tell from the video footage that he indeed was mopping that area.
He
may have been mopping there, but without facts it is
difficult to draw that inference. I sympathise with the plaintiff in
this
regard, but I would be taking a long shot if I make that
conclusion, more so, because I would be relying solely on
inconclusive
video footage.
[128]
When it comes to the female cleaner with a pony tail,
extensive evidence was given by Mr Cole and Mr Schwartz as to why the
object
carried by that cleaner could not have been a mop.  According
to them, the distinctions between the mop and the broom were
the
length and colour of the sticks, the horizontal and v-shaped clips,
and the movement made by the cleaner, who was moving forward.
If she
was mopping she would have been moving in reverse for a number of
reasons, including the fact that she would step on the
very same spot
she had cleaned if she mopped moving forward. It was also not safe to
do so.  Furthermore, if driven forward,
the head of the mop
tumbled up and had no effect on the floor.  Mr Cole was adamant
that the staff members were trained to
mop in reverse and to sweep
forward.  It is also noteworthy that if the female cleaner had
been mopping, she would have been
doing so in the main corridor,
which was a busy section of the shop.  Furthermore, she appeared
to be cleaning at the top
of the corridor, more to the middle and
corner of the aisle. Whilst appearing close to the corner of aisle 5
at some point, she
did not go in the aisle. I would imagine the
plaintiff would have slipped in the aisle itself, on the right hand
side of the aisle
towards the end.  I am not able to conclude on
the balance of probabilities that the female cleaner was, firstly,
carrying
a mop, which secondly, she used in the area where the
plaintiff fell.
[129]
As to where she went to stand after the fall, the video
did not show, but she does pass the plaintiff who is lying on the
floor
on her left hand side and then moves out of the view of the
camera.
[130]
As to the accuracy of the evidence that the female
cleaner had a ponytail, after having positively testified that the
cleaner she
saw had a ponytail, Mrs Garrard went on to say that she
may have been influenced by the video on that aspect, she could not
honestly
say that on the day she saw the cleaner, she had a
ponytail.  This statement colours the accuracy of the evidence
on the other
aspects as well, particularly on the carrying of the
mops.  I say this also because the female or male cleaners were
not noticed
by the plaintiff and Mrs Garrard at the aisle or corner
thereof, mopping, prior to the fall.  I understand that the
plaintiff
was focusing on the shelves, but Mrs Garrard was merely
following the plaintiff.
[131]
It is a great pity that there was no video footage
depicting the entire aisle prior to and during the plaintiff’s
fall. Apart
from correspondence by Mr De Villiers, the then attorney
of the plaintiff, showing that a CD containing footage, was asked for
and delivered sometime in 2010, there does not seem to have been any
robust or active pursuance from plaintiff’s attorneys

requesting further footage apart from a question regarding the
existence of security cameras raised in a minute dated 2 August
2016.
The defendant’s attorneys’ reply in a minute dated 12
August 2016 was that the defendant had advised that it
did not have
any footage other than the 18 minute clip that had been made
available. If there was request done earlier than that,
I was not
directed to such. It does not appear that any procedural remedies
available to the plaintiff were pursued prior to the
commencement of
the trial, to compel discovery, if it was believed that there was
further footage not discovered by the defendant.
Whilst Mr MacMillan
was not able to state why only the 18 minute video footage focusing
on a small part of the main corridor and
the aisle was made
available, he testified that their shop floors were not 100% covered
by cameras.  He further commented
that it would be difficult to
go back to 2008 when a request was made in August 2016.  It is
therefore difficult to infer,
as Mr Nel would like the Court to do,
that the footage depicting the rest of the shop floor was
deliberately withheld by the defendant
because it would have been
incriminating. In my view more should have been done, by the
plaintiff’s legal representatives
shortly after the fall, or in
2010 when the CD was delivered to Mr de Villiers, or soon thereafter
to establish if other footage
existed.
Conclusion
[132]
Based on these reasons, I am unable to find that the
plaintiff has been able to discharge her onus that her fall was
caused by a
damp floor created by the cleaner(s). The evidence of the
plaintiff was not sufficient to establish the onus that rested on
her.
It was for her to establish that the floor was damp where
she fell, to make it reasonably foreseeable that a customer might
slip
and fall from moistness.  As put by Cleaver J in
Gilson
supra, the mere fact that the plaintiff slipped is no evidence of
negligence.  Mrs Garrard’s evidence, that she felt the

floor with her foot, was challenged and she contradicted herself in
cross examination and brought a lot of confusion on this aspect.
I
am also of the view that finding that either the defendant or the
third party was negligent, on this evidence without more,
would be
ill-advised.  That being the case, it is not necessary to go
into the enquiry regarding the duty the third party
and/or its
employees had towards the defendant’s customers. I am not
unsympathetic towards the plaintiff’s unpleasant
experience. I
however have to make a decision based on the evidence available and
the applicable principles of the law.
[133]
In view of my findings on the aspect of negligence, it
is not necessary to consider the issue of who carried the risk of
liability
between the defendant and the third party and the
subsequent question of prescription.
Costs
[134]
That takes me to the question of costs.  First I
deal with the costs that stood over for later determination relating
to the
defendant’s application to amend its plea.  The
defendant is of the view that the amendment was the run of the mill
type of amendment and the plaintiff’s opposition had no basis.
The plaintiff argues that it was only in the replying
affidavit that
the defendant gave sufficient evidence and documentary support
regarding the identity and possible involvement of
a cleaning company
and the plaintiff was entitled to oppose the application until then.
Clearly the amendment introducing
the third party was an important
one and has been proven to be such in these proceedings.  It was
indeed to the benefit of
both the plaintiff and the defendant for the
third party to be joined.  For the defendant, because it had to
show that it
had contracted with an independent contractor at the
time of the incident, to be absolved from any wrongdoing by the
cleaners.
It is so that the amendment was sought late in the
day, but the question is whether the amendment was justified.
It was,
however, not unwarranted for the plaintiff to oppose the
amendment as it changed the game altogether, in that a “different”

party, who may have been found to have carried the risk of liability,
was introduced.  Indications that there would be proof
of the
existence of a contract between the defendant and the third party
would have been a valid consideration and to the extent
that more
information on this came to light after the filing of the replying
affidavit, I would suggest that that meant opposition
was not
altogether unmerited. Even though the amendment would have, in any
event, succeeded if the application was heard, my view
is that each
party should pay its own costs in respect of the defendant’s
amendment.
[135]
Insofar as costs for the point
in limine
and
condonation application are concerned: both the third party and the
plaintiff are to be criticised for the manner they handled
the case;
the plaintiff for failing to obtain leave from the Court prior to
serving the notice on the third party and the third
party for waiting
until the commencement of the trial to bring its point
in limine,
which turned out to involve a substantial amount of argument that
took a few days of the Court’s time, having participated
in
pre-trial procedures and filed pleadings.  I agree with Mr Crowe
that had there been sufficient forewarning, the defendant
might have
stayed away and left the fight between the two parties, as it did not
have much participation on the issue, particularly
on the first two
days of the hearing of the point
in limine
.  As to the
third day however, the matter was particularly postponed for the
hearing of the plaintiff’s condonation
application, the
defendant knew about this and attended. It further made submissions,
to protect its interests.  I would therefore
not regard costs
for that day as wasted costs
per se.
The defendant
clearly had an interest as to the granting or otherwise of the
condonation application, as borne out in its
written submissions.
However, if it thought that day would be a wasted day, then it could
have stayed away.  I do not
think that the two other parties
should pay its costs for that day.
[136]
There is also an issue that concerns costs relating to
the filing of defendant’s rebutting heads and other heads which
followed
thereafter. These heads were unduly long and, as Mr Nel
submitted, the rebutting heads particularly did not briefly deal with
issues
arising from the replying affidavit.  They were close to
re-arguing the issue of the existence of the contract and even longer

than the main heads. I therefore do not think it would be just to
order the plaintiff to pay for these costs and for those of the
heads
that followed thereafter.  Other than what I have outlined
above, costs should follow the result.
[137]
In the circumstances, the following order is made:
1. The plaintiff’s claim against the defendant and the third
party is dismissed.
2. Costs shall be payable in the following manner:
2.1
As regards costs of the application to amend the defendant’s
plea, each party is to pay its own costs;
2.2
The plaintiff and the third party are to pay their own costs in
regard to the third party’s point
in limine
and
plaintiff’s condonation application;
2.3
The plaintiff and the third party are to pay the defendant’s
wasted costs jointly and severally relating to the third
party’s
point
in limine
and plaintiff’s condonation application
only for 1
7
and 18 August 2016 respectively;
2.4
The plaintiff is to pay the remainder of the defendant’s and
third party’s costs save for the costs relating to
the heads of
argument filed after the plaintiff’s replying heads of argument
dated 22 February 2017.
___________________
N P
BOQWANA
Judge of
the High Court
APPEARANCES
For the Plaintiff:
Adv. T J Nel
Instructed by:
Herold Gie Attorneys, Cape Town
For the Defendant:
Adv. M A Crowe SC
Instructed by:
Bowman Gilfillan Inc., Cape Town
For the Third Party:
Adv. M Seale
Instructed by:
Mellow & De Swart Inc., Tableview c/o Heyns & Partners Inc.,
Cape Town
[1]
2017 (1) SA 236
(GJ)
[2]
See
Uramin
supra and in particular paras 27 to 29
[3]
At para 25 to 26
[4]
2016 (1) SA 64 (KZD)
[5]
(28166/2007) [2011] ZAGPJHC 10 (14 March 2011)
[6]
1966 (2) SA 428
(A) at 430 E-H
[7]
2000 (4) SA 735
(W) at 742 C-G
[8]
2014 (5) SA 399 (SCA)
[9]
(32665/2010) [2014] ZAGPPHC 773 (26 September 2014)
[10]
At para 19
[11]
[1998] 2 All SA 186 (W)
[12]
2004 (6) SA 211
(E)
[13]
(A
69/2008)
[2008] ZAWCHC 330
(25 August 2008)
[14]
Koenig v Hotel Rio
Grande (Pty) Ltd
1935
CPD 93
at
99