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[2020] ZAWCHC 49
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Manuel v City of Cape Town and Another (4384/2017) [2020] ZAWCHC 49 (10 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case no: 4384/2017
In
the matter between:
EUGENE
QUINTON MANUEL
Plaintiff
v
THE
CITY OF CAPE TOWN
Defendant
KAAPSE
KLOPSE KARNIVAL ASSOCIATION
Third
Party
Coram:
Justice J I Cloete
Heard:
15, 16, 29 and 31 October 2019; 12 and 13 November
2019; 11 and 12 March 2020
Delivered
electronically:
Wednesday 10 June 2020
JUDGMENT
CLOETE
J
:
Introduction
[1]
The
plaintiff
[1]
claims damages of
R1.387 million from the defendant (‘
the
City’
)
arising from an injury to his foot at the Vygieskraal Stadium in
Athlone (‘
the
Stadium’
)
on 7 February 2015. The City joined the Kaapse Klopse Karnival
Association (‘
the
KKKA’
)
as a third party.
[2]
The merits and quantum were previously
separated and the only issues for determination at this stage are the
liability of the City
and the contingent liability of the KKKA. The
plaintiff testified and called 2 witnesses. The City called
5 witnesses and
the KKKA 2 witnesses.
Background
[3]
The City is the owner of the Stadium. On 31
December 2014 the City issued a permit to the KKKA to host its annual
carnival there
on 1, 10, 17, 24 and 31 January as well as 7
February 2015, subject to a number of special and standard
conditions. For present
purposes, the relevant conditions were that
the KKKA would ensure the deployment of sufficient security personnel
for the safety
of participants and spectators, and that the City was
indemnified against ‘…
all
actions, suits, proceedings, claims, demands, costs and expenses
arising out of the permission given’.
[4]
The plaintiff was a captain of the Symphony
Way Youth Development Troupe which participated in the carnival. The
final round of
the carnival competition was held on 7 February
2015 from 12h00 until about 01h00 the following morning.
[5]
At a stage during that evening the
plaintiff was in the foyer of the Stadium, which was a section
reserved for VIP members of the
KKKA and those who were issued with
security passes. It appears that although they were not VIP members,
the plaintiff and a fellow
captain, Ms Charmaine Walters, had
each been issued with such a pass.
[6]
One of the security personnel on duty, and
present in the foyer on 7 February 2015, was the plaintiff’s
witness Mr Colin
Minnaar. He was appointed for the event by
Vuyisa Risk Management, who were contracted by the KKKA to provide
security in compliance
with the permit issued to it by the City.
Mr Cecil Clarke of Vuyisa was the safety officer in charge for
the event.
[7]
A pair of wooden trestles with a stack of
loose wooden table tops, about 50cm thick, had been placed in the
foyer in close proximity
to the entrance of a passage leading
inter
alia
to a toilet facility. For
convenience I will refer to the trestles and table tops, unless
otherwise indicated, as a “structure”.
[8]
It was the plaintiff’s case that
around 21h30 he entered the foyer to use the toilet. He was
accompanied by Ms Walters.
After exiting the toilet, and as he
re-entered the foyer from the passage, the stack of table tops slid
onto his left foot, thereby
injuring it.
[9]
It was the KKKA’s case that the
incident was as a result of the plaintiff’s own negligence in
leaning on or against
the structure, which caused the table tops to
fall onto his foot, and that this occurred much later that night
after the event
had concluded and the Stadium was being closed up at
around 01h30. None of the City officials were present in the foyer at
the
time of the incident.
Vicarious liability
[10]
The plaintiff pleaded that the City is
vicariously liable for the damages allegedly suffered by him because
the table tops were
negligently stacked on the trestles by its
employees acting in the course and scope of their employment. During
the trial this
whittled down to the evidence of the security officer,
Mr Colin Minnaar, that shortly before the event started on
7 February
2015, and sometime between 11h00 and 12h00, he
observed and partly assisted Mr Henfra Snyman, a City employee,
to stack the
table tops on the trestles at that spot in the foyer, or
at least in very close proximity to that spot. This was denied by
Mr Snyman
when he testified.
[11]
It was not suggested by the plaintiff that
those table tops were moved, and a similar structure placed on the
same spot, before
the plaintiff injured himself. As will appear from
the evidence of Mr Colin Minnaar, the plaintiff’s case was
rather that
it was the self-same stack that remained there for hours
before the incident. No other witnesses, including the plaintiff
himself,
were able to cast any light on how those table tops came to
be placed on the trestles at that spot.
[12]
The primary issue is therefore whether Mr
Snyman, acting in the course and scope of his employment, stacked the
table tops (at about
midday on 7 February 2015) in the area
where the plaintiff was injured. Only if this is found to be the case
is it necessary
to consider whether any negligence can be attributed
to the City. Given my conclusion, this renders a consideration of
much of
the evidence adduced during the trial unnecessary, and I will
focus only on that which is directly relevant to the primary issue.
The evidence
[13]
Colin Minnaar testified that before the
trial commenced he recognised Snyman from previous occasions at the
Stadium but did not
know his name. He described Snyman as the City
employee who had custody of the Stadium keys and was responsible for
unlocking all
of the doors each morning. Snyman always wore a golfing
t-shirt with a City of Cape Town ‘
sticker’
on the left breast pocket.
[14]
Minnaar usually arrived at the Stadium at
06h00 and his duties commenced at 07h00. However, as I understood it,
on the morning of
7 February 2015 the foyer door was already
unlocked when Minnaar arrived there to commence duty, and he did not
testify that
he observed Snyman opening up the Stadium on that
particular day.
[15]
His evidence was further that shortly
before midday, while on duty in the foyer, Minnaar saw Snyman
approaching from the direction
of the passage opposite to that which
leads off the foyer to the toilet facility. Snyman was carrying a
table top which he proceeded
to place on top of two trestles that
were already there. Snyman returned with another two table tops and
Minnaar helped him to
stack them onto the first one.
[16]
According to Minnaar, it was at that point
that he decided not to assist further since ‘…
this
is not part of my job description…. I decided to stop helping
him, because I knew that if anything is going to happen,
they will
blame security for stacking…’
.
[17]
Minnaar moved away and Snyman continued to
stack. Minnaar warned Snyman that the stacked table tops posed a
safety risk and that
he should cordon off the structure with danger
tape. Snyman responded that the table tops would be removed shortly.
According to
Minnaar however they were never removed before the
incident occurred.
[18]
Various troubling aspects emerged during
Minnaar’s cross-examination. According to him, and although he
was in his early fifties
at the time, he did not take a single break
(not even a bathroom or refreshment break) from where he was
stationed in the foyer
from 07h00 on 7 February 2015 until the
event closed the following morning at around 01h00 and in particular,
he was insistent
that from the time Snyman stacked the table tops
until the incident occurred he did not once move away from the area,
despite,
on his version, the presence of a fellow security officer
who he did not identify and who was not called to testify.
[19]
Minnaar conceded that he knew he was not
permitted to assist Snyman. Despite assisting Snyman in creating
what, on Minnaar’s
version, was a safety risk, he did nothing
about it for a period of more than 9 hours until, according to the
plaintiff, the incident
occurred.
[20]
The explanations that Minnaar gave for this
apparent dereliction of duty were implausible. He maintained that he
would have got
into trouble with the City or KKKA if he moved the
table tops and thus averted the safety risk. He alleged that he did
not have
access to a radio or similar mode of communication to report
the risk to officials in the Venue Operation Centre (or VOC),
although
he conceded that the security plan presented by Vuyisa to
the KKKA, and accepted by the City for purposes of issuing the
permit,
stipulated that all security points would have radio contact
with the VOC. (It furthermore stands to reason that the security
point
of the VIP area would have been issued with the necessary
equipment).
[21]
He was evasive when asked whether, given
this testimony, he reported the risk to other personnel who were
moving around the general
area, responding that it was unnecessary,
given that everyone could see that the structure posed a risk:
‘
MS
DU TOIT
: I just wanted to
ask you … you spoke about your experience in the industry, and
how dangerous the situation was.
Are we to understand, according to
Mr Manuel’s version, which you don’t dispute, that
despite seeing this danger, you
just left it there for 10 hours?
MR
MINNAAR
: Yes, Ma’am, for
one reason why: it’s not my duty to remove that trestles or
anything from there, because if I had
to remove it I would have been
in trouble, because the City and the Coon Carnivals – I don’t
know who said the City
must place it there, but I can’t remove
it.
MS
DU TOIT
: Did you tell
anyone about the danger?
MR
MINNAAR
: Everybody knew what was
going on, everybody knew it was a danger, Ma’am, because there
is no danger tape around it. If there
was danger tape around it,
everybody would have known that nobody has to be in that area.
MS
DU TOIT
: But, Mr Minnaar,
why didn’t you place danger tape around it if everybody knew it
was so dangerous?
MR
MINNAAR
: That is not part of my
job description, Ma’am. If there was a safety officer, it was
his duty, Ma’am.’
[22]
When pressed, Minnaar’s explanation
simply made no sense:
‘
MS
DU TOIT
: But my question to you,
Mr Minnaar, was, you say you saw this danger, you looked at it for 10
hours, but you didn’t think
to report it to anyone.
MR
MINNAAR
: Ma’am I reported
it to my superiors. These superiors said – my supervisor’s
answer was, whoever placed it there
is supposed to have known what’s
supposed to have come around there.
MS
DU TOIT
: So you didn’t
mention earlier during your examination in chief that you reported
it. What time of day did you report it
to your superiors?
MR
MINNAAR
: I didn’t report
it to them, because they walk through the foyer to come and check up
on us, so they saw that and they asked
me who stacked it there, and
that is who
[sic]
I
told them who stacked it there.’
[23]
Minnaar was unable to dispute the City’s
version that it had no responsibility for issues of safety in the VIP
area during
the event. In his words ‘…
I
think the City was only there to do the unlocking and locking and to
put on the lights, and all those necessary things for the
Stadium.
But where other things are concerned, I can’t really say.’.
To this it must be added that neither the plaintiff nor his other
witness, Ms Walters, suggested otherwise either.
[24]
Minnaar became more evasive as
cross-examination progressed, to the point where he denied having
previously stated that the structure
was unsafe. He conceded that as
a security officer during these events he customarily cordoned off
areas that he was aware might
pose a safety risk, seemingly
forgetting his earlier testimony that this responsibility fell
squarely upon the safety officer.
[25]
Mr Mario Finnis was the City’s first
witness. He is employed as a project co-ordinator in the City’s
Events Permitting
Office. He testified that he was assigned this
particular event. He confirmed that one of the special conditions of
the issued
permit was that the KKKA, as event organiser, was to
ensure compliance with all safety and security related matters.
[26]
His evidence was further that if table tops
were stacked in the manner alleged it was the responsibility of the
KKKA, and not the
City, to ensure that the structure was safely
secured; and in the event of any perceived danger, it was the
responsibility of the
safety and security personnel employed by the
KKKA in the immediate vicinity to warn members of the public. The
presence of the
City’s own officials at the Stadium –
disaster management, the fire department and Metro police (in
addition to SAPS
members) – did not relieve the KKKA of this
responsibility. Other City staff were only in attendance at the
Stadium in a
‘
caretaking’
capacity.
[27]
Finnis was unable to say whether or not the
table tops stacked on that particular day were the property of the
City, although he
conceded it might be possible. He did not know if
Snyman was employed by the City on the day in question.
[28]
Indeed it appears that Finnis did not even
know who Snyman was:
‘
MS
JOUBERT
: But you are not
disagreeing that it’s a possibility that Mr Henfra Snyman
was on duty on 7 February 2015?
MR
FINNIS
: If he was an
employee of the City of Cape Town
and
part of any of these disciplines
,
that could have been possible, M’Lady.
MS
JOUBERT
: Right, there was
evidence presented in this Court that on 7 February 2015
Mr Henfra Snyman, a City of Cape Town
official, was present at
the event. You said you didn’t know about that.
MR
FINNIS
: I can’t
confirm that, Ma’am.’
(my
emphasis)
[29]
This exchange later led to Finnis making a
“concession” which he was clearly not sufficiently
informed to make, that
if
Snyman was employed in the foyer that day and evening, it would have
been
his
responsibility to ensure safety and security. It is apparent that he
erroneously assumed that Snyman was “part of the disciplines”
of the City’s disaster management, fire department or possibly
even Metro police. Finnis also volunteered (despite his earlier
testimony to the contrary) that the primary responsibility for safety
and security at the event vested in the City’s officials,
and
that they ‘
would have had access
and roles to play’
in the foyer.
This differed from the evidence of other City witnesses as well as
those who testified on behalf of the KKKA..
[30]
In my view however none of this actually
assisted the plaintiff, given that it was never his case that Snyman
himself was employed
by the City for safety and security purposes.
Not even Colin Minnaar, the plaintiff’s only witness who
claimed Snyman was
responsible for stacking the table tops, suggested
this. Accordingly this would only have become relevant if the
plaintiff first
succeeded in proving vicarious liability, because
only then, in the particular circumstances of this case, it is
necessary to consider
the issue of negligence.
[31]
Mr Shahied Adams, the City’s second
witness, is employed by it as a principal facility officer. He
testified that in 2015
the Stadium fell under his portfolio and he
was present there on the day of the incident from about 08h00 until
22h00.
[32]
His evidence was further that the
trestle tables used by the KKKA at the event were the property of the
City. They were collected
from another facility and stored in one of
the Stadium’s change rooms. The tables were used by the KKKA at
entrances, by
vendors and to exhibit trophies to be handed out at the
end of the event. It was the responsibility of the KKKA to unpack,
place
and put them away.
[33]
On the day of the incident (seemingly apart
from the officials referred to by Finnis) the only City employees
present at the Stadium
were Adams himself, Mr Clive Minnaar (as
opposed to Colin Minnaar, the security officer), Ms Isabelle
Juta and Snyman.
Clive Minnaar was the supervisor at the Stadium, and
his responsibilities included unlocking the facility and handing it
over to
the event organiser, as well as locking up after the event.
[34]
Snyman and Juta were employed as ‘
cleaners’
for the event in shifts. The first shift was from 07h00 to 16h00 and
the second from 16h00 until the end of the event. Snyman worked
the
second shift that day. This was in terms of standard practice that
shifts were divided in such a manner as to ensure that a
male
employee would work the second shift, seemingly for personal safety
reasons, since that was the busiest shift. Safety and
security were
not the City’s responsibility, but that of the KKKA as event
organiser.
[35]
According to Adams, there were no City
employees stationed in the foyer on that day because ‘…
that
is the space of the event organiser’
and the KKKA was consequently also responsible for any safety or
cleaning issues in that area. Adams was also clear that, contrary
to
the evidence of Colin Minnaar, it was in fact Clive Minnaar who was
responsible for the Stadium keys, and for unlocking and
relocking the
facility.
[36]
During cross-examination Adams explained
that he also recalled this particular event because it was the final
round of the carnival
competition; was the last he supervised at the
Stadium (he was subsequently deployed to a different geographical
area); and moreover
it had been his personal responsibility to
prepare the shift/duty roster for the event.
[37]
According to Adams, it was Clive Minnaar,
Snyman and a Mr Mark Kobus who collected the trestle tables from
another facility and
delivered them to the Stadium on the day before
the incident. He confirmed that the change room in which the tables
were stored
was located in the same passage as the direction from
which Colin Minnaar maintained he saw Snyman approaching shortly
before midday
on the day of the incident. That the trestle tables
were stored there was later confirmed by Clive Minnaar during his
testimony.
[38]
Adams conceded he was unable to say with
certainty that Snyman had not stacked the table tops on the trestles.
However, he stated
that Snyman had not been instructed by him, nor to
the best of his knowledge any other City official, to do so. He
repeated that,
in any event, Snyman was not present at the Stadium
that morning, given that his shift only commenced at 16h00.
[39]
Mr Clive Minnaar, the third City witness,
is employed by it as an operational supervisor/driver at the
Stadium. He has been
employed in this capacity for the past 30 odd
years and is responsible for supervision of permanent cleaning and
maintenance
staff. He confirmed that on the day of the incident there
was a morning shift and an afternoon shift. According to him, the
morning
shift was made up of contract workers and the afternoon shift
comprised Adams, Snyman, Juta and himself, i.e. permanent staff. He
confirmed that the afternoon shift commenced at 16h00.
[40]
It was also his evidence that contract
workers (as I understood it, persons appointed by the Department of
Public Works in one of
its expansion programs) had their own
supervisor. Consistent with the evidence of other City witnesses,
Minnaar stated that none
of his staff (nor, for that matter, the
contract workers) performed any functions in the foyer during the
event, and it was the
responsibility of the KKKA to move, place and
store the tables away. He had no knowledge of Snyman having stacked
table tops in
the foyer that morning. The first occasion on which he
saw Snyman that day was when he arrived for his afternoon shift and
Minnaar
booked him in. He confirmed the evidence of Adams that he
alone is responsible for the Stadium keys which he retains in his
office.
[41]
During cross-examination it was accepted on
behalf of the plaintiff that Clive Minnaar himself had not instructed
anyone to stack
the table tops on the trestles in the foyer. Although
Minnaar was unable to say who might have stacked them there, he
confirmed
that once the facility was handed over to the event
organiser, City employees were not permitted in the foyer until after
the event
ended. It is necessary to emphasise that no evidence was
adduced by the plaintiff, nor indeed was it suggested on his behalf,
that
the City only handed over the Stadium to the KKKA when the event
commenced at 12h00. The evidence was rather that this occurred
much
earlier in the day, particularly given Colin Minnaar’s
testimony that he started his shift in the foyer at 07h00, at
a time
when the foyer doors were already unlocked; and the later evidence of
Mr Melvin Matthews and Mr Cecil Clarke of the
KKKA which I deal
with below.
[42]
Mr Enock Kopele, the fourth City witness,
is employed as its Area Head (Central Area), Disaster Risk Management
Unit (‘
the DRMU’
)
which includes that in which the Stadium is located. He testified
that although he was not personally involved in the event in
question, some of his staff were present there.
[43]
His evidence was further that the role of
the DRMU in the event was to ensure a co-ordinated and integrated
approach to safety issues,
by assessing risk and putting measures in
place to mitigate it. This would typically include the strategic
deployment of three
staff members within the facility, one stationed
in the VOC, one on the stadium and one on the field (with none in the
foyer) and
an on-site meeting on the day of the event (before it
commenced) to check whether there was compliance by the event
organiser with
the safety plan.
[44]
With reference to the applicable statutory
and regulatory framework, Kopele explained that ultimate
responsibility for safety at
the event itself vested in the event
organiser (in particular, its safety officer) and not in the City.
This was consistent with
the testimony of other City witnesses, apart
from that portion of Finnis’ evidence to which I have already
referred, and
with which Kopele similarly disagreed. He stated:
‘
As
part of granting the permit from the City’s side now, the
requirement of the event organiser is to appoint a safety officer.
So
what I’m trying to say is whether SAPS, Metro Police, can be
there, but without having to have a safety officer appointed
by the
event organiser, there will be no permit issued because an event
organiser needs to meet all the requirements that they
need to meet,
in order for the City to provide or to issue a permit for a
particular event.’
[45]
It was also his evidence that it is fairly
common for an event organiser to agree with the City that certain
areas at a facility
will be reserved exclusively for use by the
organiser concerned, thereby precluding the presence of City
personnel in that particular
area or areas. These agreements are
usually reached at pre-planning meetings.
[46]
Mr Henfra Snyman was the last witness
called by the City. He testified that he has been employed at the
Stadium for the past 19
years as a handyman. On the day of the
incident he commenced duty at about 16h00 and left again at around
20h00. He was sure of
this because he had checked his time sheet for
that day in preparation for the trial, and he was of the view that it
was accurate
because it operates on a biometric (or fingerprint)
system.
[47]
Snyman denied having entered the foyer at
any stage that day. In his words this was in any event because ‘…
the
staff, us, we are not allowed to go into that area… only
security is there…’
. He
explained that by ‘
security'
he meant those officers employed for this purpose by the KKKA.
[48]
He was adamant that during the time he was
at the Stadium that day he did not carry or assist anyone with tables
or table tops.
He confirmed that Clive Minnaar, his supervisor, held
the keys to the Stadium. According to him, he did not recognise Colin
Minnaar
and he denied having spoken to him outside court while
waiting to testify as the latter had claimed in his evidence.
[49]
While confirming that tables were
ordinarily collected from another facility, Snyman’s evidence
was that he was not involved
in their collection for this event. As
far as he knew the tables were in any event collected and brought to
the Stadium for any
given event on the same day, but deferred to
Clive Minnaar’s testimony in this regard. He denied that he was
trying to distance
himself from the presence of stacked table tops in
the foyer. He accepted that during his shift he wore an official City
tag and
agreed that the change room about which Adams and Clive
Minnaar had testified was located in the passage in question. His
evidence
differed from that of Adams in that he denied ever having
been employed as a ‘
cleaner’
by the City.
[50]
Given the dispute about whether or not
Snyman personally knew Colin Minnaar the plaintiff arranged for the
latter to be present
briefly in court. Snyman persisted in his
denial. When asked by counsel for the plaintiff how, in these
circumstances, Colin Minnaar
would have known his first name was
‘
Henfra’
,
Snyman responded that he might have ascertained it from someone else
because no-one referred to him as ‘
Henfra’
but only as ‘
Hennie’
.
In any event, this was not an entirely accurate reflection of Colin
Minnaar’s evidence in chief on this aspect:
‘
MS
JOUBERT
: Now you say this
person – maybe we should start giving him a name, the City
official with the golf T-shirt on –
have you seen him here
today?
MR
MINNAAR
: That’s
correct, Ma’am.
MS
JOUBERT
: And did you by
any chance ascertain what his name is?
MR
MINNAAR
: As time went past
now in this morning’s hour when I was here outside with him,
that is where I asked him if he’s
– he said his surname
is Snyman, and that his name is Henry, or something like that, and
that is how I knew it was him that
– that is how I got known to
his name now this morning.’
[51]
Mr Melvin Matthews, the first KKKA witness,
is one its founder members and was its Chief Executive Officer at the
time of the 2015
event. He confirmed that the trestle tables were
used by the KKKA for the purposes described by Adams in his
testimony, and that
it was the responsibility of the KKKA to move,
place and store them away. He also confirmed the evidence of City
witnesses that
the foyer was an exclusive VIP use area for the KKKA.
Entry by other persons required a special pass or ‘
card’
.
[52]
His evidence was further that on the day of
the incident he arrived at the Stadium at 06h00 and was let in at one
of the main entrances
by a security guard. His evidence differed from
City witnesses in that, according to him, the same security guard
unlocked the
foyer doors, and that all trestle tables and chairs used
in the event were already stored in the foyer as a ‘
holding
area’
upon his arrival there.
[53]
Be that as it may, according to Matthews he
was stationed in the foyer as well as an office in the passage in
which the toilets
are located throughout that day and evening (since
he was in charge of finances). All of the furniture in the ‘
holding
area’
was used by the KKKA in the
event. It was KKKA members or employees who placed the furniture for
the event. The first time he noticed
the structure itself was after
the event ended, and KKKA members or employees were gathering the
trestle tables and chairs to be
put away.
[54]
According to Matthews he was familiar with
the permanent City staff at the Stadium and alleged that Snyman, who
he only described
as the witness who testified just before him, only
arrived there in the afternoon. This struck me as gratuitous, given
the evidence
of Snyman that he had not entered the foyer at all,
coupled with Matthews’ own evidence that he never left it.
Indeed, Matthews
was subsequently constrained to concede that he had
no personal knowledge of which City officials and employees were
present or
when they arrived, given that he was focused on ensuring
the smooth running of the event.
[55]
The second witness called by the KKKA, and
the last witness to testify, was Mr Cecil Clarke, the safety
officer appointed by
Vuyisa for the 2015 event in terms of its
contract with the City. He testified that this was his eighth, and
last, annual KKKA
event in this capacity.
[56]
He arrived early at the Stadium on
7 February 2015 and, while waiting for the gate to open,
Matthews arrived. A security guard
unlocked the gate for them, and a
City employee based at the Stadium unlocked the building itself.
Clarke was unable to recall
who this was (it was usually one of two
employees, one of whom was the Stadium supervisor).
[57]
When Clarke entered the foyer with Matthews
he observed a stack of table tops (about 80cm thick) on three
trestles to his right,
which he demonstrated was a short distance
from where Colin Minnaar testified that Snyman later stacked them.
Clarke was unable
to say who had placed them there.
[58]
He was stationed in the VOC for most of the
event but, as I understood his evidence, when he passed through the
foyer to use the
toilet at about 14h00, although there were some
tables still there, when he returned, these were all being moved
outside by KKKA
employees.
[59]
According to Clarke by 21h00 (just before
the plaintiff maintained the incident occurred) there were no tables
in the foyer since
they were all in use elsewhere by the KKKA. He
recalled this because during this particular event on 7 February
2015 there
was scheduled loadshedding at 20h00 for about an hour,
which necessitated certain measures being put in place for safety and
security
purposes. In addition, VOC members (including Clarke),
conducted two ‘
safety
walks’
that day, one at 10h00 and the other midway through the competition.
No safety risk as claimed by Colin Minnaar was reported.
[60]
It was also Clarke’s evidence that
had Colin Minnaar observed any potentially dangerous situation while
stationed in the foyer,
he would have been obliged to report it to
his supervisor (who was manned with a radio) and the latter would in
turn would have
been obliged to report it immediately to the VOC. No
such report was received. Clarke disagreed that Colin Minnaar had
been stationed
in the foyer for the entire period without a break,
maintaining that he was given two such breaks, each of 90 minutes.
Discussion
[61]
In order to discharge the onus of vicarious
liability on the part of the City, the plaintiff was obliged to prove
that it was Snyman
who stacked the table tops on the trestles in the
foyer while acting in the course and scope of his employment, whether
in accordance
with the standard test or one of the so-called
“deviation” cases.
[62]
Self-evidently,
the first enquiry is thus whether the plaintiff proved that Snyman
stacked them at all. This in turn boils down
to a consideration of
the competing versions of Colin Minnaar and Snyman about the latter’s
presence in the foyer at around
12h00 that day. It is a credibility
issue which is inextricably bound up with the probabilities:
National
Employers’ General Insurance v Jagers.
[2]
[63]
I have already dealt with the disturbing
aspects of Colin Minnaar’s testimony. Careful consideration of
his evidence left
me with the distinct impression that he went out of
his way to advance the plaintiff’s cause. Moreover, it is most
unlikely
that as a trained security events officer with years of
experience in the industry, he would have simply stood by in the
presence
of what, on his version, was a clear safety risk for hours
on end because he feared that he would be blamed if he drew it to any
official’s attention. To this I would add that, based on his
demeanour and the manner in which he testified, Colin Minnaar
certainly did not strike me as timid.
[64]
I accept that Snyman himself was not an
exemplary witness. However there were material aspects of his
testimony which had the distinct
ring of truth. Perhaps most
important was his evidence that he only commenced his shift at 16h00
that day. When this emerged for
the first time during Adams’
earlier testimony and the City sought to introduce the relevant
timesheet into evidence at the
eleventh hour, this was vigorously
opposed by counsel for the plaintiff because he had already closed
his case. This ultimately
resulted in the City abandoning any
reliance on the timesheet itself.
[65]
In my view however this does not, of
itself, detract from Snyman’s subsequent unchallenged testimony
that a biometric system
for clocking in and out was used at the time.
In addition Snyman’s evidence that he personally refreshed his
memory by having
regard to the timesheet before testifying was not
placed in dispute, and he was not asked by counsel for the plaintiff
to produce
this document when he was cross-examined, which she was
entitled to do. It would have presented the plaintiff with the
perfect
opportunity to destroy Snyman’s credibility, given that
it was he (i.e. the plaintiff) who bore the onus.
[66]
Of course it was similarly open to counsel
for the plaintiff not to require Snyman to produce it, but this
document would in all
probability have been equally determinative of
the matter to the plaintiff’s detriment if it showed that
Snyman was telling
the truth. If it was a tactical decision not to
require its production during Snyman’s cross-examination, then
it was a risk
that the plaintiff surely knowingly assumed.
[67]
Moreover, both Adams and Clive Minnaar
supported Snyman’s version about when his shift commenced. Both
were patently honest,
reliable and credible witnesses. To the extent
that there were differences in their respective versions, these were
not material
and, to my mind, merely served to demonstrate that they
had not conspired to tailor their evidence. Where their testimony
differed
from Colin Minnaar’s I have no hesitation in accepting
theirs and rejecting his.
[68]
Accordingly it was ultimately undisputed
that Adams was responsible for preparing the shift roster; that the
other permanent City
employee who shared shifts with Snyman that day
was a female (Ms Juta); and that it was standard practice for the
male employee
to work the second shift. Moreover Clive Minnaar’s
testimony that he personally booked in Snyman that day when he
arrived
for his afternoon shift, the first time that he saw him
during the day’s event, must be accepted.
[69]
To this must be added the evidence of the
City and KKKA witnesses that the foyer was reserved as an exclusive
KKKA area and that
it was only KKKA members or employees who were
responsible for moving, placing and later storing the tables. While
it is so that
both Matthews and Clarke testified that upon their
arrival in the foyer early that morning tables were already stacked
there (although
they differed about how many tables there were), this
does not assist the plaintiff, because it was never his case that any
stack
of table tops present in the foyer posed a danger other than
those that were allegedly placed and stacked there by Snyman at
around
midday. In addition, and save for those aspects of Finnis’
testimony with which I have already dealt, the consistent testimony
of both the City and KKKA witnesses was that it was the latter that
bore the risk for any safety and security incidents in terms
of the
permit issued by the City. This is borne out by the permit itself,
which was annexed to the City’s third party notice
to the KKKA
which was served during September or October 2017, long before the
trial. Accordingly the evidence of Snyman, Adams
and Minnaar was
supported by the probabilities.
[70]
In these circumstances I am unable to find,
having regard to the mutually destructive versions of Colin Minnaar
and Snyman, that
the plaintiff has succeeded in persuading me that
the City is vicariously liable for any negligence that he might have
proven.
Put differently, the evidence in support of the plaintiff’s
case fell short of passing the applicable test as set out in
National
Employers
, i.e. that on a balance
of probabilities his version of vicarious liability is true and
accurate and therefore acceptable,
and the competing version of the
City is therefore false or mistaken and falls to be rejected. In
addition, given that the plaintiff
chose not to sue the KKKA as a
co-defendant, the issue of the latter’s contingent liability
does not arise.
Costs
[71]
The City is clearly entitled to its costs.
As far as the KKKA’s costs are concerned, I have had regard to
the following.
[72]
The City’s third party notice
reflects that the KKKA was joined on the basis set out in uniform
rule 13(1)(a), namely for
indemnity purposes. The City sought an
order that in the event of the plaintiff’s claim succeeding
against it, the KKKA was
to indemnify the City ‘…
in
such amount as defendant is ordered to pay, together with the costs
of defending the action.’.
This
indemnity claim arose from the terms of the permit.
[73]
In its third party plea the KKKA made
common cause with the City that in terms of the issued permit it bore
the risk to the exclusion
of the City for any damages proven by the
plaintiff.
[74]
Unlike uniform rule 10 (which deals with
the joinder of plaintiffs and defendants) rule 13 is silent on a
court’s power to
award costs against a party, save as set out
in rule 13(9) which pertains to costs in the context of a third
party’s application
for a separation of trials (or issues), and
which is not relevant for present purposes.
[75]
However,
that a court has an inherent discretion to make a costs award against
a losing plaintiff in favour of a third party is
beyond dispute:
Robertson
v Durban Turf Club and Others;
[3]
Gross
v Commercial Assurance and Another
.
[4]
[76]
In
Robertson
[5]
the court, after reviewing the authorities, set out the approach to
be followed in the exercise of such a discretion:
‘
In
cases under our Rule 13, I think, with respect, that the approach
should not be that as a general rule the unsuccessful plaintiff
should pay the third parties’ costs unless there are “special
reasons” for not so ordering, but rather that such
plaintiff
will
not
be
required to pay the third parties’ costs unless the defendant
acted reasonably in bringing them in: and that, even if defendant
acted reasonably, regard must still be had to general notions of
fairness and to the reasonableness or otherwise in all the
circumstances
of the case of requiring plaintiff to pay the costs of
the third parties.’
[77]
Applying this test to the present matter,
it is my view that the plaintiff should be ordered to pay the KKKA’s
costs for the
following reasons. Firstly, there can be no question
that the City, in light of the clear terms of the permit, acted
prudently
in joining the KKKA as a third party. Secondly, notions of
reasonableness and fairness militate in favour of such an award.
[78]
The plaintiff’s pleaded case was that
a stack of tables, stored at ‘
the
premises’
(which were in turn
defined as the Stadium), was placed there by ‘
employees’
of the City acting in the course and scope of their employment.
[79]
After making common cause with the City,
the KKKA specifically pleaded that at no stage were the tables
stacked by City employees.
The KKKA’s plea was delivered, it
would appear, in about August 2018.
[80]
In his response to a request for further
particulars for trial at the instance of the City, which the
plaintiff delivered on 30
January 2019, he stated that Colin Minnaar
informed him that it was the City’s ‘
employees’
who were responsible, but that he (i.e. the plaintiff) was ‘
not
sure of the names’
of these
employees. Both the particulars of claim and subsequent trial
particulars were silent on when exactly the stacking was
alleged to
have occurred.
[81]
This was accordingly the case that both the
City and the KKKA came to court to meet. Both the City and the KKKA
were deprived of
any reasonable opportunity to make their own
investigations as to whether there was any truth in the allegations
made by the plaintiff.
Both were not even placed in a position to
know who these alleged employees might have been. It was only when
Colin Minnaar testified
during the trial that he pointed the finger
at Snyman, at Snyman alone, and disclosed when the stacking was
alleged to have occurred.
[82]
In the result the following order is
made:
1.
The plaintiff’s claim against
the defendant is dismissed.
2.
The plaintiff shall pay the costs of
the defendant as well as the third party on the scale as between
party and party as taxed or
agreed, including any reserved costs
orders.
____________________
J
I CLOETE
[1]
Although
the plaintiff’s surname is spelt ‘
Manual’
on the pleadings, according to his identity document the correct
spelling is ‘
Manuel’
– Exhibit “A” page 1.
[2]
1984
(4) SA 432
ECD at 440D-G.
[3]
1970
(4) SA 649
(NPD) at 656H-657B.
[4]
1974
(1) SA 630
(AD) at 634H-635A.
[5]
At
658C-E.