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[2020] ZAWCHC 196
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Mtyido v City of Cape Town (5044/2015) [2020] ZAWCHC 196 (24 June 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO.: 5044/2015
In the matter between:
NQULELWA MTYIDO
Plaintiff
and
THE
CITY OF CAPE TOWN
Defendant
JUDGMENT
DELIVERED ELECTRIONICALLY ON WEDNESDAY 24 JUNE 2020
DOLAMO,
J
INTRODUCTION
[1]
The plaintiff sued the defendant, the City of Cape Town (the City)
for damages arising
from an incident that occurred on the 17 October
2013, when she allegedly fell into an open manhole while walking in a
street in
Phase 3 Bardale Mfuleni, Western Cape, which was an
informal settlement at the time.
[2]
In her particulars of claim, the plaintiff alleged that:
“
3.
On or about 17 October 2013, and at or near Ukubetana Street, Mfuleni
which area falls
within the area of jurisdiction and/or under the
control of defendant and within the area of jurisdiction of the above
Honourable
Court, plaintiff stepped into an uncovered manhole, as a
result of which she sustained a fractured right ankle [“the
incident”].
4.
at all material times, defendant had a legal duty to members of the
public, and
to Plaintiff in particular, to:
4.1
ensure that areas within its jurisdiction and/or under its control
and to which members
of the public had unrestricted access were free
of any danger/s and/or potential danger/s;
4.2
ensure that adequate measures were taken in all areas within its
jurisdiction and/or under
its control and to which members of the
public had unrestricted access to safeguard members of the public
against any danger/s
and/or potential danger/s;
4.3
take reasonable precautions to warn members of public of any danger/s
and/or potential danger/s
in all areas within its jurisdiction and/or
under its control to which the members of the public had unrestricted
access.
5.
In breach of the legal duty, defendant wrongfully and negligently
omitted to:
5.1
ensure that areas within its jurisdiction and/or under its control
and to which members
of the public had unrestricted access were free
of any danger/s and/or potential danger/s;
5.2
ensure that adequate measures were taken in all areas within its
jurisdiction and/or under
its control and to which members of the
public had unrestricted access to safeguard members of the public
against any danger/s
and/or potential danger/s;
5.3
take reasonable precautions to warn members of public of any danger/s
and/or potential danger/s
in all areas within its jurisdiction and/or
under its control to which the members of the public had unrestricted
access.”
[3]
The defendant denied these allegations and pleaded that:
“
4.1
The contents hereof are denied and the plaintiff is put to the proof
thereof.
4.2
In amplification of such denial the defendant pleads that:
4.2.1
There was no legal duty on the defendant to repair the alleged
uncovered manhole or to warn members of the public
as pleaded merely
on the basis that the alleged uncovered manhole fell within the area
of jurisdiction and/or under the control
of the Defendant; and
4.2.2
The defendant was not made aware of the alleged uncovered manhole.
5.1
Defendant denies that it was negligent as alleged or in any other way
and pleads that the plaintiff was negligent
in one or more of the
following respects, namely:
5.1.1
The plaintiff, who frequently travels by foot to the water stop, was
familiar with the site and surroundings;
5.1.2
Plaintiff walked in the road when she should have walked on the
sidewalk;
5.1.3
Plaintiff failed to apply caution and failed to keep a proper
lookout;
5.1.4
Plaintiff failed to avoid the incident, which, by exercising
reasonable and proper care, she would have been able
to do so…”
[4]
The parties agreed, in pre-trial proceedings, to a separation of
issues in terms of
Uniform Rules 33(4). As a result, the trial
proceeded to determine the issues relating to the defendant’s
liability while
those relating to plaintiff’s quantum of
damages stood over for later determination, should the defendant be
found to be
liable. The plaintiff and Barnabas Zwelihle Xwayi (Xwayi)
testified in her case while Ian Quintas Wellman (Wellman), Pierre
Maritz
(Maritz) and Shafodien Hussein Japhta (Japhta) testified on
behalf of the City.
[5]
Plaintiff testified that she moved into house no 2[…],
Ukubethana Street, Bardale
Mfuleni in 2009. The only infrastructure
on site at the time was an outside toilet and a tap next to it. She
was and still is working
for a fast-food outlet at the Cape Town
International Airport where she daily had to report for duty at
04h30. On the 17 October
2013, at about 20h00, in preparation for the
following day, she took a bucket and went to her tap to collect
water. There was no
water. She then decided to walk to the next
street to look for water from the neighbours’ taps. Although
she was experiencing
a water outage for the first time, she was aware
of the general practice in the neighbourhood that, in such a case,
one goes to
fetch water from any neighbouring tap where there was
water.
[6]
Plaintiff walked out of her yard, turned left into Ukubethana Street,
proceeded for
a few metres and turned right into Khwezi Street. Once
in Khwezi Street, she elected to walk on the tarred surface of the
road
as the sidewalk, that was referred to as the pavement, was full
of sand and overgrown with weeds and shrubs. According to the
plaintiff,
it was unsafe to walk on this sidewalk. An aerial
photograph of the area, taken in February 2014, showed large deposits
of sand
on the tarred surface as well as on the sidewalk and, in some
parts, completely covering the tarred surface of the road. It was
already dark at the time. A high mast flood light, which was located
in a section referred to as Garden City, provided light to
the area.
Although where she was walking was not in complete darkness,
the light provided by the high mast light was insufficient.
The
distance from where she was in Khwezi Street to, where the light
stood in Garden City, was neither measured nor estimated.
As a
result, it was not possible to get an indication of how well
illuminated, or otherwise that area was.
[7]
As she was walking, plaintiff fell into an open manhole with her
right foot and broke
her ankle. Two young women carrying pales of
water, and who had just walked past her, came to her aid. One of them
went to call
the plaintiff’s husband. The latter arranged for a
vehicle that took her to the Delft Day Hospital. After receiving
initial
treatment, she was conveyed in an ambulance to Tygerberg
Hospital, where she was admitted for further medical attention. She
did
not see the manhole before she fell into it nor, was she
expecting an open manhole in the road.
[8]
In cross examination it was put to the plaintiff that she fell into
the manhole because
she was not keeping a proper lookout but was
concentrating on finding a tap; that she walked on the tarred surface
of the road,
where it was not safe, instead of on the sidewalk. She
maintained that she had never seen the manhole, or ever been in
Khwezi Street
before. This was because she had no reason to use
that road as all the amenities, like schools, shopping centres and
the
like, were all located in the opposite direction from Khwezi
Street. Towards the end of plaintiff’s cross-examination, it
was put to her that the City’s witnesses would testify that:
“
on the strength of the current situation with the manhole
the evidence very strongly points to the fact that the manhole cover
has
never been removed”.
[9]
Xwayi, who lived opposite to the plaintiff in Ukubethana Street until
he retired and
left for the Eastern Cape in 2017, testified that he
moved into the area in 2010. In 2013, approximately 2 months prior to
the
incident involving the plaintiff, he noticed an open manhole in
Khwezi Street that posed a danger to road users. He went and reported
it to the City’s workers who were working nearby at the time.
Their supervisor undertook to have it repaired. As a precautionary
measure, Xwayi put 3 pieces of wood into the manhole and tied a red
and white reflector tape to warn passers-by of the danger present
in
the open manhole. To his dismay people removed the pieces of wood,
possibly to use as firewood.
[10]
Xwayi identified the people to whom he reported as the City’s
employees because their protective
clothing and their vehicle bore
the emblem of the City. Secondly, when he reported the open manhole
to their supervisor he did
not turn him away but undertook to have it
fixed. He was surprised when months later he learnt that the
plaintiff had fallen into
the manhole that was still uncovered. He
got confirmation of the incident when he met plaintiff after she was
discharged from hospital.
[11]
For the defendant Wellman, a project manager in the City’s
Department of Human Settlements,
testified about the development of
the Bardale area, which started in 2006. His main responsibilities
were to plan and implement
low-cost housing developments. Bardale was
a serviced site development. First, the City obtained the
environmental authorisation,
followed by the town planning approvals,
and then the design of the civil engineering infrastructure
(infrastructure). On completion,
according to their norms and
standards, the civil infrastructure would be signed off and handed
over to the engineering department
and, henceforth, be the latter’s
responsibility for maintenance. thereafter individual sites were
created. These were later
handed over to the identified
beneficiaries. On handover, beneficiaries were required to sign
relocation and acceptance letters,
respectively. An inspection would
be conducted with an individual beneficiary before taking occupation
of the allocated site. The
individual sites only had water and
sanitation services and there were no formal houses built on site at
the time.
[12]
Phase 3B, according to Wellman, was completed in December 2009. Phase
5, which is adjacent to
Phase 3B, was only completed in 2018.
Although it initially appeared that Wellman was personally involved
when the plaintiff signed
the relocation letter on the 7 December
2009, it became clear that he was not present as he was not aware
that plaintiff did not
sign the acceptance letter on the 9 December
2013. The same is the case with the handover of the infrastructure.
Though he insisted
that the latter would not have been handed over to
the Engineering Department, if it were not completed according to the
norms
and standards, he could not state with certainty when the
handover took place. He asserted, nevertheless, that the
manhole
in question would have been covered on handover. So too,
would have been the case with the pavement, which would have been
tarred,
he maintained. These assertions were made notwithstanding the
fact that the human settlement used agents and consultants to do the
inspection and handover.
[13]
Wellman confirmed that high mast lights, that were approximately 40
metres high, were used in
the area. This was because the area was
“
fairly extensive
” and these type of lights could
provide sufficient illumination. He conceded, when cross-examined,
that he was never in the
area at night during 2013, nor was he in any
way attached to the electricity department of the City. He had also
not tested the
lights to determine their efficiency. He could not
dispute that in 2013, the particular manhole cover did not go
missing. It was
also difficult for him to say whether it would have
been safe to walk on the sidewalk, in the state in which it was.
[14]
Maritz, the manager for water reticulation in the City, testified
about the problems the City
is experiencing and the measures it had
put in place to curb the theft of metals, in particular, manhole
covers. According to Maritz,
there are 10700 kilometres of pipes
carrying potable water throughout the City and about 9000 kilometres
in the sewer network.
These pipes are mainly underground. There are
currently 20400 manhole covers in the water reticulation network.
These increased
form roughly 192000 in 2013. For every 80 metres
there is a manhole with a cover along the sewer network. In addition,
a manhole,
with a cover, is placed on every gradient change. These
are meant to deal with the velocities as the system operates at a
certain
velocity for self-cleaning. In the past, these manholes used
to be located inside the yards at the back but because of problems
of
access, they are now installed in the road.
[15]
Maritz was familiar with the Bardale development. His department took
over the water reticulation
network on its practical completion. By
practical completion he meant that the project, in which his
department would have been
involved from the planning stage, was
constructed according to specifications in the tender documents.
Although he insisted that
the manhole cover in Khwezi Street would
have been installed on completion, since as a norm the City would not
take over a bulk
infrastructure until it was practically completed it
was, however, not until the 11 February 2020, that he went physically
to inspect
it.
[16]
To curb the scourge of the theft of metal the City put in place
various measures. On the technical
side the City installed manhole
covers with lock mechanisms that made it difficult to remove without
using special tools; used
microdot technology; took stock to
establish how many different types of covers were in the system and
the areas where emphasis
needed to be placed to stem the tide of
theft. The City also embarked on an educational awareness campaign.
These included working
closely with neighbourhood watch groups,
sharing information with the police and establishing a Metal Theft
Unit as well as Research
and Development Unit. Some of these measures
were already in place in 2013.
[17]
The City also has a computer programme, called the C3, for reporting
missing or stolen manhole
covers as well as sewer blockages. A
complaint may be lodged on this system via Short Message System
(SMS), telephone or email.
It can be by a member of the public or by
the so-called pick-up process, i.e. where an employee of the City
comes across a problem,
like a missing manhole cover or a blockage,
and notify the city through the C3 system.
[18]
Once a complaint was lodged, it would be send to the depot,
indicating the area from where it
emanated. The date and the time of
the complaint, as well as the name of the person who lodged the
complaint, would also be recorded.
The depot, according to Maritz’s
explanation in this context, is the place with the resources, i.e.
where the appropriate
tools and spare parts are kept. The staff that
has to respond to the complaints is also stationed in the depot. Only
one team is
sent to respond to a complaint even if it involved a
missing manhole cover and a blockage. Plan time, i.e. the reaction
time by
the team, from when the call of a complaint is received and
entered into the system to the time another staff member reacted to
it, is also recorded. Thereafter, an entry would be made in the
system to record the resolution of the problem. The information
collected on the C3 system, such as whether a blockage was an
engineering problem or a misuse of the system and the trends in theft
and blockages, is used for planning and budgeting purposes.
[19]
In preparing to give evidence in court Maritz drew records, from the
C3 system, of all the complaints
received regarding stolen or missing
manhole covers for the period 1 January 2013, to 31 December 2013.
These records showed that
there was no reported stolen or missing
manhole cover in Khwezi Street during this period. There was also no
proof of a replacement
of a stolen or missing manhole cover during
the period. I digress to point out that the C3 system has a feature
called the free
text. This feature helps where the name of a street
or suburb is. Using the misspelled name, the correct name can be
established.
Even using this feature, nothing relating to Khwezi
Street was picked up on the system during this period.
[20]
On inspection of the manhole in question, on the 11 February 2020,
Maritz concluded that this
was an A2 hinged cover that will require a
special tool to open and remove. Secondly, that to remove the cover
you needed to remove
the frame as well. As the tarmac around the
manhole was homogenous with the rest of the tar, on that section of
the road, he concluded
that this was the original cover. He also
opined that if the manhole had been left open sand would have
deposited into the pipes
and affected the self-cleaning velocity.
This was because sand, immediately when it becomes wet, compacts to
what is referred to
as 90% modification astro (it hardens). He
arrived at these conclusions based on his 24 years’ experience
in water reticulation.
I shall in the course of analysing the
evidence deal with the probative value of Maritz’s opinions.
[21]
In cross-examination, Maritz conceded that these type 2A manhole
covers were also susceptible
to loss or theft. He also admitted that
he was not actively involved in the Bardale development between 2009
and 2013. He was not
certain of the date of the handover of Phase
3B. He thought that one Chart Moller, the district manager for
the region, could
have dealt with the handover of the development.
[22]
Japhta, an administrative officer whose duties with the City included
drawing reports, used a
programme called SAP, which is where the
City’s data is stored, to search for any report of a sewer
manhole cover missing
in Khwezi Street during the period 1 January
2013 to 31 December 2013. He also used the wild card feature on the
system to search
for any word remotely connected to Khwezi, and found
no report of a missing manhole cover in that street. He was not
certain but
thought that he may have searched from 2013 until 2020
and found no report relating to Khwezi Street. There was, however, a
report
of a missing manhole cover in Ukubethana Street in September
2014. He confirmed that when the City needed to replace a manhole
cover this would be sourced from the depot, but was not certain
whether this would be recorded in depot’s books.
[23]
It is on this evidence that the court must determine whether the
plaintiff has proved, on a balance
of probabilities, that (i) the
City owed her a duty to keep the streets safe by,
inter alia
,
ensuring that manholes are kept covered, (ii) that, in breach of this
duty, the City’s employee to whom Xwayi reported the
missing
manhole cover, negligently omitted to alert the City, as a result of
which, she fell into the open hole and injured her
ankle, and (iii)
that there is a causal connection between the employee’s
negligent breach of his duty and the damages she
suffered.
[24]
The plaintiff’s claim is based on delict. To be successful the
plaintiff must prove all
the elements of the delict, being, conduct,
unlawfulness or wrongfulness, fault, damage and causation. The
question of plaintiff’s
damages, if any, has been left for
later determination.
CONDUCT
[25]
There is usually no problem where the offender committed an act that
resulted in the infringement
complained about. Difficulties often
arise where the infringement is the result of an omission. The
problems arising from omissions
in the sphere of delicts have
persistently exercised the minds of lawyers
[1]
.
The problem has again raised its head in this matter.
NEGLIGENCE
[26]
The test for negligence was formulated by Holmes JA in
Kruger
v Coetzee
[2]
as follows:
“
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 50 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.
Hence the futility, in general, of seeking guidance from the facts
and results of other cases.”
[27]
In
Mashongwa
v Passenger Rail Agency of South Africa (PRASA)
[3]
the Constitutional Court held that:
“
[40]
The real issue on this aspect of the case is not whether the posting
of a single guard, or three guards, could have prevented
the attack.
It is whether the steps taken by PRASA could reasonably have averted
the assault. Crucial to this inquiry is the reasonableness
of the
steps taken. However, it must be emphasised that owing to the fact
that PRASA is an organ of state, the standard is not
that of a
reasonable person but a reasonable organ of state. Organs of state
are in a position that is markedly different from
that of an
individual. Therefore, it does not follow that what is seen to be
reasonable from an individual’s point of view
must also be
reasonable in the context of organs of state. That approach
would be overlooking the fundamental differences
between the State
and an individual. It would also be losing sight of the fact that the
standard of a reasonable person was developed
in the context of
private persons.”
WRONGFULNESS
[28]
Where the law recognises the existence of a legal duty it does not
follow that an omission will
necessarily attract liability: it will
attract liability only if the omission was also culpable as
determined by the separate test,
formulated in
Kruger
v Coetzee
,
supra
,
of reasonable foresight. In the particulars of claim, where the
negligence is founded on an omission, a plaintiff must not only
set
out the negligent omission relied upon but also the facts relied upon
which, if proven in the trial, will establish wrongfulness
[4]
.
This is so because an omission, is not
prima
facie
unlawful. In
casu
,
the plaintiff, in my view, has met this requirement. The negligent
omission of the City and the facts relied upon were set out
in
paragraphs 4.1, 4.2 and 4.3 of the particulars of claim quoted
supra
.
[29]
As far as the evolution from almost immunity for municipalities for
omissions to liability in
certain circumstances is concerned, the
seminal judgment of Marais JA in
Cape
Town Municipality v Bakkerud
[5]
is apposite. In concluding that a failure by a municipality to keep
streets and pavements in a safe condition could, in certain
circumstances, attract delictual liability, the court held that:
“
[27]
While the court a quo’s conclusion that
it was open to it to re-visit the general or relative
immunity of
municipalities and, if justification existed to jettison the notion,
was therefore correct, I think that, having done
so, it was wrong to
substitute for it what amounts to a blanket imposition upon
municipalities generally of a legal duty to repair
roads and
pavements. In my view, it has to be recognised that in applying the
test of what the legal convictions of the community
demand and
reaching a particular conclusion, the courts are not laying down
principles of law intended to be generally applicable.
They are
making value judgments ad hoc.”
[30]
Negligence and wrongfulness are two separate elements of a delict and
care must be taken not
to conflate the two. Like negligence,
wrongfulness is also an essential and discrete element that must be
proved to found liability.
The Constitutional Court in
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae
[6]
(Le Roux)
:
“
[122] In the
more recent past our courts have come to recognise, however, that in
the context of the law of delict: (a) the
criterion of
wrongfulness ultimately depends on a judicial determination
of whether — assuming all the other elements
of
delictual liability to be present — it would be reasonable to
impose liability on a defendant for the damages flowing
from specific
conduct; and (b) that the judicial determination of that
reasonableness would in turn depend on considerations
of public and
legal policy in accordance with constitutional norms.
Incidentally, to avoid confusion it should be borne in
mind that,
what is meant by reasonableness in the context of wrongfulness has
nothing to do with the reasonableness of the defendant's
conduct, but
it concerns the reasonableness of imposing liability on the defendant
for the harm resulting from that conduct.”
In
addition, in
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
[7]
the Constitutional Court held that:
“
[20]
Wrongfulness is an element of delictual liability. It functions to
determine whether the infliction of culpably
caused harm demands
the imposition of liability or, conversely, whether 'the social,
economic and others costs are just too
high to justify the use of the
law of delict for the resolution of the particular issue’.
Wrongfulness typically acts as
a brake on liability, particularly in
areas of the law of delict where it is undesirable or overly
burdensome to impose liability.
[21]
Previously, it was contentious what the wrongfulness enquiry
entailed, but this is no longer
the case. The growing coherence in
this area of our law is due in large part to decisions of the Supreme
Court of Appeal over the
last decade.”
[31]
Negligence is not inherently unlawful
[8]
.
In
Minister
of Safety and Security v Van Duivenboden
[9]
the SCA held that negligence is unlawful, and thus actionable, only
if it occurs in circumstances that the law recognises as making
it
unlawful. Where the negligence manifests itself in a positive act
that causes physical harm it is presumed to be unlawful. The
SCA
further held that a negligent omission is unlawful only if it occurs
in circumstances that the law regards as sufficient to
give rise to a
legal duty to avoid negligently causing harm. In
Stedall
and Another v Aspelling and Another
[10]
Leach JA, writing for the majority, held that the phrase “
legal
duty
”
in these circumstances:
“…
means
no more than that the omission must not be wrongful as judicially
determined in the manner referred to above, i.e. involving
criteria
of public and legal policy consistent with constitutional norms –
see Hawekwa Youth Camp and Another v Byrne 2010(6)
SA 83 (SCA) at
para 22. Importantly, the concept is not [to] be confused with the
English law concept of “a duty of care”
which encompasses
both wrongfulness and negligence…”
CAUSATION
[32]
The plaintiff must also prove that the wrongful omission of the City
to keep the manhole covered
was the cause of her fall and breaking of
her ankle. She must establish that but for the omission to
cover the manhole she
would not have fallen and broken her ankle.
This is called factual causation which is established by the
application of the “
but
for
”
test. In
Minister
of Police v K
[11]
Zondi JA held at paragraph 56 that in the case of an omission, the
enquiry involves:
“…
substituting
the defendant’s conduct with a hypothetical positive act and
then asking whether, in the latter case, the harm
causing event would
still have occurred. If this is answered in the negative, the
defendant’s conduct was indeed a factual
cause of the
plaintiff’s harm; while if answered in the affirmative, the
defendant’s conduct was not the factual cause
of the
plaintiff’s harm and caedit quaestio”
And
at paragraph [59] that:
[59]
The existence of a relationship of factual causation between the
defendant’s conduct and
the harm suffered by the plaintiff is
not sufficient to establish the presence of a legally relevant causal
connection. An additional
test is required to determine whether the
defendant’s conduct was a legal cause of the plaintiff’s
harm. This is legal
causation. It entails an enquiry into whether the
alleged wrongful act is sufficiently closely linked to the harm for
legal liability
to ensue. Generally, a wrongdoer is not liable for
harm that was not foreseeable.”
[33]
In
Van
Duivenboden, supra
[12]
it was held that to discharge the
onus
:
“
[25]
…
A plaintiff is not required to
establish the causal link with certainty, but only to establish that
the wrongful conduct was probably
a cause of the loss, which calls
for a sensible retrospective analysis of what would probably
have occurred, based upon the
evidence and what can be expected to
occur in the ordinary course of human affairs rather than an exercise
in metaphysics.”
[34]
There are two contradictory versions before Court. There is the
plaintiff’s version, corroborated
by Xwayi that the manhole
cover in Khwezi Street was missing and that he had reported it to the
City’s employees. On the
other hand, there is the version of
the City that, since inception, the manhole in Khwezi Street had
never been left open. The
evidence of the City’s witnesses was
said to have been corroborated with documentary evidence. The SCA in
Stellenbosch
Farmers Winery Group Ltd and Another v Martell Et Cie and Others
[13]
set out the approach to the resolution of factual disputes as
follows:
“
[5]…
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness’s reliability will depend, apart from the factors
mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity
and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b), and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation
of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail
.”
[35]
In her Heads of Argument (HOA) Counsel for the defendant undertook an
evaluation of the evidence
for the plaintiff in an effort to show its
unreliability and to lay a basis for its rejection. While most of the
criticism against
the evidence of the plaintiff is not on the scale
suggested, I am compelled to deal with each such criticism to
demonstrate its
lack of merits:
35.1
that it was simply incredible for the plaintiff to maintain that she
was not aware of the manhole in Khwezi
Street despite having lived
metres away from it for a period of almost 4 years. I find nothing
incredible in the plaintiff’s
evidence on this point. The
plaintiff gave a reasonable explanation why she had never used Khwezi
Street: nothing compelled her
to use Khwezi Street since all the
amenities in Bardale were located away from Khwezi Street Counsel,
notwithstanding a lengthy
cross-examination of the plaintiff, was
unable to point to a single instance or event that would have
necessitated her to use Khwezi
Street or prove that she had indeed
used Khwezi Street in the past. The mere fact that she had lived in
the area for four years
at the time is no basis for concluding that
she must have used the street before the accident.
35.2
that it was clearly improbable and incredible that plaintiff would
set out at 20h00, when it was dark on
a route she has never taken, to
go and find water from a tap, whose exact location was unknown to
her. This submission ignores
two aspects of the plaintiff’s
evidence. First, plaintiff had to be up at 02h30 to report on duty at
04h30. It is therefore
reasonable to prepare a night before, if you
have to be up that early. Secondly, Bardale was an informal
settlement where people
did not have the luxury of taps inside their
informal houses. She therefore had to fetch the water a day before to
keep in her
house for use the next day, which, as stated, started
very early. It also ignores the evidence of the defendant’s
witnesses
that each serviced site had a toilet, a tap and basin next
to it. Irrespective of whether or not plaintiff had been to any site
on the street where she intended to fetch water, it is obvious that
she would have easily located any tap in any yard: this would
be next
to the concrete toilet. This was the set up in the entire
development. That plaintiff was only able to locate the specific
tap
she intended to use after the accident does not make her decision to
proceed in that direction in search of water improbable,
nor
incredible in the circumstances.
35.3
There is nothing improbable in the plaintiff’s evidence that on
the 17 October 2013, she was experiencing
a water outage for the
first, and probably the last time. The evidence of Xwayi that he had
often experienced water outages does
not affect her version. The
water outages experienced by Xwayi may not have occurred on occasions
when plaintiff was in the area
or may have only affected Xwayi’s
site. More so, plaintiff was not confronted with specific incidences
of water outages where
she would obviously have been aware thereof to
show the improbabilities in her evidence. In the absence of such
evidence, it is
opportunistic to allege that Xwayi has contradicted
herself.
35.4
Plaintiff did not come with a version of the two women who were also
coming back from fetching water, only
when she was confronted about
it in cross- examination, as was argued. In her evidence in chief,
and to a question by her counsel
as to whether she got help after
falling into the manhole, her answer was “
Yes, my Lord.
There were two ladies who had passed by me who had also buckets full
of water from the other side. And then when I
called out for
assistance, they came to me
”. I have already dealt with the
issue of the uniform location of taps in Bardale. There is therefore
nothing improbable in
the plaintiff not asking these two women where
to find a tap with water. It is not clear what counsel meant with the
statement
that it was dark: plaintiff’s evidence was that the
high mast light did not provide sufficient illumination of the area
where
she was walking but that does not necessarily mean that it was
completely dark. It is therefore, incorrect to submit that plaintiff
was walking in the dark desperate to find water and not knowing where
she was going.
35.5
The submissions that the plaintiff was negligent by electing to walk
on the tarred surface when a sidewalk
was available is unfounded.
This argument is against the clear documentary evidence, in the form
of the photographs of the area,
showing the sidewalk in Khwezi Street
completely covered by sand and overgrown with shrubs and grass. That
the defendants’
witnesses were aware that the sidewalk has
always been tarred does not detract from the fact that it was
completely covered in
sand and overgrown at the time and could easily
be mistaken for being untarred. It is self-serving to ask the defence
witnesses
questions about the state of the sidewalk in 2013, but
referring them to a photograph taken in 2019, and merely asking them
to
confirm that it is how it looked back in 2013.
35.6
There is no merit in the argument that plaintiff was negligent by
walking closer to the middle of the road
than on the pavement. Once
it is admitted that the sidewalk was full of sand and overgrown with
weeds and that it would have been
difficult, if not unsafe, to walk
on it does not make any difference, in my view, where on the tarred
surface she chose to walk.
I shall deal later in the judgment with
the submission that the plaintiff would not have stepped into the
manhole with her right
leg had she chosen to walk closer to the
pavement. Suffice, at this stage, to point out that the risk of being
hit by a vehicle,
being the only risk that she could have faced, was
too remote, as the area had no heavy vehicular traffic (she was not
expecting
an open manhole in the street). Khwezi Street, at the time,
was on the outskirts of Phase 3B, was sparsely populated and the
adjacent
phases were not yet developed, or inhabited. The street was
straight with no curves and, even if a vehicle were to approach her
from the front, or the back, its lights would have warned her to move
out of its way.
35.7
The submission that Xwayi and the defendants’ witnesses
contradicted the plaintiff’s evidence
that Khwezi Street was
not tarred further on, is immaterial and does not affect her
credibility. Plaintiff had not reach that part
of the road covered in
sand where she could perhaps have noticed that it was in fact tarred.
Xwayi, on the other hand, had a vehicle,
had used Khwezi Street
before and was in a position to notice that the street was tarred.
Once again, the aerial photographs of
the area, taken in 2014, shows
copious amounts of sand covering the surface of the road to such an
extent that no tar was visible.
Her evidence that the latter part of
Khwezi Street was not tarred, though understandable in the
circumstances, remains immaterial.
35.8
The plaintiff never testified that there were streetlights where she
was walking, or that it was dark as
alleged in Counsel’s
submission. All she said was that the high mast light, which was in
Garden City, did not throw sufficient
light on the surface where she
was walking. Her mention of streetlights was merely in reaction to
the court’s question whether
there were any street lights in
the area. After she said there were street lights she immediately
clarified what she meant by streets
lights, namely, the high mast
light in question.
35.9
It is correct that plaintiff used phrases such as “
it was
becoming dusk
”; “
it was becoming dark
”
and “
it was dark
”. She was, however, not veering
from one to the other, as was submitted. In her evidence in chief,
she said it was just becoming
dark. It was in cross-examination, and
for reasons that are not clear, that it was put to her that she had
said it was becoming
dusk. This was clearly incorrect. It was her
evidence throughout that it was dark.
35.10
The submission that the plaintiff contradicted herself when she said
she was not distracted by searching for a tap is
incorrect. From her
answer, that she was frustrated because she did not have water, the
court sought to clarify the question that
was asked, as it appeared
that she did not understand it. It cannot be inferred from her
answers that she had contradicted herself
by denying that she might
have been distracted by searching for a tap. She denied that she was
searching for a tap since, as pointed
out supra, she knew where to
find one.
35.11
The submission that the plaintiff was vague about the exact
circumstances of her alleged fall into the manhole is not
borne by
the evidence. The plaintiff clearly stated that when she felt that
she had fallen, that was when she realised that she
had fallen into a
manhole (which she called a drain). She further stated that she then
dragged herself out. Counsel, at that time,
accepted this
explanation.
35.12
The submission that the photographs discovered by plaintiff’s
legal representatives cannot in any way substantiate
her version, as
no evidence was lead to prove their provenance, is simply without
merit. On the 12 February 2019, the plaintiff’s
legal
representatives gave notice, in terms of Rule 36(10), of her
intention to produce photographs at the trial depicting the
scene of
the accident. These included photographs 1, 2, 3 and those on pages
28 and 29 in the trial bundle. These were made available
to the City
for inspection. The City was also notified, as the rule provides,
that unless it objected within ten (10) days to such
photographs
being presented in evidence the plaintiff will be entitled to produce
such photographs without formal proof thereof.
There was not even
murmur of objection from the City at the time.
In
Hotz and
Others v University of Cape Town
[14]
the Court held that:
“
[27]
Uniform rule 36(10) provides for the admission without the need for
formal proof of plans, diagrams, models and photographs.
The
mechanism for doing so is to give notice of the intention to produce
such items at the hearing and to require the other party
to admit
them. If there is no response to that notice those items may be
received in evidence on their mere production without
further proof
thereof. There was no response to the notices delivered by the
university and hence all the photographs and video
footage were
receivable in evidence without further proof. It was in fact tendered
to Allie J but we were informed from the bar
that she indicated, that
she did not think it necessary to view the material. Perhaps that was
because the description of the contents
of the video material was, in
all but one respect, not disputed. That is the approach that most
favours the appellants and I accordingly
adopt it.”
The
effect of this rule is that “
if
the prerequisites [of the rule] are established it creates an
admission only (i) as to the authenticity of the document, i.e.
it
dispenses with the need to call the author of the plan or to provide
prove of its authorship, and (ii) as to the physical features
found
by the author”
[15]
.
It
is correct that the plaintiff admitted that she had never seen these
photographs before, did not know when they were taken, or
by whom
nor, who the persons were depicted on one of the photographs.
Plaintiff, however, insisted that the photograph in question
depicted
the area where the accident occurred and she was not contradicted in
this respect. In fact, following up on her answer,
Counsel for the
City confirmed that the two men were standing in Khwezi Street.
Counsel also conceded later on that the area depicted
in the
photographs was “
the area in question
”.
What
remains is to deal with Counsel’s submission that the
photographs cannot substantiate plaintiff’s version, as the
date on which they were taken has not been established. While
the exact date on which the photographs were taken cannot be
established by direct evidence, an inference
[16]
can be drawn from the surrounding circumstances that they were
certainly taken around or after November 2009, as is evident from
the
shacks that are depicted in the photographs. These shacks could only
have been erected after people had moved into the area,
which was
around November 2009. What they establish is that the manhole was not
covered at the time when the photograph was taken.
35.13
The submission that the plaintiff has never complained about the
uncovered manhole before or after the accident is without
substance.
As already, stated plaintiff was never in Khwezi Street before the
accident and therefore, could not be expected to
complain about a
situation that she did not know existed. There was no legal duty on
her to report the manhole when, on her return
from hospital, she
found that it was still open.
The
Plaintiff confirmed in cross-examination that she learned about the
complaint laid by Xwayi after her discharge from hospital
and had
shared this information with her legal representatives. What her
legal representatives did with this information is not
for her to
answer. That she had shared this information with her legal
representative can be inferred from the fact that the latter
knew
about Xwayi and even called him as a witness.
35.14
It is submitted that there is no material corroboration for the
plaintiff’s version of her fall into an uncovered
manhole. It
was argued that it was puzzling that her husband of many years was
not called as a witness as he could have provided
evidence in support
of her version.
The
defendant’s approach was dichotomous: on the one hand, it was
denied that there was any legal duty on it to repair the
alleged
uncovered manhole or to warn members of the public merely on the
basis that the alleged uncovered manhole fell within the
area of its
jurisdiction. In meeting this case, the plaintiff testified about the
uncovered manhole into which she fell and called
Xwayi for
corroboration.
Inexplicably
and without pleading it in the alternative the defendant alleged that
the plaintiff was negligent,
inter alia
, in that while she was
familiar with the surroundings, she walked in the road when she
should have walked on the sidewalk, failed
to apply caution, or keep
a proper lookout and failed to avoid an incident when by exercising
reasonable and proper care she would
have been able to avoid falling.
Implicit in this defence is that the manhole was uncovered and it was
due to the plaintiff’s
contributory negligence that she fell
into it. In the circumstances, her husband who came after she had
already fallen and injured
herself could not offer any corroboration
as to whether she kept a proper lookout or not. In this
respect, he could not have
contradicted her evidence as to how she
had fallen into the manhole.
Even
if there is no contradiction in the City’s case the failure by
the plaintiff to lead the evidence of her husband does
not justify an
inference that he would not have corroborated her version of events.
In
Rand
Cold Storage and Supply Co Ltd v Alligianes
[17]
it was held that:
“
In
the present case two persons, one of whom is an independent witness,
testified for the respondent and gave an explanation of
how the
accident had happened. It is just as probable that the respondent
regarded his case as “safe” with the evidence
he had led
of himself and Mrs. Venter as that Lemas would, if he had been
called, have contradicted those two witnesses. In Seamatso’s case
the Court had no eyewitness account at all of the accident. The rule
laid down in Galante v Dickinson,
1950 (2) S.A. 460
(A.D.), was
therefore applied, viz. that where the defendant (driver) does not
give evidence and there is consequently no evidence
of what he had
done to avoid an imminent accident, the alternative favouring the
plaintiff could be adopted by the Court as the
true one. The decision
in Galante’s case is obviously not applicable to the
facts of the present case, where the
issue raised is not one of
having no explanation offered but one of having two diametrically
opposite explanations put forward.
The failure to call Lemas may be
attributable to the respondent’s sanguine view of his case or
to the absence of Lemas from
the country or to his death or to his
hostility for reasons unconnected with the present dispute (cf. Elgin
Fireclays Ltd v. Webb,
1947 (4) S.A. 744
(A.D.) at p. 750).
The inference that he was not called because he would have
contradicted the defendant’s version is not
a more probable one
than any of the others and its weight is, therefore, in my opinion,
nil. It is axiomatic that a party need
not, and cannot be blamed if
he does not, call all the witnesses who may give pertinent evidence;
he is entitled to take the risk
of offering less than all the
evidence available to him if he is of the opinion that what he has
offered would suffice to win.
He may of course in the result be shown
as having been too confident but that is something different from
being found to have deliberately
suppressed evidence unfavourable to
him—which is the conclusion sought to be drawn here.
In Brand v Minister
of Justice and Another,
1959 (4)
S.A. 712
(A.D.), it is said at p. 716:
“
This
statement does not, however, mean any more than that, if, in the
absence of the testimony of the witness in question, the evidence
is
otherwise equally balanced, the onus will come into
effective operation. The statement in question does not mean that
any
greater obligation to call the witness rests upon the onus-bearing
party: it merely means that, if he does not call the witness,
he runs
the risk of the onus proving decisive against him.”
In
the present case the respondent rested his case on his own evidence
and that of Mrs. Venter, and the magistrate accepted it as
decisive
of the issue. The respondent was not examined on whether or not the
witness Lemas was available. It is true that the respondent,
at the
criminal trial of Ngwenya, had said that he had Lemas available as a
witness, but this was not investigated again at the
civil trial. Nor
is there any evidence that he was not available as a witness to the
appellant.
No
inference, in my opinion, is to be drawn from the failure to call
Lemas either for or against the respondent.”
No
adverse inference can therefore be drawn, in the circumstances
against the plaintiff for not calling her husband to testify.
[36]
Although cross-examination of Xwayi was perfunctory and nothing
contradictory was elicited his
evidence was nevertheless criticized.
It was argued that Xwayi struggled with identifying his own house on
an aerial photograph
of Bardale and had to be prompted by plaintiff’s
Counsel to identify it as well as the manhole in question. I do not
agree
that Xwayi was struggling to identify the manhole or his house,
as suggested. It is correct that Xwayi was at first confused by
the
photograph as it was presented to him. After making a request that
the photograph be turned around and, with the help of the
interpreter
and Counsel for the plaintiff’s question, he was able to
comprehend and relate to the photograph. He was thereafter,
able
without any prompting, to identify not only his house but also,
importantly, the manhole in Khwezi Street that is in issue.
His
initial hesitation with the photograph, as Counsel for the City
conceded, was not due to mendacity but rather confusion. In
my view,
it was also due to lack of sophistication. His remarks that he was
seeing the photograph for the first time therefore,
must be put into
proper context. When he said he was seeing that photograph for the
first time, in my view, he meant that particular
copy. His initial
confusion with the photograph is, in the circumstances, immaterial
and warrants no further scrutiny as it does
not detract from his
overall credibility.
[37]
I have often expressed my frustrations with the tendency of some
Counsel to ask a witness, plainly
illiterate and unsophisticated, to
make a pointing out or an identification of something depicted on a
plan, diagram or photograph,
without first establishing whether the
witness was
au fait
therewith. In some instances, the document
in front of the witness would be a poor copy with little or no
resemblance to the original.
From the witness’ inability to use
or relate to what the document represents, his or her credibility
would then be opportunistically
called into question. Where
photographs, plans or diagrams are to be used and to avoid a
witness’s credibility being unnecessarily
impugned, it is
imperative to first establish whether the witness understands what
he/she is asked to deal with, and where it appears
that the witness
has difficulties with comprehending the document and what he/she is
expected to do. It would be prudent
for a presiding officer to
intervene and clear any misunderstandings before allowing him or her
to use it to testify. Without being
disrespectful to Xwayi, who only
went as far as standard 4 in his formal education and clearly
unsophisticated, he fits into this
category.
[38]
While Counsel for the City conceded that Xwayi at some point in time
had pointed out an open
manhole to an employee of the City, it was
argued that it was probable, in the light of all the evidence, that
it was not the same
manhole into which the plaintiff allegedly fell
on the 17 October 2013. This submission is against the clear and
uncontradicted
evidence of Xwayi, who independently pointed out the
same manhole as the one pointed out by the plaintiff that it was the
manhole
in Khwezi Street which has no cover. There can therefore be
no merit in the argument that plaintiff and Xwayi had probably
referred
to different manholes, respectively.
[39]
There is equally no merit in the submission that Xwayi could not
remember the exact date on which
he made the complaint to the City
employee. It is sufficient, in my view, that Xwayi was certain that
he made this complaint approximately
two months prior to the accident
involving the plaintiff. It would have been suspicious if, for
example, not knowing that one day
he would be called to testify about
the incident and therefore made a note of the date, Xwayi would have
alleged to know the exact
date on which he made the complaint. His
credibility and the probative value of his evidence is not dented by
him not recalling
the exact date on which he made the complaint or
the name of the person to whom he complained. The date and name
becomes immaterial
once it is conceded that Xwayi made this complaint
to a City’s employee prior to the incident involving the
plaintiff.
[40]
Counsel for the City, on the other hand, urged the Court to accept
the version of the City as
proffered by Wellman, Maritz and Japhta.
She argued that the City’s version was the more probable of the
two versions.
[41]
Wellman, although he was the project manager of the Bardale
development, was not personally involved
in the handover of the
infrastructure to the City’s engineering department. Nor could
he, from personal knowledge, state
whether the manhole cover was in
place on handover or on the date on which the accident took place. He
could only assume that it
would have been in place, otherwise
handover would not have taken place. He could therefore, not dispute
that the manhole cover
could have gone missing between 2009 and 2013.
Wellman did not refer to any records, other than the elementary map
of the Bardale
development and the relocation and acceptance letters
respectively, that could have assisted him to determine the exact
date of
the handover of the infrastructure, the exact items in the
infrastructure and who on the City’s engineering department
verified
the completeness of the project. These records, in
particular, could have assisted him to establish the facts. Without
this
information, it remains a speculation on his part to say that
the manhole cover was in place.
[42]
Maritz, whose educational qualifications were not placed on record,
but who has 24 years’
experience in water reticulation, only
inspected the manhole cover in question in February 2020, almost
eleven years after the
handover of the infrastructure. His assertion
therefore, that the civil infrastructure was built according to the
norms and standards
was not based on personal knowledge, from
inspecting the works, but solely on what would normally have happened
on completion of
the construction. His opinion that the cover was the
original one was based on his view that the tar around the manhole
was homogenous
with the rest of the surroundings.
[43]
The problem with Maritz expressing an opinion is
that he was not qualified as an expert nor was there compliance
with
the provisions or Rule 36(9) before calling him to give opinion
evidence. This subrule provides that no person shall, save
with the
leave of the Court or the consent of all the parties, be entitled to
call as a witness any person to give evidence as
an expert upon which
evidence of expert witnesses may be received. There was also no
compliance with subparagraph (b) in that the
summary of his opinion
and his reasons therefor was not delivered to the plaintiff.
[44]
The main purpose of Rule 36(9) is to require the party intending to
call a witness to give expert
evidence to give the other party such
information about his evidence as will remove the element of surprise
from the trial
[18]
. The
opinion that Maritz expressed, in my view, can only be expressed by
an expert, qualified as such, in road construction and,
on the
qualities of the tar, by a chemical engineer. That the City intended
to lead this type of evidence was foreshadowed in the
plaintiff’s
cross-examination, when it was put to her that on the strength of the
current situation with the manhole the
evidence strongly pointed to
the fact that the manhole has never been removed. It was at that
point, that the City ought to have
realised that it needed to qualify
Maritz as an expert before he can tender such evidence. This it could
have done by complying
with the provisions of Rule 36(9).
However, if it only dawned on the City at that late stage that Maritz
needed to
be qualified as an expert and a summary of his expert
opinion ought to have been furnished, then by seeking the leave of
the Court
or the plaintiff to lead his evidence on this aspect.
Although Counsel for the plaintiff gallantly tried to attack Maritz’s
evidence on this point it remains a trial by ambush that the
plaintiff was not afforded an opportunity to prepare to meet the
opinion evidence of Maritz.
[45]
How then must the evidence of Maritz, which was lead in contravention
of Rule 36(9), be dealt
with? In
Colt
Motors (Edms) Bpk v Kenny
[19]
the Court held that:
“
Waar
deskundige getuienis nie deur die Hofreëls toegelaat word nie
tensy die party wat dit wil lei eers sekere stappe
doen (naamlik die
aflewering van 'n kennisgewing of die verkryging van die verlof van
die hof of die toestemming van die teenparty),
kan die party wat
versuim het om die bepaalde stappe te doen nie sodanige getuienis in
enige geval lei (terwyl die teenparty in
die hof nie miskien
onmiddellik besef dat dit op deskundige getuienis neerkom nie) en
daarna, as geen beswaar gemaak word
nie, aanvaar dat die hof die
nodige verlof of die teenparty die nodige toestemming verleen het
nie.
Ek
gaan natuurlik nie sover om te sê dat 'n hof nooit sy verlof,
of 'n teenparty nooit sy toestemming, stilswyend kan gee
nie. Dit kan
natuurlik geskied. Voordat dit op sulke wyse geskied, moet dit
duidelik wees dat die hof besef het dat sy verlof,
en dat die
teenparty besef het dat sy toestemming, verlang word, en dat hulle
dit stilswyend verleen het.
In
die onderhawige geval was dit op geen stadium duidelik dat sodanige
verlof en toestemming verlang is nie. Dit kan dus nie afgelei
word
dat dit stilswyend verleen is nie.”
[46]
The opinion of Maritz regarding the manhole cover in question and the
tar surrounding it will
in the circumstances not be accorded any
determinative weight. If I am wrong and Maritz was not testifying as
an expert but only
expressing an opinion, then his opinion that the
manhole is the original one because the tar around it was homogenous
with the
surrounding area is irrelevant. In
Ruto
Flour Mills Ltd v Andelson
[20]
the Court held that:
“
In
the case of Hollington v. F. Hewthorn and Co. Ltd.,
1943 (2) A.E.R.
35
at p. 40, GODDARD, L.J., referred to the fact that it frequently
happened that a bystander had a complete and full view of an accident
and that it was beyond question that while he may inform the Court of
everything that he saw, he may not express any opinion on
whether
either or both of the parties were negligent. According to GODDARD,
L.J., the reason commonly assigned is that this is
the precise
question the Court has to decide, but in truth it is because his
opinion is not relevant. Any fact that he can prove
is relevant, but
his opinion is not.”
[47]
Maritz also relied on the records drawn from the
C3 system to substantiate the point that no cover in Khwezi
Street
was reported missing during the period 1 January 2013, to 31 December
2013. Capturing information on this system is dependent
on human
intervention. It must be borne in mind that the City conceded that
Xwayi had indeed reported a missing manhole to its
employee but
argued that this may not have been the one in Khwezi Street. This is
inconceivable. Xwayi was not mistaken about the
identity of the
manhole that was exposed. His evidence that it was the same manhole
as the one pointed out by the plaintiff was
not challenged. The only
reasonable explanation why there was no record on the C3 system is
that the employee to whom Xwayi reported
never forwarded the
complaint to the relevant department, or did not do so before the end
of 2013. When the missing cover was eventually
picked up, it is
possible that it was incorrectly recorded on the C3 system.
[48]
The question that may then be asked is, when was
the cover that Maritz found, when he went for an inspection
in
loco
on the 22 February 2020, installed? The answer is that it was any
time after the 31 December 2013. The records of missing and replaced
covers in Khwezi Street, or Ukubhethana Street, for that matter, from
the 1 January 2014, to date, have not been made available.
Japhta,
though he alluded thereto, was not certain that he had also looked at
the records from 2014 to date. He was not even certain
but thought
that there may have been a record of a missing cover in Ukubethana
Street in September 2014. He was, however, not stating
this as a
fact.
[49]
The problem for the City is that its witnesses testified without
having facts to back up their
bald assertions. This problem could
easily have been avoided if, with all its available resources, all
the relevant records were
drawn and reference was made thereto in
evidence. With these records, the witnesses could have confirmed as
fact those issues on
which they lacked personal knowledge or had
fading memories. An official of the City, who keeps custody of these
records, could
have placed them before court
[21]
.
From these records, facts like when exactly in 2009 did the handover
of the Bardale Phase 3B infrastructure to the engineering
department
take place, who actually did the handover and the list of items
signed off, could easily have been established.
[50]
In my view, the version of the plaintiff is not equipoised with that
of the defendant, as submitted
by the City’s Counsel. Even if
the plaintiff’s version is the most probable and is to be
preferred to that of the City.
Plaintiff and Xwayi were factual in
their evidence I have already remarked about the credibility of
Xwayi, his independence and
lack of bias. He corroborated the
plaintiff’s version about the open manhole in Khwezi Street.
The submission that he and
the plaintiff were not referring to the
same manhole is, in my view, a last ditch attempt to avoid the
conclusion that the plaintiff’s
version is the more probable
one. I accordingly accept the plaintiff’s version that on the
17 October 2013, she fell into
an open manhole in Khwezi Street and
broke her ankle.
[51]
Acceptance of the plaintiff’s version is not the end of the
enquiry. The question remains
whether the manhole was left open as a
result of the City’s omission in derelict of its legal duty to
keep the street of
Mfuleni safe for its inhabitants and any other
persons using such streets and whether this was due to negligence.
Counsel for the
City submitted that a legal duty would only arise
where there was a prior positive conduct. Relying on the judgment of
Navsa JA
in
Van
Vuuren v Ethekwini Municipality
[22]
she argued that there was no evidence of prior positive conduct and
reliance to find a legal duty was based merely on the fact
that the
manhole was within the City’s jurisdiction. While it is correct
that wrongfulness is a discrete element of delict
and that it was for
the plaintiff to establish the existence of a legal duty, I do not
agree with the argument that the plaintiff
has failed to do so and
merely relied on the contention that the uncovered manhole was under
the control of the City. Although
the plaintiff’s particulars
of claim are not a model of precision, the necessary averments were
nevertheless made: the plaintiff
pleaded that the City, in breach of
its legal duty, failed to ensure that the areas under its control
were free from danger, to
ensure that adequate measures were taken to
safeguard members of the public and to take reasonable precaution to
warn the public
of any danger. The City was not left in doubt as to
the basis upon which it was averred that it was liable.
[52]
A duty may arise where the defendant has by lawful prior positive
conduct (
commissio
)
created a potential risk of harm to others. If the defendant then
omits to take reasonable steps to prevent the risk from materialising
(
omissio
)
the duty is breached
[23]
.
In terms of section 152 of the Constitution the object of local
government is
inter
alia
to
ensure the provision of services to communities in a sustainable
manner and to promote a safe and healthy environment. A municipality
must strive within its financial and administrative capacity, to
achieve these objectives. Regarding these objectives, the
Constitutional
Court held in
Democratic
Alliance and Another v Masondo and Another
[24]
that these are to ensure that government is efficient and effective
in the rendering of services and the promotion of social and
economic
development. Flowing from this Constitutional obligation is a legal
duty to ensure that services that a municipality provide
are done in
a safe way. The City owes a legal duty to protect the public from
suffering any physical harm by the infrastructure
through which it
provides services for.
[53]
I turn now to the question of negligence. It was argued that while it
could be foreseen that
an uncovered manhole in a public road could
pose a serious risk, had the City been made aware of it, there was no
evidence led
to support the contention that the alleged incident was
a foreseeable risk in the Bardale area. Relying on the judgment of
the
SCA in
Z
v Smith
[25]
that in determining what preventative steps the reasonable person
would, or would not take, every case must depend on its own facts.
It was submitted that the measures taken by the City to prevent
and react to missing or stolen manhole covers, including
the
reporting system at the time of the incident in 2013, where those of
a reasonable organ of state that operates in a limited
resourced
environment, as was stated in
Mashongwa
[26]
,
supra
.
[54]
In the
Mashongwa
matter,
supra
, the appellant sued the
respondent in delict flowing from injuries he sustained when he was
attacked on one of its trains by robbers
and thrown out of an open
door. His assertion was that the failure to close the door and to
post a guard on the train were the
cause of his injuries and that
these omissions were wrongful and negligent. While the Constitutional
Court agreed that the omissions
were wrongful, it declined to hold
the failure to post a guard on the train as negligent. In coming to
this conclusion the court
considered the reasonableness of the steps
taken to prevent the harm. It accepted that it was necessary to
factor in security measures
by route, region and time of the day and
year and also that the steps that could be taken were constrained by
the available resources.
On the available information it could not
conclude whether the steps which were taken were reasonable or
unreasonable.
[55]
In
casu
the City did not lead any evidence to show the
adequacy of the system of reporting to detect missing manhole covers
even in instances
where its own employees failed to react to reports
received from the public. Nor did it plead lack of resources to cover
such instances.
Instead it was argued, on the one hand, that the
manhole cover in question has always been in place since 2009, and on
the other
hand, that Xwayi could have reported a totally different
manhole to the one in Khwezi street into which the plaintiff fell.
This
argument goes against the clear evidence of the plaintiff, which
was corroborated by Xwayi that the manhole cover in question is
the
one in Khwezi Street.
[56]
I have dealt with the adequacy of the evidence of Xwayi regarding the
employee to whom he had
complained and the period during which he
lodged this complaint. The fact that the City has no record of this
complaint is precisely
due to the negligence of this employee to
forward the complaint to the C3 system. It is not overly burdensome
to expect a local
government, which has considerable resources to
devote some of it to the maintenance of its infrastructure, including
the replacement
of missing or stolen manhole covers, and to ensure
that its employees comply with their responsibilities by keeping a
vigilant
eye on any missing manhole covers.
[57]
It is important to emphasise that the City does not allege that the
reporting by Xwayi was not
according to a prescribed procedure. This
is because there is no prescribed procedure. Bringing the open
manhole to the attention
of a City employee, as Xwayi did, was
sufficient. It is but one of the many ways in which the City can be
made aware of the problem.
It was the failure of this employee to
forward the complaint to the reporting system that constitute
negligence. The City is accordingly
found to have been negligent and
this negligence is the cause of the plaintiff’s injuries.
[58]
I need to deal with the submission that the plaintiff was also
negligent and her negligence contribute
to her own injuries. It was
submitted that in the unlikely event that this Court were to find
that the City was negligent, it was
for this Court to reduce the
damages recoverable by the plaintiff, having regard to the
considerable degree to which she was at
fault in relation to the
damage in terms of section 1(1)(a) of the Apportionment of Damages
Act
[27]
.
[59]
I assume that the alleged contributory negligence of the plaintiff is
with reference to the submission
that she walked in the “
middle
”
of the road where it was not safe, instead of walking on the
sidewalk. There is no substance to this argument. As already
stated
supra, the sidewalk was completely covered in sand with shrubs and
grass growing thereon. It would have been unsafe for
the plaintiff to
walk on the sidewalk in the condition in which it was. On the other
hand, there was nothing which constitute danger
in a walk on the
tarred surface since she did not expect an exposed manhole, as she
was entitled to.
[60]
Although it is often said that contributory negligence must be
specifically pleaded in
AA
Mutual Insurance Association Ltd v Nomeka
[28]
the Appellate Division held that in an action for damages for
personal injuries, provided the plaintiff’s fault is put in
issue, an apportionment of damages need not be specifically pleaded.
The plaintiff’s alleged fault was put in issue in paragraph
5
of the defendant’s plea. There it was alleged,
inter
alia
,
that plaintiff frequently travels by foot to the water stop and was
familiar with the site and surroundings. This is completely
inaccurate in the light of the defendant’s witnesses’
evidence that each site in Bardale has its own tap. There was
no need
for her to travel frequently to a water stop. For this and the other
reasons stated
supra
,
I find no contributory negligence on the part of the plaintiff.
[61]
In the result, I make the following order:
1.
The defendant is held liable for the damages, if any, that the
plaintiff has
suffered in consequence of the accident which occurred
on 17 October 2013 when she fell into an open manhole in or near
Khwezi
Street Bardale, Mfuleni;
2.
The defendant is ordered to pay the plaintiff’s costs.
3.
The matter is postponed
sine die.
____________________
M
J DOLAMO
JUDGE OF THE HIGH
COURT
[1]
See
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA), infra
,
at para [1].
[2]
1966 (2) SA 428
(A) at 430.
[3]
2016 (3) SA 528
(CC) at para [40].
[4]
See
Minister
of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(AD) at 318 I – J.
[5]
2000 (3) SA 1049 (SCA).
[6]
2011 (3) SA 274
(CC) at para [122].
[7]
2015 (1) SA 1
(CC) at paras [20] – [23].
[8]
Stedall
and Another v Aspelling and Another
2018 (2) SA 75
(SCA) at para [15].
[9]
2002 (6) SA 431
(SCA) at para [12].
[10]
At para [16].
[11]
Case No 403/2019
[2020] ZASCA 50
(6 May 2020).
[12]
Van
Duivenboden
at
para [25].
[13]
2003 (1) SA 11
(SCA) at para [5]
.
[14]
2017 (2) SA 485
(SCA) at para [27].
[15]
Shield
Insurance Co. Ltd v Hall
1976 (4) SA 431
(A) at 438 F.
[16]
See Principles of Evidence page 538 at § 30.5.3:
Inferences
in civil proceedings
In
civil proceedings the inference sought to be drawn must also be
consistent with all the proved facts, but it need not be the
only
reasonable inference: it is sufficient if it is the most probable
inference.
[17]
[1968] 2 ALL SA 241
(T) at 243.
[18]
See Erasmus D1 – 488B.
[19]
1987 (4) SA 378
(T) at 387 F.
[20]
[1958] 4 ALL SA 198
(T) at 200 – 201.
[21]
Such records, in my view, would have qualified as public documents
since the comply with all the requirements: (i) they were
made by a
public official; (ii) in the execution of a public duty; (iii) are
intended for public use; (iv) they are accessible
to the public.
Alternatively, they could have been tendered into evidence in terms
of
section 11(1)
of the
Electronic Communications and Transactions
Act 25 of 2002
which provides that information is not without legal
force and effect merely on the grounds the it is wholly or partly in
the
form of a data or message.
[22]
2018 (1) SA 189 (SCA).
[23]
See
JP
Midgley & JC Van der Walt
“
Delict
”
2 Lawsa 2
nd
Edition par 65; quoted in the
Van
Vuuren
judgment at para [19].
[24]
[2002] ZACC 28
;
2003 (2) SA 413
at para
[17]
.
[25]
2015 (4) SA 574
(SCA) at para [24].
[26]
At paragraph 26.
[27]
Act 34 of 1956.
[28]
1976 (3) SA 45
(AD).