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[2022] ZAWCHC 279
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City of Cape Town v Mtyido (A119/2021) [2022] ZAWCHC 279 (2 August 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A119/2021
In
the matter between:
THE
CITY OF CAPE TOWN
Appellant
And
NQULELWA
MTYIDO
Respondent
Coram:
Erasmus,
Salie-Hlophe et Papier JJ
Dates
of Hearing:          19
January 2022
Date
of Judgment:         2 August 2022
JUDGMENT
(HANDED
DOWN ELECTRONICALLY)
ERASMUS,
J
A.
Introduction
[1]
This is an appeal to the full court against
the whole of the judgment of a single judge with leave from the
Supreme Court of Appeal,
the court a
quo
having refused such leave. The order of
the Supreme Court of appeal reads as follows:
"IT IS ORDERED
THAT:
1.
Leave to appeal is granted to the full
court of the Western Cape Division of the High Court of South Africa,
Cape Town.
2.
The costs
of
the court
a
quo
in dismissing
the application for leave to
appeal is set aside
and
the costs of the application for leave
to appeal in this court and the court a
quo
are costs in the appeal. If the
applicant does not proceed with the appeal, the applicant is to pay
these costs."
[2]
The respondent
(plaintiff) instituted action against the
appellant
(defendant),
claiming that the appellant was liable to compensate her for damages
suffered as a result of an injury she sustained
when stepping into an
uncovered manhole under
the
control of the appellant. The appellant
denied any liability for the injury
suffered by the respondent and, in particular, denied that the
alleged omission claimed by the
respondent was wrongful and/or
negligent, having regard to the specific circumstances
of the case.
[3]
After hearing oral evidence supported by
photographic material, the court a
quo
found in favour of the respondent
holding that the appellant was liable for any damages proven to be
determined in a subsequent
hearing. The merits and quantum was
separated
in
terms
of
rule
33(4)
of
the
Uniform
Rules
of
Court
by
agreement
between the parties. The appellant was also ordered to pay the costs
of the respondent herein.
[4]
The appellant, in this appeal, claims that
the court a
quo
misdirected
itself in its findings
of
the facts and the
law,
insofar
as it
relates
to
the elements
of
the delict and the question of contributory negligence. It is
specifically argued that the court erred in its evaluation of the

evidence.
8.
The Facts
[5]
The respondent
is
resident
in
Ukubetana Street, Mfuleni,
a
suburb on the Cape Flats. She
has
been so resident
since
December
2009.
The only infrastructure on the site where
she was a resident
was an outside
toilet and a
water.tap next to it. She was employed at
Cape Town International Airport, at a fast food outlet. Given the
nature of her employment
she had reported for duty at 04h30 in the
morning, with the effect that preparations need to be done the
evening before. On the
evening of 17 October 2013 at about 20h00 she
realised that her water tap was not working.
[6]
The respondent was aware that it was
customary in the area in which she resides, that should one
experience a water outage that
you would attend on a neighbouring
communal tap where water will be available. Although she had never
been to that particular tap
before, she decided to take a bucket and
fetch water from the communal tap. Her route to the water tap, took
her via Khwezi Street,
a
street
she had never been to before. At that time of the evening it was
already getting dark and
there
was
only
one
streetlight
in
the
area.
This
streetlight
was
a
high
mast floodlight located in a different area
and according to the respondent, although it provided some light it
was insufficient.
A
sidewalk is provided but
from the evidence it is apparent that it
lacked proper maintenance and was full of sand and overgrown. The
condition
of
the sidewalk
forced the
respondent
to
walk on
the hard
surface of the road which on the face of it was the safer qption.
According to the respondent there was nothing that distracted
her
from concentrating on the way she was walking. She did not see an
open manhole or drain nor expected same in the road.
[7]
Whilst
walking
on
Khwezi
street
she
suddenly
felt
that
she
was
falling
and realized that her right leg had stepped
into an open manhole or a drain with her left leg still outside. This
caused her ankle
to fracture. She sought assistance by calling out
and two women who earlier passed her by, also carrying pails of
water, came to
her assistance. One of the women called the
respondent's husband who then, in turn, arranged for transport to
convey the respondent
to the local Day Hospital. She was later
conveyed by ambulance
to
Tygerberg Hospital for further medical
attention.
[8]
The
respondent
was
requested
by
the
appellant's
legal
representatives
to attend to
the
scene
of
the
incident
some
six
years
later
during
November
2019 whereupon she pointed out the manhole
in question. During cross-examination counsel for the appellant put
it to the respondent
that she failed to keep a proper lookout, but
was rather concentrating in looking for the tap, thereby suggesting
that either the
incident happened due to the sole negligence of the
respondent
or
that she was at least partially responsible therefore. It was further
put to the respondent that "on the strength of the
current
situation with the manhole the evidence very strongly points to
the fact that the manhole cover was never
removed."
[9]
The respondent also presented the evidence
of Mr. Barnabas Zwehile Xwayi who, at the time of the incident,
resided directly opposite
the respondent. At the time of his evidence
he was already retired and had relocated to the Eastern Cape
wherefrom
he
travelled specifically for the purpose of giving testimony in this
matter. Prior to his retirement he was employed
in the security
industry for at least 10 years. It is
apparent from his evidence that he performed his duties often as a
night shift worker and
returned home early in the morning. According
to him, some mornings would be misty in the area and visibility was
impaired. He
had noticed that there was an open drain in the road
which spot he had pointed on photographs that concerned him as a
danger to
the road users. Out of this concern he took it upon himself
to report the existence of the open drain to the authorities. Some
time prior to the incident, where the respondent
was injured, he noticed workers that could
be identified by an emblem of the City of Cape Town on their clothing
and on hardhats
that they were wearing, he pointed
out the manhole
to a person who was
identified as being in authority. According
to him he was promised that it would be closed. When the hole was not
properly closed
by the people he requested, he further took it upon
himself to cover the area by placing poles into the hole and pellets
around
and marked the area with "a red and white sellotape".
Unfortunately, and to the dismay of the witness, some of the local

residents removed the structure and warning tape to use as firewood.
More than two months after his report and the preventative
measures
put
in
place, he
became
aware
of
the
incident
in
which
the
respondent
was injured.
[10]
Mr. Xwayi found it difficult to orientate himself on the photographs
presented in court. This became the
major criticism levelled against
him by the appellant's legal representative. The fact that he laid a
complaint to individuals,
whether they escalated it or not, was
another issue that the appellant, through evidence, wanted to
address. I shall return to
this later in this judgment.
[11]
In rebuttal to the respondent's case as set
out above, the appellant called three witnesses the first of which
was Mr. Ian Quintus
Wellman. Mr. Wellman is a Project Manager
employed by the appellant in its department of Human Settlements. His
main responsibilities
include the planning and implementation of
low-cost housing developments, which post he occupied since 2006. He
testified as to
the processes for such approvals and implementation
that culminates in the handing over of a serviced site to
beneficiaries. The
beneficiaries are required to sign the relocation
and acceptance letters. According to Mr. Wellman the particular phase
being phase
3B was completed in December 2009 and the adjacent phase
only in 2018. He insisted that the manhole in question would have
been
covered at the handover of the site but could not confirm
whether that was indeed so since the appellant used agents to perform

this function. Insofar as it relates to the lighting in the area his
evidence was speculative.
[12]
Mr. Pierre Maritz was employed by the
appellant as the Manager: Reticulation in the Engineering department
which is responsible for the maintenance of
manholes. He held this position for at least 10 years. At the
relevant time, during
2013, there were roughly 192,000 manholes under
the
appellant's
control. There
was
and still is the scourge of metal theft and, in particular, manhole
covers in the areas
under
the
control
of
the
appellant.
The
appellant
manages
a
complaint
system in order to track, combat, maintain
and replace manhole covers. It seems, from his evidence, that the
preventative measures
taken by the appellant is circumvented by the
thieves. From the available records of reports in the relevant area
there were no
reported incidents on the information system of the
appellant.
[13]
Mr. Maritz personally
inspected
the
relevant manhole on 11 February
2020.
Due to the fact that this particular type of manhole cover can only
be replaced if the surrounding frame is also replaced
he concluded,
with reference to the condition of the tar depicted on the
photographs and his physical inspection, that this cover
was the
original cover. Having given the court a full explanation of the
reticulation system and the effect of an open drain cover
based on
his experience of some 24 years, he further concluded that it was
improbable that this drain cover would have been open
for an extended
period as alleged. He readily conceded that he was not involved in
the particular development between 2009 and
2013.
[14]
The last witness for the appellant,
Shafodien Hussein Jaffer (the court record reflects the surname as
Jaftha), who was employed
by the appellant as an Administrative
Assistant in the Reticulation department. He explained the
methodology and search functions
on the electronic system of the
appellant when a report is made of a missing manhole cover. Upon
searching he could not find any
reports for the area, save for a
report in Ukubethana Street, in September 2014.
[15]
All the witnesses for both the appellant
and respondent referred to photographic evidence which was accepted
on face value to depict
what they purport to be. The trial court
therefore had to consider the evidence, briefly summarized above, in
conjunction with
the photographic evidence, to determine whether the
respondent
proved
her
case
on
a
balance
of
probabilities. The
question
thus
to
be answered
was,
correctly
in
my
view,
summarized
by the
trial court
in
the following manner:
"It is on this
evidence that the court must determine whether the plaintiff has
proved, on the 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, Xwayi reported the missing cover to, 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."
C.
Evaluation of
Evidence
and the Finding of
Facts
[16]
The appellant alleges that the court below erred in the factual
findings made in respect of reliability and credibility
by accepting
the evidence of the respondent's witnesses, in that the respondent
stepped into the open drain and that it was the
same drain that Mr.
Xwayi
reported to the employees of the appellant. I shall
first deal with the identification of the drain by Mr. Xwayi.
[17]
The appellant readily concedes that Mr. Xwayi impressed them as an
honest person but argues that honest persons make
mistakes. Further,
that it is probable that the manhole referred to by the respondent is
the same as the manhole reported by Mr.
Xwayi given the lapse of time
between his report and the incident on 17 October 2013.
[18]
Appellant places reliance on the confusion
that occurred when the witness had to identify on an aerial
photograph the location and
position of the manhole in question. Not
only does one have to have regard to the clear confusion that
occurred when
the
witness
was
first
confronted
with the
photograph
but
also
the
manner
in
which the evidence was presented in open court.
[19]
The criticism levelled against this witness
is a good example of why it is so that a Court of Appeal is generally
reluctant to interfere
with the factual findings of a court below.
The learned judge was aware of the criticism and alive to the manner
in which the evidence
was presented. The court nevertheless, having
dealt with the aspect fully, came to the conclusion that on the
evidence, evaluated
holistically that the evidence of Mr. Xwayi is
reliable in both respects, being the report made and the location of
the manhole
and is therefore
of
the view that this objection has no merit.
[20]
I now turn to the complaint that the
respondent's version was unreliable and was not materially
corroborated and was characterized
by contradictions and
improbabilities. It is first important to note that all these
arguments in relation to the evidence of the
respondent was raised in
the court below and considered in a fully reasoned judgment and
dismissed. Having considered the reasoning
of the court below, I
am of
the
view that there is no merit
in
the arguments
raised
in respect
of the
reliability and credibility of the respondent.'
[21]
The court below is criticized for the
finding that Mr. Xwayi corroborated the version of the respondent
and it is argued that this was a clear
misdirection. Whilst it is so that the respondent was a single
witness as to the incident
that occurred on 17 October 2013 she is
corroborated
insofar
as an open manhole
existed
shortly
before
the incident occurred.
[22]
The appellant argues that it is improbable
and therefore affects the credibility of the respondent that she
would not have visited
an adjacent street during the four years of
stay in the area. This argument does not take into account the fact
that the respondent
clearly testified that there was no reason to
visit that street as all the amenities that the family would access
is in a different
direction to the street in question. It is
instructive to note that the appellant's counsel at the trial was
unable to unearth
any contradictions in the evidence of the
respondent. There is therefore, in my view, no merit in the attack on
the reliability
nor the credibility of the respondent and the
findings of the court below in this regard.
[23]
I now turn to the findings regarding the evidence of Mr. Maritz. The
court below did not rely on the evidence
of this witness for the
reasons that the witness was not qualified as an expert and there was
no compliance with rule 36(9) of
the Uniform Rules of Court. The
appellant contended that the respondent did not plead its case with
sufficient clarity in order
for the witness to deal with the
complaint made by Mr. Xwayi to the appellant. The appellant further
contended that it was unnecessary
for the testimony of a witness who
had dealt with a complaint prior to the one in question, or for such
witness to be qualified
as an expert on the reticulation system in
relation to the evidence he ultimately gave.
[24]
Whilst the appellant
is
correct that when the failure to
comply
is due to conduct of the other party, this
should not be held against the party who is in non­ compliance,
it cannot be said
that the respondent
was
to blame as the question of the prior report was not a necessary
averment to be pleaded in the first
instance, as it is evidence. The appellant
also had the opportunity, if it was of the
view
that it was
prejudiced by the non-disclosure of the evidence at an earlier stage,
to seek a postponement and deal with the matter
effectively. To not
complain about its misfortune is disingenuous.
[25]
I am however of the view that even if the
court below erred in this regard, it would not trump the evidence of
the two witnesses
for the respondent that clearly indicate that the
respondent stepped into an open hole and that Mr.
Xwayi
observed an open manhole in the
vicinity a few months before and reported same. This takes me to the
evidence of Mr. Jaffer and
the C-3 complaint system. The appellant
cannot have it both ways. On the one hand arguing that they had no
doubt that Mr. Xwayi
reported a broken manhole to someone in the
appellant's employ; whilst in the same breath arguing that the person
to whom he made
the report would not have relayed the information
to the complaint
system. It
is
improbable,
given
that the manhole is on the road surface utilized by motor
vehicles.
The
inference of the court below that it is possible that the complaint
was incorrectly recorded, was therefore reasonable.
[26]
In summary therefore, I am of the view that
there is no merit in the argument that the court below misdirected
itself on the factual
findings made and its credibility and
reliability findings in respect of the witnesses.
D.
The Legal Principles
Conduct
and Causality
[27]
It is common cause that the respondent had
the onus to prove the conduct and causality
of the damage
causing
event
on a
balance
of probabilities.
The court found it did. The appellant now
argues that based on its view of the evidence and the probabilities,
that the court below
erred in finding that the respondent discharged
its onus. They argue that the evidence was unreliable, improbable and
uncorroborated.
The evidence and probabilities all favour the
appellant and as the claim is based on an omission, no nexus could be
established
between any conduct and the damages suffered by the
respondent.
This
argument, in my view, has no merit. The court below had the benefit
of hearing and seeing the witnesses for both the respondent
and the
appellant. It considered same and gave reasons for the findings of
reliability and credibility. Whilst it is so that there
is no direct
corroboration
of
the witnesses
inter se,
this
does not mean it detracts from the reliability test. The evidence
must be evaluated as a whole and contextually.
[28]
The respondent and Mr. Xwayi testified as
to the open manhole, albeit at different times. Mr. Xwayi's evidence
was faced with cross-examination
insofar as it relates to the report
to the employees of the appellant.
It
could, in my view, not be challenged effectively and the evidence of
the appellant's witnesses is no more than conjecture.
Wrongfulness
[29)
The appellant argues that the court below conflated the elements of
wrongfulness and negligence and, therefore, erred in its
findings
that the respondent discharged the onus in this regard. They argue
that the fact that the court referred to certain averments
in the
particulars of claim under this heading, related to negligence. The
submission is misplaced. Although it is placed, in the
judgment,
under the heading. "Wrongfulness", the judgment is clear
where it states: 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 supra'. The placement of the
sentence in the
judgment is of no moment as it clearly refers to the negligent
omission.
[30]
Turning
to the application of law, the appellant relies on the dictum of the
Constitutional Court in
Country
Cloud Trading
CC
v
MEG, Department of Infrastructure Development, Gauteng
[1]
where
the court held that the element of 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." They argue further that the judicial
determination
of reasonableness within the context of the wrongfulness criterion
would depend on considerations of public and legal
policy in
accordance
with
constitutional
norms,
in
that,
the
Constitutional
Court
held
in
Le
Roux and Others v Dey
[2]
"....
What is meant by reasonableness in the context of wrongfulness as
nothing to do with the reasonableness of defendant's
conduct, but it
concerns the reasonableness of imposing liability on the defendant
for the harm resulting from that conduct."
[31]
The appellant
argues that the correct question to be
answered
is
whether it is reasonable to impose liability on the appellant for an
injury that occurred in this specific location and within
the
specific context where the single complaint was made to an unknown
City employee at an unspecified time and where there is
no record
that the City was made aware of the alleged uncovered manhole.
[32]
With reference to
BE
obo JE v Member of the Executive Council for Social Development,
Western Cape
[3]
,
the
appellant argues that despite the clear statutory and constitutional
duty placed upon the Minister to ensure children safety,
the court
held that the imposition of a legal duty to ensure the safety at each
and every childcare facility crippled the core
function of the
government department. What must be considered is that the
constitutional court specifically found that in the
circumstances
of
that particular case public policy did not favour holding the
Minister liable for damages.
[4]
[33]
The respondents pose the question
differently in that they argue that the question that needs to be
answered is whether the court
below was compelled to address
considerations of public policy. They propose the answer to be no. In
my view, there is no need
to consider this question as it is clear
that the court is enjoined to consider considerations of legal
policy.
However,
every matter should be determined
on
its own facts and in the context of the situation
that prevails at the time of the alleged
delict, considered holistically, having regard to all the facts. In
the instant matter
I am of the view that the historical background of
low economic areas and the prevailing circumstances, they are
relevant circumstances
to be taken into account. The unfortunate
double meaning of the word location in this matter is indicative of
the historical background
to be taken into account. A location in our
context refers to a low income area generally populated by black
people and underserviced.
In the instant matter it is apparent that
the development was done in stages and that water and sanitation is
scantily distributed.
The pavement, insofar that it was provided, was
overgrown and dangerous to be traversed. The condition of the
pavement, where one
would normally expect pedestrians to move around,
forced the road user onto the road surface reserved for vehicular
traffic.
[34]
The appellant
complains
that
the judgment
of
the court below has a chill factor, I disagree. In
Judd
v Nelson Mandela Bay Municipality
[5]
,
with
which I am in agreement, the court emphasized that the failure of a
municipality to repair and maintain roads and pavements
will attract
liability and would be held to be unlawful if the legal convictions
of the community demanded that preventative action
had to be taken on
the facts
of
a particular
case.
I am of the view that it was incumbent
upon
the appellant to either repair, or warn members of the public of the
apparent danger of an open manhole
once
it
was
brought
to
their
attention.
The evidence,
accepted
by the court below, clearly indicates the notification and an
omission to act thereupon would be wrongful and attract liability.
Negligence
[35]
The appellant argues that the court below, erred in respect of the
application of the negligence test to
the specific circumstances of
this matter. In
Kruger
v Coetzee
[6]
the
following is stated:
"purpose of
liability culpa arises if-
(a)
Diligens paterfamilias
in
the position of the defendant-
(i)
would foresee there is reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial
loss; and
(ii)
would take reasonable steps to guard
against such occurrence; and
(b)
the defendant failed to take such steps.
This has been constantly
stated by this court for some fifty (50) years. Requirements (a)(ii)
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 on a
particular circumstance of each case."
[36]
The
appellant relies on the Supreme Court of Appeal decision in
Minister
of Safety and Security v Van Duivenboden
[7]
where
Nugent JA held that:
"where the law
recognizes the existence of legal duty does not follow that omission
will necessarily attract liability - it
will attract liability only
if the omission was also culpable as determined by the application of
the separate test that has consistently
been applied by the court in
Kruger
v Coetzee,
namely whether a
reasonable person in the position of the defendant would not only
have foreseen the harm but would have acted to
avert it."
[37]
They
further
argued
that it
cannot
be expected
of
the appellant to
"exercise
prophetic foresight". They would be obliged to do no more than
to act reasonably.
[8]
The
standard to be applied is that of a reasonable organ of state and not
that of a reasonable person, the availability of resources
plays a
major part in this inquiry. The appellant relies on the reporting
system operated by themselves whereby members of the
public can
report missing manhole covers and the like as it is a scourge in the
area of jurisdiction of the appellant.
[38]
In
the reliance on Za
v
Smith
[9]
where
the court stated
"
…
..
In
determining
what preventative steps that a reasonable person would or would not
take, every case must depend on its own facts.
…
..
Included amongst those would be,
for
instance, the proportionality considerations which would require the
weighing up of the prospects
of
the proposed measures being successful; the degree of risk of the
harm occurring; the extent of the potential harm; the costs
involved
in taking the preventative measures proposed; and so forth."
The appellant now argues
that on the facts of the instant matter the appellant was not
negligent.
[39]
I am in agreement
and bound by the dictum quoted above and am
of the view that given the particular facts of this matter in the
context as described
above, more particularly, that the missing
manhole cover was reported by Mr. Xwayi to employees of the appellant
with no response,
that applying the test as set out by the
authorities, the appellant was negligent.
Contributory
Negligence
[40]
The appellant argues that the court below
erred in not finding that the respondent contributed negligently to
the cause of the injuries
sustained and the damages
suffered in that it only relied on one
aspect of the pleadings.
I
disagree with this proposition as it is clear that the court below
considered all the evidence holistically in the context of
the area
where the respondent was injured, the time and all
the
prevailing
conditions
in
determining
whether
the
respondent
contributed negligently
to the
incident.
I
came
to the
conclusion
that
there
was
none,
which finding in my view cannot be faulted.
E.
Conclusion and costs
[41]
On the facts and the reasons set out above
there is therefore no merit in the appeal and the findings
of the court below should be confirmed
and the appeal be dismissed. There is no
reason why the costs should not follow that result.
F.
Costs
[42]
Accordingly, I would issue the following
order:
The appeal is
dismissed with costs.
N
C Erasmus
Judge
of the High Court
I
agree.
G
Salie-Hlophe
Judge
of the High Court
I
agree.
T
D Papier
Judge
of the High Court
IT
IS SO ORDERED.
APPEARANCES
Counsel
for Appellant
Advocate
Anel Du Toit
aneldutoit@capebar.co.za
Instructed
by:
MHI
Attorneys
295
Durban Road
Bellville
Cape
Town
7530
Tel:
0861 919 070
grantham@mhilaw.co.za
Counsel
for Respondent
Advocate
Lee Gabriel
leegabriel@capebar.co.za
Instructed
by
Kruger
& Co
Peolpes'
Bank Bldg,
159
Voortrekker Road,
Parrow
7500
Tel:
021 930 5530
betsie@krugercolaw.co.za
[1]
2015
[1] SA 1 [CC] at para 20.
[2]
2011
[3] SA 274 [CC] at para 122.
[3]
2021
[1] BCLR 1087 [CC] at paragraphs 1, two, 10 and 25.
[4]
see
also
Municipality
of
Cape
Town
v
Bakkerud
[2000]
3 All SA 171
(A) at paras [28] to [29].
[5]
(CA
149/2010) 2011 ZADCPHC4.
[6]
1966
(2) SA4 28 [A] at page 430,
[7]
[2002]
3 All SA 741 (SCA).
[8]
see
Cape
Town Metropolitan Council
v
Graham
[2001]
1ALLSA215 [A] paragraphs 11 and 14 to 15.
[9]
2015
[4] SA 574 [SCA] at paragraph 24.