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[2011] ZAGPJHC 79
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Butise v City of Johannesburg and Others (5443/2007) [2011] ZAGPJHC 79; 2011 (6) SA 196 (GSJ) (1 August 2011)
REPORTABLE
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NUMBER:
5443/2007
DATE:O1/08/2011
In the matter between:
MADOLO JOHN
BUTISE
...............................................................................
Plaintiff
and
THE CITY OF JOHANNESBURG
….................................................
First
Defendant
JOHANNESBURG WATER (PTY)
LTD
........................................
Second
Defendant
JOHANNESBURG ROADS AGENCY
(PTY) LTD
............................
Third
Defendant
J U D G M E N T
_______________________________________________________________________________
MOKGOATLHENG J
(1) The plaintiff has
instituted action against the defendants for payment of the amount of
R436 200.00, in respect of damages arising
from a fracture sustained
on the 26 September 2005 consequent upon falling into an uncovered
valve chamber situate on the pavement
at Mint Road, Fordsburg.
(2) In his particulars of
claim, the plaintiff contends that the defendants and their servants
were negligent in that a legal duty
rested on them to install or
ensure the installation of an inspection cover over the uncovered
valve chamber or to warn the public
of its absence, and the danger it
posed.
(3) By consent the
parties agreed to separate the question of liability from quantum in
terms of
Rule 33(4).
The only issue to be decided is
liability. The parties are agreed that the second and third
defendants objectively speaking, are
entities owned by the first
defendant created to execute the objectives of the first defendant as
a local authority, consequently,
no legal duty is attributable to
them, only the first defendant bears a legal duty to the public.
THE FACTUAL MATRIX
(4) On 26 September 2005
at about 22h30 the plaintiff was jogging at a brisk pace on the
pavement on Mint Road on his way to visit
a colleague. It was a dark,
rainy and windy night. When approaching the intersection at Fountain
Street, he fell into an uncovered
valve chamber and sustained a
tibial plateau fracture of the right leg.
(5) On investigation he
established that his right leg had fallen into an uncovered four
corned valve chamber. There was no barricading
erected around or over
the uncovered valve chamber, neither was there any warning signs
posted to draw the public’s attention
of its presence and, to
quote Price J in
Stewart’s v City Council of Johannesburg
1947 (4) SA 179
(W),
it operated “
as something in
the nature of a trap”.
(6) During the early
2000’s the first defendant experienced random endemic thefts of
inspection valve chamber covers. It
was a massive problem, as soon as
the missing inspection covers were replaced they would be stolen. In
addressing this problem,
in 2004 the first defendant adopted a
proactive policy to replace stolen inspection covers through its
capital expenditure department,
Capex, and as part of its urban
renewal project budgeted about one million rand.
(7) Although subject to
budgetary constraints the first defendant’s approach in
replacing stolen inspection covers was two
pronged:
(a) reactively, when the
public alerted it of the existence of damaged, stolen or missing
inspection covers; and
(b) proactively, as an
ongoing project, its Inner City Forum conducted surveys in
identifying missing and damaged inspection covers
sector by sector
and systematically replaced them.
(8) In responding to
reports or complaints of missing inspection covers, the first
defendant’s servants only replaced missing
inspection covers
which in their opinion posed an immediate danger to the public.
Because the reactive system relied on reports
from the public, of
necessity a delay occurred between the reporting, identification, and
their eventual replacement.
(9) The first
defendant’s servants did not demarcate the sites where
uncovered chambers considered not to pose an immediate
danger to the
public were situated, they only recorded the information. The first
defendant did not pertinently have records showing
that an inspection
for missing inspection covers was conducted at the intersection of
Mint Road and Fountain Street, nor were there
any records in respect
of the missing inspection cover on the pavement at Mint Road.
THE APPLICABLE
LEGAL PRINCIPLES
(10) Price J remarked
Stewart v City of Johannesburg
1947 (4) SA 179
(W), at 186 para
2
that: “
The purpose of a sidewalk is to enable
pedestrians to pass to and fro along the streets of towns and cities
in safety shielded from
the street traffic…pedestrians are
entitled to regard side walks as safe and to proceed accordingly
unless they are plainly
warned to the contrary. “
This view
was affirmed by Goldstone AJA, in the majority decision in
Langley
Fox Building Partnership (Pty) Ltd v De Valence
1991 (1) SA 1
(AD),
where he held, at
15E-F
:-
“…
pedestrians
walking on a city sidewalk are entitled to assume that, in the
absence of adequate precautions or warnings, the way
is clear and
safe.”
(11) Paraphrasing the
ratio
in the case of
Kruger v Coetzee
1966 (2) SA 428
A
at 430E-G
: “
The issue of negligence essentially
involves a threefold enquiry. The first is whether the harm was
reasonably foreseeable. The
second is whether the
diligens
pater familias
would have taken reasonable steps to guard
against such occurrence. The third is whether the diligens pater
familias failed to take
those steps. The answer to the second enquiry
is frequently expressed in terms of a legal duty…………….
(12) In
McIntosh v
Premier KwaZulu-Natal and Another,
2008 (6) SA 1
(SCA) paras 12 - 14
it was held: “
Although a court will not lightly find
a public authority to have failed to act reasonably because it
elected to prioritise one
demand on its possible limited resources
above another, if foreseeable harm was suffered by someone in
consequence of a failure
on the part of the authority’s
servants to take reasonable steps to guard against its occurrence,
the authority should be
held liable on account of that omission
.”
THE PLAINTIFF’S
SUBMISSIONS
(13) The plaintiff’s
counsel Mr Johnstone argued that the first defendant at all times had
a legal duty to the public to install
or ensure the installation of
an inspection cover over the uncovered valve chamber or to warn the
public of its absence, and the
danger it posed to the public. The
first defendant’s servants did not barricade the uncovered
valve chamber nor did they
erect signs to warn the public of the
missing inspection cover on Mint Road, consequently, the first
defendant was liable for the
damages suffered by plaintiff.
(14) Counsel further
argued that the reasonable foreseeability of harm to the public as a
consequence of uncovered valve chambers
on pavements, and the likely
result of bodily injury to the public has not been challenged, more
especially having regard to the
first defendant’s selective
policy of not replacing missing inspection covers which did not
immediately pose a danger to
the public.
(15) Counsel contended
that no evidence was tendered by the first defendant regarding the
policy of selecting certain sectors for
the replacement of missing
inspection covers in preference to others, and the basis upon which
such selection was made, in the
circumstances, the inference of
negligence on the part of the first defendant or its servants was
irresistible.
THE DEFENDANT’S
SUBMISSIONS
(16) The first
defendant’s counsel Mr Strathern argued that it was uncontested
that the first defendant operated under budgetary
constraints, that
because thereof, it adopted a policy of immediately replacing missing
covers which constituted an immediate danger
to the public.
(17) Counsel argued that
the plaintiff had not established that the first defendant or its
servants, ought to have been aware that
the inspection cover on Mint
Road was missing and consequently, ought to have taken steps to
replace it. Counsel contended that
the plaintiff did not canvass and
accordingly did not establish:
(a) whether the uncovered
valve chamber was located at a busy intersection or not; and
(b) how long the
inspection cover had been missing prior to the plaintiff falling
there into.
(18) Counsel argued that
in view of the absence of knowing how long the uncovered valve
chamber had existed, the first defendant
could not be expected to
have guarded against something it did not know had happened,
consequently it has not been established
that the first defendant
ought to have known about the missing inspection cover and ought to
have taken steps to guard against
the harm it represented to the
public.
(19) Counsel argued that
the first defendant had shown that the policy of identifying and
replacing missing inspection covers which
immediately posed a danger
to the public had been ongoing since 2000 prior to the incident
involving the plaintiff, he submitted
that the policy was adequate.
The plaintiff has an onus to place sufficient evidence to enable the
court to conclude that the first
defendant was negligent in failing
to replace the missing inspection cover or to warn the public of its
absence as its legal duty
dictated. The mere fact that the plaintiff
fell into an uncovered valve chamber is not sufficient. Counsel
contended that the plaintiff
was obliged to care for his own safety
and consequently, has to establish:
(a) a legal duty to
repair or warn; and
(b) that the failure
to do so is blameworthy.
(20) In support of this
proposition counsel cited the case of
City of Cape Town v
Bakkerud
2003 SA 1049
(SCA)
at para 29-30. Where in
addressing the applicability of the legal duty reposing on a local
authority the Court held:
“
[29} It is
tempting to construct such a legal duty on the strength of a sense of
security engendered by the provision of a street
of pavement by a
municipality but I do not think one can generalise in that regard. It
is axiomatic that man made streets and pavements
will not always been
in the pristine condition in which they were when first constructed
and that it would be well-nigh impossible
for even the largest and
most well funded municipalities to keep them all in that state at all
times
. A reasonable sense of proportion is called for. The
public must be taken to realise that and to have a care for its own
safety
when using the roads and pavements.”
……………………………………………………………
..
[30]…….
it would I think would go far too impose a legal duty on all
municipalities to maintain a billiard table like
surface upon all
pavements in fear of any sub-sidenances or any other irregularities
which might cause an unwary pedestrian to
stumble and possibly fall.
It will be for a plaintiff to place before the court in any
given case sufficient evidence to enable it to conclude that a legal
duty to repair or to warn should be held to have existed. It will
also be for a plaintiff to prove that the failure to repair or
to
warn was blameworthy (attributable to culpa).
It is so
that some but not all of the factors relevant to the first enquiry
will also be relevant to the second enquiry if it be
reached) but
that does not mean that they must be excluded from the first enquiry.
Having to discharge the onus of proving both
the existence of the
legal duty and blameworthiness in failing to fulfil it will, I think,
will go along way to prevent the opening
of a flood gates to claim of
this type of which municipalities are so fearful.”
(my
emphasis)
THE ANALYSIS OF
EVIDENCE
(21) It is common cause
that valve chamber on Mint Road into which the plaintiff fell was
uncovered. The first defendant concedes
that it owed a legal duty to
the public to guard against such harm consequently, the first leg of
the test, reasonable foreseeability
is established. The question is
whether regarding second and third legs of the inquiry, the first
defendant undertook reasonable
steps to guard against the harm the
uncovered chamber constituted to the public, differently stated, was
the policy formulated
by the first defendant objectively speaking, to
guard against the harm, which due to budgetary constrains involved
the selective
replacement of inspection covers on uncovered valve
chambers which its servants designated as posing an immediate danger
to the
public, rational and adequate.
(22) To paraphrase the
ratio
in
Ngubane v South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
;
“
the answer to the inquiry
depends on a consideration of all the relevant circumstances and
involves a value judgment which is to
be made by balancing various
competing considerations, including the extent of the harm created by
the first defendant’s
conduct, the gravity of the possible
consequences and the burden of eliminating the risk of harm. Where,
however, a public authority
is involved a further consideration
arises. It is this; a court when determining the reasonableness or
otherwise of an authority’s
conduct will in principle recognise
the autonomy of the authority to make decisions with regard to the
exercise of its powers…………………………………………
the criterion to be
applied having regard to its priorities is ultimately one of
rationality if in the actual implementation of
a policy or procedure
adopted by the authority, or for that matter in the course of its
operations, foreseeable harm is suffered
by another in consequence of
a failure on the part of the authority’s servants to take
reasonable steps to guard against
its occurrence, a court will not
hesitate to hold the authority liable on account of that omission.”
(23) Further regarding
the legal liability of a local authority, in
Mcintosh v Premier of
KwaZulu-Natal and Others
(supra) it was held:
“where the
defendant relies on budgetary constraints if foreseeable harm was
suffered by a person as a consequence of the
failure on the part of
the authority and its servants to take reasonable steps to guard
against the occurrence the authority is
liable for the omission.”
(24) There is a positive
legal duty on the first defendant to ensure that uncovered valve
chambers did not constitute a danger to
the public, and because of
the endemic massive scale theft of inspection valve chamber covers, a
greater duty rested on the first
defendant to ensure the public’s
safety through the regular consistent inspection of valve chambers,
more particularly because
the endemic theft was a continuous
phenomenon.
(25) The duty to act
positively must be considered and applied in the light of the spirit,
purport and objects of the Bill of Rights.
In
Minister of
Safety and Security v Van Duivenboddm
2002 (6) SA 431
(SCA) at 444),
it was held:-
“
(a) the
defendant’s prior conduct in constructing an inspection port in
the pavement points irresistibly to the existence
of a legal duty to
act positively to prevent harm, especially in the light of the extent
and gravity of the consequences when such
harm eventuated;
(b) the fact that
defendants have control over a dangerous or potentially dangerous
object, being a hole in a sidewalk; and
(c) The special
relationship between defendants and plaintiff and the fact that the
plaintiff was specially dependent upon defendants
to exercise proper
control over such dangerous or potentially dangerous object.”
(26) Brand JA in dealing
with negligence opined:
“A negligent omission, unless
wrongful will not give rise to delictual liability. More recently in
Trustees, Two Oceans Aquarium Trust v Kantey & Templer
(Pty) Ltd
2006 (3) SA 138
(SCA)
[2007] 1 All SA 240)
Brand JA, at
144A-C, para 10
,
he explained the requirement of
wrongfulness as follows:
“
Negligent
conduct manifesting itself in the form of a positive act causing
physical damage to the property or person of another
is prima facie
wrongful. In those cases, wrongfulness is therefore seldom
contentious. Where the element of wrongfulness becomes
less
straightforward is with reference to liability for negligent
omissions and for negligently caused pure economic loss (
see
eg Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) ([2002]
3 All SA 741)
in para [12]; Gouda Boerdery BK v
Transnet
2005 (5) SA 490
(SCA) ([2004]
4 All SA 500)
in para [12].
In these instances, it is said, wrongfulness depends on the existence
of a legal duty not to act negligently. The imposition of
such a
legal duty is a matter for judicial determination involving criteria
of public or legal policy consistent with constitutional
norms.”
(27) It is trite that the
onus of proving negligence on a balance of probabilities reposes on
the plaintiff through adducing sufficient
cogent credible evidence.
Where a plaintiff is not in a position to adduce sufficient evidence
on a particular aspect, less evidence
will suffice to establish a
prima facie
case of negligence where the facts are peculiarly
within the knowledge of a defendant. In such a situation there is an
evidentiary
burden upon a defendant to neutralise or rebut the
prima
facie
inference that the cause of the harm was as a result of its
negligent act of omission.
(28) Before the
uncovered valve chamber’s existence can give rise to an
inference of negligence, there must be some evidence
of either a
direct or circumstantial nature that the first defendant at the time
of the occurrence;
(i) ought to have taken
steps to prevent the existence of the uncovered valve chamber,
alternatively;
(ii) knew; or
(iii) failed to take
reasonable steps to replace the missing inspection valve chamber
cover.
(29) The evidence did
not reveal when the inspection cover in question went missing. The
first defendant was unable to provide
evidence that the inspection
valve chamber on Mint Road was reported as missing before the
incident nor did it, in pursuance to
its proactive response, tender
evidence that the said valve chamber was ever inspected, or that the
sector in which it is situated
was surveyed by the first defendant’s
servants. There was no evidence that a sector survey was conducted
regarding the uncovered
valve chamber on Mint Road or its
intersection with Fountain Street. In fact, no record of such
inspection existed. Consequently,
the inference is irresistible that
the uncovered valve chamber was not inspected during the first
defendant’s sector survey,
and its inspection cover was not
reported by the public as missing and accordingly identified as such
prior to the incident.
(30) Because the first
defendant knew of the rampant theft of inspection covers, there was a
greater positive duty on it to have
a coherent rational policy of
investigating, identifying and replacing missing inspection covers on
a regular basis. The first
defendant largely relied on the public to
report the existence of uncovered valve chambers or missing
inspection covers. When the
public reported missing inspection valve
chamber covers to the first defendant, its servants in pursuance of
its reactive response
after identifying such uncovered valve
chambers, did not immediately demarcate their location and warn the
public of the danger
they posed through signage, reflective lighting,
or reflective tape.
(31) The first
defendant’s servants after a report or after identifying
uncovered valve chambers only recorded the uncovered
valve chambers,
and in their discretion decided whether such identified uncovered
valve chambers posed a danger to the public and
if so, immediately
replaced their inspection covers, and if, in their discretion such
uncovered valve chambers did not pose an
immediate danger to the
public, the uncovered valve chambers inspection covers were not
replaced.
(32) No rational
explanation was presented by the first defendant as to why the
uncovered valve chambers not considered as posing
an immediate danger
to the public were left uncovered, nor was any reason advanced by the
first defendant of the failure to proffer
such explanation. There was
absolutely no explanation what rational criteria was used to identify
certain uncovered valve chambers
as posing an immediate danger to the
public and others not, neither was there any explanation what
rational criteria predicated
the identification and selection of
sectors where surveys were conducted.
(33) In the absence of
any cogent credible rational explanation, the first defendant’s
random selection of sectors to be surveyed,
and its designation of
uncovered valve chambers considered to pose a danger to the public,
was irrationally and arbitrarily executed,
consequently, within the
constraints of reasonable prudence this policy was inadequate and
ineffectual.
(34) It is not sufficient
for the first defendant to only state that it was hindered by
budgetary constraints to execute its legal
duty to the public
vis-à-vis
all uncovered valve chambers. There is an
obligation on the first defendant to adduce cogent credible evidence
explaining how its
priorities impacted on its budgetary constraints
relative to its legal duty to the public to install inspection covers
on all open
valve chambers by showing that the budgetary costs for
such venture were so
“astronomical
” that they
warranted the inference that such costs should not reasonably be
incurred by the first defendant in replacing
all missing inspection
covers in order to avoid liability where serious harm could occur to
the public.
(35) The first defendant
must have foreseen that such an irrational arbitrary policy would
create a serious source of danger to
the public. The first defendant
must have foreseen that such irrational arbitrary selection policy
could not exclude the possibility
of non danger posing uncovered
valve chambers causing harm to the public. Consequently, having
regard to such realisation, 1
st
Defendant must have
reconciled itself to the eventuality of the public being harmed by
such uncovered valve chambers.
(36) By its selection
policy, it can be fairly said that the first defendant must have
decided to accept the risk of liability
in those cases arising from
uncovered valve chambers designated as not posing immediate danger to
the public, perhaps in pursuit
of greater budgetary economy. This is
particularly so if regard is had to the enormity of the first
defendant’s legal duty
given the endemic theft of inspection
covers.
(37) Due to the dearth of
explanatory evidence regarding the impact of budgetary constraints on
the first defendants’ priorities,
the effective precautions
which would have prevented the plaintiff’s incident can safely
be said to be unrelated to the budgetary
constraints and priorities
of the first defendant as a local authority. Consequently, the first
defendant must have accepted and
reconciled itself to the risk of
liability arising from identified but uncovered valve chambers, due
to the enormity of the theft
of inspection covers and the curbing of
the theft problem.
(38) The first defendant
has not challenged the reasonable foreseeability of harm to the
plaintiff consequent upon the uncovered
valve chamber on the pavement
on Mint Road. In the circumstances of this matter it is therefore
justifiable to invoke the legal
maxim
res ipsa loquitur
and,
infer a
prima facie
case of negligence on the part of the
first defendant, unless the first defendant has rebutted the
plaintiff’s case with
evidence which invalidates the
prima
facie
inference of negligence on its part, and so neutralise the
plaintiff’s case, if not, judgment must be entered in favour of
the plaintiff against the first defendant. The question is whether
the first defendant has produced sufficient evidence to displace
the
inference of negligence. In my view none was tendered.
(39) In the alternative
Mr Strathern contended for a 50% - 50% apportionment on the basis
that the plaintiff did not keep a proper
lookout whilst jogging,
counsel contended that if the plaintiff had been walking at a
reasonable pace and having regard to his
safety, he should have
realised that the pavement, tapers to a curb, and would have possibly
slowed down and avoided falling into
it.
(40) In my view it cannot
be persuasively argued that there is contributory negligence
attributable to the plaintiff. The uncontroverted
evidence is that
the incident occurred at 22h30 at night when it was dark, rainy and
windy. The uncovered valve chamber was not
visible, was not
demarcated, or barricaded, and did not have reflective signage
warning the public of its presence, consequently,
it cannot be
reasonably expected that the plaintiff could have foreseen or
suspected that there is an uncovered valve chamber on
the pavement,
when it is uncontroverted that it was the first time he had traversed
such pavement.
THE ORDER
(42) In the premises the
following order is made:
(a) The first defendant
is ordered to pay the plaintiff’s proven damages arising from
the fracture of his right tibial plateau
on the 26 September 2005;
(b) The first defendant
is ordered to pay the plaintiff’s legal costs
Dated at Johannesburg on
the 01
st
AUGUST 2011.
_________________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
DATE OF HEARING: 2
ND
DECEMBER 2010
DATE OF JUDGMENT: 01
st
AUGUST 2011
ON BEHALF OF THE
APPLICANT: H C JOHNSTONE
INSTRUCTED BY: WITS LAW
CLINIC
TELEPHONE NUMBER: (011)
717-8562
REF. NO.: CI 06/272
MADOLO/PJ/wb
ON BEHALF OF THE
RESPONDENT: P STRATHERN
INSTRUCTED BY: MOLEFE
KNIGHT ATTORNEYS
TELEPHONE NUMBER: (011)
465-8663
REF. NO.: MR I
KNIGHT/LL/AFB198