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[2010] ZAGPJHC 165
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Ubisse v Enviro-Fill (Pty) Ltd (08/31219) [2010] ZAGPJHC 165 (2 August 2010)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case No. 08/31219
DATE:02/08/2010
In the matter between:
LINDEO
UBISSE
................................................................................................
Plaintiff
and
ENVIRO-FILL (PTY)
LIMITED
.......................................................................
Defendant
MEYER, J
[1] This is a delictual action for damages
arising from injuries sustained by the plaintiff when a large twenty
eight ton Tana G290
compacter, which, it is common cause, was
operated by an employee of the defendant, Mr. Loverboy Mfazwe, who at
the time acted
within the course and scope of his employment with the
defendant, drove over her legs at the Rooikraal General Waste
Disposal Site
in Germiston during the late afternoon on 13 October
2005. I directed that the issue of the defendant’s liability
be determined
first and that the question of
quantum
of damages stand over for later
determination.
[2] In her particulars of claim the
plaintiff avers that the negligence of Enviro-Fill or of its
employees or of its operator of
the compacter caused her injuries.
The plea denies liability and avers that the plaintiff was solely or
contributorily negligent.
Paragraph 8.3 of the plea amplifies the
defendant’s denial of liability and introduces a defence that
the plaintiff was
granted access to the Rooikraal General Waste
Disposal Site at her own risk. It reads:
‘
8.3 During or about 2003/2004
an informal arrangement was entered into between the Defendant and
the community leaders of the adjacent
squatter camps to enable the
Defendant to perform its functions and to allow the informal
reclaimers to do informal waste picking
/ reclaiming on the following
conditions:
8.3.1 No formal waste picking
/ reclaiming will be allowed;
8.3.2 Informal waste picking
/ reclaiming will be permitted on condition that:
8.3.2.1 The reclaimers belong to an
informal body consisting of a chairperson and committee members /
leaders;
8.3.2.2 The committee will be
responsible to arrange and organize its members to ensure they follow
the rules set by the committee;
8.3.2.3 Access to the premises will
be allowed for purposes of informal waste picking / reclaiming during
specified hours in the
mornings and afternoons through pedestrian
gates erected specifically for that purpose;
8.3.2.4 All reclaimers will enter
the premises at their own risk;
8.3.2.5 The said committee /
reclaimers will be responsible for their own safety and will adhere
to all rules made by the committee
to ensure their safety;
8.3.2.6 No waste picking /
reclamation will be allowed at or near the compactor used to compact
the waste; and
8.3.2.6 In the event of the
informal reclaimers not following the aforesaid rules or causing any
damage to the fence, the informal
reclaiming operation would be
terminated.
8.4 Plaintiff was granted access to
the premises on the conditions set out above.’
[3] The Ekhuruleni Metropolitan
Municipality (‘EMM’) is the owner of the Rooikraal
General Waste Disposal Site (‘Rooikraal’
or ‘the
landfill’). General waste is received at Rooikraal where it is
leveled, compacted, and covered with a minimum
of one hundred and
fifty millimetres soil on a daily basis. This process is called
waste disposal by landfill. Mr. Pieterse,
who was called as a
witness for the plaintiff, is EMM’s executive manager of
landfill sites. He testified that EMM is the
holder of a permit in
terms whereof the provision and operation of Rooikraal as a waste
disposal by landfill site were authorised.
1
The waste disposal site permit issued to EMM was not introduced in
evidence and I have accordingly not had sight of the conditions
included therein, but Mr. Pieterse’s unchallenged evidence is
that the
Minimum Requirements for
Waste Disposal by Landfill (2
nd
Ed. 1998)
published by the
Department of Water Affairs and Forestry (‘the Minimum
Requirements’) applied to the operation of
Rooikraal in terms
of the permit. It appears from the Preface to the Minimum
Requirements that the prescribed minimum requirements
for the
management and operation of a landfill
‘…
address the rule,
while still making provision for defensible deviation where site
specific factors are such that the rule cannot
or need not be
applied. Such deviation could involve either an increase in
standards or a relaxation, and would have to be properly
researched,
motivated and recorded, so that it is indeed defensible.’
[4] Enviro-Fill (Pty) Ltd (‘Enviro-Fill’),
which is the defendant, was the successful tenderer to manage and
operate
Rooikraal as a commercial undertaking. It did so until the
end of December 2007. The contractual relationship between
Enviro-Fill
and EMM was governed by the provisions of a written
contract, which was also not introduced into evidence. Mr.
Pieterse’s
uncontradicted evidence is that Enviro-Fill assumed
all responsibilities in connection with the operation of Rooikraal
and was
obliged to obtain insurance to cover itself and EMM against
liability arising from the operation of the landfill. Enviro-Fill
was aware that the Minimum Requirements applied to the management and
operation of Rooikraal.
[5] Thousands of people in South Africa
earn a living by picking up waste on landfills. People go onto
landfills and search through
the waste for recyclable items, such as
iron or copper, that may be recovered or reclaimed from the waste.
Items found are sold
to dealers in such recyclable materials. The
Minimum Requirements
2
acknowledge this occurrence and distinguish between ‘uncontrolled
salvaging’ and ‘controlled reclamation’
at
landfills. It is
inter alia
stated that uncontrolled
salvaging at the working face of a landfill is unacceptable for
safety and health reasons and because it
interferes with the proper
operation of the facility. It is recognised that it is usually very
difficult to eliminate salvaging
once it takes place at a landfill
and that any attempts to achieve this usually involve confrontation
and the need for ongoing
policing. It is also recognised that,
because landfills represent an important resource base for a sector
of the population, informal
salvaging cannot be eliminated. A
minimum requirement is, however, stated to be that informal salvaging
should be ‘formalised
and controlled’ to minimise safety
and health risks.
[6] Section 10.4..4 of the Minimum
Requirements states that
‘
[i]t is a Minimum Requirement
that any reclamation operation be formalised in the Operating Plan.
This would include regular consultation
with and registration of
reclaimers and the provision of appropriate safety measures. Safety
measures would include the separation
of reclamation from compaction
and covering activities, and the provision of safety clothing.
Details and guidelines regarding
the above are included in Appendix
10.3.’
[7] Appendix 10.3 of the Minimum
Requirements
inter alia
reads:
‘
Formalisation and control
of on-site reclamation
Any waste reclamation operation on a
landfill must be formalised and controlled. The activity must
therefore be included in the
Operating Plan. Where informal
salvaging or waste reclamation takes place on a landfill site, the
first step in formalising the
process would entail the identification
of leaders and the formation of a committee with whom to communicate.
Thereafter, all
reclaimers must be registered and controlled by the
leaders of the committee, who would be accountable to the Permit
Holder. Alternatively,
proper contracts can be set up.’
Method of controlled on-site
reclamation
Waste reclamation and sanitary
landfilling are not compatible activities, as reclaimers require
access to the waste while sanitary
landfilling aims at confining it.
Also, having reclaimers working in the vicinity of heavy machinery is
unsafe. Waste reclamation
must therefore be separated from waste
compaction and covering activities.
…
Where reclamation has to take place
on the landfill itself, it must be operated using two working areas
or cells. In one, waste
can be deposited and spread for reclamation
purposes, whilst in the other, waste remaining after reclamation may
be compacted and
covered. The size of the working areas and the
frequency with which they are alternated would depend on numerous
factors and would
have to be optimized on a site specific basis.
Health and safety aspects
In terms of the Occupational Health
and safety Act, 1993 (Act 85 of 1993), the operator of the landfill
is responsible for the safety
and well being of the waste reclaimers
on the site. The operator must therefore ensure that the reclaimers,
as a minimum, wear
suitable protective clothing, in particular
industrial gloves and boots with protective soles. They should also
wear highly visible
tunics. If this equipment is provided by the
Permit Holder, it could also become an effective means of
identification and of ensuring
that reclaimers are registered.
Ongoing communication with
reclaimers
In order for controlled reclamation
to work in an efficient and safe manner, it is essential for the
reclaimers to understand and
to adhere to the system in operation at
the landfill. Regular meetings must therefore be held between the
landfill operators and
the reclaimers or their representatives, in
order to educate them and negotiate with them where applicable. At
this forum, health
and safety issues should receive the highest
priority.’
[8] Informal and uncontrolled salvaging was
of the order of the day at Rooikraal. The only income of thousands
of people who lived
in the vicinity of Rooikraal was made through
informal salvaging there. The plaintiff had been one of the
reclaimers at Rooikraal.
All attempts at eliminating informal
salvaging failed and only resulted in confrontation, including a
shooting incident during
the year 2001 or 2002, which convinced Mr.
Pieterse that the salvaging at Rooikraal should be formalised and
controlled.
[9] EMM’s landfill permit did not
authorise reclamation at the landfill nor did the agreement between
EMM and Enviro-Fill
permit such activity. Mr. Pieterse, on behalf of
EMM, arranged with Enviro-Fill to formalise and control the salvaging
at Rooikraal
in order to permit reclaimers onto the landfill. EMM
applied for permission to allow controlled reclamation at the
landfill, presumably
as an amendment to its existing permit.
3
Mr. Pieterse was unable to say whether such permission was obtained.
[10] Mr. Pieterse testified that EMM, in
terms of its arrangement with Enviro-Fill, was responsible for the
erection of an approximately
five kilometre perimeter wall at a cost
of R300.00 per metre to enclose the landfill and to control access to
the landfill through
lockable pedestrian gates. This facilitated the
implementation of specific times during the day when approximately
four to five
hundred reclaimers were permitted onto the landfill only
at certain times of the day.
[11] The reclaimers at Rooikraal were from
townships to the north and to the south of Rooikraal, Windmill Park
and Villa Lisa or
Holomisa. Mr. Enoch Nthombeni, who was
Enviro-Fill’s site supervisor at the landfill, was, according
to Mr. Pieterse, responsible
for the identification of leaders and
the formation of a committee with whom Enviro-Fill could communicate.
It should be mentioned
that this is, in terms of the Minimum
Requirements, the first step in formalising the process of salvaging
at a landfill. It
appears from the evidence of Mr. Pieterse and of
Mr. Maqolo Sifaya, who was called as a witness for Enviro-Fill, that
leaders from
amongst the two community groups were identified. The
committee of leaders was called Masakhane (‘the committee’).
4
[12] Mr. Nthombeni had monthly or
bi-monthly meetings with the committee members. Mr. Nthombeni,
according to the evidence of Mr.
Sifaya,
inter
alia
discussed health and safety
issues with the committee members from time to time at these
meetings. Before the implementation of
these measures the reclaimers
were ignorant of the inherent dangers which reclamation on the
landfill posed to their health and
safety. It seems that Enviro-Fill
accordingly also implemented the minimum requirement of ongoing
communication with reclaimers
or their representatives. Mr. Pieterse
testified that he, representing EMM, in turn had monthly meetings
with representatives
of Enviro-Fill, including Mr. Nthombeni, in
order for EMM to monitor the process and that safety measures were
inter alia
discussed at such
meetings.
[13] It is a minimum requirement that
reclaimers ‘must be registered and controlled by the leaders or
committee, who would
be accountable to the Permit Holder’ once
the leaders amongst them had been identified and the committee had
been formed,
or alternatively for ‘proper contracts’ to
be set up. Mr. Pieterse and Mr. Sifaya testified that the
arrangement which
Mr. Nthombeni had made with the committee was that
its committee members were responsible for ensuring adherence by the
reclaimers
to certain rules that had been agreed upon between Mr.
Nthombeni and the committee members and to sanction those who acted
in violation
thereof. The arrangement was that the committee members
would control, instruct, and supervise the reclaimers. The committee
members reported to Mr. Nthombeni.
[14] Only persons who belonged to one of
the identified community groups were permitted onto the landfill to
undertake reclamation.
Reclaimers were permitted to undertake
reclamation only from 7:00 – 9:30 am (‘the morning
reclamation shift’)
and from 3:00 to about 5:00 pm (‘the
afternoon reclamation shift’). These two ‘rules’
are common cause.
Other ‘rules’ that were put to the
plaintiff as having been agreed upon between Mr. Nthombeni and the
committee members
were that reclaimers would not be permitted onto
the landfill barefoot or wearing a dress; the committee members
would look after
the safety of the reclaimers; the reclaimers would
enter the landfill at their own risk; and that the reclaimers would
not be
permitted to undertake reclamation close to or in front of or
behind the compactor.
[15] The plaintiff testified that it was
not known to her that the committee members negotiated with Mr.
Nthombeni, although she
knew that they reported problems to him. She
had been undertaking reclamation at Rooikraal for about twelve years
prior to the
accident in question, and, as far as she was concerned,
the reclaimers had been known and Enviro-Fill accepted them by ending
up
permitting them onto the landfill. Apart from the rule that only
those who belonged to one of the identified community groups would
be
permitted onto the landfill and the one pertaining to the times of
day when reclamation would be permitted, the plaintiff denied
that
any other rules were applicable to the reclaimers. She was not
informed of those rules and had no knowledge of them. Committee
members, according to the plaintiff, supervised the reclaimers on the
landfill without laying down rules and without looking after
their
safety. Mr. Sifaya testified about the manner in which the committee
members exercised supervision and control of the reclaimers,
and how
their safety was ensured. His evidence in this regard, however, was
not foreshadowed in the cross-examination of the plaintiff.
5
[16] There is a contradiction about what
form the rules took which were agreed upon between Mr. Nthombeni and
the committee members.
Enviro-Fill’s counsel put it to the
plaintiff that Mr. Sifaya would testify that she knew the rules
although they were not
recorded on paper. Mr. Sifaya, however,
testified that some of the rules were recorded and kept by the
secretary of the committee
and the others not. There is also some
contradiction and apparent uncertainty about the precise content of
certain of the rules.
In conflict with what was put to the plaintiff
and Mr. Pieterse by Enviro-Fill’s counsel, Mr. Sifaya testified
that the
rules permitted a reclaimer to undertake reclamation close
to, in front of, and behind the compacter, as long as a two metre
distance
was kept from the compacter. Also contrary to what was put
to the plaintiff, Mr. Mfazwe, who operated the compacter on the
landfill
and called as a witness for the defendant, testified that
there was no dress code for reclaimers apart from safety shoes. Mr.
Pieterse was also cross-examined on and Mr. Sifaya mentioned further
rules with which the plaintiff was not confronted when she
was
cross-examined by Enviro-Fill’s counsel.
6
[17] The plaintiff’s evidence that
she for one was unaware of the negotiations between the committee
members and Mr. Nthombeni
and that she was not informed and had no
knowledge of the rules, apart from those that I have mentioned, is,
on the totality of
the evidence, accepted. It was merely put to the
plaintiff that Mr. Sifaya would testify that she knew the rules. Mr.
Sifaya
testified that the rules were from time to time discussed at
the meetings which the committee members had with Mr. Nthombeni and
that committee members, in turn, would report to the community
members what had been discussed at such meetings. This was not
put
to the plaintiff nor was she confronted with any particular occasion
when she would have been informed of the applicable rules.
It was
put to Mr. Pieterse by Enviro-Fill’s counsel that the
arrangement which Mr. Nthombeni had made with the committee
was that
the reclaimers would be registered at one of the community groups.
Whoever join a group would be introduced to Mr. Nthombeni.
Rules
were explained to reclaimers during registration and it was expected
of them to promise adherence to the rules. This was
also not
foreshadowed in the cross-examination of the plaintiff. Mr. Sifaya
also did not mention any occasion when the plaintiff
had been so
registered, introduced to Mr. Nthombeni, had the rules explained to
her, and when she had promised adherence to the
rules.
[18] The following remarks of Claassen J in
Small v Smith
7
are apposite:
‘
It is, in my opinion,
elementary and standard practice for a party to put to each opposing
witness so much of his own case or defence
as concerns that witness,
and if need be, to inform him, if he has not been given notice
thereof, that other witnesses will contradict
him, so as to give him
fair warning and an opportunity of explaining the contradiction and
defending his own character. It is
grossly unfair and improper to
let a witness’s evidence go unchallenged in cross-examination
and afterwards argue that he
must be disbelieved.’
[19] Mr. Sifaya conceded that the rules
were often not adhered to, especially during the afternoon
reclamation shifts, that reclaimers
often got closer than two metres
to the compacter, and he said that the strictness with which they
were enforced varied from committee
member to committee member. Mr.
Mfazwe also conceded that scores of reclaimers surrounded the
compacter - close to its sides,
front and back - at any given time.
The plaintiff testified that many people often worked in close
proximity to the compacter
and that young people sometimes even took
rides on the compacter.
[20] Mr. Mfazwe testified that the
committee members supervised and also participated in reclamation
during the afternoon reclamation
shifts. Mr. Sifaya said that this
is the position at present, but that it was not the position at the
time when the plaintiff
was injured. The evidence of Mr. Mfazwe is
more probable. When he testified in chief, Mr. Sifaya was
pertinently asked whether
the committee members (supervisors) also
participated in the reclamation activity when they were on duty and
he only mentioned
that those on duty between 7:00 – 9:00 am did
not participate, and that they were given the opportunity to
undertake reclamation
from 9:00 – 11:00 am. It was not
suggested by anyone who testified at the trial that supervisors that
had been on duty during
the afternoon reclamation shifts were
similarly accommodated. The plaintiff testified that the reclaimers
and committee members
alike were undertaking reclamation. Her
evidence in this regard is probable insofar as the afternoon
reclamation shifts were
concerned.
[21] It is undisputed that the minimum
requirement that reclaimers had to wear highly visible tunics, was
not implemented by Enviro-Fill.
Mr. Pieterse testified that the
issuing of suitable protective clothing and ‘highly visible
tunics’ would amount to
great expense. I find this difficult
to accept. Visible tunics are commonly worn by parking attendants,
street sweepers, and
the like. Mr. Pieterse, in any event, conceded
that no quantification of the costs involved had been done.
[22] The Minimum Requirements warn that
‘having reclaimers working in the vicinity of heavy machinery
is unsafe’ and
prescribe as a minimum requirement the use of
two working areas or cells, one where waste is deposited and spread
for reclamation
purposes and the other on which the waste remaining
after reclamation is compacted and covered. Mr. Sifaya testified
that the
reclaimers previously used to go onto the landfill after the
security officers in attendance had gone off duty at about 5:00 pm
when they then dug open waste that had been compacted and covered
with pickaxes in search of recyclable items. The reclaimers
accordingly did not work in the vicinity of heavy machinery.
However, since the process of formalising and controlling the
salvaging
at Rooikraal had been implemented, the minimum requirement
of the use of two working areas or cells had not been implemented.
To this day the reclamation activities and compaction and covering
activities with the 28 ton compacter take place on a single working
area or cell of less than the size of a rugby field. Trucks deliver
the waste onto the working area. The compacter, according
to the
evidence of Mr. Pieterse and of Mr. Mfazwe, throughout the day and at
any given time moves forward and backward within a
maximum range of
fifteen metres at slow speed.
[23] Compliance with the prescribed minimum
requirement of using two working areas at Rooikraal was, according to
Mr. Pieterse,
‘practicably impossible’ or ‘very
difficult’. He proffered as a reason for this practical
impossibility
or difficulty that the reclaimers wanted to pick items
from the incoming waste stream immediately after it had been
deposited onto
the landfill. However, this could logically also be
achieved by the use of two working cells. A further reason given by
him is
that the waste must be covered by the end of each working day
due to the noise emanating from the premises which could cause a
disturbance after working hours. The implementation of two working
cells would result in not all the waste having been processed
by the
end of a day. This reason too seems to me to be speculative. Mr.
Pieterse conceded that no quantification of any of
the costs of
compliance with the Minimum Requirements had been done.
[24] It appears from the evidence of Mr.
Pieterse that the landfill premises are vast. They are surrounded by
a five kilometer
perimeter wall. A picture of the physical lay-out
of Rooikraal is also gleaned from the evidence of Mr. Mfazwe. The
main disposal
area or site comprised four cells that were next to
each other and they were numbered one to four. Mr. Mfazwe was unable
to give
an accurate estimation of the size of each cell other than to
say that each one was bigger than the size of two soccer fields.
Waste was worked on a particular area of a cell on a given day,
unless it rained, in which event the compacter was moved onto and
operated on what was called ‘the wet area’. Practically
it seems to me that the landfill could be operated by using
two
working areas or cells.
[25] Mr. Pieterse’s unsubstantiated
statements of the difficulties and exorbitant costs involved in
implementing a separation
of the waste reclamation activity from the
waste compaction and covering activities and of issuing the
reclaimers with highly visible
tunics has little probative value.
EMM, as I have mentioned, applied for permission to allow controlled
reclamation at Rooikraal.
If a defensible relaxation of the Minimum
Requirements had been included in the application then one would have
expected Mr. Pieterse’s
evidence to have elucidated this fully.
These are matters that also fall within the peculiar knowledge of
Enviro-Fill or its employees.
Enviro-Fill placed no evidence before
me in relation to any such difficulties or exorbitant costs.
[26] The evidence and the probabilities
overwhelmingly refute the allegations in Enviro-Fill’s plea of
an arrangement that
only informal reclamation or waste picking would
be permitted. The converse has been proved. It appears from the
evidence that
EMM and Enviro-Fill implemented certain of the
prescribed minimum requirements and others not.
[27] In its plea Enviro-Fill
inter
alia
alleges that an informal
arrangement was entered into between it and the community leaders of
the adjacent squatter camps that all
the reclaimers would enter the
premises at their own risk and that the plaintiff was granted access
to the premises
inter alia
on
such condition. The evidence does not establish such
consensus
between the plaintiff and
Enviro-Fill. I have accepted the plaintiff’s evidence that she
was not informed of these terms
or conditions and that she had no
knowledge thereof. I should also mention that Mr. Sifaya testified
that these terms were also
displayed on notices at the gates giving
access to the landfill. The plaintiff was, however, not confronted
with this aspect of
Enviro-Fill’s defence and it can also not
be inferred that she knew or must have realised that they contained
conditions
relating to her access and use of the premises. The
plaintiff’s evidence is that she cannot read or write, and
there is
no reason to doubt her on this.
[28] Enviro-Fill’s counsel submitted
that Enviro-Fill was exempted from liability for negligence by virtue
of a contract that
was entered into between Enviro-Fill and Masakhane
in terms whereof it was agreed that members of Masakhane, of whom the
plaintiff
was one, would enter the premises at their own risk and
that the defendant would not be responsible for their safety.
Enviro-Fill
bears the
onus
of proving a valid contract in terms of which liability for
negligence was excluded.
8
Such
onus
has
not been discharged. I have mentioned Mr. Pieterse’s
unchallenged evidence that Enviro-Fill, through its site supervisor,
Mr. Nthombene, identified leaders from the squatter communities and
that the leaders formed a committee. The plaintiff was merely
a
resident or member of a squatter community from whom the leaders were
identified. The legal basis upon which the leaders or
committee
could conclude an agreement with Enviro-Fill that was binding on the
plaintiff has not been established nor has it been
established that
the ‘informal arrangement’ was intended to create
enforceable legal rights and obligations. This
defence must
accordingly fail.
9
[29] I now turn to the accident at
Rooikraal in which the compacter’s rear steel spiked drum
roller (‘rear drum’)
10
was reversed onto the plaintiff’s legs. Mr. Mfazwe testified
that he had been operating the compacter at Rooikraal for about
eight
years prior to the accident, seven days a week from 7:00 am until
5:30 pm, and some days even until 7:00 pm if there was
a backlog. He
was a truck driver before and it seems that he was properly qualified
to operate the compacter. At about 5:00
pm on 13 October 2005, Mr.
Mfazwe was operating the compacter on cell number three of the
landfill. Waste in front of the compacter
formed a slope and it was
pushing the waste forward and upslope. People shouted at Mr. Mfazwe
to stop, which he did. There were
two ladies in front of the
compacter whom he did not see since his vision was obstructed by the
waste that the compacter was pushing
at the time. Moments later
while he was reversing the compacter, people also shouted. One of
them was Mr. Sifaya, who ran closer
to where he was seated on the
compacter. Mr. Mfazwe immediately stopped the compacter when he
heard the shouting. He was told
that the compacter had driven onto a
person and that he must drive the compacter forward, which he did.
Mr. Mfazwe did not see
the plaintiff while the compacter was
reversing.
[30] Mr. Sifaya testified that he was not
on duty as a committee member (supervisor) during the afternoon shift
when the plaintiff
was injured. He and many other people were
undertaking reclamation behind the compacter immediately before the
accident took place.
Mr. Sifaya was about 4 – 5 metres away
from the rear end of the compacter when it started reversing. He
took his bag and
moved away from the path of travel of the compacter.
Once he was clear of its way he put his bag down and then noticed
the plaintiff
lying on the ground about one metre from the rear end
of the approaching compacter. He and other reclaimers shouted and
waved
their hands in the air. Mr. Mfazwe stopped the compacter
immediately. Its rear drum had driven onto the plaintiff’s
legs.
He and other reclaimers told Mr. Mfazwe that the compacter had
driven onto a person and that he should move the compacter forward.
Mr. Mfazwe complied. Mr. Sifaya did not notice the plaintiff before
he had seen that she was lying on the ground immediately
behind the
compacter. People ran away after the accident. Mr. Sifaya was one
of the reclaimers who rendered assistance to the
plaintiff. He
assumed the responsibility of supervisor. Her trousers were cut
loose from the wire. Mr. Nthombeni was informed
of the incident.
[31] The plaintiff testified that at a
stage when the compacter was moving forward and away from her and
while she was crossing
its path behind it at a distance of about 20 –
30 metres, the right leg of her trousers got caught up in a wire that
she
could not see, because she was walking on a surface that was full
of litter. She bent to loosen the wire and noticed that the
compacter was reversing towards her. She struggled to loosen the
wire and she flung herself to the ground at a stage when she realised
the compacter was very close to her. She stretched her hand out to a
fellow reclaimer for assistance, to no avail. People shouted
to
alert the operator of her presence on the ground behind the
compacter. The compacter continued reversing with its rear drum
over
her one leg, stopped, and moved forward over her other leg
11
while the people were shouting. It then stopped a distance away.
She was assisted by a friend and by Mr. Sifaya.
[32] In terms of the classic test for
negligence laid down in
Kruger v
Coetzee
12
liability in delict based on negligence is proved if:
‘
(a) a
diligens
paterfamilias
in the
position of the defendant –
Would foresee the reasonable
possibility of his conduct injuring another in his person or
property and causing him patrimonial
loss; and
Would take reasonable steps to
guard against such occurrence; and
(b) the defendant failed to take
such steps.’
[33] Enviro-Fill occupied, controlled and
managed Rooikraal as a general waste disposal site, which is
indisputably and obviously
a hazardous environment involving risks to
the health and safety of those who enter upon it. The Minimum
Requirements, in the
absence of evidence to the contrary, alerted the
defendant’s employees in no uncertain terms that
‘[u]ncontrolled salvaging
at the working face of the landfill
is unacceptable, for both safety and health reasons’ and
‘having reclaimers working
in the vicinity of heavy machinery
is unsafe.’ Safety measures were implemented and discussed at
monthly meetings to, in
the words of Mr. Pieterse, prevent an
incident like the present one from occurring. Mr. Pieterse conceded
that the occurrence
of an incident such as the present one where the
compacter had driven onto a person was a possible one and
foreseeable. The compacter
was operated amidst the reclaimers
without its operator having proper vision ahead of and behind it.
13
Its operator knew that reclaimers unseen by him might be in close
proximity to and in the way of the moving compactor. Enviro-Fill’s
counsel put it to the plaintiff that it was very dangerous to
undertake reclamation activities in front of or behind the compacter,
because of its constant forward and backward movements. The inherent
dangers and the reasonable possibility of a reclaimer being
injured
as a result of having reclaimers working in the immediate vicinity of
the compacter or operating the compacter amidst them
were, or at the
very least, ought to have been foreseen by Enviro-Fill or its
employees.
[34] Whether a reasonable person in the
position of Enfiro-Fill would have taken any steps to prevent the
occurrence of the foreseeable
harm to the reclaimers and whether the
steps actually taken are to be regarded as reasonable or not depends
upon a consideration
of all the facts and circumstances of this case
and ultimately involves a value judgment. Reasonable steps are not
necessarily
those which would ensure that foreseeable harm does not
eventuate. Guidelines, particularly in relation to the question
whether
the reasonable person would have taken any steps or measures
to prevent foreseeable harm, are considerations such as:
‘
(a) the degree or extent
of the risk created by the actor’s conduct;
(b) the gravity of the possible
consequences if the risk of harm materialises;
(c) the utility of the actor’s
conduct; and
(d) the burden of eliminating the
risk of harm.’
14
[35] It is not presently necessary to
review the many authorities dealing with these considerations.
Generally, considerations
(a) and (b) are balanced with
considerations (c) and (d).
15
By way of illustration: the high risk of serious injury might in a
given case outweigh the utility which an actor provides and
the
difficulty and costs involved in eliminating the risk so that the
reasonable person would in the circumstances have taken reasonable
steps to prevent the risk of harm. In other circumstances the
reasonable person might refrain from taking steps to prevent the
occurrence of foreseeable harm if the utility an actor provides or
the difficulty and high costs of precautionary measures outweigh
the
say low incidence of injury with not serious probable consequences.
Considerations (c) and (d) may in a given case not be
relevant to the
question of whether a reasonable person would have taken steps to
prevent the occurrence of foreseeable harm
16
and they may in certain circumstances be relevant ‘… in
determining whether the steps taken to avert the risk of injury
were
reasonable.’
17
[36] The conduct of Enviro-Fill’s
employees in having reclaimers working in the immediate vicinity of
the compacter or of
operating the compacter amidst them, created a
high risk of serious injury. This occurrence was the first one in
which a reclaimer
had been injured by the compacter. Such an
incident, however, was obviously almost certain to happen, sooner or
later. The high
risk of serious injury that prevailed in this
instance would have prompted a reasonable person in the position of
Enviro-Fill to
take steps to prevent the occurrence.
[37] It is accepted that Enviro-Fill took
measures or steps to guard against the foreseeable harm to
reclaimers. I have mentioned
earlier on in this judgment that access
onto the landfill was controlled through the erection of a perimeter
wall with lockable
gates; rules that governed the reclamation
activities were agreed upon between Enviro-Fill’s site
supervisor and the leaders
(committee members) of the communities
where the reclaimers resided; the committee members were made
responsible for enforcement
of the rules and to supervise and control
the reclamation activities; and the committee members were advised
of health and safety
issues. The question is therefore whether the
steps that had been taken to avert the risk of injury would have been
regarded by
the reasonable person as being sufficient in the
circumstances.
[38] The rules agreed upon between
Enviro-Fill and the committee were not properly recorded, there was
uncertainty about the precise
content of at least some of the rules,
the effectiveness with which they were brought to the attention of
all the reclaimers is
doubtful,
18
they were often not adhered to, and the strictness with which they
were enforced varied.
Notably, the implementation of the rule that permitted reclaimers to
undertake reclamation in front of and behind and in close
proximity
to the moving compacter as long as a two metre distance away from it
was kept, if such was indeed the rule, did not effectively
minimise
the obvious risk of danger to the reclaimers and would not have
prevented the plaintiff from being driven over by the
compacter. It
has not been established that the plaintiff acted in violation of
such rule.
[39] A large volume of waste was worked on
a relatively small working area by the compacter and by hundreds of
reclaimers at the
same time. The compacter was at any given time
operated amidst and in close proximity to the reclaimers even though
the operator
did not have proper vision ahead of and behind the
compacter, and this state of affairs on the landfill also prevailed
at the time
when the plaintiff was injured.
19
Committee members, when on duty as security officers during the
afternoon reclamation shifts, also undertook reclamation, which,
of
necessity, derogated from effective supervision. There is every
reason to believe that the supervisors were also poverty stricken
and
needed to take whatever they deemed of value upon seeing it, as Mr.
Pieterse testified about the reclaimers generally. The
plaintiff’s
predicament went unnoticed until it was too late to assist her or to
alert the operator timeously. Enviro-Fill
is taken to have been
actually aware, in the absence of evidence to the contrary, through
its site manager and its operator, who,
it is common cause, were both
always present at the landfill when reclamation was undertaken, of
the inadequacies of the precautionary
measures and of the state of
affairs on the landfill, and in particular at the time when harm
befell the plaintiff.
[40] Complying with the prescribed minimum
requirement of using two working areas or cells, one where waste was
deposited and spread
for reclamation purposes and the other on which
the waste remaining after reclamation is compacted and covered, would
have eliminated
the risk to which the plaintiff was exposed and
prevented this occurrence. This measure, in the absence a motivated
defensible
deviation which is absent in this matter, is one that the
reasonable person in the position of Enviro-Fill would have
considered
reasonable in all the circumstances.
[41] Even disregarding the minimum
requirement of using two working areas or cells, reasonable measures
required to provide adequate
safeguards against harm to the
reclaimers in this instance do not require imaginative thought. Mr.
Mfazwe testified that the defendant
employed three persons to direct
the trucks that had delivered waste onto the landfill. They were
called ‘spotters’
and wore reflective Enviro-Fill
overalls. The employment of persons who were not allowed to also
undertake reclamation when on
duty, dressed in reflective clothing,
similar to the ‘spotters’, and always positioned in front
of and at the back
of the compacter using flags (commonly used at
sporting events) or signal boards (used to direct aeroplanes) or any
other method
to alert the operator timeously when it was unsafe to
drive or when it was necessary to stop immediately, would have
prevented
the occurrence in which the plaintiff was injured.
Enviro-Fill, in other words, could and ought to have exercised more
direct
supervision and not merely have left the reclaimers to their
own devices. These measures would hardly have involved additional
costs for Enviro-Fill when the costs saved by the reclaimers
performing cleaning duties for it is considered, or, it would not
have involved unreasonable additional costs.
20
[42] The utility that Enviro-Fill provided
was a landfill, which was indispensable and clearly in the interests
of the public and
particularly those served by EMM, and also
reclamation, which advanced the socio-economic interests of thousands
of poor people
from the nearby townships, who, according to the
evidence of Mr. Sifaya, had no other source of income. The social
value of permitting
reclamation is beyond question. It should,
however, also be borne in mind that Enviro-Fill managed and operated
Rooikraal as a
commercial undertaking, assumed all responsibilities
in connection with its operation, and was obliged to obtain insurance
for
liability arising from the operation of the landfill.
Enviro-Fill, in the absence of evidence to the contrary, must be
taken to
have accepted the risk of liability where injury or death
occurs to a reclaimer at Rooikraal. Also, the speculative
difficulties
and costs involved in eliminating the risk of serious
injury do not outweigh the other considerations which required
Enviro-Fill
to have taken adequate precautions to prevent the risk of
serious inury in this instance.
[43] The steps that had been taken by
Enviro-Fill to avert the risk of injury were inadequate, flawed, not
adhered to, and insufficient
to reduce the high risk of serious
injury that occurred in this instance. Such measures would not have
been regarded by the reasonable
person in the position of Enviro-Fill
as being sufficient in the circumstances. Enviro-Fill’s
employees did not exercise
that degree of care which the
circumstances demanded in allowing reclaimers to work in the
immediate vicinity of the compacter
or of operating the compacter
amidst them at the time when harm befell the plaintiff without
adequate precautions having been in
place. The plaintiff has
discharged the
onus
of
proving negligence on the part of Enviro-Fill’s employees.
[44] Enviro-Fill’s counsel submitted
that the conduct of Enviro-Fill was not wrongful. It is trite that
negligent conduct
giving rise to loss, unless also wrongful, is not
actionable.
21
If the conduct is not wrongful ‘[t]he defendant enjoys
immunity against liability for such conduct, whether negligent or
not.’
22
The ground of negligence which is pertinent and sufficiently raised
in the pleadings or canvassed at the trial essentially narrows
down
to the conduct of Enviro-Fill’s employees in allowing
reclaimers to work in the immediate vicinity of the compacter
or of
operating the compacter amidst them at a time when it was unsafe and
when adequate measures to guard against the risk of
harm were not in
place. The negligent conduct which caused harm to the plaintiff
seems to me to have taken the form of a positive
act and is
prima
facie
wrongful. The result
will in my view not be any different if the negligence of
Enviro-Fill’s employees is viewed to have
been in the form of
an omission.
[45] The omission will be wrongful if
Enviro-Fill or its employees were under a legal duty to act
positively to prevent the harm
suffered by the plaintiff.
23
Whether or not the existence of a ‘legal duty’ should be
accepted depends on whether ‘… public or legal
policy
considerations require … that legal liability for the
resulting damages should follow.’
24
An acceptance that the omission on the part of Enviro-Fill or its
employees is wrongful is not without ‘… any precedent
…’
and does not ‘… extend delictual liability to a
situation where none existed before …’.
25
Where one is in control of a potentially dangerous situation or
thing one would usually be under a duty to take care to prevent
harm
from materialising. It can hardly be contended that in exercising
control, Enviro-Fill ought not reasonably and practically
have
prevented harm to the plaintiff.
26
Unlike the reclaimers, Enviro-Fill, as a landfill operator in the
stead of the local authority (EMM), through its employees, had
the
know-how or was reasonably expected to know that reclamation at
landfills could endanger the health and safety of the reclaimers
and
how to provide appropriate safety measures. The reclaimers, who are
of the most disadvantaged persons in our society, were
entirely
reliant upon the person in control of the landfill to ensure that
reasonable precautions were taken to provide a safe
environment for
them. This is borne out by the evidence of Mr. Sifaya, who testified
that the reclaimers were ignorant about the
inherent dangers and
safety and health risks until Mr. Nthombeni, who he considered
knowledgeable about such issues, discussed
them with the committee
members. In my view a legal duty was owed towards the reclaimers,
including the plaintiff, by Enviro-Fill
or its employees to take
reasonable precautions and the negligent omission on their part is
also wrongful.
[46] Enviro-Fill’s counsel submitted
that if such a duty was cast upon Enviro-Fill, it trusted fulfillment
of that duty to
Masakhane, which was to ensure the avoidance of harm.
Counsel submitted that Enviro-Fill accordingly duly fulfilled its
duty and
cannot be held responsible for what Masakhane might have
failed to do. This argument is fatally flawed. The committee and
the
reclaimers at all times remained under the direction of
Enviro-Fill’s site supervisor, Mr. Nthombeni. Enviro-Fill or
its
employees were personally at fault.
[47] The result, however, will be no
different even if there was such delegation of Enviro-Fill’s
duty to the committee.
The test for negligence in such a case was
set out by Goldstone AJA in
Langley
Fox Building Partnership (Pty) Ltd v De Valence
27
as follows:
‘
In my opinion, it follows
from the aforegoing that in a case such as the present, there are
three broad questions which must be
asked, viz:
(1) would a reasonable man have
foreseen the risk of danger in consequence of the work he employed
the contractor to perform? If
so,
(2) would a reasonable man have
taken steps to guard against the danger? If so,
(3) were such steps duly taken in
the case in question?
Only where the answer to the first
two questions is in the affirmative does a legal duty arise, the
failure to comply with which
can form the basis of liability. …
It follows from the aforegoing that
the existence of a duty upon an employer of an independent contractor
to take steps to prevent
harm to members of the public will depend in
each case upon the facts. It would be relevant to consider the
nature of the danger;
the context in which the danger may arise;
the degree of expertise available to the employer and the independent
contractor respectively;
and the means available to the employer to
avert the danger. This list is in no way intended to be
comprehensive.’
28
[48] The first two questions must be
answered in the affirmative and the third one in the negative.
Enviro-Fill should for the
same reasons that I have mentioned in
paragraphs 38 and 39
supra
reasonably have foreseen the
risk of harm to reclaimers in consequence of requiring them and the
committee members to ensure their
own safety and should accordingly
have taken adequate precautionary measures, such as more direct
supervision, instead of leaving
the reclaimers to their own devices.
[49] The plaintiff in the alternative seeks
to hold Enviro-Fill vicariously liable for the conduct of its
operator of the compacter,
who is alleged to have negligently caused
the accident with the plaintiff. It is not necessary to decide this
issue in the light
of the findings that I have made. Nevertheless,
it appears that Mr. Mfazwe followed the method of work accepted by
his employer
by operating the compacter forward and backward amidst
the reclaimers notwithstanding his inadequate and limited vision to
the
front and to the rear and his knowledge that reclaimers unseen by
him might be in close proximity to and in the way of the moving
compacter. Otherwise he would not have been able to perform his
duties. Mr. Mfazwe did not see the plaintiff at any time prior
to
reversing the compactor onto her when she was lying on the ground.
The reasons for not seeing her were probably the fact that
she was
not required to wear any highly visible garment and the inadequate
and limited vision to the rear. It was, in my view,
rather
Enviro-Fill or its employees that were at fault in allowing
reclaimers to work in the immediate vicinity of the compacter
or of
having the compacter operating amidst them at a time when it was
unsafe while adequate measures to guard against the risk
of harm were
not in place.
[50] Enviro-Fill’s counsel submitted
that there was contributory negligence on the part of the plaintiff.
It was, as I have
mentioned earlier in this judgment, put to the
plaintiff that it was very dangerous to work in front of or behind
the moving compacter
and that the reclaimers were not allowed to work
in front of or behind or close to the compacter. She was confronted
with having
disobeyed this prohibition. It was put to her that Mr.
Sifaya would testify that she had gone close to the rear end of the
compacter
to pick up an item. When it reversed she started to run
away and that was when her trousers got hooked by a steel wire. The
plaintiff
denied this and so did Mr. Sifaya when he testified. He
testified that he did not see the plaintiff until the stage when she
was
lying on the ground about a metre behind the reversing compacter
immediately before it reversed onto her.
[51] I have referred to the plaintiff’s
evidence that the stage when the right leg of her trousers got caught
up in a wire
was when the compacter was moving forward and away from
her and while she was crossing its path behind it at a distance of
about
20 – 30 metres. Mr. Mfazwe testified that the maximum
distance the compacter was driven forward or backward at any given
time was 15 metres and he accordingly disagreed with the plaintiff’s
estimation that she crossed behind the compacter at
a distance of
about 20 – 30 metres at the time when she was caught up by the
wire. Had she been that far away from the compacter
it would not
have driven onto her legs. Mr. Pieterse corroborates Mr. Mfazwe on
this aspect. It is not uncommon for honest and
credible witnesses to
err when they estimate distances. The plaintiff probably crossed the
compacter’s path behind it at
a distance closer than that
estimated by her.
[52] There seems to be no reason to
disbelieve the plaintiff’s uncontroverted evidence that she had
always ensured not to
work too close to the compacter. She at the
time of the accident crossed the path of the compacter at what she
considered to be
a safe distance. The only reason why she was not
able to get away timeously from the reversing compactor was that she
had been
trapped by a wire which she was unable to free herself from.
[53] I am satisfied that the plaintiff’s
presence and undertaking of reclamation in the vicinity of the
compacter cannot be
ascribed to negligence on her part. This was the
method accepted and endorsed, if not introduced, by Enviro-Fill. A
reclaimer,
on the evidence before me, could not reasonably have been
expected to have appreciated all the inherent dangers and safety
risks
or to have devised a safer system. It has also not been proved
that the dangers and safety risks were brought to the plaintiff’s
notice, properly or at all. It is in all the circumstances accepted
that the plaintiff took reasonable precautions for her own
safety.
Contributory negligence on her part has not been proved.
[54] Enviro-Fill’s counsel requested
that the issue of costs be reserved and that the parties be permitted
to address me thereon
once the issue of liability was determined. My
order herein will accommodate this request.
[55] In the result, the following order is
made:
(a) It is declared that the defendant is
liable to the plaintiff for such damages as might be agreed upon or
proved in consequence
of the event that is the subject-matter of this
claim.
(b) The costs of determining the issue of
liability are reserved for determination at a date and time to be
arranged with my clerk.
P.A. MEYER
JUDGE OF THE HIGH COURT
2 August 2010
1
It is to be noted that a landfill
permitting system was provided for in terms of s. 20(1) of the
Environment Conservation Act
73 of 1989 (‘ECA’), which
section prohibited the establishment, provision, or operation of any
disposal site without
a permit issued by the Minister of Water
Affairs and Forestry and subject to the conditions contained in such
permit. This provision
of the ECA has been repealed by the Waste
Act 59 of 2008, which Act, except for a few provisions, commenced on
1 July 2009.
2
Section 10.4.4 and Appendix 10.3 of the Minimum Requirements.
3
S. 10.4.4 of the Minimum Requirements
inter
alia
reads: ‘Should the
Permit Holder wish to allow controlled reclamation at a general
waste disposal site, however, permission
can be obtained as part of
the Permit Application or as an amendment to an existing Permit. In
this case, guidelines and Minimum
Requirements are provided, in
order to ensure safe and controlled working conditions.
Notwithstanding, it is noted that responsibility
for the safety of
any reclaimers on the site vests with the Permit Holder, who will be
required to enter into an indemnity agreement
with the Department.’
4
The committee, according to Mr. Sifaya, initially had sixty
committee members – thirty representing community members from
Windmill Park and thirty representing community members from Villa
Lisa – but the number was reduced to 24 members representing
community members from each township during 2007. Mr. Sifaya was
the leader of the community group to which the plaintiff belonged
and he was the chairperson of Masakhane from 2003 until 2007.
5
Mr. Sifaya testified that committee members performed duties as
so-called ‘security officers’ and the names of the
security officers on duty appeared on a notice board. Their duties
included the enforcement of the rules, the opening and locking
of
the gates at the beginning and ending of the morning and afternoon
reclamation shifts whereby access to the waste disposal
site by
reclaimers was controlled and ensuring that pregnant, minor,
intoxicated, and persons without safety shoes did not enter
the
landfill, and the supervision of the reclamation and cleaning
activities. They kept an eye on the reclaimers from both community
groups and took care that they were not injured. Initially, thirty
security officers were on duty during each shift, but this
number
was later reduced to fifteen per shift, one supervisor in charge of
the security officers and seven on duty at each of
the reclamation
and cleaning activities. The committee members did not wear
particular clothes to identify them. Breaches of
the rules were met
by sanctions.
6
Mr. Pieterse and Mr. Sifaya testified that the rules included that
children, pregnant women, intoxicated persons, and persons
without
safety shoes were not permitted onto the landfill, and no food might
be taken from the waste. Mr. Sifaya mentioned further
rules when he
was cross-examined, namely that no person was allowed to sleep over
at the landfill; no fires were allowed on
the landfill; and people
were not allowed to climb onto the compacter or onto municipal and
other trucks.
7
1954
(3) SA 434
(SWA), at p 438. Also see:
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC), para 63.
8
Durban’s
Water Wonderland (Pty) Ltd v Botha and Another
1999 (1) SA 982
(SCA), at p 991C – D.
9
It is therefore not necessary to consider
other aspects of this defence, such as the language of the
disclaimer or exemption on
which Enviro-Fill relies and whether the
plaintiff’s cause of action falls within the ambit thereof.
10
The large twenty eight ton Tana G290 compacter is depicted on
exhibits ‘A’ and ‘C1 – C4’.
11
I have a difficulty with the logic of this aspect of the plaintiff’s
evidence, but, it seems to me, nothing turns on it.
12
1966
(2) SA 428
(A), at p 430E – F.
13
This is demonstrated by the evidence that Mr. Mfazwe was unable to
see the reclaimers in front of the compacter immediately before
the
compacter had driven over the plaintiff. Mr. Mfazwe also did not
see the plaintiff behind the compacter at any time before
the
compacter had driven onto her. It is undisputed that the operator
was always unable to see anything immediately behind the
compacter
when it was driven backwards. When reversing, the operator was
reliant on the compacter’s reverse hooter signaling
that it
was reversing, using the rear view mirrors fitted on both sides of
the compacter, and turning his head and looking over
his shoulders.
This, however, did not give him proper rear vision.
14
These principles are enunciated in
Ngubane
v South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
(A), at pp 776G – 777J;
Pretoria
City Council v De Jager
1997
(2) SA 46
(A), at pp 55I – 56E; and
Cape
Metropolitan Council v Graham
2001
(1) SA 1197
(SCA).
15
De Jager (supra),
at
p56B-C.
16
In
Ngubane
(supra),
Kumleben JA held on
the facts of that case that the ‘… risk – in fact
the near certainty – of serious,
if not fatal injury’
resulting from the act complained of – considerations (a) and
(b) - would have prompted the
reasonable person to take steps to
prevent the occurrence (p. 777D) and the precautions which would
have prevented the occurrence
in that case are unrelated to
difficulties of costs and requirements of public utility -
considerations (c) and (d) (p. 778F
– G).
17
Ngubane (supra)
,
at pp. 777I – 778A. See also:
De
Jager (supra)
, at p 56C –
E.
18
The plaintiff for one was not informed and had no knowledge of the
rules, apart from the one pertaining to the times of the day
when
reclamation was accepted.
19
The day on which the accident occurred - 13 October 2005 –
was, according to Mr. Sifaya, a somewhat unusual day at Rooikraal.
The compacter was serviced and did not operate in the morning and
there were accordingly more people undertaking reclamation
during
the afternoon shift.
20
Mr. Sifaya testified that Enviro-Fill previously employed people to
clean the landfill from windblown waste and waste that fell
off
trucks. It was arranged between Mr. Nthombeni and the committee
that the reclaimers would perform such cleaning duties in
return for
longer hours during which they were permitted to undertake
reclamation.
21
See:
Gouda Boerdery BK v
Transnet
2005 (5) SA 490
(SCA),
para 12.
22
Trustees, Two Oceans Aquarium
Trust v Kantey & Templer (Pty) Ltd
2006 (3) SA 138
(SCA), para 12.
23
See:
Van Eeden (formerly Nadel)
v Minister of Safety & Security
2003
(1) SA 389
(SCA), para 9.
24
Two Oceans Aquarium Trust
(supra)
, para 12.
25
Two Oceans Aquarium Trust
(supra)
, para 12.
26
See:
Colman v Dunbar
1933
AD 141
, at p 157;
Graham v Cape
Metropolitan Council
1999 (3)
SA 356
(C), at pp 369I – 370D, and
Cape Metropolitan Council v Graham
2001 (1) SA 1197
(SCA), at p 1203E – G.
27
1991 (1) SA 1
(A), at p. 12H-J.
28
Also see:
Chartaprops 16 (Pty)
Ltd and Another v Silberman
[2008] ZASCA 115
;
2009
(1) SA 265
(SCA), paras 42 – 43.