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[2010] ZAECPEHC 58
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Cronje v Nelson Mandela Bay Metropolitan Municipality Uitenhage (800/09) [2010] ZAECPEHC 58 (16 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 800/09
Date
Heard: 10 September 2010
Date
Delivered: 16 September 2010
In
the matter between:
ISABELLA
MARIA MAGDALENA CRONJE
…........................................
Plaintiff
and
NELSON MANDELA BAY METROPOLITAN
MUNICIPALITY
UITENHAGE
…..........................................................................................
Defendant
______________________________________________________________
JUDGMENT
EKSTEEN J :
[1] On 17 July 2008, a sunny winter’s
day, the plaintiff and her husband attended at the local butcher’s
shop in the
suburb of De Mist, Uitenhage. After affecting her
purchases they set off on foot back to their home. Not far from the
Butchery,
while walking on the sidewalk along Niven Street, she felt
her foot catch on something, she stumbled and fell heavily to ground.
Whilst lying there she looked back to determine what had caught her
foot and observed a gaping crevice in the concrete surface.
She
concluded that she stepped into this crevice which caught her foot
and caused her to stumble and fall.
[2] The plaintiff contends that the
defendant knew or ought to have known that the cracked pavement
surface constituted a hazard
to pedestrians walking on the pavement
and accordingly owed a duty of care to the plaintiff. She contends
that the defendant was
negligent in permitting the cracked paving to
constitute a danger to pedestrians and more specifically to the
plaintiff.
[3] The plaintiff accordingly issued
summons against the defendant claiming damages arising from the
injuries she sustained as a
result of the fall, alleging that the
fall was caused by the aforesaid negligence of the defendant or its
employees. At the commencement
of the trial the issues were separated
and the trial continued only on the question of whether the plaintiff
was liable for damages
which the plaintiff might have suffered in and
as a result of her fall.
[4] Niven Street runs through the
suburb of De Mist which is a residential area in Uitenhage. The
evidence establishes that there
are in Niven Street three business
premises being the Butchery, a liquor store and a café. These
three businesses are situated
immediately adjacent to one another and
constitute the only significant commercial activity in the suburb. It
is accordingly a
relatively busy hub of activity in an otherwise
tranquil residential area. The
plaintiff
has for some 40 years lived in the area and is currently resident
nearby. She is well acquainted with the area and transverses
this
pavement walkway, which lies between her home and the shops,
approximately four times per week. She is aware that the pavement
is
in a poor condition and has been so for approximately 10 years.
[5] A series of photographs depicting
the pavement have been tendered in evidence and were referred to
extensively during the trial.
There is no evidence as to when these
photographs were taken, however, as will appear more fully below, the
evidence establishes
that the concrete pathway was entirely removed,
excavated and reinstated during on or about November 2008. They were
therefore
taken prior to mid November 2008. The photographs depict
the pavement along Niven Street in front of and in the vicinity of
the
three shops. They show a lengthy straight road which appears, for
all practical purposes, to be level. Immediately alongside the
tarred
surface and curb stone at the edge of Niven Street there is a
straight concrete pathway which the evidence establishes to
be 1,2m
in width. The pathway depicted on the photograph appears to be in an
advanced state of disrepair. It presents as a mosaic
of concrete
fragments interspersed with gaping crevices which result, in places,
in a mildly uneven surface.
[6] Notwithstanding the poor condition
of the pathway the plaintiff had never previously submitted a
complaint to the Municipality
in this regard neither is she aware of
any other persons who may have done so.
[7] Mr Pierre Bosch who is the owner
of the Butcher shop in Niven Street testified that he had conducted
this business in Niven
Street for approximately 13 years prior to the
incident. He says that the pavement has always been in a poor
condition. He was
referred to the photographs which I have described
above and states that the pavement has been in as bad a condition as
is depicted
in the photographs for at least the last 6 years. This is
not disputed.
[8] Mr Bosch was in his butcher shop
on the day in question and recalls that the plaintiff had left the
butcher shop shortly before
the incident. Just after her leaving the
butcher shop he heard the plaintiff cry and someone called him to
come and help. He and
one of his employees proceeded to the place
where the plaintiff had fallen and assisted her husband in helping
her up. He confirms
the position where the plaintiff had fallen and
that he found her lying immediately beyond a large fissure in the
concrete. In
this fissure there is a portion, approximately 30cm in
length, which is considerably wider than the remainder of that
crevice.
It is this gap which the plaintiff believes that she stepped
into. I consider that the inescapable conclusion from all the
evidence
is that she was indeed correct in concluding that this
failure had been the cause of her fall.
[9] On behalf of the defendant Mr
Kotze testified. Mr Kotze is the principal technician, civil
engineering, in the Roads and Storm
Water Department of the
defendant. Mr Kotze first learnt of the misfortunate which had
befallen the plaintiff when a letter of
demand was received from the
plaintiff’s attorneys on 8 November 2008. The precise position
of the alleged incident was not
immediately apparent to him from the
letter of demand and he took steps to ascertain precisely where the
accident had occurred.
Once this was ascertained he proceeded to the
scene to conduct an inspection. He states that as he parked his
vehicle alongside
the pavement it was immediately obvious, even
before he alighted from the vehicle, that the state of disrepair of
the pavement
surface created dangerous conditions. He considered that
it had deteriorated to the extent that it was not capable of repair.
So
dangerous was it that he caused immediate instructions to be given
for the entire concrete pathway to be excavated and removed.
This was
done on the following morning. As the necessary materials to
reconstruct the pathway were not immediately available the
pathway
was filled with soil and levelled as an interim measure. Sometime
later it was reconstructed in its entirety as a concrete
walkway.
[10] Mr Kotze says that had his
department become aware of the conditions of the pavement at an
earlier stage the same steps would
have been taken earlier so as to
avert the danger. It is apparent therefore that financial
considerations did not pose any impediment
to the repair. His
department had, however, not received any complaint in respect of the
pavement along Niven Street.
[11] He explained that the defendant
has an extensive recordkeeping system and each complaint received in
respect of any irregularity
in the municipal system is recorded.
Records are available extending back as far as 1998 and Mr Kotze has
verified that no complaint
in respect of this pavement had been
received since 1998.
[12] He states that the defendant, in
the Uitenhage area, has more than 400 km of roadway virtually all of
which is flanked by pavements.
The finances of the
defendant
do not permit for a dedicated team of inspectors to prowl the
pavements of Uitenhage on a fulltime basis so as to monitor any
deterioration in conditions. Rather, the
defendant
relies heavily on the public participation and repeatedly invites
members of the public to report any complaints relating to the
municipal infrastructure and any of its services to the
defendant
.
Upon receipt of such complaint it is immediately recorded and steps
are taken to remedy the situation. In addition to the public
participation Mr Kotze says that the
defendant
has an extensive staff working in various capacities maintaining
various aspects of the municipal services. These range from sweepers
who sweep the streets on a scheduled basis from time to time to
traffic officers, maintenance staff on sewers and storm water
systems, electrical maintenance staff and many others. All these
employees of the
defendant
, so Mr Kotze
testifies, have verbal instructions to report to it any
irregularities which might be observed in other infrastructure
not
directly affecting their function. It is only in this manner that the
defendant becomes aware of maintenance needs.
[13] In respect of pavements,
specifically, Mr Kotze states that all employees are advised from
time to time as to the features
which they should specifically look
out for. Whilst very many of the lowly employees of the
defendant
are often illiterate Mr Kotze states that from the feedback which is
received from time to time it is apparent that they understand
the
features that they should be looking out for.
[14] This witness has drawn a record
of all complaints received along Niven Street from 1998 to June 2010.
He states that seven
complaints were received in the general area of
the three shops, four relating to sewer blockages, one to a water
leak and two
to difficulties with storm water drainage. The precise
dates and localities of each of these complaints do not emerge from
the
evidence. However, he does state that the records reveal that
during January 2008 a complaint relating to storm water was received
in the immediate vicinity of the three businesses situated in Niven
Street . He confirms too that there was a complaint prior to
the
incident at 8 Niven Street, the home immediately adjacent to the
butchery. It would be the obligation of the employees attending
to
these complaints to observe the pavement and report same.
[15] In cross-examination Mr Kotze
states that the failure by these repair staff to have reported the
condition of this particular
pavement which he described as obviously
dangerous, was entirely unacceptable and constituted a dereliction of
their duties.
[16] It has been held repeatedly that
no municipality can be expected to keep all its pavements in pristine
condition all the time.
In the
Municipality of the City of Port
Elizabeth v Meikel
(2002) JOL 9525
(A) Nugent JA summarised
the legal position as follows:
‘
The
liability of a local authority for omitting to repair or maintain
streets and pavements in the exercise of its permissive statutory
powers was revisited by this Court in
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA). A local authority has neither a general duty
to maintain and repair, nor immunity from liability if it omits to do
so. Consonant
with principles relating to liability for omissions
generally, as they have been developed in cases like
Regal
v African Superslate (Pty) Ltd
1963
(1) SA 102
(AD),
Minister
of Forestry v Quathlamba (Pty) Ltd
1973 (3) SA 69
(AD) and
Minister
van Polisie v Ewels
1975 (3) SA 590
(AD), a local authority has a duty to act only where
the “legal convictions of the community” demand the
recognition
of such a duty. After affirming those principles in
Bakkerud’s
case Marais JA went on to say the following at 1059I – 1060B:
“
In my view,
it has to be recognised that in applying the test of what the legal
convictions of the community demand and reaching
a particular
conclusion, the Courts are not laying down principles of law intended
to be generally applicable. They are making
value judgments
ad
hoc
.”
Ultimately, the enquiry is whether the
local authority can reasonably be expected to have acted, and factors
that will play a role
in that enquiry were identified as follows in
Administrateur, Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A)
at 361H – 362B:
“
Ten einde
vas te stel of ‘n positiewe handeling of late sodanig is dat
dit as onregmatig aangemerk kan word, moet gevolglik
onder andere die
onderskeie belange van die partye, die verhouding waarin hulle tot
mekaar staan en die maatskaplike gevolge van
die oplegging van
aanspreeklikheid in die betrokke soort gevalle, versigtig teen mekaar
opgeweeg word. Faktore wat ‘n belangrike
rol speel in die
opwegingsproses is, onder andere, die waarskynlike of moontlike
omvang van nadeel vir andere; die graad van risiko
van intrede van
sodanige nadeel; die belange wat die verweerder en die gemeenskap of
beide gehad het in die betrokke dadighede
of late; of daar redelik
doenlike maatreëls vir die verweerder beskikbaar was om die
nadeel te vermy; wat die kanse was dat
gemelde maatreëls
suksesvol sou wees; en of die koste verbonde aan die neem van
sodanige maatreëls redelikerwys proporsioneel
sou wees tot die
skade wat die eiser kon lei.”’
[17] In the current matter, Mr Kotze,
even at a distance, could readily identify that the pavement
presented obviously dangerous
conditions. So dangerous did he
consider them to be that immediate action was required even though
materials required for the reinstatement
of the pavement were not
readily available. The pavement was accordingly immediately
deconstructed and an interim measure was put
in place. This
consideration alone appears to me to be strongly indicative thereof
that, in his opinion, the degree of risk for
persons to sustain
significant injury in traversing that surface was high. It seems to
me to establish that reasonably practicable
measures to avoid such
harm were readily available to the municipality and such steps were
considered to be reasonably proportional
to the damage which the
plaintiff, or other pedestrians, might suffer. I consider that on a
balancing of all those features set
out in
Administrateur,
Transvaal
,
supra
, they are indicative thereof
that this local authority ought to have taken steps to guard against
the harm which the plaintiff
has sustained.
[18] There remains to consider the
question whether the municipality was negligent in failing to do so.
The undisputed evidence
was that it had not previously come to the
notice of Mr Kotze that the pavement in question constituted such a
danger. It is similarly
common cause that the pavement has been in
the condition in which the plaintiff found it for at least six years.
The evidence of
Mr Kotze establishes that a number of employees of
the defendant, including sweepers who would attend to the area on a
scheduled
basis from time to time and storm water repairers did
attend the area. Mr Kotze describes their failure to report the
dangerous
surface of the sidewalk as unacceptable and a dereliction
of their duty. In all these circumstances I consider that this is a
matter
in which the defendant ought to have been aware of the dangers
which the Niven Street sidewalk posed to the plaintiff. The failure
of their employees to have reported same and the failure of the
defendant to repair same must accordingly, in my view, be considered
to be negligent and to found liability in the present case.
[19] Ms
Mzisi
,
on
behalf of the defendant, argues, however, that the incident occurred
primarily in consequence of the negligence of the plaintiff.
The
complainant, as I have previously said, has been resident in the area
for some 40 years. She traverses this pathway four times
a week and
has done so for many years. The incident occurred in the early
afternoon on a sunny winter’s day and visibility
was good. She
is well acquainted with the condition of the pavement which has been
unchanged for at least 6 years. The treacherous
hazards which it
presents to an elderly pedestrian, who on her own evidence,
experiences difficulty in walking with feet which
swell when she
engages in exercise are obvious at a cursory glance. On her own
admission she was aware of these dangers, however,
she states that
she did not look in front of her as she walked but gazed further
ahead of her. I accept, as a general proposition,
that pedestrians
walking on pavements are not required to keep their eyes glued to the
ground, however, they may be expected to
keep a general lookout.
Where such general lookout reveals obvious dangers it is not
unreasonable to expect of a pedestrian to
take care to avert such
dangers. In these circumstances I consider that the plaintiff was
indeed negligent to a considerable degree.
[20] Mr
Mouton
, who
appears on behalf of the plaintiff, readily concedes, correctly so,
in my view, the extent of the plaintiff’s negligence.
In
argument, he was constrained to acknowledge that an apportionment of
damages ought to favour the defendant on the facts of the
present
matter. I consider that he is correct in this regard. I think it
would be fair on a consideration of all the facts set
out above to
order the defendant to pay to the plaintiff 30% of such damages as
the plaintiff is able to establish that she has
suffered in
consequence of the injuries which she sustained in and as a result of
her fall on 17 July 2008.
[21] In the circumstantiates I make
the following order:
The defendant is liable to pay to the
plaintiff 30% of such damages as the plaintiff is able to prove that
she has suffered as
a result of the injuries which she sustained
when she fell while walking on the pavement next to Niven Street, De
Mist, Uitenhage,
on 17 July 2008.
The defendant is ordered to pay the
plaintiff’s costs occasioned by the hearing on the merits,
together with interest on
the plaintiff’s taxed costs,
calculated at the legal rate from a date fourteen (14) days after
allocator
to the date of payment.
_______________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff:
Adv P Mouton
instructed by Ungerer Struwig Hattingh Peo, Port Elizabeth
For Defendant:
Adv Mzisi
instructed by Lulama Prince & Associates, Port Elizabeth