About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 4
|
|
Judd v Nelson Mandela Bay Municipality (CA149/2010) [2011] ZAECPEHC 4 (17 February 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
REPORTABLE-
CASE NO. CA149/2010
In the matter between:
ROSE LILLIAN JUDD
…......................................................................
Appellant
And
NELSON MANDELA BAY MUNICIPALITY
…............................
Respondent
JUDGMENT
ALKEMA J
[1] On Sunday morning 6 July 2008 the plaintiff, a 78
year old lady, set off from the Sanctuary, a retirement village in
Bingley
Street, Central Port Elizabeth, on her way to the Trinity
Baptist Church in Dickens Street. She left on foot, and walked alone.
She crossed Bingley Street and turned the corner at the Old Austria
restaurant into Westbourne Road where she mounted the pavement.
A few
steps further her foot caught a raised pavement block. She stumbled
and fell, thereby sustaining severe injuries, including
a cracked
sternum.
[2] Soon other church-goers came to her assistance and
she was lifted into a wheelchair. She was taken directly to the
Greenacres
Hospital, Port Elizabeth. On her discharge on 9 July she
was admitted to Echo Foundation Frail Care Center and discharged on 1
August 2008 when she returned to the Sanctuary.
[3] In consequence of the above, the plaintiff
instituted a claim out of the Port Elizabeth High Court against the
Nelson Mandela
Bay Municipality (the defendant) claiming damages. The
claim was defended. On 23 March 2010 the High Court (per Chetty J)
non-suited
the plaintiff and dismissed her claim with costs. The
plaintiff appealed against this judgment. This is the judgment on
appeal.
[4] At the commencement of the trial and by consent
between the parties, the Court split the issues and ordered that the
merits
of the dispute be determined first. In regard to the merits
the only issues before the court were the questions of wrongfulness;
and if established, the issue of
culpa
(fault). In respect of
the latter, any (possible) contributory negligence on the part of the
plaintiff was not pleaded and was not
canvassed in either the
evidence or in the judgment of the court
a quo
. Therefore, and
provided negligence was established on the part of the defendant, the
plaintiff would have been entitled to all
her damages.
[5] The broad issue in this court is whether the Court
a
quo
was correct in dismissing the plaintiff’s claim. The
narrow issues relate to the requirements of wrongfulness and
culpa.
I shall in the course of this judgment refer to the plaintiff as
the appellant, and to the defendant as the respondent.
[6] The law relating to the delictual liability of
municipalities based on a failure to take preventative action
(
omissio
) had undergone a profound metamorphosis by the turn
of the 20
th
century.
[7] It is not in the scope of this judgment to indulge
in a long theoretical analysis of the numerous judgments on this
subject,
but it is nevertheless helpful (and perhaps unavoidable) to
briefly refer to the historical development of this branch of the law
and to the general principles applicable to the issues under
consideration in this appeal.
[8] It is commonly recognized that an actionable wrong
or delict has five elements or requirements, namely; (a) the
commission or
omission of an act (
actus reus
), (b) which is
unlawful or wrongful (wrongfulness), (c) committed negligently or
with a particular intent (
culpa
or fault) (d) which results in
or causes the harm (causation) and (e) the suffering of injury, loss
or damage (harm). These are
separate and distinct components of the
same delict, each having its own requirements and test. The case
under consideration falls
under delict, and the five elements
referred to above must be established by the appellant to succeed in
her claim. This appeal
is concerned with the requirements of
wrongfulness and
culpa
only. I shall deal firstly with the
requirement of wrongfulness.
[9] Because our law does not recognize negligence “
in
the air”
, it is now trite that the issue of wrongfulness
must be determined anterior to the question of fault. The element of
fault is only
capable of being legally recognized if the act or
omission can be termed as legally wrongful. In the absence of
wrongfulness, the
issue of fault does not even arise. These are two
separate and distinct elements of the same delict, each requiring its
own test
and approach, and not to be confused or conflated. See
Administrateur, Transvaal v van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A)
at 364.
[10]
More recently, in
Minister of Safety and
Security v Van Duivenboden
2002 (6) SA 431
(SCA) Nugent JA
formulated the principle at 441E-442B(para 12) as follows:
“
Negligence, as it is understood in our law, is
not inherently unlawful – it is unlawful and thus actionable,
only if it occurs
in circumstances that the law recognises as making
it unlawful. Where the negligence manifests itself in a positive act
that causes
physical harm it is presumed to be unlawful, but that is
not so in the case of a negligent omission. A negligent omission is
unlawful
only if it occurs in circumstances that the law regards as
sufficient to give rise to a legal duty to avoid negligently causing
harm. It is important to keep that concept quite separate from the
concept of fault. Where the law recognises the existence of
a legal
duty it does not follow that an omission will necessarily attract
liability - it will attract liability only if the omission
was also
culpable as determined by the application of the separate test that
has consistently been applied by this court in
Kruger
v Coetzee,
namely whether a reasonable
person in the position of the defendant would not only have foreseen
the harm but would also have acted
to avert it.”
[11] What then is the criterion for determining
wrongfulness?
To answer this question, it is necessary to very
briefly go back in history.
[12] In Roman and Roman-Dutch law a distinction between
commissio
and
omissio
was drawn to determine
wrongfulness. Roman law did not recognize
omissio
as wrongful
(LAWSA Vol. 8 Part 1 (2
nd
Ed) para 65) Roman-Dutch Law
only regarded
omissio
as wrongful when there was a negative
duty to avoid causing injury to others, and not a positive duty to
shield others from injury.
See McKerron,
The Law of Delict
(7
th
Ed.) p.14 and the authorities there cited. In early South African
law, more particularly in cases of municipal liability, Roman-Dutch
Law continued to regard
omissio
to be unlawful only where a
negative legal duty existed to prevent harm to others. See
Halliwell
v Johannesburg Municipal Council
1912 AD 659
at 673, which
embedded the doctrine of “…
introduction of a new
source of danger …”
as a tool to establish a
negative duty to prevent harm.
[13] In both cases of
commissio
and
omisssio
the conduct (or duty to avoid injury) was labeled as wrongful if
it offended the
bonis mores
of society. (LAWSA (
supra
)
para 60)
[14] The countless judgments and legal writings on the
subject in South African law offer wide ranging aids and criteria for
the
determination of the
bonis mores
of society, such as the
concept of reasonableness, foreseeability, duty of care, harm, public
policy and so forth. The list is endless
and leaves the reader
bewildered and confused. There is, however, one golden thread which
runs through all pronouncements in cases
of
commissio
, and
that is that conduct which is
contra bonis mores
and therefore
unlawful, is vested in the legal convictions of society.
[15] The philosophical and jurisprudential ratio for
this criterion of wrongfulness is that from times immemorial society
recognized
that it is unable to function in an orderly and harmonious
manner unless its members adhere to a certain code of conduct which
prevents harm to each other. Whilst a breach of such code of conduct
is in certain circumstances regarded as merely unethical or
immoral,
there are other circumstances where a particular breach is regarded
as unlawful or wrongful, and which warrants legal
interference and
protection. Unlawful conduct falls in the latter category, and it is
rooted in the legal convictions of the community.
[16] I believe, with respect, that the weight of
authority in cases of
commissio
support the doctrine of the
legal convictions of society as the main criterion for wrongfulness,
and had done so for many years.
See, for instance, cases such as
Marais v Richard en ’n ander
1981 (1) SA 1157
(A) at
1168;
Schultz v Butt
1986 (3) SA 667
(A) at 679;
Administrateur, Transvaal v Van der Mewe
[1994] ZASCA 83
;
1994 (4) SA 347(A)
at
358
; SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel
(Pty)
Ltd and Another
2000 (4) SA 1019
(SCA) at 1024.
[17] I recently had the occasion to reflect on the
concept of wrongfulness in the context of the use of property rights
in neighbour
law (
commissio
), and I have nothing further to
add. See
Wingaardt and others v Grobler and another
2010 (6)
SA 148
(ECG).
[18] The requirement of wrongfulness in cases of
omissio
followed a slightly different route. As I indicated, early South
African Law under the influence of Roman and Roman-Dutch Law only
regarded
omissio
as wrongful when there was a negative duty to
avoid causing injury. In municipal liability cases, the introduction
of a new source
of danger was regarded as giving rise to such a duty.
[19] The turning point came in
Minister van Polisie v
Ewels
1975 (3) 590(A) when the (then) Appellate Division
recognized that wrongfulness is also found in circumstances where the
legal convictions
of the community require a legal duty to shield
others from injury, and not only when there was a negative duty to
avoid causing
injury (at 596H-597G). After
Ewels
(
supra
)
it became generally accepted that in all cases of delict an omission
may constitute wrongful conduct in circumstances where the
legal
convictions of the community impose a legal duty to prevent harm. See
Minister of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
at
317C-318A;
van Eeden v Minister of Safety and Security
2003 (1) SA
389
(SCA).
[20] The result of these decisions, at least on my
understanding, was that the criterion for wrongfulness in cases of
omissio
generally was brought in line with those of
commissio
and was uniformly applied in all delictual matters. Except in
cases of municipal liability.
[21] Municipal liability cases continued to be premised
on the contention that local authorities were empowered, but not
obliged,
to build and maintain roads and pavements. In the absence of
any statutory or common law obligation to maintain roads and
pavements,
there was thus no legal duty on municipalities to do so.
See
Halliwell
(
supra
),
Moulong v Port Elizabeth
Municipality
1958 (2) SA 518
(AD). This line of thinking resulted
in what became known as the “
municipal immunity”
doctrine. Municipal liability only arose in particular
circumstances such as the introduction of “
a new source of
danger.”
[22] The judgment in
Ewels
(
supra
) to the
effect that wrongfulness in cases of
omissio
may henceforth
also be found in circumstances where the legal convictions of the
community impose a legal duty to act, soon found
application also in
municipal liability cases. What set the chain in motion was
inter
alia
a judgment of Thring J in the Cape Provincial Division which
went on appeal to the Full Bench of that division and is reported as
Butters v Cape Town Municipality
1993 (3) SA 521
(C) at 528 I.
Thring J held, with reference to,
inter alia Ewels
(
supra
)
that the doctrine of municipal immunity no longer forms part of our
law and that “…
the same principles of the common law
of delict apply to municipalities in this regard as apply to
individuals.”
On appeal, the Full Bench was unanimous in
their agreement with Thring J in this regard.
[23] The correctness of the judgment in
Butters
(
supra
) came, again, before the Full Bench of the Cape
Provincial Division in
Cape Town Municipality v Bakkerud
1997
(4) SA 356
(C). Writing for the Full Bench, Brand J (as he then was)
agreed with the correctness of the judgment in
Butters
(
supra
).
Having analyzed the case law on the subject including judgments from
the Supreme Court of Appeal post
Moulong
(
supra
) such
as
Regal v African Superslate (Pty)
1963 (1) SA 102
(A) which
culminated in
Ewels
(
supra
), he came to the conclusion
that the doctrine of municipal immunity no longer applies and that
municipal liability cases should
be decided in accordance with the
common law principles of delictual liability which includes an
anterior finding of wrongfulness
based on the legal convictions of
the community.
[24] The Full Bench judgment in
Bakkerund
went on
appeal to the Supreme Court of Appeal which resulted in the judgment
of Marais JA in
Cape Town Municipality v Bakkerud
2000 (3) SA
1049
(SCA). The judgment in
Bakkerud
by the Supreme Court of Appeal
left no doubt that not only is the concept of wrongfulness an
essential , but completely separate,
element of liability, but also
that wrongfulness is rooted in the legal convictions of the
community. The learned Judge said the
following at p1056E-H (para 14)
“
Was there a unifying link in the omissions
considered in the cases which would provide a coherent and
intelligible
principle
by which to decide whether more than moral or
ethical disapproval was called for and whether a legal duty to act
should be imposed?
It was not always easy to discern one. In the end,
this Court felt driven to conclude that all that can be said is that
moral and
ethical obligations metamorphose into legal duties when
‘the legal convictions of the community demand that the
omission
ought to be regarded as unlawful’. When it should be
adjudged that such a demand exists cannot be the subject of any
general
rule; it will depend on the facts of the particular case. It
is implicit in the proposition that account must be taken of
contemporary
community attitudes towards particular societal
obligations and duties. History has shown that such attitudes are in
a constant
state of flux.”
[25] The validity of the above statement was affirmed by
the Supreme Court of Appeal two years later in
Duivenboden
(
supra
).
[26] The cumulative effect of the authorities referred
to in the above overview seems to me to be the following: Firstly,
the legal
convictions of the community are now firmly established as
the criterion for wrongfulness in all cases of delict. Secondly, for
purposes of delictual liability there is no longer any need to
distinguish between
omissio
and
commissio,
in that both
forms of the
actus reus
may give rise to liability in delict,
and in both forms the test for wrongfulness is the legal convictions
of the community. Thirdly,
in municipal liability cases, the failure
on the part of the municipality to repair and maintain roads and
pavements will be held
to be unlawful only if the legal convictions
of the community demand that it takes preventative action on the
facts of the particular
case.
[27] The above approach, I believe, is in line with the
conventional judicial thinking on the broad issue of wrongfulness. It
also
accords, at least in content, with the issue of wrongfulness in
criminal law. Its parameters are already defined in numerous
judgments
on the subject and it is a concept applied by our courts on
a daily basis. As such, I believe, it could not have been, and was
not the intention of the Supreme Court of appeal to give content to
the meaning of wrongfulness in cases of an
omissio
which is
different to that in cases of a
commissio.
In both instances
the concept of wrongfulness is rooted in the legal convictions of
society. In the former case the question is
whether the failure to
act offends the legal convictions of the community; and in the latter
case the question is whether the particular
act offends the legal
convictions of the community. More about this later.
[28] It is unnecessary to yet again engage in a
discussion on the meaning of delictual wrongfulness, but I
nevertheless believe
it is prudent to make the following brief
observations.
[29] First, the test is objective and not dependent on
the court’s personal views of what the community’s legal
convictions
ought
to be. The question to be determined is what
the community’s
actual prevailing
legal convictions are.
See
Bakkerud
(
supra
) at 1057B-C (my emphasis).
[30] Second, the legal convictions to be determined are
those of the community in which the principle is to be applied. In
municipal
liability cases, the norms and values and legal convictions
of the various communities will differ dramatically from place to
place
and also from time to time. See
Duivenboden
(
supra
)
at 444B-E;
Bakkerud
(
supra
) at 1060B-D
[31] Thirdly, the legal convictions are required to be
worthy of legal protection (either in delict or in criminal law).
Conduct
(or failure to perform) which is regarded as merely unethical
or immoral and not worthy of legal protection, is therefore not
labeled
as wrongful.
Duivenboden
(
supra
) at 442B-E
(para.13);
Wingaardt
(
supra
) para 50.
[32] Finally, the legal convictions of any community
must by necessary implication also be informed by the values and
norms of our
society as embodied in the 1996 Constitution.
Duivenboden
and
Wingaardt
(
supra
).
[33] With respect, I believe the judgments in
Bakkerud
and
Duivenboden
(
supra
) should be read and interpreted
against the above background. In particular, at the risk of
repetition, I do not believe it was
intended by either of the above
judgments that the long established principles pertaining to
delictual wrongfulness should have
a different content in cases of an
omissio.
[34] If I am correct in the above assumption, then there
is one issue in
Duivenboden
which I respectfully suggest
should be clarified at some stage
in the future. It is this:
[35] The learned Judge of appeal suggests at 442 B in
Duivenboden
(
supra
) that the question to be asked when
enquiring into wrongfulness is whether, “…
as a
matter of legal policy …”
the omission ought to be
actionable. That the issue is a matter of legal policy is confirmed
by the learned Judge of Appeal at p
444 para 16 where he states:
“
The very generality in which the legal
principles have been expressed in the various decisions to which I
have referred is an emphatic
reminder that, both in this country and
abroad, the question to be determined is one of legal policy, which
must perforce be answered
against the background of the norms and
values of the particular society in which the principle is sought to
be applied.”
[36] The question which arises is whether the
determination of delictual wrongfulness is a matter of legal policy
or a matter of
substantive law. The distinction is not merely
academic or pedantic.
[37] Did the Supreme Court of Appeal intend that
wrongfulness in cases of
commissio
should be treated any
differently to cases of
omissio
? I do not think so.
[38] The point came before the Full Bench of the Cape
Provincial Division in the first reported judgment of
Bakkerud
(
supra
) referred to above.
[39] It was conceded by the appellant (the municipality)
in that case that in view of the judgment in
Ewels
(
supra
),
the wrongfulness of an omission by a municipality to repair a street
or pavement is to be determined with reference to the legal
convictions of the community. However, it was contended that the
decisions of the Appellate Division upholding the doctrine of
municipal immunity and establishing the only exceptions in the
doctrine of
introducing a new source of danger
such as
Moulong
(
supra
), were based on legal policy in that the doctrines
reflected the legal convictions of the community and, consequently,
the Full
Bench was bound by those decisions of the Appellate Division
as to what the legal convictions of the community dictate.
[40] In a strong and convincing judgment of the Cape
Provincial Division in
Bakkerud
(
supra
) at p.369F
et
seq
Brand J (as he then was) dispelled the above contention and
held that the establishment of the doctrines of
municipal immunity
and
introduction of a new source of danger
were matters of
substantive legal principle and not of legal policy, notwithstanding
that these doctrines were essentially concerned
with the issue of
wrongfulness. (It must be borne in mind that these doctrines were
then used as the test for wrongfulness, which
test has now been
replaced by the legal convictions of the community).
[41] The above findings of Brand J (as he then was) were
not upset on appeal to the Supreme Court of Appeal in
Bakkerud
(
supra
), and nor were they questioned in
Duivenboden
(
supra
) or in any other judgment from the Supreme Court of
Appeal. The matter remains an enquiry into delictual wrongfulness
(whether
commissio
or
omission
) and, if established,
and only if; a second and further enquiry into
culpa
.
[42] In many fields of the law of delict, our courts
have developed the common law to the extent that it recognizes that
the particular
nature of a particular act may be regarded as
unlawful. For instance, assault and murder are usually regarded as
unlawful acts
under delict and criminal law, and so is the
publication of words which are
per se
defamatory. However, the
legal convictions of the community also recognize certain defined
grounds of justification for acts which
may otherwise be wrongful,
such as self-defence or the defence of others in cases of assault or
murder, and the truth and public
interest in cases of defamation, all
of which may nullify the wrongfulness of the act. I can see no reason
in logic or in principle
why the law of municipal liability may not
develop in the same manner.
[43] The essential constitutional function of all local
authorities in South Africa is to serve its communities. Such service
is
not only restricted to the provision of basic and essential
services such as water, sanitation, safety and electricity, but also
includes the maintenance of roads and pavements. However, the failure
to render certain services, including failure to repair and
maintain
the infrastructure, may be justified in certain defined grounds such
as the financial constraints of the particular municipality,
its lack
of resources, capacity and access to skills and qualified staff, and
so forth. Each case must be assessed having regard
to its own
particular facts and circumstances, but I nevertheless see no reason
why the courts may not in time to come formulate
general guidelines
and grounds of justification for a departure from such guidelines in
assessing wrongfulness in municipal liability
cases, as it does in
other cases of delict. This, I believe, will be in line with the
development of the law of delict in general.
And this can only happen
if wrongfulness is treated as a legal principle. I therefore believe
with great respect, that the reference
of Nugent JA to “
legal
policy”
must be interpreted and understood against this
background.
[44] I now turn to apply the above principles to the
facts of this case in order to determine whether or not wrongfulness
was established.
The narrow question, as I said, is whether the legal
convictions of the community served by the respondent municipality
require
the latter to properly maintain its pavements to prevent an
occurrence experienced by the appellant. If so, the failure to do so
constitute wrongful conduct on the part of the municipality.
[45] The incident occurred in the municipal area of Port
Elizabeth known as Central or Richmond Hill, which falls under ward
5.
It is a high density middle class residential area covered by
residential flats, a number of churches, retirement villages
(including
the Sanctuary where the appellant resides), restaurants,
the Russel Road Technicon and the Oval Sport Ground. It carries heavy
vehicular and pedestrian traffic and boasts a number of schools,
shops and a shopping area. It is an older and an established area
of
Port Elizabeth with many streets lined by old and big trees. All
streets are tarred and all pavements are paved. It is described
in
the evidence as a “
high density risk area.”
[46] The evidence show that at the time of the incident
the total budget of the respondent municipality was R8 billion, of
which
R2.5 billion was earmarked for “
operating costs”
which include, as I understand the evidence, costs of repair and
maintenance to roads and pavements. In regard to pavements alone,
there were 1,400 kilometers of sidewalks in the municipal area with
32 kilometers of sidewalks under construction at the time.
The total
budget for new sidewalks during the year in question was R35 million.
There is no suggestion whatever that the respondent
municipality
lacked either the financial means, manpower, capacity or skills to
repair and maintain the sidewalks under its jurisdiction.
[47] The evidence shows that the respondent municipality
has for many years successfully maintained its infrastructure
including
its roads and pavements. Its witnesses readily acknowledged
that part of its responsibilities related to the upkeep and
maintenance
of pavements. It is not suggested that the ratepayers
expect anything else from the municipality.
[48] The respondent admitted in its plea that “…
it has a responsibility for maintenance and upkeep of the specific
sidewalks/pavement and it owed a duty of care to the community
and
the Plaintiff as well.”
In all these circumstances I am
satisfied that the appellant has established the element of
unlawfulness. The concession was correctly
made and I have no doubt
that having regard to the nature and identity of both the respondent
municipality and the community it
serves, and to the particular
circumstances described above, that the legal convictions of the
community imposes a legal duty on
the municipality to keep its
pavements, including the one which caused the appellant to stumble
and fall, in a proper state of
repair. I therefore believe that the
appellant has established the requirement of wrongfulness.
[49] The question may well be asked why this judgment
has taken so much time and effort to come to this conclusion in the
light
of the above concession on the pleadings. The answer is that
both parties in the presentation of evidence and in argument both
before the court
a quo
and before this court, failed to
recognize the distinction between the elements of unlawfulness on the
one hand; and
culpa
on the other, and conflated the two
concepts to the extent that it became difficult to recognize when
they were dealing with the
one or the other. I was accordingly of the
view that the concession was made and accepted without fully
appreciating the difference
and the true meaning and content of
wrongfulness. It therefore became necessary, in my respectful view,
to deal extensively with
these two issues.
[50] I now proceed to the second stage of the enquiry,
namely whether or not the appellant has established the element of
fault.
She relies on the form of
culpa
and not on direct
intent.
[51] The leading and classical case often referred to as
the test for
culpa
is
Kruger v Coetzee
1966 (2) SA
428(A).
In this case Holmes JA described the test as follows at
p.430E-G:
“
For the purposes of liabity
culpa
arise if-
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. This has
been constantly stated by this court for some 50 years. Requirement
(a)(ii)
is sometimes overlooked. Whether a
diligens paterfamilias
in the position of the person concerned would take any guarding steps
at all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstance of each case.”
[52] More than 50 years elapsed since the above
dictum,
and it remains good law to this day.
[53] The relevant facts to which the above test must be
applied can be summarized as follows:
[54] The incident occurred on 6 July 2008. It was caused
by a raised pavement block. It was well known by municipal officials
that
tree roots from large trees such as those adjacent to the
pavement in question, may cause raised concrete blocks. It is common
cause that the trees in question caused the uneven and raised
concrete slabs. The evidence disclose that the concrete slab which
caused the appellant to fall, was raised by approximately 50mm, and
that the uneven state of raised pavement blocks in the particular
area had existed for approximately 1 year prior to the incident. The
area has since been leveled and the roots removed.
[55] The respondent municipality had at all relevant
times a particular procedure in place in dealing with repairs and
maintenance
of its pavements. It is called a “
complaints
system”
and operates in the following manner:
[56] Whenever a complaint or report (either
telephonically or written) is received from a member of the public, a
City Councilor,
official or employee, it is recorded on a “
Complaint
Form”
and sent to the Department of Infrastructure and
Engineering. It is there dealt with by the Roads and Stormwater
Division of the
Department. It then goes through a lengthy procedure
which is unnecessary to repeat, and which includes an inspection and
assessment
of the damage, a decision on the method of repair and the
issue of a job card to a foreman with instructions to repair,
supervision
of the works and inspection of repairs. In addition to
members of the public, municipal official and employees such as the
superintendents
from the Roads and Stormwater Depots doing their
rounds, designated cleaners, rubbish collectors and rangers are all
required to
report defects, damage and potential dangers to the
Infrastructure and Engineering Department.
[57] The aforesaid complaints system dealing with
maintenance and repairs has been in place for over 40 years, during
which period
it operated effectively and satisfactorily. Obviously,
because no municipality is required to maintain a “
billiard
top smoothness”
to its roads and pavements, the respondent
has a policy that it will only repair raised pavements if the blocks
or some individual
concrete slabs are raised by more than 25mm. In
this case, as I said, the block causing the appellant to stumble was
raised by
50mm.
[58] The success of the respondent’s complaints
system was, of course, not only dependent on the system itself, but
also on
a diligent and competent exercise and implementation of the
prescribed procedures by its employees. The evidence that it operated
successfully over many years, show not only that the system is
effective, but also that it has always been diligently and
successfully
implemented.
[59] The evidence shows, however, that since 2007 this
was no longer the
case. For approximately one year before the incident the
pavement blocks in the particular area became uplifted by roots
without
being repaired. There is evidence that during the preceding
year other pedestrians also stumbled and fell without any complaints
being received by the Roads and Stormwater Division.
[60] The evidence further discloses that a City
Councilor, Mr Davis, witnessed the incident on 6 July 2008. He
telephoned Mr Tony
Arthur of the Roads Department and reported the
incident. Notwithstanding, no complaint form was completed and the
operating procedures
of the system were not followed. On 17 July 2008
Mr Davis followed his telephone complaint up with a letter recording
the incident
and requesting remedial action. A complaint form was
still not completed.
[61] The inter-office memorandae and e-mails following
Mr Davis’ letter of 17 July show a confusion by municipal
officials
of the nature and place of repairs. Effectively, nothing
was done. Eventually, on 25 August 2008, a complaint form was
completed
and the procedures were set in motion. The repairs were
effected and completed only on 19 September 2008.
[62] The fact that the need for remedial work was
evident for approximately one year before the incident, coupled with
the manner
in which the complaint was treated immediately after the
incident on 6 July 2008, in my view, show conclusively that an
otherwise
effective complaints system and its remedial procedures
were implemented in a negligent and incompetent manner.
[63] It is conceivable that many occasions may arise
where, notwithstanding an adequate complaints and repairs system,
complaints
are either not received or repairs not carried out, either
timeously or at all. Examples such as an unforeseen thunderstorm
causing
damage, or acts of vandalism come to mind. Depending on the
facts, those circumstances may not give rise to the requirements of
either unlawfulness or
culpa,
or either. However, in cases of
this nature, the municipality will place facts before the court which
may either justify the wrongfulness
or demonstrate the absence of
reasonable foreseeability or any other element of
culpa
. In
this case, however, no facts or explanation of any nature whatsoever
were placed before the court to explain why the otherwise
adequate
and successful system did not work.
[64] It is true that there is no causal relationship
between the incident in question and the failure to act on the
complaint by
Mr Davis, in that the complaint was lodged after the
incident occurred. However, as remarked earlier, the fact that the
defects
and need for repairs had existed for a considerable period
prior to the incident, coupled with the negligent and incompetent
manner
in which the complaint was handled and the absence of any
explanation why the system failed in circumstances where it operated
successfully for many years, all lead to the inescapable conclusion
that the system was not implemented with the necessary care
and skill
and that the municipality was negligent in this regard.
[65] Applying the test for negligence in
Kruger
(
supra
), it is clear that the incident was reasonably
foreseeable if the procedures were not followed, and that the
municipality could
reasonably have taken steps to prevent the
occurrence by ensuring that its system and procedures are properly
enforced. It failed
to take these steps for at least one year prior
to the incident, and the manner in which the subsequent complaint was
treated shows
that even after the incident the correct procedures
were either not followed at all, or not followed properly. I am
satisfied that
the appellant, on the facts of this case, proved the
requirements of
culpa
.
[66] The trial court dismissed the appellant’s
claim on the basis that the respondent municipality’s system
operates
efficiently and that the appellant had not proved it
employed a deficient system. It seems that the appellant’s
counsel in
the court
a quo
sought to attribute the negligence
to the use of a system which was “
woefully deficient,”
and that the judgment is based on the efficiency or otherwise of
the system and not on how the system was implemented.
[67] In his analysis of the evidence dealing with the
manner in which the complaint was treated, the learned trial Judge,
correctly
in my view, concluded that the municipal officials were
remiss in the implementation of the system and unduly delayed
repairs.
He found, however, that “…
an isolated
instance of dilatoriness on the part of
Msila
cannot
be the yardstick by which to judge the defendant’s operating
system …”
Although this is a correct statement, the
fallacy of the argument is that the negligence does not lie in the
use of a perceived
deficient operating system (which it is not), but
in the negligent manner in which an otherwise efficient system was
operated.
It is not the operating system which is judged, but its
implementation. Even an isolated instance of negligent operation of
the
system constitutes negligence and is sufficient to prove
culpa.
I am therefore of the respectful view that the court
a quo
misdirected itself in focusing on the effectiveness of the system
rather than on the manner of its implementation.
[68] I therefore propose that an order in the following
terms issue:
1. The appeal succeeds and the order of the court
a
quo
is set aside and is replaced with an order in the following
terms:
“
1.1 The ruling of this court is that the
defendant is liable to pay the plaintiff such damages caused by the
incident on 6 July
2008 as the parties may agree or the plaintiff may
prove.
The defendant is ordered to pay the costs of the
trial, including the costs reserved on 23 February 2010.”
2. The respondent is ordered to pay the costs of this
appeal.
I agree :
__________________
DAWOOD J
I agree :
___________________
BOQWANA AJ
It is so ordered :
____________________
ALKEMA J
Heard on : 06 December 2010
Delivered on : 17 February 2011
Counsel for Appellant : Adv. Nepgen
Instructed by : De Villiers & Partners
Counsel for Respondent : Adv. Menti
Instructed by : Ketse Nonkwelo Incorporated