Mahlasela v Nelson Mandela Metropolitan Municipality (3873/2015) [2019] ZAECPEHC 91 (15 October 2019)

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[2019] ZAECPEHC 91
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Mahlasela v Nelson Mandela Metropolitan Municipality (3873/2015) [2019] ZAECPEHC 91 (15 October 2019)

IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO. 3873/2015
In
the matter between:
SICELO
AUBREY MAHLASELA
Plaintiff
and
NELSON
MANDELA METROPOLITAN
MUNICIPALITY
Defendant
JUDGMENT
MBENENGE
JP:
[1]
The plaintiff seeks to recover damages allegedly suffered as a result
of an injury he sustained when,
on or about 05 September 2014, “
he
slipped in a pool of water caused by a leaking pipe
” while
“
attempting to gain access to his residence at 42 Pepetha
Street, Kwa-Nobuhle, Uitenhage
.”
[2]
Negligent conduct is attributed to the defendant’s employees.  It
is alleged that the employees
failed to,
inter alia
, attend to
the water leak in order to prevent harm to the general public,
including the plaintiff.
[3]
The defendant has denied having been negligent towards the plaintiff,
either as alleged or at all and
pleaded, in amplification of such
denial, that the injury was occasioned by the sole negligence of the
plaintiff in,
inter alia
, failing to keep a proper look-out or
exercising the requisite care and diligence in the circumstances.
[4]
According to the parties’ pre-trial conference minutes, it is
common cause that on the date in question
the plaintiff sustained a
bimalleolar fracture of the left ankle, leaving the issues for
determination being-
(a)
the plaintiff’s
locus standi
;
(b)
whether -
(i)
there was a leak in the water reticulation system for the area where
the plaintiff’s house is
situated;
(ii)
the plaintiff was injured in the manner alleged in the particulars of
claim or at all; and
(iii)
the defendant was in breach of the duty of care to maintain and
repair the water reticulation system under
its control as admitted by
the defendant in its plea; and
(c)
negligence on the part of the plaintiff and/or the defendant and/or
the combined negligence of both parties
and, in such latter event,
the degrees of negligence to be attributed to each party.
[5]
Mr Loyiso Stemela who was, at the relevant time, a councillor for
ward 47, Uitenhage, where the plaintiff
resides, testified that the
plaintiff had, once upon a time, lodged with him a complaint of a
water leak due to a burst pipe.
He said the plaintiff had
reported that whilst alighting from a vehicle he stepped over water
from a burst pipe, slipped and broke
his ankle.  Residents of
the area in question had also made reports of the leak.  He took
the matter up with the relevant
officials in the Water and Sanitation
Section of the defendant Municipality. Nothing immediately eventuated
from that. The pipe was
ultimately fixed by municipal officials after
the incident that resulted in the plaintiff’s injury.
[6]
Under cross-examination Mr Stemela was taken to task for not having
reported the burst pipe by utilising
the toll-free/call-centre
system.  He explained that the complaints made to the
call-centre had not yielded any concrete results.
When called
upon to mention the names of the Municipal officials to whom he had
referred the complaint, he said due to the passage
of time, the only
person he could still recall was Mr Koekemoer.  On the occasions
he had made endeavours to contact the call-centre,
receipt of the
complaint had been acknowledged and a reference number issued, but
nothing beyond that eventuated.
[7]
Mr Loyiso Mkhombisa, the plaintiff’s neighbour residing at 45
Pepetha Street, also testified.
For some time, Pepetha Street
residents were beset by water flowing down the street from a burst
pipe.  He called the relevant
toll-free number and approached
the municipality.  When the desired results did not ensue, he
referred the matter to Mr Stemela.
The burst pipe was
eventually attended to by municipal officials after the occurrence of
the incident involving the plaintiff.
He was summoned by the
plaintiff’s son to the scene where the incident had occurred. He
drove the plaintiff to hospital.
The plaintiff reported to him
that he slipped on the pavement as he was about to enter his yard,
fell and broke his ankle.
He said he had to jump over some
water in order to get into the yard.  He observed for himself
that the plaintiff had been injured.
[8]
The plaintiff also testified.  On the night in question, he had
just been dropped off by a vehicle
at his place, and when jumping
over running down the street in front of his yard, he slipped on the
pavement, fell and broke his
ankle.  He said there was no way he
could have accessed his yard without jumping over the water.  He
was hospitalised and
received treatment for his injury.  Upon
his discharge from the hospital, he reported the incident to Mr
Stemela, the ward counsellor.
[9]
The plaintiff pointed out, under cross-examination, that he fell on
the edge of the road where there is
paving.  The vehicle that
dropped him off had already left when he fell.  He said the
vehicle had nothing to do with his
fall.  The plaintiff’s
attention was drawn to entries made in hospital records and other
documents embodying a different account
of how the plaintiff got to
sustain his injury.  It was further suggested that, because the
plaintiff had always known about
the wetness of the surface of the
ground in front of his house, he could and should have treaded more
carefully.  His response
was that most of the time he drove, and
did not walk, into his yard.
[10]   The
following excerpt from the transcript also sheds some light in
relation to how the cross-examination of the plaintiff
unfolded:
“
MS
NTSEPE:
So it would be incorrect then to say while you were jumping to avoid
this water, you slipped and fell?
MR
MAHLASELA:
I jumped over the water and stepped
on the pavement and slipped and
fell back on the water.
MS
NTSEPE:
Sir I think I was missing you. So your intention was to jump onto the
grass area?
MR
MAHLASELA:
No, on the grass there is a spot
there on the pavement where I would
step on so that I could walk on the grass.
MS
NTSEPE:
So there was a specific point that you were aiming for to put your
foot on?
MR
MAHLASELA:
Yes.
MS
NTSEPE:
And you missed that point and slipped on the pavement?
MR
MAHLASELA:
I did not make it there because
of lots of water.
MS
NTSEPE:
You would agree with me if you had not jumped and walked where the
water was, the worst that would happen is your shoes would get
dirty?
MR
MAHLASELA:
I understand that and that was the
reason why I stretched over
there.”
[11]
The contents of a letter written by his attorney of record to Dr
Aslam wherein it is stated that the plaintiff “
sustained
injuries while trying to cross over holes in the road when he
slipped
”
[1]
were brought to his attention.  He distanced himself from this
assertion as being incorrect.  He also dissociated himself
from
the case pleaded in the particulars of claim that he slipped in a
“
pool
of water
”.
According to him, there were neither holes nor a pool of water where
he fell.
[12]   It
was further put to the plaintiff that the entry made by Dr Biermann
who treated him that “[the plaintiff]
fell when stepping out of
a friend’s car
” negated his version.  His response was
“
maybe the doctor misunderstood me
.
I would not know
.”
His attention was also drawn to another entry made by a nurse who
received him in the ward on the night in question that
“[the
plaintiff]
fell in/out of a friend’s car and dislocated
. .
. ankle.”  He denied this, too, stating that he never told the
medical and nursing staff that he “
wrongly stepped out of the
car
,” adding that he had told them that he “
alighted from
the vehicle and the vehicle left
, [he]
then faced this problem
that
[he]
had now
.”
[13]
At closure of the plaintiff’s case, Ms
Ntsepe
,
counsel for the defendant, applied for absolution from the instance.
The application was refused, with reasons to follow.
[14]
I was of the view that there was evidence upon which a court,
applying its mind reasonably to such evidence, could
or might (not
should or ought to) find for the plaintiff.
[2]
[15]
Much was made of the contradictions between the plaintiff’s pleaded
case, his testimony before court and what the
plaintiff was alleged
to have informed the medical and nursing staff.  In my view,
those are questions of credibility which
should not normally be
investigated at that stage of the proceedings.
[16]   The
only witness called to testify on the defendant’s behalf was Ms
Casandra Haselou.  She was the nurse on
duty at Cuyler Hospital
on the night in question.  She received the plaintiff in the
ward where he slept on that night and completed
the relevant
admission report.  She sought information relative to the
plaintiff’s personal history, medical history and illnesses,
and
recorded the answers given by the plaintiff on the relevant form.
The plaintiff informed her that “
he had fallen in or out
of a car and hurt his ankle…”
She made the same entry
on the patient progress report.  She said she understood the
plaintiff as having broken his ankle whilst
getting out of a car or
in a car.  She identified the note made that “
patient fell
while stepping out of a car and fractured ankle
” as having been
made by Dr Biermann who attended to the plaintiff whilst at the
casualty ward.  She was emphatic that there
was no way she could
have just copied Dr Biermann’s notes because her section received
notes recorded at the casualty section later
after she had compiled
her notes.
[17]
Under cross-examination, Ms Haselou conceded that, but for the notes
she compiled, she had no independent recollection
of the interaction
with the plaintiff on the night in question.  She stated that
she communicated with the plaintiff in English,
without the aid of an
interpreter.  Had she gleaned the information she recorded from
somebody else, she would have indicated
that the informant had been
somebody other than the plaintiff.  Even though the plaintiff
had initially been sedated, at the
time she interacted with him, the
sedation had waned; he was stable at the time of being received in
the ward.
[18]   As
the trial unfolded, the issue for determination had crystalized into
whether the plaintiff had injured himself
in the manner alleged by
him and, if so, whether the injuries he sustained were caused wholly
or partly by the negligence of the
defendant.
[19]   The
plaintiff, being the party who asserts, bears the duty to prove that
the injury he sustained was attributable
to the negligence of the
defendant.
[20]
The probabilities, credibility of witnesses and documents relevant in
determining the outcome of the case must be
considered.
[3]
At a subsidiary level, it also becomes important for the court to
consider, among other factors, internal contradictions in
a witness’s
evidence and external contradictions with what was pleaded or put on
the witness’s behalf.
[4]
[21]
Also, regard being had to the fact that the plaintiff was a single
witness in relation to how he slipped and fell,
his evidence, as one
of the parties to the proceedings, must be credible to the extent
that his uncorroborated evidence must satisfy
the court that on the
probabilities it is truth.
[5]
The paramount question is whether I should accept the plaintiff’s
version as to how he slipped and fell or reject it as being
a
fabrication.
[6]
[22]   The
defendant, on the other hand, bears no onus, but an evidentially
burden which may be discharged by the defendant
pointing to inherent
contradictions in the plaintiff’s testimony
viz-a-viz
, in
this instance, statements made to hospital staff as also against
other objective factors that belie the plaintiff’s version.
That of course depends on the cogency of those factors.
Questions of admissibility also come to the fore.
[23]   The
plaintiff’s pleaded case which the defendant was called upon to
meet in answer was that the plaintiff “
slipped in a pool of
water
…
seriously injuring himself
.”  The
plaintiff denied that there had been a pool of water where he fell
stating that that was not what he had said.
Ms
Ayerst
,
who signed the particulars of claim and appeared at the hearing of
this matter, explained that she had settled the particulars without
having “
consulted with the plaintiff as yet
.”
[24]
Quite apart from the reference to “
pool
”, what remains
unexplained and rearing its ugly head towards the plaintiff’s case,
however, is the content of the letter wherein
the plaintiff is said
to have “
sustained injuries while trying to cross over holes in
the road
.”
[25]
I was urged to treat Ms Haselou’s testimony as translating to no
version at all because she had no independent
recollection of the
relevant events, leaving the testimony of the plaintiff
uncontroverted.  To begin with, the evidence of
the plaintiff, a
single witness, does not translate to the truth merely because it is
not contradicted.
[7]
Much
as the plaintiff speaks isiXhosa and Ms Haselou is English speaking,
I am not persuaded that there was a language barrier
when the two
interacted. Indeed no entry on the hospital records was, for example
pointed to as having been incorrect or inaccurate
due to a language
barrier or some other factor.
[8]
According to Ms Haselou in instances where there is a language
barrier an interpreter is organised.  Nor was any suggestion
made that the recording Ms Haselou made as to the plaintiff’s
injury and the cause thereof were a fiction of her own imagination.
In my view, the testimony tendered by Ms Haselou in relation to
the plaintiff’s history namely, that the plaintiff informed
her
that he fell whilst alighting from or in a vehicle does translate
into a credible version.  Ms Haselou impressed me as an
honest
witness.  She was not taken under cross-examination.  She
made concessions when such were due. For instance, even
though she
had recorded that “
the
plaintiff appears to have had a few alcoholic drinks and appears to
be intoxicated and smelt thereof
”,
she conceded that her conclusion in that regard was merely deduced
from her observation that the plaintiff smelt of liquor.  She
could not dispute the plaintiff’s version that he was not
intoxicated.
[26]   The
plaintiff, on the other hand, vacillated when confronted with the
entries made by the medical and nursing staff
in relation to what
caused is injury.  He initially rationalised by saying Dr
Biermann had “
taken
[the notes he made]
from the other
one that also made a statement in this document
”, suggesting
that the doctor had merely copied what Ms Haselou had written.
Initially, he had sought to attribute the alleged
incorrect
recording to language barrier and said “
it could be that there
was a miss between the English or the Afrikaans that we spoke that
day
”- a fact which flew in the face of the testimony by Ms
Haselou that a language barrier is resolved by simply soliciting the
services
of an interpreter.  This and the cumulative effect of
the discrepancies and incongruities already pointed to above render
the
plaintiff’s version incredible with the result that his version
is rejected.
[27]   I
am of the view that the plaintiff has not proven on balance of
probability that his version is the truth and that
the injury he
sustained resulted from negligent conduct on the part of the
defendant.
Order
[28]
The plaintiff’s claim is accordingly dismissed with costs.
S M MBENENGE
JUDGE PRESIDENT
OF THE HIGH COURT
Counsel
for the plaintiff
:
H B
Ayerst
Instructed
by
:        Morne Struwing Inc.
Port
Elizabeth
Counsel
for the respondent       :
L
N Ntsepe
Instructed
by
:        Goldberg & De
Villiers Inc.
Port
Elizabeth
Date
heard
:        07- 08 August 2019; 25
September 2019
Date
delivered
:       15 October 2019
[1]
In
this letter Dr Aslam was being asked to advise on the cost involved
in completing a medical report.
[2]
Which
is the test for absolution from the instance [see
Swanee’s
Boerdery (Edms) Bpk (in liq) v Trust Bank of Africa Ltd
1986
(2) SA 850
(A) 862 F-G;
McCarthy
Ltd v Absa Bank Ltd
2010 (2) SA 321
(SCA) at 328 H].
[3]
National
Employers’ General Insurance v
Jagars
1984 (4) SA 437
( E) 440 D-G
[4]
Stellenbosch
Farmers’ Winery Group Ltd & Another v Martell & Cie SA &
Others
[2002] ZASCA 98
; 2003(1) SA 11 (SCA) at para 5
[5]
Botha
v Kirk Attorneys
(EL 257/2016, ECD 757/2016) [2019] ZAECELLC 1 (22 January 2019) at
para 32.
[6]
Daniels
v General Accident Insurance Co. Ltd
1992 (1) SA 757
(C); also see
Botha
,
op
cit
.
[7]
Siffman
vs Kriel
1909 TS 1
538 at 543; also see
Botha
(
supra
),
where in relation to a plaintiff’s version not controverted by
that of the defendant, it was held:
“
[36]
What if the version of the plaintiff even before any testimony on
behalf of the defendant is given is, under cross-examination,
shown
to bear inherent contradictions? Can it be said that in such an
instance the defendant bears a duty of “
proving
”,
as contended, by putting up a valid alternative version? I think
not. That is not my understanding of the legal position. As
pointed
out above, to come to conclusion on the disputed issues a court must
make findings on the credibility of the witness’s.
Those findings
in turn depend on subsidiary factors such as,
inter
alia
, internal contradictions in a
witness’s evidence and external contradictions with what has been
pleaded. To contend otherwise
would be to suggest that in all
instances, such as the present one, where there is only one version
of the events which gave rise
to the accident with no other eye
witness testifying as to the collision and putting up the opposite
version, the plaintiff’s
mere say-so should be accepted without
further ado.”
[8]
Cf
Jo-Anne Melony Grootboom v Road Accident Fund
(unreported decision by Schoeman J under Port Elizabeth Case Number
3998/2016), where no weight was given to information on hospital
records because the relevant notes had been inaccurate and there was
paucity of evidence as to who supplied the recorded information.