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[2022] ZAECQBHC 21
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Swarts v Minister of Public Works and Infrastructure and Another (2596/2020) [2022] ZAECQBHC 21 (12 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No. 2596/2020
In
the matter between: -
LINEEN
SWARTS
Plaintiff
and
THE
MINISTER OF PUBLIC WORKS AND
First Defendant
INFRASTRUCTURE
THE
MINISTER OF JUSTICE AND CORRECTIONAL
Second Defendant
SERVICES
Coram:
Bands AJ
Date
heard:
14 February 2022
Delivered:
12 August 2022
JUDGMENT
BANDS
AJ:
[1]
On Friday, 16 November 2018, what ought to
have been an ordinary morning at the Gqeberha Magistrates’
Court for the plaintiff,
a local attorney with many years standing,
took a turn for the worse when he slipped and fell on water located
on the floor in
the building’s passageway, injuring his left
shoulder.
[2]
The plaintiff contends that the slip and
fall, and the consequent injuries sustained by him, were caused by
the negligent conduct
of first defendant; alternatively, the second
defendant; alternatively, both defendants, and/or one or more of
their employees
and/or cleaning contractor, acting within the course
and scope of their employment. Accordingly, the plaintiff instituted
action
against the defendants, jointly and severally, for damages
allegedly arising out of the aforesaid incident for payment in the
amount
of R2,862,362.17. I deal with the plaintiff’s pleaded
case in greater detail later.
[3]
The plaintiff’s claim was met with
various special pleas as well as a plea on the merits. Whilst the
defendants initially
raised a special plea of non-compliance with
section 2 of Act 20 of 1957, read with section 5(1)(a) of Act 8 of
2017, this was
later withdrawn despite its inclusion in the first and
second defendants’ amended plea, which was delivered on the day
of
trial, prior to the commencement of the matter.
[4]
In addition to the aforesaid, and by way of
a special plea of non-joinder, the first defendant contends that Sky
Ground Enterprise
(“
Sky Ground
”),
the company who was contracted to provide cleaning services at the
Magistrates’ Court by the first defendant at
the relevant time,
was a necessary party to the proceedings.
[5]
On the other hand, the second defendant,
relying on a special plea of mis-joinder, pleads that he does not
have a direct and substantial
interest in the matter and accordingly
his joinder is incompetent.
[6]
On 19 October 2021, pursuant to the hearing
of opposed argument, an order was granted by Naidu AJ separating the
issue of the defendants’
liability, inclusive of the special
pleas, from the issue of quantum (“
the
separation order
”). Prior to the
hearing of evidence, the defendants’ counsel requested me to
revisit the separation order and to grant
an order separating the
special pleas from the remaining issues in dispute, this being the
same order sought by the defendants
in the opposed application before
Naidu AJ.
[7]
Our
Courts, inclusive of the Supreme Court of Appeal, have on numerous
occasions warned against ill-conceived separation of issues.
[1]
It is trite that an order in terms of Uniform Rule 33(4) is
interlocutory in nature and that I have the authority to revisit such
decision.
[2]
With this in mind,
and after hearing argument on behalf of the plaintiff and the
defendants, I was satisfied that the separation
order was proper in
the circumstances and is reflective of an order which had been
granted after careful thought had been given
to the anticipated
course of the litigation as a whole, consideration having been given
to whether or not it was convenient to
try the separated issues
separately. Accordingly, and save for amplifying the separation
order,
[3]
I declined to grant
the order sought by the defendants.
[8]
Accordingly, the issues which fall to be
determined by me are the respective special pleas, which remain alive
on the pleadings;
and whether or not the defendants’
negligence, or that of their employees and/or cleaning contractor,
acting within the course
and scope of their employment, was the cause
of the plaintiff’s fall.
[9]
The plaintiff’s cause of action is
particularised in paragraphs 4 to 7 of his particulars of claim,
which read as follows:
“
4.
On 16 November 2018, and in a passage in the Port Elizabeth
Magistrate’s Court building in de Villiers
Street, North End,
Port Elizabeth, the Plaintiff slipped on a wet floor, lost his
balance, and fell on his back.
5.
The said Magistrate’s Court building was at all times material
hereto open to members
of the public, including the Plaintiff, and
the Defendants were under a legal duty to the public, including the
Plaintiff, to ensure
that passages, walkways, entrances, and other
areas used or traversed by members of the public, would be safe and
free of obvious
hazards which would pose a risk to members of the
public.
6.
The Plaintiff’s slip and fall was caused by, and ascribable to,
the negligence of the
First Defendants, and/or one or more of their
employees and/or cleaning contractors, who acted within the course
and scope of their
employment, and who were negligent in one or more
or all of the following respects:
6.1.
They allowed member of the public to walk on a wet passage floor.
6.2.
They failed to warn members of the public that the passage floor was
wet.
6.3.
They failed to ensure that the passage floor was safe for members of
the public to walk on.
6.4.
…
[4]
6.5.
They failed to place any warning signs or notices to warn persons of
the slippery nature of the passage floors.
6.6.
They failed to ensure that the Plaintiff did not slip on the passage
floor, when by the exercise of reasonable
and necessary care, they
could and should have done so.
7.
The whole cause of action arose within the area of jurisdiction of
the above honourable court.
”
[10]
I interpose to highlight that paragraph 6
of the plaintiff’s particulars of claim lays blame,
in
the alternative
, on the negligence of
“
one or more of
”
the defendants’ “
employees
and/or cleaning contractors, who acted within the course and scope of
their employment.
” It was argued
by Mr Dala that this implies that the plaintiff’s claim against
the defendants, on the pleadings, is
founded on vicarious liability.
[11]
As will become more apparent hereunder, I
am satisfied that a claim founded on vicarious liability is not the
plaintiff’s
only case on the pleadings, nor was it his case at
trial. I accordingly accept that the plaintiff’s claimed
liability, against
the first and second defendants, is not founded on
vicarious liability.
[12]
Whilst the defendants, in their plea, admit
that the plaintiff fell in the passageway in question, they dispute
that the “
plaintiff slipped on a
wet floor and fell on his back
”
and attribute his fall to a loss of balance.
[13]
Significantly, the plaintiff’s
pleaded version, which was consistent with his evidence led at trial,
was not disputed during
cross-examination. Similarly, the defendants’
version regarding the cause of the plaintiff’s fall was not put
to the
plaintiff, and accordingly reliance thereon was not pursued by
the defendants.
[14]
The first defendant, “
as
custodian of the property
”,
admits the legal duty as pleaded by the plaintiff, but seeks to
disavow liability on the basis that the first defendant
concluded a
contract with Sky Ground to provide cleaning services at the court
building, which contract was in place at the time
of the plaintiff’s
incident. More particularly, the defendants plead at paragraph 21.5
of their plea that:
“
21.5
The first and second defendants deny they had acted in breach of any
legal duty which they may have owed the plaintiff;
in amplification:-
Sky
Ground Enterprises – a competent and professional independent
contractor, as stated above, were
(sic)
contracted to provide cleaning services
at the property, and would not be dangerous to members of the
public.
”
[15]
Despite reference being made to the second
defendant in paragraph 21.5, the second defendant goes on to plead
that he, in any event,
denies liability to the plaintiff in that he
is “
the wrong defendant before
this Honourable Court.
” Other
than the aforesaid, the defendants’ plea, insofar as the
plaintiff’s pleaded grounds of negligence are
concerned,
amounts to no more than a bare denial.
[16]
Immediately apparent from paragraph 21.5 of
the defendants’ plea is that the defendant, although pleaded
rather obliquely,
places reliance upon the general rule that a
principal is not liable for the wrongs committed by an independent
contractor or its
employees, to avoid liability. Insofar as it could
be said that this aspect had not been raised properly on the
pleadings, I am
satisfied that it was canvassed fully in the
evidence, and I am accordingly able to deal therewith. I return to
this in due course.
[17]
Three witnesses were called to give
evidence before me. The only witness to testify on behalf of the
plaintiff was the plaintiff
himself. Two witnesses testified on
behalf of the defendants, being (i) Thembisa Mzinzi (“
Mzinzi
”),
a Cleaning Contract Officer in the employ of the first defendant and
the chairperson of the bid evaluation committee and;
(ii) Johannes
Gideon van der Walt (“
van der
Walt
”), the Regional Manager for
the Gqeberha Regional office in the employ of the first defendant and
the chairperson of the
regional bid adjudication committee.
[18]
The only account of the incident was
narrated by the plaintiff. The plaintiff testified that on the
morning in question, at approximately
08h30, and after reporting to
court 51, he proceeded to walk through the passageways of the court
building to attend to a scheduled
meeting with a clerk of the court,
Hazel Mtanga (“
Mtanga
”).
The plaintiff’s path of travel and the location of the incident
are clearly described in the evidence on record
and are depicted in
the photographs which were taken by the plaintiff on the day of the
incident, which were admitted into evidence
as exhibits “A”
to “C”.
[19]
In essence, the plaintiff, after exiting
court 51, turned to his left and proceeded down the passage through a
set of double doors.
Once through the double doors, the plaintiff
once again turned to his left. As the plaintiff rounded the corner,
he immediately
noticed a lady, who he identified as a cleaner, and
who later was identified as Ms Witbooi (“
Witbooi
”),
standing in the passageway with her cellular phone in her one hand,
which she held in front of her face.
[20]
The plaintiff, having noticed a black bag
positioned on the floor next to Witbooi, walked around the black bag,
whereafter he suddenly
slipped and fell backwards. Upon realising
that he was falling, the plaintiff put out his left hand to break his
fall. Ultimately,
the plaintiff landed on his back and momentarily
lost consciousness. When the plaintiff regained consciousness, he
looked up at
the roof and realised that he was lying on his back. He
noted that the back of his shirt and pants were wet and that he had
slipped
in water that was present on the floor. Prior to slipping and
falling, the plaintiff was unaware of the water’s presence.
[21]
The plaintiff got up, unassisted, and
approached Witbooi. He enquired why there were no warning signs in
place, to which Witbooi
responded that she was going to lose her job;
that her husband was paralysed; and that she was the only one
(between her and her
husband) who had employment. Witbooi started
crying and several people, having heard the commotion, approached the
plaintiff and
Witbooi.
[22]
The plaintiff thereafter proceeded back to
Court 51, where it was brought to his attention that his glasses,
which had been on the
top of his head, were missing. The plaintiff
returned to the scene of the incident to look for his glasses, where
he found them
on the ground near the door. At that point he also
noticed a blue water bucket on the left-hand side of the passage,
positioned
in front of the black bag, up against the wall. I pause to
mention that the black bag and the blue bucket are clearly apparent
from exhibit “C”. The plaintiff proceeded to report the
incident to Mtanga; to Ms Ayanda Deyi, the procurement officer;
and
to Magistrate Mayataza.
[23]
As a result of the plaintiff’s slip
and fall, he testified that he sustained an injury to his left
shoulder, necessitating
pre-surgical treatment; shoulder repair
surgery; and post-operative treatment, the details of which do not
fall to be determined
by me and accordingly, need not be traversed
for the present purposes.
[24]
The plaintiff’s evidence pertaining
to the events leading up to the incident; the incident itself; and
the events which transpired
thereafter, whilst that of a single
witness, was unchallenged.
[25]
The
decisions of our courts have over time developed harmony on the
importance of challenging the aspects of a witnesses’
evidence
which a legal practitioner wishes to place in dispute.
The
Constitutional Court in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[5]
made
the following remarks at paragraph [61] in this regard:
“
The institution
of cross-examination not only constitutes a right, it also imposes
certain obligations. As a general rule it is
essential, when it is
intended to suggest that a witness is not speaking the truth on a
particular point, to direct the witness’
attention to the fact
by questions put in cross-examination showing that the imputation is
intended to be made and to afford the
witness an opportunity, while
still in the witness box, of giving any explanation open to the
witness and of defending his or her
character. If a point in dispute
is left unchallenged in cross-examination, the party calling the
witness is entitled to assume
that the unchallenged witnesses’
testimony is accepted as correct. This rule was enunciated by the
House of Lords in Browne
v Dunn [(1893) 6 The Reports 67 (HL)] and
has been adopted and consistently followed by our courts.”
[26]
The issues canvassed with the plaintiff
under cross-examination largely pertained to the fact that Witbooi
was employed by Sky Ground,
and that Sky Ground, pursuant to the
successful award of a tender, had been appointed, contractually, as
the service provider for
the provision of cleaning services at the
court building, by the first defendant, for a period of 24 months.
These aspects were
readily conceded to by the plaintiff.
[27]
The plaintiff’s attention was drawn
to clauses 4.17 and 5 of the site specification document which forms
part of the contract
in question, to which he did not take issue. The
respective sections provide as follows:
“
4.17.
Floors
(a)
Damp-wash floors with an approved
disinfectant – daily.
(b)
Remove dirty spots and rubbish –
daily.
(c)
Non-slip cleaning agents should be
used. Employees may not be exposed to wet/ slippery floors.
…
5.
EQUIPMENT, CLEANING MATERIAL AND HYGENIC SERVICES TO BE USED
5.1 Equipment
…
i.
…
ii.
…
iii.
…
iv.
Regulatory warning Signs
v.
…”
[28]
The aforesaid clauses were utilised to
foreshadow the final aspect of the plaintiff’s
cross-examination, the relevant portions
of which are repeated below:
“
MR
DALA:
Just one, well I think I
dealt with it, but just to be clear and I just want to put to you Mr
Swarts that the department had taken
all reasonable steps knowing for
examples (sic), floors can be slippery and there must be warning
signs, they took all reasonable
steps, as you can see from the
contract. Anything you would like to say?
MR
SWARTS:
Well, that is not the
end of it all. There is case law, I do not want to go in that which
says something else that what you are
saying. But I will leave it to
my counsel to argue that at the end of the day.
MR
DALA:
That is fine. So, you have
got nothing to say?
MR
SWARTS:
Well, I am telling you
there is (sic) other versions to the same story. I do not want to –
I am just not agreeing with you.
MR
DALA:
Okay, you are not in
agreement?
MR
SWARTS:
No.
”
[29]
The evidence of Mzinzi, for the defendants,
was led primarily to (i) establish the tender process, from a bid
evaluation committee
standpoint; (ii) to prove the minutes of the bid
evaluation committee meeting, which had previously been tendered into
evidence,
provisionally; and (iii) to confirm that Sky Ground, as the
highest scoring bidder, was recommended by the bid evaluation
committee.
Mzinzi’s evidence was uncontentious
[30]
Van der Walt testified that following the
approval of the recommendation received from the bid evaluation
committee, he was the
signatory to the contract with Sky Ground, on
behalf of the first defendant.
[31]
The main thrust of van der Walt’s
evidence, in respect of the assessment of the bidders, related to the
performance of a financial
risk assessment on those bidders that were
found to be responsive. Simply put, the prescribed labour rates,
together with the cost
of materials, were measured against the
committee’s independent assessment of what is required to
maintain a court building
over the contract period. Should a bidder
score on, or above, the predetermined breakeven point, this indicates
that the bidder
is able to deliver the services required.
[32]
Van der Walt testified further that the
specification was very clear in terms of the products to be utilised
in the performance
of the services, and confirmed that where the
performance of such services may compromise the health and safety of
visitors to
the court building, regulatory warning signs, as per
clause 5 of the site specification document, needed to be utilised.
Accordingly,
and by virtue of the contractual provisions referred to,
van der Walt was of the opinion that all reasonable and necessary
steps
had been taken by the first defendant to avoid such compromise.
[33]
Van der Walt conceded during
cross-examination that, on the morning in question, the floor in the
passageway where the plaintiff
slipped and fell was wet. He further
conceded that no warning signs had been utilised to alert persons
walking in the vicinity
of the wet passageway. When cross-examined on
what van der Walt knew about the entity, known as Sky Ground, van der
Walt was unable
to shed any light on the topic, other than to deduce
from the face of the contract document, that it was a legal entity as
it had
a registration number and that its
domicilium
citandi et executandi
was residential
in nature.
[34]
When enquired as to whether the first
defendant had placed anyone at the court building to ensure that the
cleaning services had
been properly and safely rendered, van der Walt
was unable to state much more other than the first defendant has a
service level
agreement in place with the second defendant in terms
of which monthly meetings are held to monitor the progress of, and
the quality
of, the work performed by the appointed service
providers. Van der Walt conceded that the first defendant had no
personnel on the
ground at the court building and that incidents such
as the incident in question would “
probably
be brought to our attention at these monthly meetings
.”
When pressed further by Mr Niekerk, on behalf of the plaintiff, the
following exchange ensued:
“
MR
NIEKERK
: … Department of
Public Works, took no steps to place anybody at the premises to
ensure that the cleaning services were
properly and safely carried
out. Do you agree with me on that? They were – the answer to
that question would be yes?
VAN
DER WALT
: The answer to that
question is yes, but there is an underlying agreement that regulates
our engagement with the Department of
Justice.
”
[35]
Van der Walt’s contention that a
non-slip finish ought to have been applied to passageway floors, was
equally as non-committal
regarding whether or not this had been done
and whether or not the first defendant’s personnel ensured
compliance with the
contract between the first defendant and Sky
Ground. Van de Walt, by way of oversight and monitoring functions,
once again placed
reliance on the stated monthly meetings, and what
he referred to as “
regular
inspections linked to those meetings
”,
which inspections, he said, take place at least once a month. As to
whether such meetings took place, van der Walt firstly
testified that
he would
assume
so as it was required in terms of the specification document, and
thereafter he later conceded that whilst inspections had been
held,
he was unable to state whether this was done on a monthly basis.
[36]
Van der Walt further conceded that Sky
Ground, by leaving the wet floor unattended to, and by not putting
out the required warning
signs, had breached the agreement between
the first defendant and Sky Ground.
[37]
It is common cause that the second
defendant is the occupier of the court building and that it had an
obligation to occupy the court
building responsibly.
[38]
Given the body of the evidence led, in the
context of the central issues which fall to be determined by me, it
is not necessary
to make credibility findings on behalf of the
defendants’ witnesses. Insofar as the plaintiff’s
evidence is concerned,
and as previously set out, same was
unchallenged by the defendants and there exists no basis to reject
his version of the events,
which transpired on the morning of 16
November 2018, and which I accept.
[39]
I now turn the relevant legal principles at
hand.
[40]
The
general rule in our law is that a principal is not liable for the
wrongs committed by an independent contractor or its employees.
[6]
The recognised exception to the general rule is where the employer
himself has been negligent in regard to the conduct of the
independent contractor, which caused harm to a third party. Such
liability is not vicarious.
[7]
[41]
Whether
a principal will indeed be liable for the negligence of an
independent contractor has been subject to a continuing debate.
This
so-called “
personal
duty”
or “
non-delegable
duty”
[8]
which
has been described as “
a
special responsibility or duty to see that care is taken”
enables a plaintiff to outflank the general principle that a
defendant is not vicariously responsible for the negligence of an
independent contractor.
[9]
[42]
The
concept of personal duty is not without its difficulties as courts
have grappled to explain when and why this particular duty
should be
so classified.
[10]
[43]
Courts
have oft been criticised for extending the liability of a principal
for the negligence of an independent contractor. In
Chartaprops
(supra)
[11]
the Supreme Court of Appeal, relying on the remarks by Glanville
Williams, commented as follows:
[12]
“
One
of the most disturbing features of the law of tort in recent years is
the way in which the courts have extended, seemingly without
any
reference to considerations of policy, the liability for independent
contractors.”
[44]
The
Supreme Court of Appeal has warned of cases that have “
sowed
the seeds of the large extension”
that
would efface the whole distinction between employee and independent
contractor.
[13]
In
consideration of the principles applicable to the present matter, I
remain mindful of the aforesaid.
[45]
Under
English law one situation where an employer of an independent
contractor is liable for the wrongs of the latter is where the
work
performed is dangerous.
[14]
However, in our law, it is important to note that this is but one of
the factors to be taken into account in determining liability.
The
fact that the work was dangerous does not, in itself, invariably lead
to liability.
[15]
[46]
The
usual approach to so-called “
slip
and trip
”
incidents, in places frequented by members of the public, was
succinctly set out by Stegmann J in
Probst
v Pick ‘n Pay Retailers (Pty) Ltd
[16]
as follows:
“
The
duty on the keeper of a supermarket to take reasonable steps is not
so onerous as to require that every spillage must be discovered
and
cleaned up as soon as it occurs. Nevertheless, it does require a
system which will ensure that spillages are not allowed to
create a
potential hazard for any material length of time, and that they will
be discovered, and the floor made safe, with reasonable
promptitude.
”
[47]
In
Langley
Fox Building Partnership (Pty) Ltd v De Valence
[17]
the court in determining liability of the employer for an independent
contractor, formulated the test to be applied as follows:
“
(a)
would a reasonable man have foreseen the risk of danger in
consequence of the work he employed the contractor
to perform? If so,
(b)
would a reasonable man have taken steps to guard against the danger?
If so,
(c)
were such steps taken in the case in question?
”
[18]
[48]
The
test set out in
Langley
Fox
has been said to repeat, in substance, the traditional test for
negligence articulated in
Kruger
v Coetzee
.
[19]
[49]
In determining the answer to the second
enquiry into negligence, the court emphasised the following factors,
which were by no means
an exhaustive list:
“
[t]he
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.
”
[50]
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.
[20]
[51]
In the present instance, the plaintiff’s
case at trial was that the first defendant as custodian of the
building, and the
second defendant as the occupier thereof, were
under a legal duty to the plaintiff, and the public at large, to
ensure that the
buildings, including the floors of the building’s
passageways, for which they were responsible, are safe and free of
obvious
hazards which would pose a risk to members of the public.
Whilst the first defendant, admitted the aforesaid legal duty on the
pleadings, the legal duty which rested upon the second defendant was
undisputed in evidence.
[52]
I am satisfied that the legal duty as
pleaded, was established by the plaintiff in respect of both
defendants.
[53]
It
was submitted, on behalf of the plaintiff, that the defendants’
legal duty cannot be contracted out of, and cited as authority,
De
Kock v Minister of Public Works.
[21]
I disagree that the findings in
De
Kock are
authority
for such proposition. To hold otherwise would be to endorse the
existence of a non-delegable duty, which the Supreme Court
of Appeal
has cautioned against.
[54]
In
De
Kock (supra)
,
the plaintiff, who was employed as a prosecutor, slipped and fell
whilst walking in the court passageway at the Bhisho High Court
and
sustained certain bodily injuries. The plaintiff thereafter
instituted action against the Minister of Public Works. In his
plea,
the defendant admitted that court buildings fall under his authority
and that it was his responsibility to supply the court
cleaners with
cleaning and maintenance materials, but that such cleaners were
employed by the Minister of Justice and Constitutional
Development.
For that reason, the defendant contended that he could not be held
liable for the cleaners’ negligence. In this
regard, the court
stated as follows:
[22]
“
I
may just mention in this regard that the attempt in the defendant’s
pleadings to avoid liability by denying responsibility
for the
cleaners, which is, in my view, at odds with and cannot be sustained
in the light of the admission by the defendant that
his department is
the “caretaker” of the relevant building, was prudently
not pursued in argument by his counsel…
It must therefore be
accepted that the defendant has a duty to keep the buildings,
including the floors of such buildings for which
it holds
responsibility… reasonably safe for the public using them.
”
[55]
I
understand the position in
De
Kock
to be aligned with the principle enunciated in
Alberts
v Engelbrecht,
[23]
that a defendant, as a matter of law, has a duty to take reasonable
steps to keep his premises reasonably safe at all times when
members
of the public may be using them. If liability were to attach to the
principal in such instance, it would be as a consequence
of his
negligence in failing to take preventative measures to prevent the
risk of harm from materialising that a reasonable person
in those
circumstances would have taken, rather than in accordance with a
proposition framed in terms of a non-delegable duty.
[24]
[56]
In the present instance, the legal duty
having been established, what remains to be considered is the third
enquiry as set out in
Langley Fox, namely, whether, on the facts of
this particular matter, steps to guard against the danger were taken
by the defendants.
Put differently, and in light of the defendants’
pleaded case, the appropriate enquiry is whether the defendants,
discharged
their legal duty by the appointment of Sky Ground by the
first defendant.
[57]
The
third requirement requires consideration of all the facts and
circumstances of the case and ultimately the inquiry involves
a value
judgment.
[25]
In this regard
it is well to recall the words of Scott JA in
Pretoria
City Council v De Jager
:
[26]
“
Whether
in any particular case the steps actually taken are to be regarded as
reasonable or not depends upon a consideration of
all the facts and
circumstances of the case. It follows that merely because the harm
which was foreseeable did eventuate does not
mean that the steps
taken were necessarily unreasonable. Ultimately the inquiry involves
a value judgment.”
[58]
The plaintiff’s case is that the
first and second defendants were negligent (in breach of their legal
duty) in the respects
set out in paragraph 6.1 to 6.3 and 6.5 and 6.6
of the plaintiff’s particulars of claim, which I have cited
herein above.
It is contended that as a result of this negligence,
the plaintiff slipped and fell in the court passageway, sustaining
the resultant
injury to his shoulder.
[59]
Notwithstanding it being common cause,
inter alia
,
that the (i) defendants did nothing to warn the plaintiff that the
passage floor was wet; (ii) allowed the plaintiff to walk on
the wet
passage floor; (iii) failed to ensure that the passage floor was safe
for the plaintiff to walk on; and (iv) failed to
utilise warning
signs to warn members of the public of the wet floor, the defendants
case was that it took reasonable steps to
guard against the
foreseeable harm to the public, by the appointment of Sky Ground, a
competent and professional independent contractor.
[60]
Accordingly, the question arises whether on
the evidence, the defendants, in the appointment of Sky Ground by the
first defendant,
can be said to have taken reasonable steps to guard
against foreseeable harm to the public, and accordingly the
plaintiff. It is
this question which I am called upon to exercise a
value judgment.
[61]
On a conspectus of the evidence, the answer
to this question must be in the negative. The first defendant, and
accordingly the second
defendant, were satisfied to merely content
themselves with the appointment of Sky Ground by the first defendant,
an entity which
the defendants seemingly knew little about, to
perform the cleaning services at the court building, and to sit back
and do no more.
The high-water mark of the defendants’ case,
insofar as the assessment of Sky Ground by the first defendant during
the bid
evaluation and adjudication process is concerned, pertained
to a financial risk assessment, which, in my opinion, falls far short
of establishing that Sky Ground was a competent and professional
independent contractor. The first defendant, but for, at best,
once-a-month meetings and/or inspections, distanced herself from the
cleaning functions of the court building, despite being the
custodian
of same and retaining factual control thereover. By the same token,
so too did the second defendant, who also retained
factual control
thereover, as the occupant of the court building.
[62]
It
is this that distinguishes
Chartaprops
16 (Pty) Ltd and Another v Silberman
[27]
and
Holtzhausen
v Cenprop Real Estate (Pty) Ltd and Another
[28]
from the present matter. The principals in both such cases took
further steps than merely satisfying themselves with the appointment
of independent contractors to perform the cleaning services.
[63]
In the circumstances, I find that the
plaintiff’s fall was caused by the negligence of the first and
second defendants. I
see no reason to depart from the usual order as
to costs. Having come to the above findings, and for such reasons, I
find that
there is no merit in the respective special pleas raised by
the defendants, which need no further comment, and are accordingly
dismissed.
[64]
In the premises, the following order shall
issue:
1.
It is declared that the first and second
defendants are liable, jointly and severally, for such damages as
might be agreed upon
or proved in consequence of the event that is
the subject of this claim.
2.
The first and second defendants are ordered
to pay the costs, jointly and severally, of the hearing of the issues
already determined
in this judgment.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Plaintiff:
Adv Niekerk
Instructed
by:
Boqwana Burns
Inc. 84 – 6
th
Avenue, Newton Park
For
the Defendant
Adv Dala
Instructed
by:
State Attorney,
29 Western Road, Central
[1]
Denel
(Edms) Bpk v Vorster
2004 (4) SA 481
(SCA)
Bonnievale
Piggery (Pty) Ltd v Eugene van der Merwe
[2020]
ZAWCHC (4) at [24], [32] and [33]. The Judgment of the Full Bench in
Bonnievale
(Western Cape) was upheld on appeal. See
Van
der Merwe v Bonnievale Piggery (Pty) Ltd
[2021] ZASCA 162.
[2]
Kelbrick
and Others v Nelson Attorneys and Another
[2019]
JOL 43037
(SCA) at para [28].
Wallach
v Lew Geffin Estates CC
[1993]
ZASCA 39
;
1993
(3) SA 258
(AD) at 262 – 263.
Rennie
Charles Blaine Price N.O & Others v Sun Citrus Packers
(Pty) Ltd [2020] ZAECPEHC 4 (6 February 2020),
unreported decision of Gqamana J.
[3]
To
include reference to the respective paragraphs of the plaintiff’s
particulars of claim and the corresponding paragraphs
thereto as
contained in the first and second defendants’ amended plea,
which form part of the separated issues.
[4]
The
plaintiff abandoned reliance on paragraph 6.4.
[5]
2000
(1) SA 1 (CC).
[6]
Colonial
Mutual Life Assurance Society Ltd v McDonald
1931 (AD) 412;
Auto
Protection Insurance Co Ltd v McDonald (Pty) Ltd
1962
(1) SA 793
(A);
Smit
v Workmens Compensation Commissioner
1979 (1) SA 51
(A);
Chartaprops
(supra)
at para 28 and
Langley
Fox Building Partnerships (Pty) Ltd v De Valence
1991 (1) SA 1
(A) at 8A.
[7]
Saayman
v Visser
[2008] ZASCA 71
;
2008
(5) SA 312
(SCA) at para 18.
[8]
As
described in English Law (see
Chartaprops
(supra)
at para 29).
[9]
Chartaprops
(supra)
at para 29.
[10]
Chartaprops
(supra)
at para 30.
[11]
Chartaprops
(supra)
at para 28
[12]
‘
Liability
for Independent Contractors’
(1956) Cambridge Law Journal at 180.
[13]
Chartaprops
(supra)
at para 28.
[14]
Saayman
(supra)
at
para 19.
[15]
Saayman
(supra)
at
para 21.
[16]
[1998]
2 All SA 186
(W) at 200f.
[17]
1991
(1) SA 1 (A).
[18]
Langley
Fox (supra)
at 13F – 14H. This test was applied in
Saayman
(supra)
at
para 22 and in
Pienaar
v Brown
2010 (6) SA 365
(SCA) at para 11 and 21 – 22.
[19]
Pienaar
v Brown
2010
(6) SA 365
(SCA) at para 30. See also
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-H.
[20]
Saayman
(supra)
at para 23.
[21]
[2004]
1 All SA 282 (Ck).
[22]
At
284.
[23]
1961
(2) SA 644 (T).
[24]
Chartaprops
(supra)
at para 41.
[25]
Saayman
(supra)
at para 12.
[26]
[1997]
1 All SA 635
(A) at 643.
[27]
2009
(1) SA 265 (SCA).
[28]
2021
(4) SA 221
(WCC).