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2022
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[2022] ZAECQBHC 33
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Bashman v Nelson Mandela Metropolitan Municipality (1057/2020) [2022] ZAECQBHC 33 (27 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO. 1057/2020
In
the matter between:
NOSISI
BASHMAN
PLAINTIFF
And
NELSON
MANDELA
METROPOLITAN
MUNICIPALITY
DEFENDANT
JUDGMENT
GQAMANA
J:
[1]
The plaintiff, Ms
Nosisi Bashman
instituted damages claim
against the defendant, Nelson Mandela Bay Metropolitan Municipality.
The plaintiff’s complaint is
that, she fell in an open storm
water drain and injured herself. Accordingly, she alleges that the
defendant had a legal duty of
care to warn members of the public
including her of the hazards posed by an open storm water drain and
therefore its failure to
do so was wrongful and negligent. At the
commencement of the trial, parties agreed to an order in terms of
Rule 33(4) of the Uniform
Rules of Court to separate merits and
quantum and, to proceed only in respect of the issues of negligence
and liability. The draft
Order which the parties had prepared in that
regard was then made an order of court and the matter proceeded on
the separated issues.
[2]
The plaintiff’s case as formulated in the particulars of claim
is that, on 24
July 2019, she was walking at Msimka Street, New
Brighton, in the evening at approximately 20h00, when she fell into
and was trapped
in an open storm water drain injuring her right
elbow. As a result of such incident, she sustained a supracondylar
fracture of
the right elbow and she had to be admitted at hospital
for treatment of same. Plaintiff attributes the blame for such
incident
on the negligence of the defendant and its employees. It is
further pleaded that the defendant would have foreseen the reasonable
possibility of its failure to cover the storm water drain would have
cause injury to members of the public including the plaintiff
and
that it had a legal duty of care and to ensure that the storm water
drain was covered at all times and that there were no adequately
warnings drawing members of the public, including the plaintiff’s
attention to the hazards presented by the uncovered storm
water
drain. The nature and extent of the injuries sustained by the
plaintiff are for the purposes of adjudication on the separated
issues not relevant.
[3]
Leaving aside the special plea which was raised by the defendant and
which has since
been disposed of by the Order and judgment of
Majiki
J, otherwise the defendant admitted the presence of a storm water
drain/manhole at the area as alleged in the plaintiff’s
particulars of claim. However, it pleaded that it had no knowledge of
how the incident occurred and accordingly, same was denied.
The
defendant also pleaded that, in the event that the court finds that
the plaintiff fell into a storm water drain, such incident
was caused
by a cyclist who collided with the plaintiff, alternatively caused
the plaintiff to take evasive action. Accordingly,
the defendant
could not be held liable, in that the injuries sustained by the
plaintiff were not caused by it.
[4]
Further the defendant admitted that it had a duty of care to take
reasonable measures
to ensure that the storm water drain would not
pose a danger to the members of the public and that it had indeed
taken all such
measures within its available resources including
financial capability to ensure that the storm water drains were
securely covered.
[5]
In this matter the onus is upon the plaintiff to prove her claim.
Three witnesses,
namely, the plaintiff,
Thembakazi Notshoba
(plaintiff’s cousin) and Mr
Mngqushu
testified to
support the plaintiff’s case, and in addition there were
fourteen photographs which were handed as exhibit A.
The defendant
also called two witnesses, namely, Messrs
Jack Strydom
and
Ashley Stowman
.
[6]
The plaintiff was the only witness that testified on how the incident
occurred. Her
testimony is that she was walking at Msimka Street on
the road surface on her way to catch a taxi home. The area was dark
because
there were no streetlights and she was unfamiliar with it.
Suddenly a cyclist approached her from the front in high speed and to
avoid a collision with the cyclist, she jumped into the pavement and
stepped into an open storm water drain. An open storm water
drain is
depicted in photograph 14. The plaintiff stepped into it on her right
leg and fell on her right elbow injuring her arm.
She cried and
called her cousin, Ms
Notshoba
for help. Her cousin was
walking behind her and she came and lifted her. Her cousin also
arranged for the transport to take the
plaintiff to Dora Nginza
hospital. At the hospital an X-Ray was performed and discovered that
she had fractured her arm and she
was then transferred to Livingstone
hospital for further management and treatment of her injuries.
[7]
Under cross-examination, she testified that she stepped into the
storm water drain
with her right leg and then fell on her right elbow
and was trapped inside the open storm water drain. She admitted that,
she chose
to walk on the road surface and not on the pavement/
sidewalk. When grilled about that, her response was that people would
often
walk on the road and she also prefers to walk on the road
instead of the pavement. She conceded that, nothing prevented her
from
walking on the pavement. Furthermore, she admitted that she did
not see the cyclist coming and only saw it for the first time when
it
was already close to her. In order to avoid a collision with it, she
decided to move out of the road to the pavement, and stepped
into an
open storm water drain and fell. She was unaware that there was an
open storm water drain in that area and there were no
warning signs
of it. She did not collide with the cyclist and she was adamant that
had the drain been securely covered, she would
not have been injured.
She was squeezed about the contradictions between the information
contained in the reply to the trial particulars
and her testimony. It
was recorded in the reply to the trial particulars that she was
walking on the sidewalk.
[1]
In
addition she was given a hard time about the contradictions of her
testimony and the information contained in the expert reports
of Ms
Grobler
,
the physiotherapist, Mr
Zandre
Jubelius
,
the Occupational Therapist; Mr
Tom
,
the Industrial Psychologist and the hospital records of Dr
Theunissen
from Livingstone hospital. From the outset, I must mention that there
was no agreement between the parties on the status of these
reports
and the hospital records. The closest one finds about the documents
is that they are what they purport to be, but the contents
thereof
was not admitted.
[2]
In any
event the plaintiff attributes these contradictions to the language
barriers during the consultations with the abovementioned
experts. It
was not disputed that the plaintiff’s highest standard of
education was grade 10 / standard 8. Further the plaintiff
was put to
task that, despite her choice to walk on the road but she did not
keep a proper look out because she only saw the cyclist
when he was
close to her.
[8]
The plaintiff’s cousin was of no assistance
to the court on how the incident happened because she did not see it.
She was
alerted to it when the plaintiff cried for help after she had
already fell. Her cousin’s version is that the plaintiff’s
body, both legs were inside the open storm water drain and she had to
lift her out and it is then that she noticed that plaintiff’s
arm was wiggling. She confirmed that when the plaintiff fell, she was
walking behind her at a distance of +- 15 to 20 metres. Of
importance, she corroborated the plaintiff’s version that,
there were no street lights in the area where the open storm water
drain was. Further, she confirmed that the storm water drain was not
covered for a long time before the incident and that the defendant
must have been aware of it because the latter’s employees used
to sweep and collect rubbish bags weekly from the same street
and
also one of the ward councillor’s house is directly opposite
the scene. Granted, there were contradictions between the
testimony
of the plaintiff and her cousin, on the nitty gritties because
according to her cousin, the plaintiff was standing with
both legs
inside the storm water drain. In contrast the plaintiff’s
version was that, she stepped into open storm water drain
with her
right leg and fell. Her cousin’s version also contradicted the
evidence of the photographer, Mr
Mngqushu
.
According to the plaintiff’s cousin the storm water drain was
only securely covered in the middle of 2021, but according
to Mr
Mngqushu
when he visited the scene for the second time, to take the
photographs,
inter alia
,
exhibit A1-13, the storm water drain was covered. Objectively
photographs 10 and 13 show a covered storm water drain and photos
are
real evidence and they don’t lie. In addition, it is evident
from such photographs that the cover lids were inserted
at different
times.
[9]
The defendant’s witnesses also confirmed that objectively if
one looks at the
photographs, the cover lids of the storm water drain
were indeed inserted at different times. Both of them testified that,
there
are no records of a report or a complaint of an open storm
water drain in Msimka Street. Mr
Stowman
further testified
that he became aware of the alleged open storm water drain when he
was contacted by defendant’s legal services
and he went to the
area on 20 August 2020, but he did not see any open storm water
drain. He also enquired from other employees
including Mr
Strydom
about a report or complaint of an open drain and nobody had
information about it. Photograph number 14 was only sent to him by
the defendant’s legal services on 31 August 2020 and it was
only then that he managed to locate the relevant storm water
drain.
It was securely covered with both lids. Both the defendant’s
witnesses under cross-examination could not dispute that
the relevant
storm water drain was open on 24 July 2019. They merely maintained
their position that there were no records that
the municipality
attended to close the relevant storm water drain. The undisputed
evidence is that the cover lids were inserted
at different times and
it was the duty of the defendant to maintain and ensure that the
storm water drains were securely covered.
[10]
Both counsel were in agreement that, in so far as there are
contradictions on the disputed facts,
the correct approach is that
which is articulated in
Stellebosch
Farmer’s Winery Group Ltd and Another v Martell & Cie SA
and others,
[3]
at para 5 that:
“
The
technique generally employed by the courts in resolving factual
disputes of this nature may conveniently be summarised as follows.
To
come to a conclusion on the disputed issues, a court must make a
finding on (a) the credibility of the various factual witnesses,
(b)
their reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness box; (ii) his bias, latent
and blatant, (iii) internal
contradiction in his evidence, (iv)
external
contradictions with what was pleaded
or put on his behalf, with established fact or with his own
extracurial statements or actions, (v) the probability or
improbability
of particular aspects of his verional, (vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying
about the same incident or events. As to (b) a witness’s
reliability will depend, apart from the factors mentioned under (a),
(ii), (iv) and (v) above, on (ii) the opportunities he had to
experience or observe the event in question and (ii) the quality,
intergrity and independence of his recall thereof. As to (c) this
necessitates an analysis and evaluations of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c)
the court
will then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging
it.
”
[11]
Mr
Niekerk
, counsel for the defendant, argued that in the
light of all the contradictions exposed during cross examination, the
plaintiff
has failed to discharge the onus and to prove her claim.
[12]
In
casu
,
wrongfulness of the defendant’s conduct would arise if it had a
legal duty to act positively to prevent harm to the plaintiff
[4]
and in the case of an omission, wrongfulness is not presumed.
Recently in
The
Memorable Order of Tin Hats v Kenneth Paul Els (488/2021)
[2022]
ZASCA 99
(22 June 2022) at para 18 Hughes
JA said:
“
An
omission per se is not wrongful unless it is considered to go against
legal policy or public considerations, which dictate that
a plaintiff
be compensated for the loss suffered as a result of the omission.
Thus, the approach alluded above, involves a further
enquiry, that
being whether there was a legal duty that gave rise to delictual
liability. Put, differently an omission does not
necessarily attract
liability, only if it was culpable would it do so.
”
[13]
Notwithstanding the contradictions mentioned above, it is common
cause that there is a storm
water drain in the area were the incident
occurred. Photograph number 14 depicts an open storm water drain,
with only one cover
lid instead of two. That photograph was taken in
August 2020 by the witness Mr
Mngqushu
, an independent person.
The defendant had a legal duty to ensure that the storm water drain
was covered and/or to alert members
of the public, including the
plaintiff of the hazards that could be posed by an uncovered storm
water drain. The plaintiff’s
cousin testified that she resides
in that area and that the relevant storm water drain was open for a
considerable period of time
of more than a year before this incident.
The employees of the defendant were aware of such, because they used
to clean and sweep
that street weekly and others would collect
rubbish bags weekly in the same street. The plaintiff was unfamiliar
with the area.
Further there were no street lights in the area where
the storm water drain was. An uncovered storm water drain in a
pavement and
dark area would pose hazard to the pedestrians and
members of the public. There were no warning signs of such danger and
that,
such failure by the defendant to warn the members of the public
including the plaintiff presented the risk of injury to them. The
photographer, Mr
Mngqushu
testified that, he attended the
scene again to take more photos and he observed that the storm water
drain was properly covered.
The defendant’s witnesses also
confirmed that by looking at the photographs objectively, it appears
that the lids were inserted
at different times. Despite the
contradictions, the plaintiff’s evidence passes the test, if
one has regard to all the probabilities.
[14]
I agree with Ms
Ntsepe
, counsel for the plaintiff, that the
judgment in
Mahlasela v Nelson Mandela Bay Municipality
2021 JOL
51657
ECP
, relied upon by the defendant is distinguishable on
facts. The parties as mentioned earlier above did not agree upon the
status
of the expert reports and the hospital records. None of those
experts was called to testify and to rebut the plaintiff’s
version of events and that there was a language barrier. Accordingly,
not much weight can be attached to such documents, they are
what they
purport to be and the context thereof was not admitted.
[15]
The plaintiff’s evidence is the only evidence before me
describing how the incident occurred.
Therefore, the plaintiff is a
single witness. Moreover, I am acutely aware that, although her
version remained uncontroverted but
that, does not translate into the
truth merely because of her say-so without further ado. The plaintiff
as the party who bears
the onus, her evidence must be credible to the
extent that her uncorroborated evidence satisfy the court that on
probabilities
it is the truth.
[5]
In weighing the evidence of a single witness, a court is required to
consider its merits and demerits and decide whether, despite
any
shortcomings or defects in the evidence, it is satisfied that the
truth has been told.
[16]
The plaintiff’s evidence was that the storm water drain was
open; she stepped into it and
fell when she had to avoid a collision
with a cyclist. Sequalae thereto she injured herself. Her cousin’s
testimony was that
the storm water drain was open for a considerable
period. It was not disputed that there were neither streetlights nor
warning
signs in the area alerting the plaintiff and/or the members
of the public about the potential danger that could be posed by the
open storm water drain. The fact that the defendant could not find
any report or complaint of such open storm water drain in its
system
does not absolve it. Both its witnesses could not dispute as a fact
that on 24 July 2019, the relevant storm water drain
was not covered.
Neither did they dispute the plaintiff’s cousin’s
evidence that there are defendant’s employees
who used to work
and collect refuse bags weekly in the same street and area. The
plaintiff was unfamiliar with that area because
she does not reside
there. Regarding the contradictions between the plaintiff’s
evidence and the response to the trial particulars
such cannot be
attributed to plaintiff, but at best to the attorney who drafted such
document. The plaintiff’s version was
consistent with her
particulars of claim and supported by the photographs as far as the
presence of an open storm water drain in
that area. The presence of
the uncovered storm water drain in a pavement where members of the
public are expected to walk on posed
a danger and the defendant
failed to take positive steps to prevent such harm. The defendant
admitted that it had a duty of care
to take reasonable measures.
[17]
On the issue of negligence the test is that set out in
Kruger
v Coetzee
.
[6]
“
For the
purposes of liability culpa arises if:
(a)
a diligens paterfamilias in the position of the defendant;
(i)
would foresee the reasonable possibility of his conduct injuring
another in his personal
property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps
.”
[18]
The storm water drain was left open for a considerable period of
time. There were no warning
signs of the hazard posed by such open
storm water drain. The defendant must have foreseen the reasonable
possibility of harm that
was posed by an open storm water drain with
no warning signs of the presence of such danger. The defendant should
have taken reasonable
steps to prevent the harm either by ensuring
that the storm water drain was covered and/or by placing warning
signs of such danger
to alert the members of the public thereto. The
defendant took no such steps although it has pleaded that all the
necessary reasonable
measures to ensure that the storm water drain
was securely covered. No evidence was led on what measures the
defendant took. The
highest point of the defendant’s defence
was that, it could not find any report or complaint of an open storm
water drain
in the relevant area found in its reporting system. The
defendant further pleaded that the plaintiff’s injuries were
caused
by the collision with the cyclist. Not a shred of evidence led
to support such allegation.
[19]
In a civil case, a plaintiff is required to prove her case no higher
than on a balance of probabilities.
The probabilities are determined
upon the facts and an element of experience on common sense. It calls
for a sensible retrospective
analysis of what could have occurred
based upon the evidence and what can be expected to occur in the
ordinary course. On the totality
of evidence, the plaintiff has
established on the balance of probabilities the wrongfulness and the
negligence of the defendant.
Having said that, the plaintiff,
however, also contributed to the incident and the injuries sustained
consequent thereto. On the
plaintiff’s own version, she made a
choice to walk on the roadway and not on the sideway or the pavement.
Had she been walking
on the pavement she would not have encountered
an approaching cyclist. She voluntarily and conscientiously chose to
walk on the
road way instead of the pavement because, on her version
she liked to do so. Every action has consequences. Having made such a
choice, she failed to keep a proper lookout. Her own evidence was
that when she first saw the cyclist, it was close to her. Had
she
kept a proper lookout, she would have seen the cyclist earlier and
would have been able to move swiftly out of the way. Based
on these
facts the plaintiff was also contributory negligent.
[20]
Ms
Ntsepe
argued for costs of two counsel. I am not persuaded
that this case warrants employment of two counsel. The issues
involved herein
were not unique or complex. This was the run of the
meal case so to say. However, on the costs in general, there is no
reason why
the plaintiff should not be awarded her costs as a
substantially successful party, and these costs include the reserved
costs,
if any, which were occasioned by the postponement of the
matter, on 7 June 2022. On the aforesaid date, the defendant sought
and
an amendment to its plea and to introduce a defence of
contributory negligence after having heard the plaintiff’s
evidence.
The application for such amendment was granted because the
issue was fully canvassed through the plaintiff’s evidence. In
the light of such Order the plaintiff requested time to consider the
amendment. The matter was then postponed with costs reserved.
The
postponement was mainly caused by the defendant’s belated
amendment.
[21]
In the circumstances, the following Order shall be issued:
1.
The defendant is held liable for 90% of such damages that the
plaintiff may prove arising
from the incident that occurred on 24
July 2019.
2.
The defendant is ordered to pay the plaintiff’s costs.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Plaintiff
:
Ms N L Ntsepe
and
Mr Mbenyane
Instructed
by
: Magqabi Seth Zita
Attorneys
Gqeberha
Counsel
for the Defendant :
Mr D Niekerk
Instructed
by
: Goldberg & De
Villiers Inc.
Gqeberha
Dates
heard
: 6, 7 and 23 June
2022
Date
judgment delivered
: 27 September
2022
[1]
Index
to pre-trial notices, p 18, para 2.2.
[2]
Index
to Pre-trial Notices, p 32, para 5.
[3]
2003
(1) SA 11 (SCA).
[4]
See
Van
Eeden v Minister of Safety and Security 2003(1) SA 389 (SCA) 395
[5]
Botha
v Kirk Attorneys (EC 257/2016) 2019 ZAECELHC (22 January 2019)
.
[6]
1966
(2) SA 428
(A) at 430 E.