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[2023] ZAECQBHC 6
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Hobongwana v Benteler South Africa (Pty) Ltd (494/2019) [2023] ZAECQBHC 6; (2023) 44 ILJ 1125 (ECP); [2023] 4 BLLR 359 (ECP) (6 February 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 494/2019
In
the matter between:
LONWABO
HOBONGWANA

PLAINTIFF
and
BENTELER
SOUTH AFRICA (PTY) LTD

DEFENDANT
JUDGMENT
BANDS
AJ:
[1]
Whilst the South African automotive industry is a significant
contributor
to the country’s economy, it, along with many other
manufacturing sectors, poses considerable operational risks to the
men
and women behind the production lines.
[2]
The
plaintiff is no stranger to these risks, having sustained a lower
back injury on the morning of 16 March 2016, at the defendant’s

automotive manufacturing plant, situated in Kariega (“
the
plant
”).
The incident took place whilst the plaintiff was operating the rear
axle assembly line, colloquially referred to
as the SSB line,
[1]
to which the plaintiff had been moved from the Fagor Press, shortly
before the incident occurred.  That the plaintiff sustained
an
injury is not in dispute.  It is the cause thereof, on which the
parties are not aligned.
[2]
[3]
In addition
to an order issued by agreement on 8 October 2020, in accordance with
Uniform Rule 33(4), separating the issue of the
defendant’s
liability from the remaining issues in dispute,
[3]
the parties met the day prior to the commencement of the trial with a
view to further limiting the issues, which issues, together
with a
number of admissions on behalf of the defendant, were recorded in a
further pre-trial minute.
[4]
Consequently, the issues of negligence and causality are to be tried
separately
from, and prior to, the remaining issues in the action.
In light of the defendant’s admission that the defendant had
a
legal duty to ensure that no persons are to be instructed or
permitted to operate machinery and equipment at the plant without

first receiving the necessary training and proper instruction on how
to use it; should I find causal negligence on behalf of the

defendant’s employees, wrongfulness will be established and
liability on behalf of the defendant will follow.  In this

judgment, where reference is made to a legal duty, it is made in the
context of wrongfulness.
[5]
It is common cause that the plaintiff was at all relevant times in
the
employ of Ulrica and Associates (“
Ulrica
”),
which provided labour brokering services to the automotive industry,
inclusive of the defendant, at whose plant the plaintiff
was
assigned.  In terms of clause 2.5 of the plaintiff’s
employment contract with Ulrica, the plaintiff was obliged
to
“
execute the instructions of”
his “
Manager/Client
conscientiously.  Insubordination and hesitation will not be
accepted.  Failure to do this could lead to
disciplinary action
being taken against
” the plaintiff.
[6]
It is further common cause that the equipment in the plant carried
inherent
risks of harm to which all users of the machinery were
exposed, should the machinery be utilised improperly due to
inexperience
or lack of training.  It is for this reason that
all persons, in accordance with the defendant’s Safety
Standards Handbook,
are prohibited from operating the machinery and
equipment in the plant unless they have received prior training,
which has been
documented; alternatively, unless they have received
proper instruction.
[7]
It is against this backdrop that the legal duty, to which I have
referred,
arose.
[8]
The plaintiff contends that the defendant, and/or the defendant’s

employees, acting in the course and scope of their employment with
the defendant, breached their legal duty towards the plaintiff
in one
or more of the ways pleaded at paragraph 23 of the plaintiff’s
particulars of claim, as follows:
“
23.1

T
hey issued and (sic) instruction to the
Plaintiff to operate machinery and equipment, without ensuring that
the Plaintiff received
proper training and/or instruction on how to
use the machinery;
23.2

They failed to adequately supervise the use of the machinery
and
equipment while the Plaintiff was operating the machinery;
23.3

They failed to ensure that the plaintiff operated the machinery
in a
controlled and safe environment;
23.4

They failed to observe and carry out the code of conduct
as
prescribed in the Defendant’s safety handbook;
23.5

They insisted that the Plaintiff perform work that required
him to do
heavy lifting despite receiving medical evidence that due to the
Plaintiff (sic) medical condition he should not be required
to
perform work that required repetitive bending and heavy lifting of
parts that weigh more than 5 kilograms
.”
[9]
With reference to paragraph 24 of the plaintiff’s particulars
of
claim, the plaintiff contends that such conduct was negligent in
that:
“
24.1
At all relevant times they knew or ought to have known that the use
of
the machinery and equipment carried inherent risk to the safety of
the users of the equipment should the machinery be used improperly

through lack of experience and lack of training;
24.2
They failed to heed the protestations by
the Plaintiff that he is unable to use the machinery and equipment,
had not received the
proper training in using the equipment, and that
it is accordingly unsafe for him to operate the machinery and
equipment;
24.3
They failed to take reasonable steps to
prevent the injury to the Plaintiff and to avoid any aggravation of
the injury of the Plaintiff
in circumstances where they could and
should have taken reasonable steps to prevent such harm;
24.4
They failed to take any or adequate and/or
reasonable steps to preserve and protect the bodily integrity and
physical well-being
of the Plaintiff; and
24.5
They failed to prevent the aforementioned
injury when by the exercise of reasonable care, they could and should
have done so.”
[10]
Whilst the defendant
admits the legal duty
as pleaded by the plaintiff, it seeks to disavow liability on the
basis that: (i) whilst the machinery and
equipment in the plant,
carried the inherent risk of harm referred to, all operators
engaged
to render services to the defendant, including the plaintiff, were
fully trained and interchangeable across all lines of
production, as
is necessary in a production environment; (ii) the defendant’s
employees at all times provided adequate supervision,
having regard
to the fact that the plaintiff had been trained to be interchangeable
across the defendant’s production lines;
(iii) the defendant’s
Safety Standards Handbook was complied with at all relevant times;
and (iv) upon being advised of the
plaintiff's injury, the defendant
took all possible steps to accommodate and assist the plaintiff,
including allowing the plaintiff
to work in the wash bay for a period
of time.
[11]
The defendant accordingly denies that its conduct; and/or the conduct
of its employees,
amounts to negligence.  I return to the
defendant’s pleaded version, with particular reference to its
defence that the
plaintiff was
fully trained and
interchangeable across all lines of production, later.
[12]
At this
juncture, it is necessary to examine the undisputed evidence in
respect of the training provided to new operators at the
defendant’s
plant, and the operation of two specific assembly lines, the Fagor
Press
[4]
and the SSB line, as
emerged during the course of the trial, and which feature
predominantly in this matter.
[13]
Prior to the commencement of an operator’s duties at the
defendant’s plant,
induction training is provided, which covers
topics such as work safety; fire prevention; health protection; and
environmental
protection.  The information and instructions are
of a general nature and include a pre-recorded, 32-minute slide show
presentation
and a tour of the defendant’s plant.  Whilst
no pre-recorded slide show was available at the time of the
plaintiff’s
induction, the presentation was done utilising the
same slides; alternatively, materially the same slides as those
contained in
the 32-minute presentation and which were presented into
evidence.  The induction training did not equip operators to
operate
the machinery on the various production lines, nor did it
cover the risks associated therewith.
[14]
Accordingly, in addition to the induction training, operators are
provided with line specific
training, inclusive of training on the
inherent risks associated with the operators’ specific work
areas by the operators’
team leader and/or more senior
operators, to whom the task of training was delegated.  Line
specific training takes place
by way of on-the-job training whilst
shadowing; demonstrating; and operating under supervision.  In
other words, and by way
of illustration, in the event of an operator
being stationed at line “X”, he or she will receive line
specific training
in respect of line “X” and not in
respect of line “Y”.  This is in stark contradiction
to the defendant’s
pleaded case that all operators were fully
trained to operate all the machinery at the defendant’s plant
and were accordingly
interchangeable across the lines of production.
[15]
The Fagor
Press is a cold forming line, which utilises pressure to form some
114 different car parts
[5]
from
sheet metal as it travels along a conveyor belt.  Two operators
are stationed at the end of the conveyor belt and are
responsible for
quality assurance.  Accordingly, as the parts reach the end of
the conveyor belt, the operators are responsible
for picking them up
and inspecting them for irregularities.  Once inspected, the
large parts are placed on a stand, called
a stillage, and the small
parts are placed into a bin.  Operators working on the Fagor
Press are required to move quickly,
with approximately 24 small
parts; alternatively, 12 large parts, being manufactured per minute.
Put differently, new parts are
inspected every 2.5 to 5 seconds.
[16]
The SSB line is manned by four operators and a team leader, and
consists of 3 separate
machines, the SSB1 machine; the SSB2 machine;
and the SSB3 machine, otherwise known as the auto gauge.  Only
one part is machined
on the line, this being a rear axle, which
weighs approximately 20 kilograms.  Two operators are stationed
at, and work interchangeably
between, the SSB1 and SSB2 machines; a
third operator is stationed at the auto gauge; and a fourth operator
is positioned at the
final inspection table.  The respective
operators are required to manage the aforesaid sequence of machines,
which require
the manual loading and offloading of the part being
machined.  A part is taken from the stillage and loaded
horizontally into
the SSB1 machine by ensuring that two small datum
holes at the back of the part, with a diameter of approximately 10
millimetres
each, are placed over two taper pins.  Once loaded,
the operator exits the machine and presses the start button, where
after
the doors to the machine close.  Clamps will engage to
ensure that the part does not move whilst the SSB1 machine is in
operation.
Once the proxies have verified that everything is in
place, the part is machined, with the cycle time being approximately
120 seconds.
Upon completion of the cycle, the clamps release,
and the doors open.  If the clamps do not release, the doors of
the machine
do not open.  The operator removes the part from the
SSB1 machine and loads it into the SSB2 machine if the latter is
available.
If not, the part is placed on a stillage and another
part is loaded into the SSB1 machine.  When the SSB2 machine
becomes
available, a part is either taken out of the SSB1 machine and
placed directly into the SSB2 machine or taken from the stillage.

Once machined by the SSB2 machine, the part is loaded in the auto
gauge.  All three machines have cycle times of differing

lengths, with the entire process taking approximately five minutes.
Once machined, the part is taken to the final inspection
table.
[17]
I now return to the events of 16 and 17 March 2016, as told by the
respective witnesses.
[18]
The plaintiff; together with Nelson Lowasi (“
Lowasi
”),
who was employed
inter alia
as a Health and Safety
representative by the defendant at the time of the incident;
testified on behalf of the plaintiff.
In addition, the
plaintiff presented the evidence of one expert witness, Maretha
Waldron (“
Waldron
”) a qualified occupational
therapist.  The defendant in turn led the evidence of four
employees of the defendant, being
Gerhard Stephanus Wouter
Bezuidenhout (“
Bezuidenhout
”), employed in his
capacity as shift leader; Mauritia Ogies (“
Ogies
”),
who was an operator on the SSB line at the time of the incident in
question but now holds the position of team leader;
Wessel Franklin
Bell (“
Bell
”), who was the team leader on the SSB
line and machine setter on 16 March 2016; and Vuyo Makansana
(“
Makansana
”), who was also an operator on the SSB
line at the relevant time.
[19]
The plaintiff testified that on 16 March 2016, he was working the
06h00 to 14h00 shift
at the defendant’s automotive plant in
Kariega, having been assigned there some six months prior, through
his employer, Ulrica.
It is common cause that on arrival at the
plant on the day in question, the plaintiff reported to the Fagor
Press, from which he
was moved to the SSB line at approximately 08h05
after having been approached by his team leader, Dudu
Thembinkosi
Daniels (“
Daniels
”), on the instruction of
Bezuidenhout.  When approached, the plaintiff pointed out to
Daniels that he did not know how
to operate the machines on the SSB
line.  He thereafter approached Bezuidenhout and advised him
that he had never worked on
the SSB line and accordingly, he did not
know how it worked.  Notwithstanding the aforesaid, Bezuidenhout
advised the plaintiff
that he was to proceed to the SSB line as there
was a shortage of operators on the line and the parts were needed by
the defendant’s
client.  The plaintiff thereafter
proceeded to the SSB line with Bezuidenhout.
[20]
The plaintiff explained that he
understood clause
2.5 of his contract with Ulrica to mean that he must execute the
reasonable instructions given to him by his manager
or supervisor at
the defendant’s plant, failing which, he would face
disciplinary proceedings.
[21]
It was put to the plaintiff during cross-examination,
firstly,
that he did not raise his concerns with Bezuidenhout, and secondly,
that in the event that he had done so, he would not
have been
required to attend upon the SBB line.  Despite the aforesaid,
the following exchange emerged during the defendant’s
evidence,
as given by Bezuidenhout:
“
MS
BOSMAN
:   What happens if some, so if somebody
refuses to move what happens then?  What if they absolutely
refuse to move?
They say I am not, I do not want to go, I am
either scared or I am unqualified, I do not want to go.  How
would, I absolutely
do not want to go.  What do you do then?
MR
BEZUIDENHOUT
:   It is no, you have to find ways
to convince that person that he is able to do it.  If you
really, really cannot,
but I will do what I have done with
Mr Mankanzana.  I will take you to HR.  I know I will
send him to HR or we cannot
force people to do things.  I will
have to find somebody else.
MS
BOSMAN
:   You will accept, I am assuming that
sounds quite threatening to say to someone I will take you to HR.
What comment
would you have on that?
MR
BEZUIDENHOUT
:   If you, it is normally, it is
not a 10 second conversation.  Again it is, you explain to the
person and you expect
of him to be reasonable as it is a reasonable
instruction.  A
(sic)
operator is a production operator.
So he can, he must be available to work on every or any work station.
MS
BOSMAN
:   And if he still despite those threats
of reporting him to HR refuse
(sic)
to work what or to take,
to move to the line what would you do then?
MR
BEZUIDENHOUT
:   I will most probably give him, I
will suspend him with pay and set up an inquiry.
MS
BOSMAN
:   So then what you are saying is
somebody who does not want to work on a line is going to face
disciplinary charges.
MR
BEZUIDENHOUT
:   Yes.  Our rules are very,
very clear and the penalty for not following a reasonable and legit
instruction is
a final written warning or dismissal.”
[22]
On arriving at the SSB line, Mr Bezuidenhout
instructed the team leader on the line, Bell, to demonstrate the
operation of the machines
to the plaintiff.  Following a short
demonstration, which lasted five to 6 minutes and was described by
the plaintiff as having
been given in “
a
speedy fashion
”, the plaintiff
was requested by Bell to operate the SSB line.  Once he had
completed one round of the operation under
the supervision of
Bezuidenhout and Bell, the plaintiff was advised to continue
operating the machines.  He was reminded that
the parts were
required by the defendant’s client, where after Bezuidenhout
and Bell left the plaintiff to work on the line,
unsupervised.  The
plaintiff’s description as to the demonstration given to him
was undisputed.  Instead, it was
put to the plaintiff that what
he had described constituted training and that such demonstration was
all that was required on the
SSB line due to the simplicity of its
operation.
[23]
The plaintiff responded by stating that the short demonstration, as
described above, could
not be referred to as training and that it was
not comparable to the training that he had received on the Fagor
Press, which took
place over a period of two to three weeks from his
team leader, Daniels and included training on: (i) the dangers of
operating
the press and working on the line; (ii) specific safety
measures; (iii) the work station as a whole and how to effect tool
changes
for the various parts; (iv) the respective parts machined by
the Fagor Press; and (v) assessment of the quality of the item and

how to identify defects in respective parts.  He further
testified that apart from a lengthy period of demonstration on the

Fagor Press, operators were supervised until they were assessed as
competent on the line.  Whilst the duration of the plaintiff’s

training, and the extent of the supervision afforded to operators on
the Fagor Press was challenged during cross-examination, the

challenge was inconsistent with Bezuidenhout’s evidence for the
defendant, which was in line with that of the plaintiff.
The
nature of the training received was undisputed.
[24]
Much was made of the difference between the complexity of the two
lines and the variance
in the time that it takes for an operator to
be fully trained on the respective lines.  Whilst this is
certainly so,
Bezuidenhout, in describing the line
specific training on a new line, explained that the operator will be
shadowed by the team leader;
alternatively, an experience operator,
until such time that the operator “
is
into his rhythm
”.  He stated
that the process starts slowly and that, depending on the complexity
of the line, it can take up to eight
hours to be considered
competent.  Implicit in Bezuidenhout’s answer was that the
operator would be shadowed until such
time that he was considered to
be competent.  In respect of the training on the SSB line,
Bezuidenhout testified that:
“
Typically,
what will happen one of the, a person that can do the training he
will tell him what to do.  He will show him what
to do.  In
this case the most important is the alignment of the holes to the
taper pins, how to load it, what button to press
to start it and what
to do with the off-loading, how to off-load it and he will gradually
give him a chance to do that.
”
[25]
Two aspects are of significance.  Firstly, the importance of
having an understanding
as to the proper working of the machines
which goes beyond a mere peripheral understanding; and secondly, the
nature of the training
that was required, same being gradual and not
rushed.
[26]
Although the standard operating procedures in respect of the SSB line
were tendered into
evidence, the plaintiff testified that he had
never seen them nor had his attention been directed to them, up until
the day before
the commencement of the trial.  This too was
undisputed.
[27]
The plaintiff testified that whilst working on the
line, he attempted to remove a part from one of the machines when it
suddenly
became jammed.  What to do, when confronted with this
situation, had never been explained to him.  Given his
impression
that the operation of the machines was time sensitive, due
to his understanding as to how they worked, and the urgency
pertaining
to the needs of the client, the plaintiff testified that
he had to rush to take the part out of the machine.  He applied
increased
upward force to the part, which suddenly came loose and
landed on his chest.  His back immediately went into a spasm and
he
cried out for assistance.  Two operators, working at other
stations on the SSB line, came to the plaintiff’s assistance

and took the part from him.  It was put to the plaintiff in
cross-examination that his version as to how he sustained the
injury
could not be reasonably possibly true, and instead, what had happened
was that the plaintiff had picked up a part from the
stillage;
alternatively, from the SSB1 machine and that when he approached the
SSB2 machine, the part wobbled in his hands and
the plaintiff slipped
or stumbled whereafter he complained that he had injured his back.
I pause to mention that such version
is absent on the defendant’s
pleadings, in which the defendant denies that the plaintiff’s
injury was as a result of
the plaintiff having operated the
machinery.
[28]
The plaintiff testified that the operators who had
assisted him by taking the part from him, later explained that the
rear axle
was held in place by clamps and that this was possibly the
cause of the plaintiff’s difficulty in removing the part.

This was nothing more than speculation and, as foreshadowed above, it
later emerged in the evidence that this could not have been
the cause
of the part not releasing, given that the doors of the SSB machine
will not open until such time as the clamps have released.

Nothing turns on this.
[29]
Bezuidenhout described three circumstances under which a part can
become jammed, two of
which do not support the plaintiff’s case
in that in both instances, such circumstances would result in a
serious of parts
all suffering the same fate, which did not happen in
the present instance.  Lastly, he explained that if the part is
not positioned
correctly when loaded, or if the operator attempts to
lift the part in any manner other than directly horizontally, there
will
be difficulty in removing the part due to the jamming of the
taper pins in their respective holes.  Simply put, if you
attempt
to lift a part out of the machine at a slight angle, it can
temporarily become jammed.   In such circumstances, the
operator
is required to put the part down and take a second attempt
at removing the part.  That the plaintiff was not advised of
such
risk or the manner in which to overcome it, was undisputed.
[30]
The plaintiff demonstrated to the court how his
injury occurred.  He indicated that the rear axle was below his
waist level,
approximately midway between his knee and waist.
He bent over, his palms were facing upwards, and he applied increased
force
in an upward direction with his elbows facing downwards.
As the part released, and given the direction of the force applied,

his arms bent at the elbow and moved in what can best be described as
“
a double bicep
”
motion, with the part landing up against the plaintiff’s chest,
positioned just beneath his clavicles.  The plaintiff
was unable
to state with certainty as to which machine he was operating at the
time of his injury but he explained that it was
the machine which has
doors which open and close.  He estimates that the injury
occurred at approximately 08h15 and 08h20
in the morning.
Mr
Bell was called, who in turn advised that the plaintiff be taken to
the safety officer, Louis Brophy (“
Brophy
”).
The plaintiff explained that he walked to Brophy’s
office like a “
crippled
”
person.  His back was in pain; his legs were shaking; and he
could not walk without assistance.  It is undisputed
that the
plaintiff’s injury occurred shortly
after having joined
the SSB line, and more particularly, that same had occurred within
ten to fifteen minutes of his arrival.
[31]
The plaintiff explained to Brophy what had
transpired, and he was taken to the company clinic, where Brophy
treated him by administering
a spray to his lower back and
analgesics.  Brophy advised the plaintiff that he would fill out
the necessary paperwork (the
content of which the plaintiff had no
knowledge) and that an ambulance would be called.  In the
interim, he was instructed
to return the SSB line to assist at the
inspection table, with the caveat that he was not to pick up any
parts.  The plaintiff,
despite the pain that he was in, returned
to the SSB line, at what he estimates to have been 09h00.
[32]
Later during the plaintiff’s shift, and due
to the unbearable pain that he was in, he requested the assistance
from another
operator who called the shop steward, Lowasi.  This
was consistent with the evidence of Lowasi, who further testified
that
on approaching Brophy, he was advised that they had not yet
completed the necessary paperwork in that they were awaiting certain

information.  The plaintiff enquired from Brophy whether he
could be released to be examined by his doctor, which request
was
denied on the basis that should he leave the workplace, the incident
would not be classified as an injury on duty.  He
was told that
he would need to continue with his shift, whereafter he would be free
to leave.  The plaintiff remained at the
plant until the end of
his shift, which was confirmed with reference to his time sheet of 16
March 2016, whereafter he immediately
left and attended upon his
doctor.  Lowasi’s evidence pertaining to the plaintiff’s
condition both at the plant
and in the taxi following their shift,
corroborated that of the plaintiff.
[33]
The following day, the plaintiff proceeded to his
workplace and called upon the occupational nurse.  It is not in
dispute that
the nurse noted swelling on the plaintiff’s back
as a consequence of his injury and that an ambulance was called.
[34]
The only expert evidence tendered at trial was that of the
plaintiff’s expert witnesses,
Waldron, who as previously stated
is a qualified occupational therapist.  Whilst two reports were
prepared by Waldron, given
the lateness of the filing of the second
report, it was agreed between the parties, to avoid a possible
postponement of the matter,
that the plaintiff’s reliance on
the reports would be restricted to Waldron’s first report,
filed in August 2021; and
her observations as to the operation of the
SSB line at the defendant’s plant over the course of 45
minutes, as contained
in her second report, filed on 14 June 2022.
Accordingly, no reliance would be placed on the risk analysis
performed by Waldron
as contained in her second report.
[35]
Whilst the relevance of Waldron’s expertise, in the context of
the present dispute,
was initially placed in issue during evidence,
it soon became apparent that she was more than
sufficiently
qualified with regards to the issues which she was asked to determine
and the evidence which she tendered
.  In short, she has
25 years’ clinical experience with muscular and skeletal
condition management; and the assessment
and treatment of clients
both in the private sector and in respect of injury on duty
services.  More particularly, she has
extensive experience
within the automotive industry, with specific reference to injuries
sustained on duty, inclusive of the assessment
of such injuries and
functional capacity evaluations.  As part of such assessments,
she is required to determine whether an
injury sustained by an
employee is consistent with the mechanisms of the injuries, as
described by the employee.
[36]
Waldron’s functional capacity evaluation results indicate that
the plaintiff presented
with a form of lower back injury that
significantly impacted his functional ability in everyday life as
well as his vocational
environment.  The exact nature and extent
of the injury, as well as the seriousness thereof, is not for this
court to determine.
[37]
With reference to the mechanism of the plaintiff’s injury,
Waldon stated as follows:
“
My
opinion is that it is a classic lower back injury.  So his
explanation of how he was trying to lift something and then it

wouldn’t come loose and he had to continue to exert force
through his arms, through his lower back to try and lift this part

that would not come loose, and then that sudden lift of a heavy part
would then cause disproportionate force onto his back and
onto his
arms and that explanation of how he presented with the mechanism of
the injury is absolutely in line with what I would
expect.
”
[38]
Insofar as Waldron’s key observations at the defendant’s
plant is concerned,
she noted as follows:
“…
so when I was
observing, the key thing that really stood out to me during the visit
of the plant was that getting stuck…
I observed how when the
operator is lifting the part, it's a really complex precision
placement part which required four precision
placements of a 20
kilogram part.  So the first two placements are at further back
which just slots in and then there's two
datum holes which basically
just a little hole and then the location pin where the part needs to
slot in to enable the part to
be secure during the machining.
So that is in addition to the clamps that move onto the part to
ensure that the part is secure
whilst the machining happens.
And it was very evident to me that when the operators are lifting
that part, the part needs
to be lifted in a symmetrical, vertical and
horizontal manner to allow that datum hole and the location pin to
not present with
an increased sheer force.  So the moment the
operators lifts that part with a slight angle, the part becomes
stuck, becomes
tight and then the more that you lift at that angle
that sheer force significantly increases.  So that was my
observation.
And what I observed was that operators that seemed
to have worked at the station for longer would just tilt their hands,
just tilt
their hands to just reduce that sheer force and then lift
the part up.  But with an unexperienced operator what was
observed
was they would lift it and then that being stuck made sense
to me.  So his indication that something was stuck, that was my

observation that could possibly have been the reason why the part did
not initially come free or lift it smoothly and then the
sudden force
when it does then become free.  When that sheer force that
you're applying actually you know breaks through the
sheer force of
the two parts working on each other.”
[39]
The main thrust of Waldron’s cross-examination pertained to the
facts upon which
she had based her opinion and aimed to distance the
defendant from liability due to a defect in the SSB line, for example
due to
the clamps not releasing.  Whilst the fact that no defect
existed was conceded by Waldron, this in no manner altered Waldron’s

key observations and opinion, on which the defendant led no evidence
to gainsay.  She testified that whilst at the time of
her first
report, and prior to her attendance at the defendant’s plant,
she was advised by the plaintiff that he was under
the impression
that the clamps were the reason for the part not having released, the
fact that there was another cause for this
phenomenon, did not, and
does not change her opinion on the mechanism of the injury, it simply
changed the reason for its failure
to release.
[40]
The evidence of Bezuidenhout, for the defendant, was led primarily to
(i) establish the
training methods utilised by the defendant; (ii)
provide an overview of the operation of the various production lines;
and (iii)
give an account of the events which transpired on 16 and 17
March 2017.  The pertinent aspects of Bezuidenhout’s
evidence
relating to (i) and (ii) have been referred to above.
Given two tragic events, which took place in Bezuidenhout’s
life,
both of which appear from the record of proceedings, but which
serve no purpose to detail herein, he has no independent recollection

of the events of 16 and 17 March 2016.  Notwithstanding the
aforesaid, he was directed to an incident report, which had been

completed by him on 17 March 2016 in respect of the incident in
question.  He was able to confirm that the completion of the

report was his responsibility and that the signature appearing
ex
facie
the document, was his.
[41]
Apparent from section D8 of the form is the following recordal:
Preventative Action
Responsibility
Date of completion
Check of efficiency
Trainee operators
to observe for a longer period
Teams Leaders
Ongoing
[42]
The primary purpose of Ogies’ evidence was to provide
information regarding the training
received on the SSB line as well
as to provide an eye-witness account of the incident in question.
The credibility of Ogies’
evidence was called into question,
and on the whole, I found her to be an unimpressive witness.
After presenting evidence
that a trainee operator on the SSB line
must be shown between five and ten cycles prior to being required to
do the work physically,
she testified that it took her no more than
fifteen minutes to be trained on the line.  Given the
uncontested evidence that
the machine cycle time is approximately
five to six minutes, this would effectively mean that Ogies’
entire training on the
line, inclusive of demonstrations and
shadowing, consisted of no more than 2.5 cycles at most.  Not
only does this not accord
with the probabilities, but it is in stark
contradiction to common cause facts in respect of the defendant’s
training procedures.
[43]
Insofar as the plaintiff’s training is concerned, she testified
that prior to the start of his training,
the standard operating
procedures were explained to him.  This too does not accord with
the common cause facts.
[44]
She further gave evidence that at the time of the incident, the
plaintiff had observed between five and ten cycles,
whereafter the
plaintiff performed three to four cycles himself, under the
supervision of Makansana.  At that juncture, Ogies
maintained
that she was standing in front of the auto gauge and not at the
inspection table as no parts were ready for inspection.

Accordingly, she was able to see the training provided to the
plaintiff and the manner in which his injury was sustained.
[45]
Notwithstanding her evidence that the line had completed the
aforesaid number cycles, which in itself does not
accord with the
probabilities given the common cause evidence pertaining to (i) the
length of a cycle; and (ii) the fact that the
plaintiff had only been
on the line for ten to fifteen minutes prior to his injury, this
version later vacillated when she was
questioned as to how it was
then possible that no parts were ready for inspection.  Her
evidence was thereafter tailored to
suit her narrative by stating
that only the SSB1 machine was in operation at the time and that no
other machines on the line were
running.  She was later forced
to concede that at the time of the plaintiff’s injury,
Makansana was operating the SSB2
machine.
[46]
Insofar as the incident itself is concerned, Ogies testified that she
witnessed the plaintiff taking a part out
of the SSB1 machine when he
stumbled and tripped.  He thereafter called for Makansana to
assist him.  Makansana took
the part from the plaintiff, which
part was in the plaintiff’s hands and not held against his
chest.  Contrary to this,
Makansana testified that at the time
of the plaintiff’s injury, the part was still in the machine
and accordingly, he did
not take the part from the plaintiff.
[47]
Bell testified that his recollection of 16 March 2016 was poor.
He had no independent
recollection of the training provided to the
plaintiff other than to recall that he had requested Makansana to
assist him, whereafter
he left the SSB line.  He was not present
on the line at the time of the plaintiff’s injury.
[48]
Makansana testified that in general, an operator is shown how to work
on the line for approximately
five to ten cycles whereafter the
trainee operator is required to demonstrate his ability to operate
the machines in the presence
of the trainer.  He must be guided
for approximately two to three hours until he is competent on the
line, during which time
he cannot be left alone.  He stated that
this process cannot be done in ten minutes and that at times it could
take up to
two to three days depending on the person in question.
[49]
He further testified that he did not witness the plaintiff’s
injury as he was in
the SSB2 machine at the relevant time.  He
accordingly conceded that he was not supervising the plaintiff.
[50]
He made the following material concessions: (i) that the plaintiff
had protested to working
on the line given his lack of training; (ii)
given the urgency to deliver the parts in question, there was no
further time to train
the plaintiff as he was required to continue
with his own duties; (iii) following the demonstration to the
plaintiff, the plaintiff
was not supervised; (iv) high production
demands were not ideal for on the job training; (v) that where a part
does not release
freely, there was a particular lifting technique
which needed to be adopted to ensure that the part can be removed;
and (vi) that
such different lifting techniques were not demonstrated
or described to the plaintiff and accordingly he would not have known
what
to do in the event of a part getting stuck.
[51]
In respect of the plaintiff’s witnesses, the plaintiff; Lowasi
and Waldron came across
as honest witnesses.  Their evidence was
probable; reliable; and credible in all material respects.  So
too was the evidence
of Bezuidenhout in respect of the general issues
on which he was able to testify.  That Bezuidenhout’s
evidence accorded
materially with that of the plaintiff, is one of
various factors which count strongly in favour of the plaintiff’s
credibility
and reliability.  Other such factors include: (i)
the plaintiff’s candour in demeanour in the witness box, which
could
not be faulted; (ii) the plaintiff’s rudimentary
explanation of how the SSB line operated; (iii) his impression that
the
line was time sensitive; (iv) his lack of knowledge as to the
function of the clamps, proxies, datum holes, taper pins and
precision
placements; (v) his lack of knowledge as to the inherent
risks involved in the operation of the line; and (vi) his lack of
knowledge
as to the potential problems that can arise on the line and
how to navigate such problems, all of which I accept and are
indicative
of his lack of training on the line.
[52]
Ogies on the other hand struck me as an unreliable witness.  The
contradictions between
her evidence and that of the other witnesses,
as well as the common cause facts; and the inherent contradictions
and inconsistencies
in her own evidence are numerous, and in many
respects, material.  She was neither a credible witness nor was
her evidence
probable for the reasons set out above.
[53]
Whilst Makansana came across as a credible witness, his evidence that
the part remained
in the SSB1 machine at the time of the plaintiff’s
injury was at odds with the plaintiff’s evidence and does not
accord
with the probabilities.  Having said that, the numerous
concessions made by him during the course of cross-examination are
of
a material nature and accord with the probabilities.
[54]
In
considering the approach to be adopted in evaluating the probability
of irreconcilable versions, I have had regard to the principles
set
out in
Stellenbosch
Farmers’ Winery Group Ltd & Another v Martell & Cie SA
& Others
.
[6]
For the reasons stated, I am satisfied on a balance of
probabilities that the plaintiff was telling the truth and that
his
version was acceptable.  I accordingly accept the plaintiff’s
version.
[55]
Quite
correctly, Ms Bosman, on behalf of the defendant, contended in
argument that the validity of Waldron’s conclusions,
insofar as
they relate to factual issues, are to stand and fall on the
credibility of the plaintiff, he being the only witness
on behalf of
the plaintiff who gave an account of the incident in support of his
case.  It is trite that it is the court’s
task to
determine issues of fact and not the task of an expert witness.
The function of an expert witness cannot arrogate
that of the
judicial officer.
[7]
Waldron’s key function, as an expert witness, was to guide this
court in its decision-making process on questions,
which fall within
the ambit of her specialised field of knowledge.
[8]
[56]
Having determined the issues of fact
relevant to the dispute, I am satisfied that the opinion evidence of
Waldron was clear, well-reasoned;
logical; and consistent with such
facts.  I have dealt with the sufficiency of her qualifications
above.
[57]
The
test for negligence formulated by Holmes JA in
Kruger
v Coetzee
[9]
has been restated countless times by our courts and informs that
negligence will be established if:
“
(a)
a diligens paterfamilias the position of the defendant:
(i)would
foresee the reasonable possibility of his conduct injuring another
person or 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.”
[58]
As previously set out, the defendant
admitted that the machinery and equipment in the defendant’s
plant carried inherent risks
of harm to which all users of the
machines were exposed to should they be used improperly through
inexperience or lack of training.
The defendant further
admitted that it had a legal duty to ensure that no persons are
instructed or permitted to operate the machinery
and equipment
without first having received the necessary training and proper
instruction on how to use it.  It cannot be
gainsaid that part
(a) of the test in
Kruger v Coetzee
has
been established.
[59]
Given that the legal duty is admitted by
the defendant, as in many other delict cases, causal negligence
remains to be determined.
In other words, in the context of the
present matter, it remains to be determined whether the defendant
took reasonable steps to
guard against the dangers inherent in
operating the SSB line to which the plaintiff had been directed to
operate on the morning
of 16 March 2016, and more particularly,
whether the training provided to the plaintiff was sufficient to
discharge the defendant’s
legal duty.
[60]
In
determining whether the steps are reasonable in the circumstances is
dependant upon the facts of the matter at hand.  The
court in
Ngubane
v South African Transport Services
,
stated as follows:
[10]
“
Once
it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would have
taken
measures to prevent the occurrence of
the foreseeable harm. The answer depends on the
circumstances
of the case.  There are, however, four basic
considerations in each case which influence the reaction of the
reasonable man
in a situation posing a foreseeable risk of harm to
others: (a) the degree or extent of the risk created by the actor's
conduct;
(b) the gravity of the possible consequences if the risk of
harm materialises; (c) the utility of the actor's conduct; and (d)

the burden of eliminating the risk of
harm.”
[61]
In answering the question in the context of
the present matter and having regard to the body of the evidence, the
answer, must of
necessity, be no.
[62]
I have dealt with the evidence in
significant detail above.  For the reasons stated, the
defendant’s pleaded version
that
all operators
engaged
to render services to the defendant, including the plaintiff, were
fully trained and interchangeable across all lines of
production must
be dismissed out of hand.  Moreover, the ten to fifteen minute
instruction received by the plaintiff on the
SSB line was wholly
insufficient to properly equip the plaintiff to operate the SSB line
unsupervised and fell far short of what
was required in the
circumstances as established on the facts.
[63]
Taking into account the factors set out in
Ngubane v South African Transport Services
, I am
satisfied that the defendant failed to provide the plaintiff with
sufficient training and instruction on the SSB line, which
is
required by company policy, prior to issuing an instruction to him to
operate the line.  I am further satisfied that the
plaintiff
was: (i) afforded insufficient supervision on the line; (ii) that the
defendant failed to ensure that the plaintiff operated
the machinery
in a safe and controlled manner; and (iii) failed to take reasonable
steps to preserve and protect the bodily integrity
and physical
well-being of the plaintiff.  Accordingly, the defendant, by way
of the aforesaid failures, failed to take reasonable
steps to guard
against the inherent dangers in operating the SSB line, which it
should and could have done so in the circumstances.
[64]
I am accordingly satisfied that the
plaintiff has proven negligence on behalf of the defendant.
[65]
It is trite that a successful delictual
claim entails proof of a causal link between the defendant’s
actions or omissions,
on the one hand, and the harm suffered on the
other hand.  Accordingly, what remains to be determined are the
issues of factual
and legal causation.
[66]
Insofar
as factual causation is concerned, I am required to apply the
well-established and accepted “
but
for
”
test for factual causality,
[11]
otherwise known as the
sine
qua non
test.  In determining the causal link it falls to be determined
whether the plaintiff would have sustained an injury but for
the
negligence on behalf of the defendant.  Had the plaintiff been
afforded proper training, instruction and supervision on
the SSB
line, it goes without saying that not only would he have had a better
appreciation of the working of the machines on the
SSB line, but he
would have been aware of the inherent risks involved in the operation
thereof.  More particularly, the plaintiff
would have known that
the operation of the machines was (i) not time sensitive; (ii) that
the parts required precision placement
due to the datum holes and
taper pins; (iii) that the parts needs to be lifted in a symmetrical,
vertical and horizontal manner
to allow that datum hole and the
location pin to not present with an increased sheer force; (iv) and
that should the latter not
be done, the operator was required to
adjust his lifting technique and take a second attempt.
Accordingly, but for the negligence
on behalf of the defendant, I am
satisfied that the plaintiff would not have sustained the injury with
which he presented.
Insofar as legal causation is concerned, I
am satisfied that the harm to the plaintiff was foreseeable and that
the defendant’s
conduct is sufficiently closely linked thereto.
[67]
Having found in favour of the plaintiff, I
see no reason to depart from the usual order of costs.
[68]
In the premises, the following order shall issue:
1.
It is declared that the defendant is liable for such damages
as might
be agreed upon or proved in consequence of the event that is the
subject of this claim.
2.
The defendant is ordered to pay the costs of the hearing of
the
issues already determined in this judgment, such costs to include the
qualifying fees of Ms Maretha Waldron.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
Heard:

16 to 18 February 2022;
20 to 24 June 2022;
26 and 27 September 2022
Delivered:

6 February 2023
Appearances:
For
the Plaintiff:
Adv
G Appels
Instructed
by:

Lessing, Heyns & Van Der Bank Attorneys Inc.
7 Bird Street, Central.
For
the Defendant
Adv Bosman
Instructed
by:

DLA Piper South Africa RF Inc.
c/o Joubert Galpin &
Searle
173 Cape Road, Mill Park
This
judgment was handed down electronically by circulation to
the parties' legal representatives by email on 6 February
2023.
The date and time for delivery is deemed to be 15h00 on 6 February
2023.
[1]
Having been named after the manufacturer of the rear axle assembly
line equipment.
[2]
The nature and extent of the said injury, together with the
seriousness thereof, will stand over for determination as part of

the quantum, should this court find that the plaintiff’s
injury was caused by the wrongful and negligent conduct of the

defendant or the defendant’s employees, acting in the course
and scope of their employment with the defendant.
[3]
“
1.
That the Defendant’s First and Second Special Pleas are
withdrawn.
2.
That the issues are separated in terms of Uniform Rule 33(4) on the
following basis:
2.1.
The issues of merits and liability will be decided initially and
separately;
2.2.
The issues of quantum will be determined as a later date;
2.3.
The issues as set out in the paragraphs 26, 26.1 to 26.7, 27. 27.1
to 27.5 of the Plaintiff’s particulars of claim
read with
paragraphs 24 and 25 of the Defendant’s Plea will be
determined as part of the quantum; and
2.4.
All other issues in dispute will be determined as part of the merits
and liability.
3.
That the trial is postponed sine die.
4.
That the Defendant is to pay the wasted costs occasioned by
postponement, on a party and party scale as taxed or agreed between

the parties
.”
[4]
Referred to as the Fagor Press Shop throughout the evidence.
[5]
Such parts were not manufactured simultaneously.
[6]
[2002] JOL 10175 (SCA).
[7]
Twine
and Another v Naidoo and Another
[2018] 1 All SA 297
(GJ) at para 18k.
[8]
The
Member of the Executive Council for Health, Eastern Cape v MM obo
ELM
(
supra
)
at para 11;
Van
Wyk v Lewis
1924
AD 438
at 477;
S
v Gouws
1967 (4) SA 527
(E) at 528D-F.
[9]
1966
(2) SA 428
(A)
at 430E-H.
[10]
[1990]
ZASCA 148
[1990] ZASCA 148
; ;
1991
(1) SA 756
(A)
at 776 E-1
[11]
NTH
v MEC for Health, Gauteng Province
(57301/15)
[2021] ZAGPPHC 208 (8 February 2021);
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(AD)
at 700F-I; Simon & Co (Pty) Ltd v Barclays National Bank
Ltd
1984
(2) SA 888
(AD)
at 915B-H; Minister of Police v Skosana
1977
(1) SA 31
(AD)
at 35C-F).