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2023
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[2023] ZAECQBHC 65
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Harding v Nelson Mandela Bay Metropolitan Municipality (2446/2022) [2023] ZAECQBHC 65 (5 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
NOT
REPORTABLE
Case
no: 2446/2022
In
the matter between:
CHRISTOPHER
HENRY HARDING Plaintiff
and
NELSON
MANDELA BAY METROPOLITAN Defendant
MUNICIPALITY
JUDGMENT
Govindjee
J
The
issues
[1]
The plaintiff has instituted a delictual
claim for damages against the defendant (‘the municipality’).
He alleges that
he fell into an uncovered or open stormwater drain
(‘the drain’) on 9 March 2021 in Despatch, and that the
consequent
injuries he suffered were caused due to the municipality’s
wrongful and negligent conduct. Merits and quantum having been
separated by agreement at the commencement of the proceedings, the
following issues require this court’s determination:
a)
Whether
the plaintiff fell into the drain on 9 March 2021;
b)
Whether
the municipality’s conduct was wrongful;
c)
Whether
the incident was caused by the negligence of the municipality and /
or its employees; and
d)
If
liability is established, whether there was contributory negligence
on the part of the plaintiff.
[2]
As to the municipality’s negligence,
it is alleged that the municipality failed to cover the drain
adequately, or to cordon
it off as a hazard, despite the issue having
been reported. The municipality pleads that it took reasonable steps
upon becoming
aware of the missing drain cover. Further particulars
provided by the municipality explain its position as follows:
‘
During
or about July 2020, a vandalised drain cover lid was reported to the
defendant, and soon thereafter a yellow barrier was
put up … A
yellow barrier was put up after it was reported in July 2020, and the
drain cover replaced on or before April
2021.
The
evidence
[3]
The plaintiff testified that he had stayed
at a friend’s smallholding in Despatch on the evening in
question. He had borrowed
his friend’s vehicle, visited a pub,
and consumed alcohol. When leaving that establishment, car guards had
asked for money
and cigarettes. He returned to his friend’s
dwelling and then realised that his cell phone was missing. He
suspected that
it had been taken from the car door at the time he had
conversed with the car guards, while climbing into the vehicle. It
was now
past midnight. He returned on foot to an area close to where
he had engaged with the car guards. He met the person who had taken
his phone, who was with three others, in Amperbo Street, and
requested the return of his cell phone. Having obtained the phone,
an
argument ensued. A man produced a knife. The plaintiff believed that
the men wanted to assault him. He ran away and was chased
before
falling into the drain, landing on his left leg at the bottom of the
drain and hearing his knee crack. He phoned his friend,
who assisted
him back to the smallholding. The pain increased overnight, and an
ambulance was called to take him to hospital the
following morning
[4]
The plaintiff explained that it was dark at
the time of the incident. There was no street lighting and he had not
seen the open
drain. He had subsequently returned to the scene twice,
once during the day and once at night, so that he could show his
fiancé
how dark it was at that spot. His evidence was that he
had been unable to see the hole even when not in a panicked
situation. It
was not visible even from a metre away.
[5]
During cross-examination, the plaintiff
accepted that the country was in lockdown at the time and that he
ought not to have been
on the streets at that time. He had informed
his attorney and a doctor that he had been running away from
assailants or robbers
at the time of the incident, and had deposed to
an affidavit, in support of an application for condonation, referring
to the men
as ‘armed assailants’. He disputed what
appeared in the ambulance records, namely that he had been ‘running
after
thieves’ when the incident occurred. He conceded that he
had not visited the police station that was close to Amperbo Street
at the time of the incident, and that his own Facebook post,
seemingly from his time in hospital, alluded to his alcohol
consumption
on the night in question. He also confirmed that he had
no sight in his right eye.
[6]
The version put to the plaintiff on behalf
of the municipality was that a ward committee member (‘Mr
Senekal’) had reported
a damaged catchpit during July 2020. A
team had been sent to cover the drain and a yellow barrier had been
erected prior to January
2021. The plaintiff maintained that the
drain had been open and the barrier was not there at the time of the
incident. It was,
however, visible when he returned to the scene
approximately six weeks after the incident. It may be accepted that
he had not reported
the incident to the municipality or police until
a letter of demand was sent on his behalf.
[7]
Mr Walter, the plaintiff’s attorney
of record, visited the scene on 8 April 2021 and took pictures and
video footage, accepted
into evidence, of a yellow barrier covering
the drain, the opening itself and depth of the hole, estimated at
between 2,45 to 2,75
metres. The yellow barrier had covered the gap
upon his arrival. Mr Walter had moved it to the side to take
pictures. His uncontested
evidence was that he could do so with one
hand, as it was ‘fairly light’ and easily manoeuvrable.
[8]
The video depicts the barrier seemingly
lying on its side. Indentations create a crumpled appearance. Mr
Walter is observed lifting
the barrier with his left hand while
filming using a cell phone with his right. One side of the barrier is
lifted into the air
and dropped twice, seemingly with ease. The
barrier wobbles slightly when it lands. One of the photographs
depicts two circular
holes close to the ground, facing the camera.
[9]
An application for absolution from the
instance was dismissed at the close of the plaintiff’s case.
The reasons for that decision
are apparent from the analysis to
follow.
[10]
Ms Ntaka, a senior superintendent employed
by the municipality in Despatch, testified that she managed the depot
responsible for
the maintenance of, inter alia, stormwater drains and
road infrastructure. Her responsibilities included attending to road
defects,
sidewalk concrete defects, road signs and markings and drain
cleaning. There were 20 employees working at the depot in four teams,
one of which dealt with repair of sidewalks.
[11]
Mr Ntaka explained that community members
were able to contact a call centre to report any road or stormwater
infrastructure defects.
A reference number would be issued. In
addition, people walked into the depot to report defects, and ward
councillors or committee
members also played a role. A complaint had
been received from the councillor’s office, either by e-mail or
WhatsApp, reporting
the issue of a damaged stormwater drain in
Amperbo Street. A ‘ward committee activity sheet’,
referenced as ‘report
for January 2021 Stormwater Drains’
was produced. That document had been received from Mr Senekal, a
councillor or ward committee
member, and reflects some 14 dates and
reports, many of which included reference numbers. The relevant entry
reads as follows:
‘
29/07/2020
Reinstatement of Catchpit Corner of Amperbo and Steill Street
Heuwelkruin
Ref No 1329833.’
[12]
The witness explained that some councillors
were more thorough than others, and, as in the present instance,
would send a list of
defects in the area that they expected the
municipality to address. Ms Ntaka testified that she had received the
report of the
damaged catchpit in Amperbo Street on 29 July 2020, as
reflected in Mr Senekal’s corresponding entry. Her evidence was
that
her team would ‘put’ a yellow barrier on top of the
affected area as an interim safety measure pending the catchpit
being
fixed properly. No job card or other written records of this
instruction were available. This was due to Ms Ntaka having
moved
office. Despite a search the information was unobtainable. Her
evidence was that her team would have been dispatched almost
immediately once a complaint had been received.
[13]
Ms Ntaka testified that a photograph
depicting the damaged catchpit had been received from Mr Senekal
during October 2020. She explained
that there was a metro-wide
problem of vandalism. Thieves would break the concrete cover to
obtain steel and sell this at scrap
yards. In cases of old covers, as
depicted in the photograph, replacement covers would be made and cast
at the depot before being
brought to where they were needed.
[14]
Ms Ntaka explained that Mr Senekal was in
the habit of taking pictures of completed repair work and posting
these on Facebook. A
picture dated 26 January 2021 reflected repair
work in Amperbo Street. In the distance, the yellow barrier was
visible. The evidence
was that this would have been put up sometime
between June 2020 and January 2021. Mr Senekal would also e-mail and
message Ms Ntaka
on WhatsApp when he came across anything that
required her attention.
[15]
Ms Ntaka testified that the Covid-19
pandemic had affected operations. Her section had worked at
approximately 50 per cent capacity,
based on the applicable
restrictions, the teams alternating their time on duty. Approximately
20 other drains were being repaired
around that time. The drain in
question had been repaired by April 2021.
[16]
As for the yellow barrier, these were two
metres in length and one metre in height, weighing 25 kilograms
according to the set specification.
Ms Ntaka agreed, during
cross-examination, that the barrier in question was damaged. She
added that the barriers were old and repeatedly
reused, which, she
indicated, explained the condition of the yellow barrier visible in
one of the pictures.
[17]
Ms Ntaka was unable to articulate precisely
when the damaged catchpit had been reported to the call centre or
received by her office.
The presence of a reference number was
indicative of a report to the call centre, but call centre records
had not been obtained.
The job card for the yellow barrier was also
unavailable, because of Ms Ntaka’s office move, and not stored
digitally. The
delay in replacing the drain cover had been caused by
the backlog of other drains requiring repair, totalling between 20
and 30
drains. Given that backlog, Ms Ntaka reiterated that the
yellow barrier was required to safeguard the area.
[18]
In response to questioning by the court,
she explained that the two holes that were visible could be used to
give the barrier weight.
Her understanding was that the 25-kilogram
specified weight was when the barrier was empty. For catchpits, the
practice was to
make the barrier lie on its side to cover the entire
area. Being two metres in length, this was adequate to cover the
entire hole.
As for the depicted indentations, Ms Ntaka speculated
that the barrier may have previously been used on a road and been run
over
by a motor vehicle, so that it appeared as if it could no longer
stand properly. Given the number of drains requiring repair, the
municipality hoped that the temporary barriers would not be removed
by anyone. It was not the practice to fill the barriers with
water or
sand. Drought and logistical difficulties were advanced as the
reasons for this.
[19]
Mr Senekal testified that he was a
pensioner serving the ward committee and focusing on infrastructure
and energy. He took responsibility
for various matters, including
water leaks, potholes, sewerage, and catchpits, liaising with Ms
Ntaka. When driving around the
streets, Mr Senekal would note and
report any problems. He would do the same when a member of the
community alerted him to an issue,
or capture a reference number if
that member had already reported it to the call centre. He ran a
running list of outstanding issues,
updating same when required,
liaising with municipality officials such as Ms Ntaka, and reporting
to the ward committee.
[20]
Mr Senekal used WhatsApp and Facebook to
communicate. For example, a photograph of completed repair work would
be posted on Facebook.
He testified that the reference to ‘29
July 2020’ on his ‘ward committee activity sheet’
for January 2021
appeared to be erroneous, considering that he had
photographed the damaged catchpit in question precisely three months
later. Given
the date of that picture, he assumed that he had only
reported the issue to the municipality on that date in October 2020.
This
was on the basis that it was his practice to take a photograph
of every issue that he reported. He had also taken the photograph
of
unrelated repair work to 44 Amperbo Street, which depicted the yellow
barrier in the distance, on 26 January 2021, and the photograph
when
the catchpit was seen repaired on 13 April 2021.
Analysis
The
proven facts
[21]
Although
the plaintiff’s evidence was uncontradicted, its acceptability
depends upon its quality. Evidence which is vague,
contradictory,
highly improbable or plainly irrational will not pass muster.
[1]
The plaintiff’s evidence does not fit into any of these
categories. Although some basic details emerged for the first time
during cross-examination or by way of the court’s questioning,
he provided a consistent, plausible version of events. The
narrative
is certainly not improbable to the extent that it must be rejected
outright and the first issue must be answered in his
favour.
[22]
The
implication is that it must be accepted, based on the plaintiff’s
version, that Amperbo Street was extremely dark sometime
around
midnight on 9 March 2021, that the plaintiff was running away from
and in fear of other persons, at least one such person
being armed,
and that he fell into the drain at that point in time.
[2]
[23]
Strictly speaking, the pleadings and bulk
of evidence are such that this court is obliged to accept that a
vandalised drain cover
lid was reported to the municipality as early
as July 2020. Ms Ntaka testified on this basis, and this was also the
version put
to the plaintiff. That evidence was gainsaid by Mr
Senekal’s statement that he had inserted an erroneous date in
his January
2021 ward committee activity sheet. The municipality had
seemingly not discovered the error during their consultations and
when
responding to the request for further particulars and proceeded
on the basis that the July 2020 date correctly reflected when the
issue had been reported by Mr Senekal. The municipality regrettably
failed to produce activity sheets for any other months, or
any call
centre records whatsoever. That being said, in my view little turns
on the discrepancy and, as will be indicated, the
outcome remains the
same even if the issue was in fact first reported only towards the
end of October 2020.
Was
the municipality’s conduct wrongful?
[24]
A
negligent omission will not give rise to delictual liability unless
it is wrongful.
[3]
The issue may
be easily dispensed with in the circumstances. It is convenient to
consider the question in the usual manner, by
assuming the existence
of the other elements of delictual liability.
[4]
[25]
There
is ample authority that the report made to the municipality, which it
acknowledges, gave rise to a duty of care.
[5]
The position has been described as follows:
[6]
‘
The
duty to take a positive step by the respondent began from the first
day when its employees were advised … of the presence
of the
hole. When the respondent became aware of the presence of the
dangerous hole in the road a duty was created for it to prevent
any
harm that could be caused by the existence of the hole. The existence
of a legal duty upon the respondent to warn of danger
and to repair
and maintain roads and pavements is not necessarily a general duty
but it arises from the particular circumstances
of a given case. The
members of the community of the area in which there exists a
dangerous hole would reasonably expect the respondent
to fix and
repair the hole or at least warn the road users of the danger created
by the existence of the hole.’
[26]
Other
than highlighting that the plaintiff had been in the street during
curfew hours, Ms
Zietsman
,
for the municipality, did not suggest otherwise. That fact, on its
own, is insufficient to absolve the municipality of a duty
of care
that it accepted. This, in the words of Goosen AJ, was ‘to
ensure that the defective catchpit did not occasion harm
to residents
in the area and members of the public’.
[7]
The municipality clearly appreciated that it bore such a duty in the
present circumstances.
[8]
On its
own version it took steps to prevent such harm and pleaded that those
steps were reasonable. That included the placement
of the yellow
barrier as an interim measure pending the construction and placement
of a substitute cover.
Negligence
[27]
The
real issue at hand is whether the municipality was at fault in acting
as it did. Negligence is established if a reasonable person
in the
position of the defendant would foresee the reasonable possibility of
their conduct injuring another in their person or
property and
causing them patrimonial loss, and would take reasonable steps to
guard against such occurrence. If the defendant
failed to take such
steps, in those circumstances, negligence would be established.
[9]
[28]
In
Herschel
v Mrupe
,
[10]
Schreiner JA explained the position as follows:
‘“
The
duty of the Court is to try to decide whether the conduct of the
respondent was that of a reasonably prudent person, which involves
two questions viz.: (1) what dangers of harm would such a person have
anticipated in the circumstances in which the respondent
found
himself; (2) what then would have been the conduct of such a person
in these circumstances.” … No doubt there
are many cases
where once harm is foreseen it must be obvious to the reasonable man
that he ought to take appropriate avoiding
action. But the
circumstances may be such that a reasonable man would foresee the
possibility of harm but would nevertheless consider
that the
slightness of the chance that the risk would turn into actual harm,
correlated with the probable lack of seriousness if
it did, would
require no precautionary action on his part. Apart from the cost or
difficulty of taking precautions, which may be
a factor to be
considered by the reasonable man, there are two variables, the
seriousness of the harm and the chances of its happening.
If the harm
would probably be serious if it happened the reasonable man would
guard against it unless the chances of its happening
were very
slight. If, on the other hand, the harm, if it happened, would
probably be trivial the reasonable man might not guard
against it
even if the chances of its happening were fair or substantial. An
extensive gradation from remote possibility to near
certainty and
from insignificant inconvenience to deadly harm can, by way of
illustration, be envisaged in relation to uneven patches
and
excavations in or near ways used by other persons.’
[29]
In
other words, culpability based on a negligent failure to act or to
act timeously necessarily involves an assessment of the nature
of the
precautions that can be taken to guard against foreseeable harm to
the public and whether such precautions are reasonable
having regard
to the circumstances of the case.
[11]
Merely because harm which was foreseeable did eventuate does not mean
that the steps taken were necessarily unreasonable.
[12]
That issue involves a value judgment which seeks to balance competing
considerations, including
(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.
[13]
In general, the inquiry whether the reasonable person would have
taken measures to prevent foreseeable harm involves a balancing
of
considerations
(a)
and
(b)
with
(c)
and
(d)
.
[14]
The enquiry was described as follows in
ZA
v Smith and Another
:
[15]
‘…
in
determining what preventative steps the reasonable person would or
would not take, every case must depend on its own facts …
it
could only be answered with regard to all the facts and circumstances
of that case. Including amongst these would be, for instance,
the
proportionality considerations which would require the weighing-up of
the prospects of the proposed measures being successful;
the degree
of risk of the harm occurring; the extent of the potential harm; the
costs involved in taking the preventative measures
proposed; and so
forth.’
[30]
The
present case must be decided on its own particular facts and in the
light of the evidence that has been presented.
[16]
As noted in
Kruger
v Coetzee
,
it is generally futile to seek guidance from the facts and results of
other cases.
[17]
Notwithstanding the manner of framing of the famed test, Holmes JA
has himself made plain that it is inappropriate to resort to
a
piecemeal process of reasoning so as to split the ‘proof of
negligence’ enquiry into two stages. There is in fact
a single
enquiry: has the plaintiff, having regard to all of the evidence in
the case, discharged the onus of proving, on a balance
of
probabilities, the negligence averred against the defendant.
[18]
[31]
While
the plaintiff is expected to adduce sufficient cogent, credible
evidence, where a plaintiff is not in a position to do so
on a
particular aspect, less evidence may suffice to establish a prima
facie case of negligence where the facts are peculiarly
within the
knowledge of the defendant.
[19]
It has been held that in such a situation there is an evidentiary
burden upon the defendant to neutralise or rebut the prima facie
inference that the cause of the harm was as a result of its negligent
act or omission.
[20]
Any
explanation as may be advanced by a defendant forms part of the
evidential material to be considered in deciding whether a
plaintiff
has proved the allegation that the damage was caused by the
negligence of the defendant or its employees.
[21]
This includes proof of further steps that a defendant could and
should reasonably have taken. The following summary of what is
required, drawn from English law, has been cited by the SCA with
approval:
[22]
‘
At
the end of the trial, after all the evidence relied upon by either
side has been called and tested, the judge has simply to decide
whether as a matter of inference or otherwise he concludes on the
balance of probabilities that the defendant was negligent and
that
that negligence caused the plaintiff’s injury. That is the long
and short of it.’
[32]
The
crux of the matter is whether the injuries sustained to the plaintiff
when he fell into the drain were due to the negligence
of employees
of the municipality, in that they failed to cover the drain
adequately, or cordon it off as a hazard. Answering this
question
requires consideration of the facts viewed as a whole.
[23]
[33]
Applying
the facts to the test, there is little difficulty in concluding that
a reasonable person in the position of the municipality
would foresee
the reasonable possibility of a failure to adequately safeguard the
drain causing serious harm to unsuspecting members
of the public.
[24]
Heightened danger at night, because of reduced visibility, would have
been equally foreseeable.
[25]
Reasonable steps to guard against such occurrence would follow
naturally.
[26]
[34]
It
bears emphasis that the steps taken are not necessarily unreasonable
purely because foreseeable harm eventuated, in the sense
that the
plaintiff fell into the drain.
[27]
The
question of reasonableness requires the court to exercise a value
judgment, balancing the relevant considerations. In particular,
it is
readily apparent that the possible consequences if the risk of harm
materialised were grave, and that the degree of risk
of the harm
occurring was real, also considering the location of the drain on the
pavement. Put differently, absent any barrier,
there was a high risk
of a person walking on the pavement falling into the drain. Given the
depth of the opening, there was a high
risk that serious bodily
injuries would be sustained.
[28]
This must impact on the preventative steps a reasonable person would
have taken.
[35]
In
McIntosch
,
the SCA held that a court determining the reasonableness or otherwise
of the conduct of a public authority will, in principle,
recognise
the autonomy of the authority to make decisions with regard to the
exercise of its powers. For example, a court will
not lightly find a
public authority to have failed to act reasonably merely because it
elected to prioritise one demand on its
possibly limited resources
above another.
[29]
That
notwithstanding, it is clear that if in the actual implementation of
a policy or procedure adopted by the authority, or during
the course
of its operations, foreseeable harm is suffered by another in
consequence of a failure on the part of the authority’s
employees to take reasonable steps to guard against its occurrence, a
court will not hesitate to hold the authority liable on account
of
that omission.
[30]
[36]
The
question whether the municipality took reasonable steps or not may be
addressed based on a recapitulation of the evidence. On
the accepted
evidence of the plaintiff, the stormwater drain was uncovered at the
time he was injured. The yellow barrier was not
in place. The
location was unlit and extremely dark, so that the gap, which was
approximately 2,5 metres deep, was not visible
even from a close
distance. Based on the uncontested evidence of Mr Walter, the yellow
barrier covered the drain on 8 April 2021.
But it was seemingly
light, easy to displace and move, even with one hand. At the close of
the plaintiff’s case, there was
sufficient evidence to give
rise to an inference of negligence on the part of the employees of
the municipality.
[31]
[37]
On the municipality’s own evidence,
the yellow barrier was damaged and, seemingly like many others, old
and repeatedly reused.
Although the barrier was constructed so that
it could have been filled with water or sand to add weight and
stability to the structure,
seemingly no proper thought had been
given to this possibility. The municipality hoped, with misplaced
faith, that the temporary
yellow barrier it had chosen to cover the
drain would remain in place month after month without tamper, and
seemingly had no mechanism
to monitor this.
[38]
Little
evidence was led by the municipality on the cost or time implications
of replacing the cover, as opposed to installing the
temporary
barrier, or whether other temporary options, such as placement of a
concrete barrier, were feasible.
[32]
Having installed the temporary barrier, however, it may have been
expected that periodic inspection and maintenance would have
been
appropriate. In a different context, it has been held that the
necessary frequency of this would be related to the item’s
sturdiness, the period for which it might reasonably be expected to
function safely, and ‘the known or reasonably to be expected
depredations of vandals’.
[33]
[39]
Far
from displacing the inference of negligence, the evidence adduced by
the municipality substantially supports the probabilities
that its
negligence was the cause of the plaintiff’s injuries.
[34]
This conclusion is not to suggest that an unreasonable standard of
constant vigilance was to be expected,
[35]
or
that a ‘slippery slope’ of additional obligations for the
municipality will eventuate.
[36]
It
may be added that even the lengthy delay in replacing the cover would
not necessarily have been negligent had appropriate temporary
arrangements been in place.
[40]
A
reasonably prudent person would have realised that the protection
afforded to the public by way of a reused, damaged, unfilled
plastic
barrier placed on its side and left unchecked week after week was
inadequate.
[37]
As held in
that matter, a reasonably prudent person would have realised that
some additional safeguards were necessary to reduce
the danger to
which members of the public were exposed as a result of the use of
this type of barrier.
[38]
A
reasonable person in the position of the municipality would and could
have taken steps to guard against or reduce the danger,
and
undoubtedly would have done so.
[39]
The municipality failed to take any such preventative action, relying
exclusively on an inadequately conceived, defective temporary
measure
which it naively expected to withstand the vagaries of the elements
and vandalism, absent any additional safeguards or
supervision.
[40]
There can be little doubt that, applying its mind properly to the
challenge, various proportional methods of obviating the danger
may
have been successfully implemented.
[41]
Considering
the evidence, the inference is inescapable that consideration was not
given to these matters, particular in the context
of a reused,
damaged barrier being chosen to cover the hole, seemingly with the
understanding that the backlog in repairs would
necessitate the
temporary measure being in place for a lengthy period of time.
[42]
The prospects of success of the yellow barrier, on its own, were
poor, the degree of risk of harm occurring high, and the extent
of
potential harm severe, implicating what might have been expected in
respect of cost and effort to secure the gap. In my judgment
the
municipality failed to take the steps that reasonably would have been
taken and the plaintiff has proved the negligence averred
on a
balance of probabilities.
[41]
This
analysis and conclusion resonates closely with the approach and
outcome in
Fischbach
v Pretoria City Council
.
[43]
In that matter the plaintiff was cutting grass, and moving backwards,
on the sidewalk of a street when he fell down a stormwater
catchpit
which formed part of the pavement, and was injured. Trengove J
approached the matter on the basis that a loose cover over
the
catchpit had been removed due to tampering by an unknown person. The
court held that the defendant owed a legal duty to safeguard
members
of the public against a potential source of danger. As to negligence,
it was reasonably foreseeable that harm might result
if the catchpit
chamber was not constantly kept covered. A reasonably prudent person
in the position of the defendant would ‘unquestionably’
have realised that tampering might result in displacement of the
cover, also foreseeing that an unwary pedestrian would be exposed
to
the danger of falling into the catchpit chamber. Importantly, it was
held that the need for additional safeguards was glaring.
This was
‘to reduce the danger to which members of the public were
exposed as a result of the use of this type of cover’.
The
defendant, however, took no such preventative action, relying almost
entirely on the weight of the cover and its tight fit,
in that
instance, as a safeguard, omitting to provide any additional
safeguards. Employees of the defendant were not instructed
to be on
the look-out for such danger, nor was anyone required to carry out a
regular inspection. Moreover, such options had never
been
considered.
[44]
In concluding
that the defendant had been negligent, the court added the
following:
[45]
‘
However,
there appear to be a number of ways in which the danger in question
could have been guarded against more satisfactorily
… The
defendant could also have erected notices warning the public to keep
clear of the catchpit area. There may also be
other methods of
obviating the danger and if the defendant’s engineers had
applied their minds to this problem they would,
no doubt, have been
able to devise some practical and additional safeguards. In
Wells
v Metropolitan Water Board
…
Humphreys J, when confronted with a similar situation is reported to
have made the following remarks which could also
be applied to the
defendant, namely:
“…
I
cannot believe that it is beyond the wit of those eminent scientific
persons and practical engineers who are employed by this
great
authority, which spends vast sums of public money, and has that money
at its disposal to spend, to invent some means whereby
these covers
which, if lifted up, are at once admittedly a danger and a nuisance,
can be made safe …”’
Contributory
negligence
[42]
The
municipality bears the onus of proving that the plaintiff was
contributory negligent.
[46]
The duties of pedestrians walking along a sidewalk were considered in
Stewart
v City Council of Johannesburg
:
[47]
‘
The
ordinary pedestrian does not proceed along a sidewalk with his eyes
glued to the ground. He does not expect to walk into excavations
and
obstructions on a paved sidewalk … The purpose of a sidewalk
is to enable pedestrians to pass to and fro along the streets
of
towns and cities in safety shielded from the street traffic. If a
local authority in its work on a sidewalk creates a danger,
it is
clearly the duty of such authority to take adequate steps to guard
the public from such danger, by barricading it off from
the public or
by providing adequate warning signs clearly and plainly visible.
Pedestrians are entitled to regard sidewalks as
safe and to proceed
accordingly unless they are plainly warned to the contrary. It is not
without significance that immediately
after the accident the
defendant’s servants in charge of the work barricaded the
excavation. The excavation was, in my opinion,
in the nature of a
trap.’
[43]
On
the plaintiff’s version, already accepted, it cannot be said
that the plaintiff was negligent in proceeding as he did,
notwithstanding that it was very dark at the time. He was entitled to
assume that there was no void in the pavement into which
he would
fall. Absent the barrier being in place or visible, he would have
been caught completely off-guard and with no time to
react.
[48]
[44]
As
Mr
Niekerk
argued,
there is no evidence to suggest that his impaired eyesight affected
his ability to see ahead of him. The accepted evidence
reveals an
absent of any street lighting and a hole that was not visible even
from close proximity. As in
Fischbach
,
the plaintiff had no reason to expect that he might proceed into an
open drain forming part of the sidewalk. That he was running,
and not
walking, in the circumstances, is immaterial.
[49]
The prior consumption of alcohol is, on its own, also not a basis for
an adverse finding. While he was contravening lockdown regulations
applicable at the time, this is explained by the need to recover his
property. Considering these factors, to have approached the
nearby
police station would not have appeared efficacious.
[45]
In
all the circumstances, contributory negligence has not been proved.
The drain was in the nature of a trap and caught him unawares,
so
that there is no finding of negligence on his part. This conclusion
finds support, in analogous circumstances, in the judgment
in
Butise
.
As in the present instance, counsel for the municipality had
contended for a 50:50 apportionment on the basis that the plaintiff
did not keep a proper lookout whilst running. The court concluded as
follows:
[50]
‘
In
my view it cannot be persuasively argued that there is contributory
negligence attributable to the plaintiff. The uncontroverted
evidence
is that the incident occurred at 22h30, when it was dark, rainy and
windy. The uncovered valve chamber was not visible,
was not
demarcated or barricaded, and did not have reflective signage warning
the public of its presence. Consequently, it cannot
be reasonably
expected that the plaintiff could have foreseen or suspected that
there was an uncovered valve chamber on the pavement
…’
[46]
The plaintiff accordingly succeeds in his
claim and the following order is issued:
1.
The defendant is ordered to pay the
plaintiff’s proven damages arising from the plaintiff’s
fall into an uncovered stormwater
drain on 9 March 2021;
2.
The defendant is ordered to pay the
plaintiff’s taxed costs of suit on a party and party scale in
respect of the separated
proceedings on liability.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:
23-24 November 2023
Delivered:
05 December 2023
APPEARANCES:
For
the Plaintiff: Adv
D Niekerk
Chambers,
Gqeberha
Instructed
by: Jock
Walter Inc.
Plaintiff’s
Attorney
246
Main Road
Walmer
Gqeberha
Email:
jock@jockwalterattorneys.co.za
For
the Defendant: Adv
T Zietsman
Oasim
Chambers, Gqeberha
Instructed
by:
BLC
Attorneys
Defendant’s
Attorneys
4
Cape Road
Gqeberha
Email:
MCharsley@blclaw.co.za
[1]
Siffman
v Kriel
1909
TS 538
;
Katz
v Bloomfield and Keith
1914 TPD 379
at 381;
Nelson
v Marich
1952 (3) SA 140
(A) at 149A–D.
[2]
The
order issued in terms of Uniform Rule 33(4) followed an application
for separation based upon a pre-trial minute. The order
of
separation necessitates consideration by this court only of the
averments in respect of the incident, wrongfulness and negligence.
[3]
McIntosh
v Premier, KwaZulu-Natal and Another
2008
(6) SA 1
(SCA) (‘
McIntosh
’)
para 11.
[4]
Za
v Smith and Another
[2015]
3 All SA 288
(SCA) (‘
Smith
’)
para 21.
[5]
See,
by way of example, the analysis in
Smith
above
n 4 paras 14–21.
[6]
Du
Plessis v Nelson Mandela Metropolitan Municipality
[2009]
ZAECGHC 54 (‘
Du
Plessis
’)
para 20.
[7]
October
v Nelson Mandela Bay Metropolitan Municipality
[2008]
ZAECHC 205
para 18.
[8]
Cf
Cutting
v The Nelson Mandela Municipality
[2002] ZAECHC 18
para 9. Also see
Fischbach
v Pretoria City Council
1969 (2) SA 693
(T) (‘
Fischbach
’)
at 697C–F;
Butise
v City of Johannesburg and Others
2011 (6) SA 196
(GSJ) (‘
Butise
’)
para 24.
[9]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E.
[10]
Herschel
v Mrupe
1954
(3) SA 464
(A) at 476G–477D.
[11]
Cape
Metropolitan Council v Graham
2001
(1) SA 1197
(SCA) para 7.
[12]
Pretoria
City Council v De Jager
1997
(2) SA 46
(A) (‘
De
Jager
’)
at 55H–I.
[13]
Ngubane
v South African Transport Services
[1990]
ZASCA 148
;
1991 (1) SA 756
(A) at 776H–J;
De
Jager
above n 12 at 55H–56C. In respect of the third consideration,
the question is whether ‘the game is worth the candle,
with
reference to the ‘social value of the interest which the actor
is seeking to advance’.
[14]
De
Jager
above
n 12 at 56B–C.
[15]
Smith
above
n 4 para 24. Also see
Du
Plessis
above
n 6 para 22. In that matter, the plaintiff had stepped into a hole
in the road of between 300 or 400 mms. When she stepped
into or next
to the hole a layer of tar gave way under her, causing the existing
hole to enlarge. The respondent had been warned
of the existence of
the hole some days prior to the incident, but had taken no steps to
fix the hole or warn the public of its
existence, and had led no
evidence as to budgetary or other constraints which prevented it
from fixing holes in the street promptly,
or from at least erecting
warning signs when such holes in the street had been reported. The
court held that it would have been
sufficient for the respondent to
warn the road users by encircling the area with a barrier, which
would have involved minimal
expenses. A reasonable municipality in
the shoes of the respondent would have sent people to inspect the
hole. Had they done
so, it would have been apparent that there was
an immediate need to repair or fix the road or to at least put
visible warning
signs to alert the road users about the risk of
harm. A collapsed drain was a serious matter calling for urgent
investigation
and the prevention of serious injury, which could have
been achieved at no extra cost. Failing to take such steps
constituted
negligence: paras 23–24.
[16]
Municipality
of the City of PE v Meikle
[2002]
JOL 9525
(A) (‘
Meikle
’)
para 9.
[17]
Kruger
v Coetzee
above
n 9 at 430G.
[18]
Sardi
and Others v Standard and General Insurance Co Ltd
1977
(3) SA 776
(A) at 780C–H, as cited in
Goliath
v MEC for Health, Eastern Cape
2015 (2) SA 97
(SCA) (‘
Goliath
’)
para 11.
[19]
Butise
above
n 8 para 27. Also see JC Van der Walt and JR Midgley
Principles
of Delict
(4
th
Ed) (2016) at 244–245. Cf
Kruger
v Coetzee
above n 9 at 431E–H.
[20]
Butise
above
n 8 para 27.
[21]
Osborne
Panama SA v Shell & BP South African Petroleum Refineries (Pty)
Ltd and Others
1982
(4) SA 890
(A) at 897G–H.
[22]
Goliath
above
n 18 para 18, citing Lord Justice Hobhouse in
Ratcliffe
v Plymouth and Torbay Health Authority
[1998] EWCA Civ 2000.
[23]
Van
Wyk v Lewis
1924
AD 438
at 453.
[24]
Cape
Town Municipality v Butters
1996
(1) SA 473
(C) (‘
Butters
’)
at 484C–E. It is sufficient if the general nature of the harm
to the injured party was foreseeable; it is not necessary
that the
precise manner of its occurrence be foreseeable:
McIntosh
above n 3 para 12.
[25]
See
Butters
above
n 24 at 478F–H.
[26]
Fischbach
above
n 8 at 697H–698D.
[27]
De
Jager
above
n 12 at 55I.
[28]
See
Grootboom
v Graaff-Reinet Municipality
2001 (3) SA 373
(E) at 380C–F.
[29]
McIntosh
above
n 3 para 14.
[30]
McIntosh
above
n 3 para 14.
[31]
AA
Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982
(2) SA 603
(A);
Cooper
and Another NNO v Merchant Trade Finance Ltd
2000 (3) SA 1009
(SCA), as cited in
Goliath
above n 18 para 19.
[32]
Cf
Butters
above n 24 at 481B–D.
[33]
Cape
Town Municipality v April
1982
(1) SA 259
(C) (‘
April
’)
at 261E–H, dealing with the upkeep of a merry-go-round
installed by a municipality. The court’s value judgment
in
that instance considered a fortnightly system of inspections to be
reasonable and adequate. It has been held, again in a different
context, that state conduct must be reasonable both in conception
and implementation: see
Government
of the Republic of South Africa v Grootboom
and
Others
2001 (1) SA 46
(CC) para 42.
[34]
Cf
Butise
above n 8 para 38.
[35]
De
Jager
above
n 12 at 56G–I;
April
above
n 33 at 263A–E. In
De
Jager
,
the warning fence was brightly-coloured, including clearly visible
red and white tape. Although the fence did not prevent persons
from
falling into a hole, in the circumstances, and considering financial
limitations, this did not result in a finding of negligence.
[36]
Butters
above
n 24 at 482B–E.
[37]
Fischbach
above
n 8 at 698D–E.
[38]
Fischbach
above
n 8 at 698E–G.
[39]
Fischbach
above
n 8 at 698G–I.
[40]
Fischbach
above
n 8 at 698H–699E.
[41]
Ablort-Morgan
v Whyte Bank Farms (Pty) Ltd
1988
(3) SA 531
(E) at 534I–535B, quoting
The
Wagon Mound (No 2): Overseas Tankship (UK) Ltd v The Miller
Steamship Co Pty Ltd and Another
[1966] UKPC 1
;
[1966]
2 All ER 709
(PC) at 719D–E. Also see
Butise
above n 8 para 30 and following.
[42]
See
the judgment of Brand JA in
Hawekwa
Youth Camp and Another v Byrne
2010 (6) SA 83
(SCA) para 30.
[43]
Fischbach
above
n 8.
[44]
Fischbach
above
n 8 at 698C–E.
[45]
Fischbach
above
n 8 at 699C–F.
[46]
Mabaso
v Felix
1981
(3) SA 865
(A) at 877.
[47]
Stewart
v City Council of Johannesburg
1947
(4) SA 179
(W) at 186, cited with approval in
Wenborn
v Cape Town Municipality
1976 (1) SA 25
(C) at 29E–G;
Fischbach
above
n 8 at 701A–E. Also see the remarks of Goldstone AJA in
Langley
Fox Building Partnership (Pty) Ltd v De Valence
1991 (1) SA 1
(A) at 15E–F: pedestrians walking on a city
sidewalk are entitled to assume that, in the absence of adequate
precautions
or warning, the way is clear and safe.’ Cf
Meikle
above n 16 para 11.
[48]
Cf
Harrington
NO and Another v Transnet Ltd t/a Metrorail and Others
2010
(2) SA 479
(SCA) para 64.
[49]
Cf
McIntosh
above n 3 para 16. In that matter, the plaintiff cyclist was aware
of the existence of potholes and, in those circumstances,
his speed
was held to be excessive, amounting to negligence on his part.
[50]
Butise
above
n 8 para 40.