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[2012] ZASCA 162
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Ramafamba v Score Supermarkets (Pty) Ltd (517/2012) [2012] ZASCA 162 (19 November 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 517/2012
Not reportable
In the matter between:
MARIA SHUMANI
RAMAFAMBA
...............................................................
APPELLANT
and
SCORE SUPERMARKETS
(Trading) (Pty) Ltd
..........................
FIRST
RESPONDENT
ERIC NEMANAME
..................................................................
SECOND
RESPONDENT
Neutral Citation:
Ramafamba v Score Supermarkets (Pty) Ltd
(517/2012)
[2012]
ZASCA 162
(19 November 2012)
Coram: Brand, Lewis
and Petse JJA and Southwood and Saldulker AJA
Heard: 5 November 2012
Delivered: 19 November
2012
Summary: Where a
plaintiff does not prove the cause of her injury she cannot succeed
in an action against the defendants for negligently
causing her loss.
High court should have granted absolution from the instance.
__________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Limpopo High Court, Thohoyandou (Hetisani J sitting as court of
first instance):
1 The appeal is dismissed
with costs.
2 The cross appeal is
upheld with costs.
3 The order of the high
court is replaced with:
‘
Absolution
from the instance is granted with costs.’
JUDGMENT
___________________________________________________________________
LEWIS JA (BRAND and PETSE
JJA and SOUTHWOOD and SALDULKER AJJA concurring)
[1] Ms Maria Ramafamba
went to the Score supermarket in Sibasa, Venda, to do some grocery
shopping on 21 October 2005. She tripped
and fell in one of the
shopping aisles, sustaining an injury to her left leg. She instituted
action against Score Supermarkets
(Trading) (Pty) Ltd, the owner of
the supermarket, and its manager at the time, Mr Eric Nemaname,
claiming damages for the injuries
suffered as a result of their
negligence.
[2] The sole issue for
decision is whether Ms Ramafamba discharged the onus that she bore in
proving that the respondents had negligently
caused her injury. That,
in turn, rested on whether she proved how she fell and that they were
in some way responsible for the
fall. This seems a simple enough
thing to do. Unfortunately, because of the way in which her claim was
pleaded, the inadequacy
of the evidence led, and the manner in which
the trial was conducted, it was not something that she succeeded in
doing.
[3] Despite that, the
high court (Hetisani J in the Limpopo High Court, Thohoyandou) found
that she had proved that the respondents
had negligently caused her
injury and ensuing loss, but that she was contributorily negligent
and had to bear half the loss herself.
It is against the latter
decision that she appeals, with the leave of another judge acting in
that court. The respondents cross
appeal, also with the leave of that
court, against the decision that they were negligent and the cause of
her fall and ensuing
injury. It should be noted that the questions of
liability and quantum of loss were separated at the outset of the
trial by agreement.
[4] The essence of Ms
Ramafamba’s case, as it unfolded during the course of a
prolonged trial, was that she had gone into
the supermarket and found
some soup that she wanted. She took it to a teller. Then she
remembered that she had intended to buy
cake for one of her parents
(she first said her father, then later her mother) and had proceeded
down another aisle towards the
bakery. On her way to the bakery she
tripped and fell over loose shelves on the floor. She had not seen
them before she fell, but
noticed them as she fell and they were
displaced. She could not get up without assistance. A woman who was
promoting certain items
in the aisle had assisted her and provided a
stool for her to sit on. A shelf packer went to tell the manager, Mr
Nemaname, who
came to see what had happened to her.
[5] She had walked with
difficulty to Mr Nemaname’s office and he had then taken her to
a nearby hospital, accompanied by
Mr Matsea, an employee who remained
with her at the hospital until she was discharged. Mr Nemaname had
fetched her and taken her
to her home. He also visited her the
following day, and he paid all the hospital expenses.
[6] Mr Nemaname and Mr
Matsea gave evidence denying that there had been loose shelves lying
on the floor in any aisle. Neither of
them had seen Ms Ramafamba
fall. No witness was called, either by her or by the respondents, who
had seen the fall. She said that
tellers who had witnessed her
falling had laughed at her. But she did not identify them and did not
call them as witnesses.
[7] One of the
difficulties that this court faces is that the high court did not
make a credibility finding in favour of or against
Ms Ramafamba. Yet
it accepted the version of the respondents which was diametrically
opposed to hers. And despite finding that
Mr Nemaname and Mr Matsea
were good and credible witnesses, who denied that there had been
loose shelves lying on the floor, it
found that Score and Mr Nemaname
were, in part, the negligent cause of her injury because they should
have taken steps to warn
customers about the shelf end over which
they might trip. Before dealing with these findings and the evidence,
I shall set out
the case as pleaded, though not in detail.
[8] In her particulars of
claim, Ms Ramafamba stated that her ‘tripping and falling was
caused by the negligent placing of
a
shelf end
on the path of
customers by the employee of the 1
st
Defendant and was
under the direct supervision of the 2
nd
Defendant [Mr
Nemanane] who was negligent in one or more of the following respects:
. . ’ (my emphasis). These included failing
to place a warning
sign ‘to alert customers of the danger the shelf end was
posing’; putting the shelf end in a place
where it did endanger
customers; and failing to warn customers orally of the danger’.
(In their plea the respondents denied
any negligence on their part
and made no allegations of fact.)
[9] The particulars echo
the letter of demand (dated 24 February 2006) delivered to the
manager of the supermarket, in which Ms
Ramafamba’s attorney
stated that while she was shopping in the store ‘she tripped
and fell because of the shelve which
was negligently placed on the
path for customers’. And in listing outstanding issues for the
purpose of the pre-trial conference
in terms of rule 37 Ms
Ramafamba’s legal representatives asked the following
questions: ‘Is it admitted or denied that
the Plaintiff had
fallen as a result of tripping over a lower shelf at’ the
store? And ‘Is it admitted or denied that
the shelf was not
properly placed/installed on or around 21 October 2005?’
[10] The particulars and
these questions were framed after Ms Ramafamba’s attorney had
taken instructions from her, but also
after he had delivered the
letter of demand to the store and discussed what had happened with
store employees. Furthermore, in
an affidavit resisting an
application by the respondents for the rescission of default judgment
against them, Ms Ramafamba referred
to the cause of her fall as ‘the
negligent placing of a shelf end on the path of customers’.
[11] But the claims and
questions do not tally with Ms Ramafamba’s evidence during the
course of the trial. As indicated,
she testified that she had tripped
over a pile of loose shelves on the floor of a shopping aisle. The
shelves had been stacked
on the floor and she had fallen over them so
that they had moved. She had not seen the shelves before she fell.
One reason for
that was that they were a similar colour to the floor
– cream.
[12] Much was made about
the discrepancy between a shelf end (whatever that may be –
this court was not given any graphic
representation, or lucid
explanation, of what a shelf end is) and loose shelves that were
allegedly on the floor. Her attorney
testified to explain the way in
which her case was pleaded: but all that he said, in the end, was
that a shelf end and a loose
shelf were the same things as far as he
was concerned. Counsel for Ms Ramafamba argued that after a so-called
inspection in loco
of the store (it was not the same store, which was
no longer in Sibasa at the time of the trial, but a similar one) the
trial judge
and all parties concerned knew full well what she had
tripped over: loose shelves piled up on the floor. That argument does
not
accord with the trial court’s continued reference to shelf
ends.
[13] Both Mr Nemaname and
Mr Matsea, a shelf packer at the store, denied, when testifying, that
there were any loose shelves left
lying in an aisle. They had not
seen them. They had not seen Ms Ramafamba fall. They speculated that
she might have tripped on
a pallet at the end of a row of shelves
that displayed packets of rice. And since they did not know of any
loose shelves they could
not say how they got there or when and
whether they were removed after the fall. Both were found to be
credible witnesses and indeed
the record shows no contradictions in
their evidence. Ms Ramafamba had testified that after the event, Mr
Nemaname had told her
that the shelves had been left in the aisle by
a casual worker, and that he had told workers to remove them that
morning. Both
Mr Nemaname and Mr Matsea denied that there were any
casual workers employed at the time, and the former said that despite
doing
an inspection of the store earlier that morning he had not seen
any loose shelves on the floor.
[14] In addition to the
changing version of Ms Ramafamba, the probabilities do not support
her version given in evidence. There
was no reason for loose shelves
to be left on the floor. Shelves had not been removed for cleaning
nor had any been replaced. No
one else saw loose shelves on the
floor. There were no casual workers. When she fell she did not point
out any shelves to Mr Nemaname
or anyone else, let alone make a fuss
about them. She did not alert anyone to the obstacle that had been
put in her path and over
which she had tripped.
[15] Ms Ramafamba’s
attempt during the course of the trial to suggest that Mr Nemename,
by taking her to and from hospital,
paying her medical expenses, and
visiting her after her fall, amounted to an admission of liability
for negligence, is to be rejected.
His conduct (mandated by his
supervisor) was no more than that of a humane man who came to the
assistance of a person who had fallen
in the store he managed.
[16] In all the
circumstances Ms Ramafamba did not discharge the onus of proving that
the respondents had negligently caused her
injuries. The high court
should have granted absolution from the instance.
[17] I make the following
orders:
1 The appeal is dismissed
with costs.
2 The cross appeal is
upheld with costs.
3 The order of the high
court is replaced with:
‘
Absolution
from the instance is granted with costs.’
_____________
C H Lewis
Judge of Appeal
APPEARANCES
Counsel for Appellant: T
P Snyman
Instructed by:
Mathiva Attorneys
Thohoyandou
Molefi Thoabala Attorneys
Bloemfontein
Counsel for Respondent
:
M A Kruger (First Respondent and
Second Respondent)
Instructed by:
Whalley Van Der Lith Inc
Thohoyandou
Bezuidenhouts’
Attorneys
Westdene, Bloemfontein