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[2023] ZAFSHC 113
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Anwarey v Loch Logan Waterfront (Pty) Ltd (A78/2022; 2096/2018) [2023] ZAFSHC 113 (20 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No:
A78/2022
Case
No:
2096/2018
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
KATIJA
BEBE ANWAREY
Appellant
and
LOCH
LOGAN WATERFRONT (PTY) LTD
Respondent
JUDGMENT
BY:
JP DAFFUE J
HEARD
ON:
24 March
2023
DELIVERED
ON:
20 April 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 16h00 on 20 April 2023.
ORDER
On
appeal from:
Free State Division of the High Court (Mbhele AJP,
sitting as a court of first instance):
1. The appeal is
dismissed with costs.
JUDGMENT
[1]
This appeal
to the full bench is against the judgment and order of a single judge
of this division, Mbhele AJP, sitting as a court
of first
instance.
[1]
On 17 February 2022
the court a quo granted absolution from the instance in favour of the
respondent, each party to pay its own
costs. On 10 June 2022 the
court a quo granted leave to appeal to the full bench.
[2]
We had to consider two applications before we entertained submissions
on the
merits of the appeal. Both applications were brought by the
appellant and both were unopposed. Consequently, and having applied
our minds to the relief sought, we granted appropriated orders. For
the record, the following orders were granted:
a.
The application filed on 10 October 2022
:
1.
The applicant’s non-compliance with the provisions of rule
49(6)(a) and rule 49(7) of the Uniform Rules of Court is condoned.
2.
The applicant’s appeal is reinstated.
3.
The applicant shall bear the costs of the application on an unopposed
basis.
b.
The application filed on 17 March 2023
:
1.
The time period set out in the rules in respect of this application
is abridged.
2.
The application shall be heard simultaneously with the appeal.
3.
Condonation is granted for the applicant’s non-compliance with
the rules of court pertaining to the filing of the heads of argument
in the appeal under case no A78/2022.
4.
The applicant is permitted to proceed with the appeal.
5.
There shall be no order as to costs.
[3]
On 21
August 2016 Ms KB Anwarey, the appellant before us and the
unsuccessful plaintiff in the court a quo, fell in the Loch Logan
Waterfront shopping mall in Bloemfontein and sustained certain
injuries. She instituted action under case no 2096/2018 against
the
respondent, the Loch Logan Waterfront (Pty) Ltd, claiming damages in
the amount of R2 700 000.00. The claim is based on delict.
The
incident, causing her to sustain injuries, is pleaded as follows in
the appellant’s particulars of claim:
[2]
‘
On 21 August 2016,
and whilst walking through the Loch Logan Waterfront shopping centre
(“
the premises
”) in the vicinity of the Foschini
store, Plaintiff
fell as a result of floor tiles which had been
removed during refurbishment of the premises
(“
the
incident
”).’ (Emphasis added)
[4]
The
respondent’s duty of care is not in dispute. It is alleged that
the appellant’s injuries were caused by the unlawful
and
negligent conduct of the respondent, acting through its employees,
who at all material times acted within the course and conduct
of
their employment with the respondent. It is the appellant’s
case that the respondent acted negligently by removing floor
tiles
from the walkway in its shopping mall, or permitting the removal of
the floor tiles, in each instance thereby rendering the
floor
dangerous, and failing to take any or adequate steps to prevent the
appellant and other persons from falling as a result
of the condition
of the floor.
[3]
The respondent
denied negligence.
[5]
It is
apposite to indicate that the appellant confirmed her stance in her
further particulars for purposes of trial, stating that
‘the
removal of the floor tiles rendered the floor uneven and unstable and
reduced the walking area available in the busy
mall’; also that
the respondent ‘failed to ensure that all the tiles on the
floor of the premises were properly in
place and even and that the
floor was safe and free of obstructions.’
[4]
[6]
Although I could not find an order separating issues in terms of rule
33(4)
in the record, there can be no doubt that merits and quantum
have been separated on the basis that the disputed allegations in
paragraphs 3, 6 and 7 of the particulars of claim, read with the
corresponding paragraphs in the plea were to be adjudicated at
the
hearing. Particularly relevant for purposes of the appeal is the
appellant’s allegation that she ‘fell as a result
of
floor tiles which had been removed during refurbishment of the
premises.’
[7]
The appellant and her husband testified about the incident. In the
process video
footage obtained from two CCTV cameras were shown.
Also, various photographs taken of the scene after the incident were
addressed
in their evidence. The evidence will be considered in some
detail hereunder. An inspection in loco was also undertaken. Nothing
turns on the minutes of the inspection for purposes of this appeal.
After the closure of the appellant’s case, the respondent
successfully applied for absolution from the instance.
[8]
The court a
quo held that there was insufficient evidence to enable it to
conclude that the appellant ‘fell because of the
removal of
tiles on the walkway’ insofar as she was adamant in her
testimony that she was walking at all times on the tiled
area and
never steered away from the tiled area.
[5]
It concluded that the evidence was insufficient to infer negligence
on the part of the respondent.
[6]
[9]
In order to
adjudicate the appeal it is apposite to consider the test to be
applied at the stage when absolution from the instance
is sought as
reconfirmed by Harms JA in
Gordon
Lloyd Page and Associates v Rivera and another:
[7]
‘
The
test for absolution to be applied by a trial court at the end of a
plaintiff's case was formulated
in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403 (A)
at 409G - H in these terms:
'. . . (W)hen absolution
from the instance is sought at the close of plaintiff's case, the
test to be applied is not whether the evidence
led by plaintiff
establishes what would finally be required to be established, but
whether
there is evidence upon which a Court, applying its mind reasonably to
such evidence, could or might (not should, nor ought
to) find for the
plaintiff.
(
Gascoyne
v Paul and Hunter
1917
TPD 170
at 173;
Ruto
Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) SA 307 (T)
.)
This implies that a
plaintiff has to make out a
prima
facie
case
- in the sense that there is evidence relating to all the elements of
the claim - to survive absolution because without such evidence
no
court could find for the plaintiff (
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26 (A)
at 37G - 38A; Schmidt
Bewysreg
4th
ed at
91
- 2).’ (Emphasis added)
[10]
A bundle of photographs was placed before the court a quo. The
evidence of the witnesses was led whilst
viewing video footage of the
incident (the appellant’s fall) and the period immediately
preceding the incident. It is common
cause that two rows of floor
tiles, parallel to each other, had been removed in the area where the
incident occurred, leaving the
cement coverage. The appellant fell in
the vicinity of the Foschini store. These rows of tiles were removed
over the length of
the particular passage leading to the Woolworths
store; therefore, splitting the passage in three separate tiled
walkways. The
appellant and her family were on their way to
Woolworths. Yellow plastic warning signs, (the usual type warning
customers against
wet sand slippery floors during cleaning
operations), were placed at regular intervals on the cement strips
where tiles had been
removed. It is also evident from the
photographs, the video footage captured and the evidence that most of
the customers walked
on the tiled walkways on each side of the cement
strips, although in a few instances there is evidence of people
crossing the cement
strips.
[11]
Adv HJ
Cilliers acted for the respondent in the court a quo and also
appeared for it before us. He submitted, whilst relying on
damning
evidence that had been repeated several times, that there is no doubt
that the appellant did not fall ‘as a result
of floor tiles
which had been removed during refurbishment of the premises’ as
pleaded by her in paragraph 3 of the particulars
of claim quoted in
full above. He was at pains in extracting evidence from the record to
show that the appellant never walked on
the cement strips where tiles
had been removed, but had always been walking on the tiled area. I do
not intend to cite all the
passages relied upon, but merely refer to
the relevant portions of the appellant’s evidence contained in
annexure A to Mr
Cilliers’ heads of argument. In her evidence
in chief she explained that she walked on the tiled passage between
the cement
strip and the stores immediately before her fall,
explaining that Woolworths was on her right-hand side and the
‘cemented
area’ was on her left-hand side.
[8]
Also, that she did not recall stepping onto the cement strip at any
time.
[9]
Although she never saw
the yellow warning signs, she was aware of the cement strip and
testified during cross-examination inter
alia:
‘
I knew I had to
walk on the tiled area so that is where I falled (sic).
[10]
Immediately after this
testimony she confirmed having seen the ‘cement area, stating
that as she was walking, I saw it (the
cement area) so I carried on
that row (referring to the row of tiles) and I looked ahead’.
[11]
She ‘continued
walking on the tiled area’ and ‘remained on the tiled
area.’
[12]
Even
the appellant’s husband, who was pushing a trolley whilst
walking just in front of her and to her right-hand side, confirmed
that they walked on the tiled area. His evidence is also summarised
by Mr Cilliers as is apparent from annexure B to the heads
of
argument.
[12]
A major issue was made by the appellant of cement found on the
outside of her right boot and the right
leg of her trousers. This
does not take the matter any further, bearing in mind that on her
version the cement strip was on her
left-hand side, she tried to grab
hold of her daughter who was walking to her left, but notwithstanding
this she fell and came
down on her right hand and arm. It is apparent
from the photographs that she was examined by emergency personal
whilst lying partially
on the cement strip.
[13]
Adv P Uys who appeared before us on behalf of the appellant conceded
from the onset in his oral argument
that he had to rely, like the
members of the bench on appeal, on the record and the documentary
evidence as he was not involved
in the trial. He submitted that the
appeal should succeed insofar as the court a quo incorrectly applied
the test applicable to
adjudication of applications for absolution
from the instance. He conceded that if the appeal was to succeed and
the matter referred
back to the court a quo and on the assumption
that the respondent might close its case without calling any
evidence, a different
test would be applicable. At such stage, he
submitted, he may have a problem to convince the court that the
appellant should be
successful. His submission is correct, bearing in
mind the different tests applicable, but it is not necessary to deal
with this
any further.
[14]
Mr Uys also
referred us to the test to be applied in the case of inferential
reasoning. He elected to refer to a criminal case,
R
v Badenhorst,
[13]
where the court accepted with approval the following dictum from an
English judgment, to wit
Jones
v Great Western Railway Co
:
'The
dividing line between conjecture and inference is often a very
difficult one to draw.
A conjecture may be plausible, but it is of
no legal value, for its essence is that it is a mere guess. An
inference in the legal
sense, on the other hand, is a deduction from
the evidence, and if it is a reasonable deduction it may have the
validity of legal
proof
. The attribution of an occurrence to a
cause is, I take it, always a matter of inference. The cogency of a
legal inference of causation
may vary in degree between practical
certainty and reasonable probability. Where the coincidence of cause
and effect is not a matter
of actual observation there is necessarily
a hiatus in the direct evidence,
but this may be legitimately
bridged by an inference from the facts actually observed and proved
.'
(Emphasis added)
[15]
In civil
matters a court is entitled to consider severable reasonable or
plausible inferences and then to find which of those inferences
is
the most plausible or likely one in the circumstances. At the stage
when absolution from the instance is sought, the inference
the
plaintiff seeks to be drawn from the proven facts does not need to be
the most likely one, but it does have to be a reasonable
one. As
mentioned in Schmidt and Rademeyer,
[14]
at such stage the plaintiff’s evidence must be such that there
is a reasonable chance of success. However, I repeat as stated
in the
above quotation, that inference must be carefully distinguished from
conjecture or speculation. There can be no inference
in the legal
sense, unless there are objective facts from which to infer the other
fact or facts sought to be established.
[16]
In order to arrive at the reasonable inference that the respondent
was negligent, there must be a finding
of facts from which such
inference can be drawn. This court, as was the case in the court a
quo, cannot rely on speculation or
conjecture. Mr Uys submitted that
a reasonable inference to be drawn from the totality of the
appellant’s accepted evidence
is that she fell because of the
unevenness of the floor, ie that she stepped onto the cemented area,
bearing in mind the evidence
of cement on her right boot. The same
submissions were made on behalf of the appellant in the court a quo.
I am not prepared to
accept this submission. It is based on
speculation. Several reasons may be advanced in order to try and
explain the appellant’s
fall. A court cannot be called upon to
come to a finding based on speculation. In casu, the evidence is
clear: the appellant was
concentrating at all relevant times whilst
walking, she was aware of the cement strip, she never left the tiled
area, or steered
away from that area and she fell while on the tiled
area. I agree with Mr Cilliers that no evidence was presented to
remotely suggest
that the cement strip, ie the cement area where
tiles had been removed, played any role in the appellant’s
fall. It is repeated
that the appellant’s case as pleaded is
that she had fallen as a result of the removal of floor tiles. The
evidence and the
objective facts do not allow a reasonable inference
in the legal sense to be drawn in support of her case.
[17]
The
following paragraph in the judgment of the court a quo should be
accepted as a correct summary of the appellant’s version,
which
paragraph is directly in contrast with the case pleaded as
mentioned:
[15]
‘
The evidence
before me is not sufficient to enable me to come to the conclusion
that the plaintiff fell because of the removal of
tiles on the
walkway. The plaintiff was adamant that at all times she was walking
on the tiled area of the walkway. She reiterated
that she never
steered away from the tiled area.’
[18]
It is emphasised,
ex abundanti cautela,
that the appellant did
not rely on any other evidence to show what might have contributed to
her fall. At the hearing her counsel
tried to put words in her mouth
in this regard, but she was prevented from dealing with that topic.
Speculation and conjecture
may not be resorted to for as stated in
the dictum of the English judgment referred to above, ‘its
essence is that it is
a mere guess’.
[19]
It is quite amazing that the appellant testified that she did not see
the numerous yellow warning signs
placed on regular intervals on the
longitudinal cement strips where tiles had been removed. It was
always common cause during the
trial that these warning signs were in
place on the day of the incident as is also evident from the
photographs and video footage.
The court a quo correctly held that
the
res ipsa loquitur
principle could not be relied upon on
the basis that the incident would ordinarily not have occurred
without negligence on the
part of the respondent.
[20]
The
appellant was also confronted with an affidavit deposed to by her in
support of an application to obtain the video footage.
Therein she
stated that she suddenly lost her footing as a result of the tiles
which were removed and fell.
[16]
This version is in total contrast with her pleaded case and viva voce
evidence. In a last-ditched attempt to exonerate her from
any fault,
the appellant testified as follows:
‘
It is not my fault
because it (the cement strip) should have been cordoned off for us
not to be there. We should not be there.’
[17]
Having
considered the totality of the evidence, particularly the appellant’s
awareness of the cement strips and her steadfast
approach that she
did not leave the tiled area, her attempt to blame the respondent and
exonerate herself in the process was a
futile exercise.
[21]
The appellant failed to present prima facie evidence to which the
respondent had to answer. The order,
granting absolution from the
instance, cannot be faulted.
[22]
Consequently, the following order is made:
1.
The appeal is dismissed with costs.
J.P.
DAFFUE J
I
concur
S.
BOONZAAIER AJ
I
concur
N.G.
GUSHA AJ
On
behalf of the appellant: Adv
P Uys
Malcolm Lyons and Brivik
Inc
c/o Mayet &
Associates Inc
BLOEMFONTEIN
On
behalf of the respondent: Adv
HJ Cilliers
Phatshoane Henney Inc
Bloemfontein
[1]
Record,
vol 3 p 557.
[2]
Par
3 of the particulars of claim, record p 8.
[3]
Par 6 of the particulars of claim, record p 10.
[4]
Paras 4 & 5 of the further particulars, record p 48.
[5]
Judgment, par 17, vol 3 p 584.
[6]
Ibid,
par 18
p 584.
[7]
2001
(1) SA 88
(SCA) at 92 F – H.
[8]
Record, vol 2 p 307 / 20 – p 308 / 5.
[9]
Ibid
,
p 322 / 6-8
[10]
Ibid
,
p 351 / 10-12.
[11]
Ibid
,
p 352 / 1-13.
[12]
Ibid
,
p 353 / 17-23.
[13]
1951 (4) SA 532 (N) 535.
[14]
Law
of Evidence
,
issue 17 p 3-18.
[15]
Volume 3
p
584
par
17.
[16]
Record,
vol 2 p 388 / 10-15.
[17]
Record,
vol 2 p 390 / 10-14.