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[2023] ZAECMHC 41
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Amoah and Others v King Sabata Dalindyebo Municipality (348/2019) [2023] ZAECMHC 41 (15 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Case No: 348/2019
In
the matter between:
ZIZIKAZI
AMOAH
FIRST
PLAINTIFF
ASMANU
AMOAH
SECOND
PLAINTIFF
AMOAH
TRADING ENTERPRISE (PTY) LTD
THIRD
PLAINTIFF
and
KING
SABATA DALINDYEBO MUNICIPALITY
DEFENDANT
JUDGMENT
Cengani-Mbakaza AJ
Introduction.
[1]
The plaintiffs instituted a delictual claim against the defendant
(‘the KSD
municipality’) based on the allegations that
the KSD municipality intentionally and/or negligently and unlawfully
damaged
the container in which the third plaintiff was conducting its
business, the hair salon. The third plaintiff was the owner of and
in
possession and occupation of the container that was stationed at
Plaza Shopping Centre. Inside the container was the stock which
consisted of equipment and hair products. It is alleged that the
first and second plaintiffs were the employees of the third
plaintiff.
[2]
The claim is based on vicarious liability, in that the unknown
employees of the KSD
municipality allegedly committed the acts and
omissions whilst within the course and scope of the municipality’s
employment.
The pleadings
[3]
On 1 February 2021, the plaintiffs filed a combined summons in this
Court and held
the KSD municipality liable for:
(a)
a payment of R200 000 which is made up
of R10 000 per month, for loss of earnings from March 2017 to
the date of the issue
of the summons. An amount of R132 000
which is calculated at R11 000 per month for future loss of
earnings, from November
2018 to the date of satisfaction of the
judgment sought;
(b)
a payment of R200 000 which is
calculated at R10 000 per month for past loss of earnings from
March 2017 to the date of
the issue of the summons The plaintiffs
held the municipality liable for an amount of R132 000 which is
calculated at R11 000
per month for future loss of earnings,
from November 2018 to the date of the satisfaction of this judgment;
and
(c)
in the specificity of Claim C, it was
asserted that as the consequence of the loss of the container, the
third plaintiff could not
trade, with the result that it could not
make its profit of R30 000 per month from 21 March 2017 to the
date of the issue
of the summons. Allegedly, the past loss of
earnings computed from April 2017 to date of issue of the summons is
an amount of R720 000
and the future loss of earnings amount to
R360 000.
[4]
Consequently, the plaintiffs seek a:
(a)
payment of R332 000 in favour of the first plaintiff;
(b)
payment of R332 000 in favour of the second plaintiff; and
(c)
payment of R1 080 000 in favour of the third plaintiff, plus
interests and costs
of suit.
[5]
On 1 April 2019, the KSD municipality filed a notice of appearance to
defend and a
special plea. The KSD municipality averred that the
plaintiffs’ debt became due on 21 March 2017, however, the
plaintiffs
failed to serve a notice in terms of Institution of Legal
Proceedings against Certain Organs of the State Act 40 of 2002 (‘the
Act’). The KSD municipality further alleged that there was no
consent in writing or in any manner whatsoever allowing the
plaintiffs to institute the proceedings without serving a notice as
stipulated in terms of the Act.
[6]
The KSD municipality vehemently denied that the container was removed
intentionally,
negligently and unlawfully. They denied that the first
and second plaintiff lost earnings as a result of the direct
consequences
of the municipality and its employees. The fact that the
third plaintiff lost trade and profit as a result of the direct
consequences
of the KSD municipality was also denied. In
amplification:
(a)
the KSD municipality admitted that the container was stationed at
Plaza Shopping Centre.
All the street vendors were given notices
including the plaintiffs that the containers would be removed from
the prohibited or
restricted municipal areas; and
(b)
the second plaintiff’s container was also removed in terms of
the municipal
by-laws under Local Authority Notice 137, on the basis
that it was placed on the restricted or prohibited area. The KSD
municipality’s
conduct of removing or impounding the container
was lawful.
[7]
On the date of the trial, the KSD municipality withdrew a special
plea regarding the
plaintiffs’ compliance with the provisions
of the Institution of Legal Proceedings against Certain Organs of the
State, Act
40 of 2002. In terms of Uniform rule 33(4), I made an
order that the merits be separated from quantum as agreed by the
parties.
The parties agreed further, that the plaintiffs would begin
to lead evidence.
The evidence
[8]
The plaintiffs first led the evidence of Mr Anele Gogozayo
(‘Gogozayo’),
a security guard, who testified that he
used to visit the plaintiffs’ barber business, which is located
in a shipping container
next to Plaza Shopping Complex where he was
employed. He described the container as a hair salon that was located
near other informal
traders who were also conducting other businesses
in the caravans and shipping containers. On 21 March 2017 at around
19h30, he
noticed the KSD municipality vehicles next to the
plaintiffs’ hair salon. They were escorted by a truck loader
bull dozer
(‘the TLB’) and had some blue lamps. He
immediately called the second plaintiff whom he affectionately called
Ozi or
(‘Amoah) and alerted him of the presence of the TLB and
the KSD municipal employees. Amoah arrived and immediately noticed
the KSD municipal employees using the TLB to shatter the container.
[9]
Under cross-examination, Gogozayo testified that there were three
municipal vehicles
in the premises including the TLB. He informed the
court that he came closer the KSD municipal employees who were
smashing the
properties but did not speak to them. When asked to
describe the container, Gogozayo testified that the container had
four corners;
tiles on the floor; was mounted on the cement stand,
and could easily be transported from one location to another. He went
on to
explain that it was built of quality and strong iron sheets.
When he was informed that this was a shack, Gogozayo insisted that
this was a normal container comparable to other containers that were
located in the area.
[10]
Gogozayo further testified that Amoah was terrified and panicking, so
he negotiated with the
KSD municipal employees to personally remove
some merchandise from the container. When asked if he witnessed the
negotiations,
Gogozayo admitted that he had gone back to his job and
did not observe whether the negotiations bore any fruits. When asked
if
there were no items inside the container, Gogozayo testified
whenever he went to attend the hair salon, he would observe some hair
equipment and products inside the container. Since the salon was
closed on this particular day, he was unable to see if the products
were inside the container because it had been destroyed and was
scattered all over. When he was informed that the container was
removed in an orderly manner, Gogozayo denied this and testified that
the container was dismantled.
[11]
Mr Osmanu Amoah (Amoah) testified that he and his wife Mrs Zizikazi
Amoah were shareholders of
Amoah Trading Enterprise (Pty) Ltd. During
March 2017, he was the managing director of the company and his wife
was a manager.
They were employees of the third plaintiff. The hair
salon was conducted in a container which was situated outside the
retail centre.
In his capacity as a managing director of the company,
he applied for permission to put the structure on the land and
operate the
said business. Before the application was approved, he
completed an application form. The application form was admitted as
exhibit
C before court. The application form is titled ‘application
for a container/caravan’. It comprises of the King Sabata
Dalindyebo logo, the full names of the municipality, the full names
of the applicant, his postal and physical address as well as
his
telephone number. Additionally, the form indicates the place where
the container/caravan was to be placed and its purpose.
The form
demonstrates the particulars of the container, that it was made of
metal and was a standard size. It also reveals that
the land where
the container was to be installed was vacant. According to exhibit C,
the person whose particulars appear in the
form is the second
plaintiff. The application was approved on 19 June 2009.
[12]
After the completion of the application form, Amoah was asked to
apply for electricity services.
Exhibit B demonstrates how this
application form was completed. This exhibit also shows the KSD
municipal logo as well as full
particulars of the second plaintiff.
According to the form, the names of the electrician are marked as
‘Khanyisa Electric’.
On 7 September 2009, the electrician
endorsed his signature in the form. His contact number is also
reflected in one of the columns
in the document. The costs of the
services were estimated at R2 243. On 8 September 2009, the
application was approved by E. Naidoo
of the KSD municipality. The
documents professing to be the proof of payments for the monies paid
by Amoah in pursuit of his application
for a container were also
admitted as exhibits. In respect of the application for a
container/caravan, the second plaintiff paid
a sum of R100. This
receipt was admitted and marked exhibit A. Exhibits D and E prove
that he paid some monies when water and electricity
services were
connected. It is noted that these are original documents.
[13]
In his testimony, Amoah also unveiled a geographical map which
determines the area where this
container was to be fitted after it
was approved by the KSD municipality. The document was marked exhibit
F. He testified that
he put the container in the exact location that
was designated to him by the KSD municipality. The exhibits A, B, C,
D, E and F
were submitted by consent between the parties. The
contents of all the documents were never placed in dispute.
Additionally, Amoah
testified that he followed all the correct
procedures until they started to operate the hair salon. The meter
number that monitors
the flow of water that was supplied by the
municipality as well as the electricity box was installed by the KSD
municipal employees.
[14]
When asked to describe the structure, Amoah testified that he bought
the container at Norwood.
Although it was a mobile structure, he
found that containers frequently went missing. He added a veranda as
an extension to prevent
it from being vulnerable to thieves.
Additionally, he observed that the container was rusting due to human
excrement being passed
around it. To protect the container from
damage, he filled the edges with cement. Amoah testified that even
though the container
and the veranda were walled off with cement, it
could still be easily moved, if necessary.
[15]
With regards to the events of the 21 March 2017, Amoah testified that
he was at Mbuqe extension
when he received a call from Gogozayo. He
started to panic when Gogozayo informed him of the TLB and the KSD
municipal cars that
had parked on his business premises. It took him
less than five minutes to reach the hair salon and on arrival he
stopped in front
of the KSD municipal cars. He rushed next to the
container but was prevented from doing so by the KSD municipal
employees. At that
stage, the TLB had started to dismantle the
container. He moved to the direction of the container pleading with
the KSD municipal
employees to allow him to remove the items that
were inside the container. The KSD municipal employees shouted and
asked him to
leave the area.
[16]
When the container was disassembled, so he testified, an electric
spark occurred. The KSD municipal
employees became terrified and
shouted. One of the employees went to the box to switch the
electricity off. After that, the TLB
continued to demolish the
structure. Amoah testified that the container got shattered to the
extent that it could not be repaired.
[17]
He further testified that he could not work after his container was
demolished and had to hire
another container at some stage. He could
only secure a small container to run a business to make a living.
Since there was no
electricity installed in the new container, he
renounced that particular business and opened a salon at
Southernwood. He informed
the court that had it not been the conduct
of KSD municipal employees he would be operating his business from
2017 to date. When
asked to clarify if he ever received a notice to
remove the container, he testified that he received no notice to that
effect.
[18]
In cross-examination, he was informed that he fitted his container in
a site belonging to Vela
Cash Loan CC. Amoah informed the court that
he was only guided by the KSD municipal employees and one of them
completed the form
and approved the fitting of the container in a
spot that was agreed upon. He informed the court that according to
his knowledge,
the site where his container was, belonged to the
municipality hence they assisted him in processing the application to
fit the
container.
[19]
When asked if he ever lodged a complaint with the KSD municipality
after the event, Amoah testified
that he only went to St Johns
College where other traders’ containers were moved to the
previous day. When he lodged a complaint,
the person at the gate
informed him that his job was only to guard the premises and the
items that were inside the yard. When asked
why he had not sought
permission to extend his container, Amoah testified that the
extension was only for security purposes. With
this evidence the
plaintiffs closed their case.
[20]
The KSD municipality presented the evidence of Mr Zithulele Maqokolo
(‘Maqokolo’).
In 2017, Maqokolo was employed by the KSD
municipality as a law enforcement officer. During that month there
was an order issued
by the KSD municipality that all containers in
town must be removed. The message that speaks to the removal of
containers was conveyed
to the Street Committees. The Committees were
to convey the message to all the container owners. This was not a
written notice;
it was to be conveyed verbally. A second notice was
verbally communicated to the street vendors and container owners but
they failed
to adhere to the notice.
[21]
Because there was non-compliance with the KSD municipal order, the
KSD municipality ordered that
all containers be removed, so he
testified. The members of various departments in the KSD municipality
were tasked to assist in
the process. The role of his department was
to monitor the process so that its members were not subjected to the
attacks by community
members. Before the day preceding 21 March 2017,
some containers in the area were removed. The plaintiffs’
structure which
was a shack could not be removed because it was
mounted to the ground. A TLB driver was called to lift it up. After
it was removed,
it was no longer in its intact state and hence the
zinc irons sheets were placed in a van and conveyed to kwa-fleet for
safe keeping.
[22]
When asked to explain the process of the permission to trade on the
street, he explained that
an application form is completed. The
applicant would only be allowed to put a structure that could easily
be removed. He explained
that any structure that was fixed to the
ground was prohibited. Maqokolo informed the court that on this day,
their focus was on
other trades’ structures and not only on the
plaintiffs’.
[23]
In cross-examination, Maqokolo explained that the plaintiffs’
container was attached to
a structure which was made of corrugated
iron sheets. The structure that was attached to the container got
damaged and the container
remained intact and was taken back to its
owner. Maqokolo informed the court that he started working for the
KSD municipality in
2014 and was not familiar with the application
form marked exhibit C.
[24]
Counsel for the plaintiffs unveiled the KSD municipal by-laws and
challenged Maqokolo to comment
on whether the plaintiffs contravened
any of the KSD municipal by-laws. Maqokolo conceded that the
plaintiffs contravened no by-laws
except that the area where they
were trading was a restricted or prohibited area. When asked if Amoah
or any of the plaintiffs
were given a notice to remove the container
as stipulated by the KSD municipal by-laws, Maqokolo maintained that
the notice was
verbally conveyed to the Street Committees to inform
its communities. When asked if the container owners were issued with
receipts
as proof that their containers were stored, Maqokolo
testified that he bore no knowledge of who the container owners were
hence
no receipts were issued. With this evidence, the defendant
closed its case.
The common cause facts
[25]
The following facts are found to have been proven, that:
25.1
On 24 December 2010, the KSD Municipal Manager published the by-laws
relating to Street trading, Local
Authority notice 137 (‘the
KSD municipal by-laws’). As defined in clause 1 of the KSD
municipal by-laws,
[1]
the plaintiffs were street traders
[2]
offering services for the reward in a public area. They were
operating a hair salon.
25.2
On 19 June 2009, the KSD municipality approved the plaintiffs’
application to fit a container
next to Plaza Shopping complex, an
area that was designated to the plaintiffs and approved by the KSD
municipality for that purpose.
25.3
The plaintiffs had been trading in the area for approximately eight
years.
25.4
During March 2017, the KSD municipality removed the informal traders
from their trading places and
confiscated their containers and other
goods. The properties would be conveyed to kwa-fleet for safe
keeping. As a matter of practice
and in terms of clause 9 of the KSD
municipal by-laws, it was expected of the authorised official to
issue a receipt for any property
so removed and impounded, which
receipt would itemise the property to be removed and impounded.
[3]
25.5
Unlike other containers, the plaintiffs’ container could not be
detached on the same day as the
removal of other traders’
products and containers because it was attached to an immovable
structure.
25.6
When the plaintiffs’ container was detached, a TLB was used,
and the removal was conducted in
the presence of the second
plaintiff. It was not seriously disputed that the container was
removed with its contents.
The issues
[26]
The issues up for debate are whether:
(a)
the plaintiffs’ container was built
in a restricted or prohibited area;
(b)
the container was removed in an orderly
manner or dismantled;
(c)
whether it was finally returned to its
original position; and
(d)
the rules governing the KSD municipal by-laws were adhered to when
the container was
so detached.
[27]
The broader issue is whether KSD municipality through its employees
acted intentionally, alternatively
negligently and unlawfully by
damaging the plaintiffs’ container.
Legal submissions by
the parties
[28]
The parties filed written heads of arguments and launched very
significant points which assisted
the court in preparation of this
judgment. On behalf of the plaintiffs, Mr
Hobbs
argued
briefly, that the second plaintiff was a good witness and there was
corroboration in his testimony. He argued that I should
find
mendacity, obfuscation and or unreliability in the defendant’s
evidence. He pointed some external and internal contradictions.
[29]
The municipal by-laws relevant to this matter are those appearing in
the Provincial Gazette Extraordinary
of 24 December 2010 number 2489.
On the established facts, the municipality failed to abide by its own
by-laws, so the argument
continued. In a nutshell, counsel submitted
that the plaintiffs have discharged the overall onus to prove that
the defendant’s
employees acting within the scope of their
employment unlawfully and intentionally or at least negligently
demolished and or damaged
the third plaintiff’s container.
[30]
The first point of criticism that Mr Pangwa, for the defendant,
labelled against the plaintiffs
is the manner in which the evidence
was presented. He argued that the plaintiffs led evidence that
contradicts what they formulated
in their pleadings. Referring to
Minister
of Safety and Security v Slabbert
,
[4]
Mr Pangwa argued that the documents that the plaintiffs submitted
before the court tend to prove the existence of the contract
between
the third plaintiff and the defendant and such evidence should be
discarded because it is irrelevant. Mr Hobbs was adamant
that he
presented no irrelevant evidence and further all the material issues
were stated in the pleadings.
[31]
Mr Pangwa criticized Gogozayo and Amoah’s testimonies. He
contended that Gogozayo was biased
and evasive when giving evidence.
The container was damaged due to human excretion being passed on it
hence it fell apart, so he
argued. Gogozayo could not even tell that
the merchandise was still inside the container when it was destroyed.
He could not tell
how the TLB dismantled the container, so the
argument continued.
[32]
Mr Pangwa further argued that the plaintiffs failed to discharge the
onus of proof on the basis
that there was no preponderance of
evidence adduced on a balance of probabilities.
Applicable legal
principles
[32]
In
civil proceedings, the plaintiff must, in order to succeed, prove his
case on a balance of probabilities. In
National
Employers General Insurance Limited v Jagers
,
[5]
a case that I was referred to by Mr Pangwa, the court held:
‘
[I]t
seems to me with respect, that in any civil case, as in criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfies the court on a
preponderance of probabilities that his version
is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken
and falls to be rejected. In
deciding whether the evidence is true or not, the court will weigh up
and test the plaintiff’s
allegations against general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up
with a consideration of the
probabilities of the case and, if the balance of probabilities are
evenly balanced in the sense that
they do not favour the plaintiff’s
case any more than they do the defendant’s, the plaintiff can
only succeed if the
court nevertheless believes him and is satisfied
that his evidence is true and that the defendant’s version is
false.’
[33]
There are two irreconcilable versions presented and the question of
credibility comes into play.
In
Stellenbosch
Famer’s Winery Group Ltd and Another v Martell et Cie and
Others
,
[6]
a
case that was cited by Mr Hobbs, the court held:
‘
The
technique generally employed by courts in resolving factual disputes
where there are two irreconcilable versions before it may
be summarised as follows. To come to a conclusion on the
disputed issues the court must make findings on (a) the credibility
of the various factual witnesses, (b) their reliability, and (c) the
probabilities. As to (a), the court's finding on the credibility
of a
particular witness will depend on its impression of the veracity of
the witness. That in turn will depend on a
variety of
subsidiary factors such as (i) the witness' candour and demeanour in
witness-box, (ii) his bias, latent and blatant,
(iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with
established fact or
with his own extra curial statements or actions, (v) the probability
or improbability of particular aspects
of his version, and (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about
same incident or events. As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a) (ii), (iv) and
(v), on (i) the opportunities he had to
experience and observe the event in question and (ii) the quality,
integrity and independence
of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's
version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then, as a final
step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The more
convincing the former,
the less convincing will be the latter. But
when all factors are equipoised probabilities prevail.’
[34]
At the heart of this action is the question of negligence. This was
the emphasis of the parties’
oral submissions. The test for
negligence was eloquently put in the case of
Kruger
v Coetzee
.
[7]
At 430E-G Holmes J described the test as follows:
‘
For
purposes of liability culpa arise if-
(a)
A
diligens
paterfamilias
in the position of the
defendant-
(i)
would foresee the reasonable possibility of
his conduct injuring another in his person or property and causing
him patrimonial loss;
and
(ii)
would take reasonable steps to guard
against such occurrence.
(b)
the defendant failed to take such steps.
This has been constantly stated by the court for some 50 years.
Requirement (a) is sometimes
overlooked. Whether a
diligens
paterfamiliars
in the position of the
person concerned would take any guarding steps at all, and if so,
what steps would be reasonable, must always
depend upon the
particular circumstances of each case.’
[35]
Clause 9(1)
(b)
of the KSD municipal by-laws provides that an
authorised official may remove and impound any property of a street
trader that is
found at a place where street trading is restricted or
prohibited and that constitutes an infringement of any such
restriction
or prohibition, regardless of whether or not such
property is in possession or under the control of any person at the
time of such
removal or impoundment. In terms of the KSD municipal
by-laws, the municipality cannot be held liable for any damage or
loss caused
to any such property that is removed and impounded unless
such damage or loss is caused as a result of the negligence of the
municipality.
[36]
In terms of the KSD municipal by-laws, if an authorised official
reasonably believes that a provision
of the KSD municipal by-laws is
being contravened, he may serve a compliance notice on an offender or
the owner or occupier of
the premises or any person apparently in
charge of undertaking the aforesaid use on the premises.
[8]
Evaluation of evidence
[37]
I am tasked to evaluate the evidence presented holistically,
[9]
objectively and finally decide whether the plaintiffs have passed the
necessary threshold of proving their case on a balance of
probabilities. Before I traverse on the merits of the case, I pause
to deal with a preliminary issue that was raised by Mr Pangwa
on
behalf of the defendant.
Did the plaintiffs
present a case different from the one pleaded?
[38]
I am in agreement with the principles encapsulated to the
Slabbert
matter. It is well settled that in the pleadings, a party has a duty
to allege the material facts upon which it relies. It is
impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not
permissible for the trial court to have recourse to the issues
falling outside the pleadings when deciding a case.
[10]
[39]
In the case under consideration, the defendant pleaded that the
container was fitted in a prohibited
or restricted area. In my
considered opinion and considering the issues that were presented
before me, the submission of the documents
was intended to
substantiate the plaintiffs’ contention, that they contravened
no KSD municipal ordinances, and were permitted
to trade in the area.
I therefore find that the defendant suffered no prejudice as a result
of the submission of the documents.
All these documents were
discovered. The documents unveiled the application processes as well
as the consequential outcome that
led to the plaintiffs being
permitted to trade in the area. It is discernable that there was
consistency in the plaintiffs’
particulars of claim and the
evidence presented. In my view, no different case was pleaded.
The merits
[40]
Applying
Stellenbosch’ Farmers Winery Group
case above,
the question is whether the plaintiffs’ evidence was credible,
reliable and probable. Moving on to the probabilities
of this case,
the presence of the KSD municipal officials, the KSD municipal cars
and the TLB at the plaintiffs’ site, which
triggered Gogozayo
and Amoah’s anxieties, analytically display that something
amiss was taking place at the plaintiffs’
business premises.
[41]
I had the benefit of observing the demeanour of all the witnesses
when adducing their testimonies.
Gogozayo appeared to be an
independent witness who had no interest in the matter. His task was
to do his daily duties as a security
guard. When he observed that
Amoah’s business premises was surrounded by municipal cars and
a TLB he phoned him to come to
the site. This was a mere reasonable
human reaction.
[42]
It must be remembered that on this particular day, Gogozayo was on
duty. It could not be expected
of him to watch the occurrence from
the beginning to the end. The undisputed evidence is that he was in
the site for a short period
and had to leave for his job. In the
normal course of events, it was expected of him to present evidence
of what he personally
observed and omit the rest. This is the
impression I received of him as a witness. The fact that he could not
tell what happened
to the items that were inside the container,
strengthens his credibility and the reliability of his evidence as a
witness, amongst
others. Had he had interest in the matter, he would
have presented untruths and informed the court that the merchandise
inside
the container was also destroyed. His testimony which was to
the effect that he last saw the equipment and hair products in the
container when he visited the salon for professional services, and
not on the day of the incident, validates his impartiality in
the
proceedings.
[43]
On the material issue, Gogozayo and Amoah corroborated each other
that the municipal employees
dismantled the plaintiffs’
container. Both witnesses presented a good picture of how the
container was dismantled. The container
was smashed by the TLB
driver. Both testified that the container was never removed in an
orderly manner. The cross-examination
of Gogozayo and Amoah bore no
fruits as they both stuck to their versions especially on the
material issues.
[44]
Maqokolo’s evidence was tainted with improbabilities and
contradictions especially on material
facts. In his evidence in chief
he testified that the plaintiffs’ structure was a shack that
was mounted on the ground. In
light of this, the structure was
prohibited in the area because it was not a mobile structure as
regulated by the KSD municipal
by-laws. Because it was fixed on the
ground, the TLB removed the structure, and its iron sheets were
placed in a van and conveyed
to kwa-fleet. This evidence was never
put to the plaintiffs’ witnesses for them to comment.
[45]
Under cross-examination, he contradicted himself further and
presented new evidence. He testified
that the only part that could
not be saved during the ‘so called impoundment’ was the
structure that was motionless
only. He revealed a different picture,
namely, that the container was removed orderly and fitted back on the
same spot the following
day. This evidence is again regarded as an
afterthought because it was never put to the plaintiffs’
witnesses for them to
comment.
[46]
When asked to explain if the properties were itemised and whether the
owners were given receipts
during the impoundment, he testified that
the owners of the containers were unknown to them. Clearly, if the
owners of the containers
were unknown, the plaintiffs’
container could not have been brought back because the owner was not
known, and the property
was not itemised and no receipt was issued
during the removal.
[47]
In his written submissions, Mr Pangwa contended that the likelihood
exists that the container
was damaged owing to it being decayed and
damaged as a result of the human waste that was excreted on it. This
assertion is not
supported by what is contained in the pleadings and
the evidence tendered by the parties before the court. The plaintiffs
never
suggested that container was destroyed by human waste. The
defendant pleaded that the container was removed in an orderly manner
and never suggested that it was destroyed. Maqokolo’s evidence
was that part of the container was shattered, the other part
was
conveyed to kwa-fleet and returned the following day. I have already
discredited this piece of evidence. In my view, the mishmash
of
material contradictions in Maqokolo’s evidence is indicative of
the fact that he was a bad witness and his evidence cannot
be
reliable. Mr Pangwa’s later concession that Maqokolo was not a
good witness is appropriate in the circumstances. In my
considered
view, the plaintiffs’ evidence is credible on the basis that it
is consistent with the proved facts. Additionally,
the plaintiffs’
evidence that the container was dismantled including the hair
products is found to be reliable.
[48]
The defendant averred that the area where the plaintiffs were trading
was a prohibited area.
Although this was not substantiated through
oral testimony, the plaintiffs, as onus bearers gave a background on
how they obtained
a permission to trade in the area. Gathering from
the facts, it has been proved on a balance of probabilities through
exhibits
A, B, C, D, E and F that the plaintiffs were permitted to
trade next to Plaza Shopping complex where their container was
fitted.
Was the KSD
municipality negligent?
[49]
Before I deal with what I believe is an answer to this question, I
pause to cave in the role
of the municipality in informal trading.
The municipality plays a critical role in creating a favourable and
enabling regulatory
policy environment for informal trade. Our
Constitution confirms that local government has an obligation to
facilitate economic
development at municipal level.
[11]
The Business Act 72 of 1991 which must be interpreted through the
prism of the Bill of Rights also grants local government considerable
authority to regulate informal trade. This authority cannot be
abused. Any action to be taken by the municipal officials must be
reasonable and lawful. This means that their actions must be
rationally or logically linked to the purpose they intend to achieve.
Section 6A(2)
(c)
of the Business Act provides that before a municipality can consider
restricting or prohibiting trading in an area it must investigate
how
its decision to prohibit or restrict informal trade will affect
informal traders. Section 6A(2) of the Act reads as follows:
‘
(a)
A local Authority may, subject to the provisions of paragraphs (b) up
to and
including (j), by resolution declare any place in its area of
jurisdiction to be an area in which the carrying on of the business
of street vendor, pedlar or hawker may be restricted or prohibited.
. . .
(c)
Before such a motion is adopted, the local authority shall have
regard to the effect
of the presence of a large number of street
vendors, pedlars or hawkers in that area and shall consider whether–
. . .
(ii)
the intended restriction or prohibition will drive out of business a
substantive number of street vendors,
pedlars or hawkers.’
[50]
In the present matter, I have already discredited the evidence of the
KSD municipality and found
that the plaintiffs’ container and
its contents were dismantled. The KSD municipality’s decision
to dismantle the plaintiffs’
properties and haphazardly evict
the plaintiffs from the area that was designated by it for purposes
of informal trading remains
obscured. Even if it were to be assumed
that there was a contravention of the KSD municipal by-laws, the
reasons why the plaintiffs
were not personally served with a notice
notifying them of such a contravention, if any, remain inscrutable.
[51]
The probabilities are that the plaintiffs practiced their informal
trading in accordance with
the regulated prescripts that were
applicable since 2009. It is discernable from the evidence presented,
that the plaintiffs were
never notified of the contravention of any
of the KSD municipal by-laws.
[52]
Against this background and most importantly, applying the test for
negligence in
Kruger v Coetzee
, it is clear that the incident
was foreseeable if proper procedures were not followed by the KSD
municipality before the removal
which led to the subsequent
obliteration of the plaintiffs’ container. It is apparent that
the KSD municipality contravened
its own by-laws, in that:
52.1
Had the plaintiffs contravention the KSD municipal by-laws, they
ought to have been personally served
with a notice notifying them of
such a contravention and the proper procedures to remedy it. The fact
that the notice to vacate
the site due to contravention of the
by-laws, was verbally conveyed through the Street Committees is in
breach of clause 12(1)
of the KSD municipal by-laws.
52.2
It is common cause that the plaintiffs built a veranda which was
walled off with a cement to protect
the container from being stolen.
This means that the container was partially mobile. Clause 9 of the
KSD municipal by-laws deals
with removal and impoundment. Clause 9(4)
reads:
‘
if
any property about to be impounded is attached to any immovable
property or a structure, and such property is under the apparent
control of a person present thereat, any authorised official of the
Municipality may order such person to remove the property,
and any
such person who refuses or fails to comply is guilty of an offence.’
[53]
Gleaning from the facts of this particular case, it remains undoubted
that the second plaintiff
was present at the site pleading with the
municipal officials to personally remove the goods. Instead of the
pandemonium they created,
shouting and ordering him to leave the
premises, the KSD municipal officials ought to have authorised the
second plaintiff to personally
remove the properties in compliance
with clause 9(4) of the KSD municipal by-laws. This would have been a
reasonable precaution
to take, to prevent the damage to the
plaintiffs’ properties. Clause 9(7) of the KSD municipal
by-laws entails that in the
event that an authorised official removes
and impounds any property, all reasonable steps must be taken to
ensure that such property
is not damaged or lost. No such reasonable
steps were followed by the KSD municipality.
[54]
Considering the above, I conclude that in this particular case, the
municipal officials were
remiss in the implementation of their
systems and procedures. Applying the principle of reasonableness, the
KSD municipality could
have followed all these procedures and taken
steps to prevent the occurrence, by ensuring that its systems and
procedures as indicated
above, are properly enforced. The KSD
municipality failed to take reasonable steps to prevent the harm to
the plaintiffs’
property and patrimonial loss. Unlike other
affected traders whose containers were positioned back after the
occurrence, the plaintiffs
lost their container as well as its
contents and the business was adversely affected. The manner in which
the plaintiffs were treated
even after the event shows that the
situation was never remedied.
[55]
I am satisfied that on the facts presented, the plaintiffs have
proved the requirement of
culpa
. The plaintiffs have proved on
a balance of probabilities that the KSD municipality employees were
acting within the scope and
course of employment of the
municipality’s employment. Undoubtedly, the first and second
plaintiffs were the employees of
the third plaintiff. Consequently,
the plaintiffs’ action stands to succeed.
Order
1.
The defendant is liable to pay the
plaintiff such damages caused by the incident of the 21 March 2017 as
the parties may agree or
the plaintiff may prove.
2.
The defendant is ordered to pay costs of
the trial.
N CENGANI-MBAKAZA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Appearances
Counsel
for the Plaintiff:
Adv
J.L. Hobbs
Instructed
by:
JA
Le Roux Attorneys
Plaintiff’s
Attorney
56
Leeds Road
MTHATHA
Counsel
for the Defendant:
Mr
C. Pangwa
Defendant’s
Attorneys
No
33 Callaway Street
MTHATHA
Date heard:;19 June 2023
Date
delivered:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email. The date and time
for hand-down is deemed
to be 15 August 2023 at 10h00.
[1]
King
Sabata Dalindyebo Municipality, local Authority 137, gazetted in a
‘PROVINCIAL GAZZETTE EXTRAORDINARY’, dated
24 December
2010.
[2]
By-laws
relating to street trading-CLAUSE 1: definitions . . . ‘A
street trade’ means a person who carries on the
business of
the street trading and includes any employee of such person; ‘Street
trading’ means the selling of any
goods or the supplying or
offering to supply
any
service
for reward, in a public road or public place, by a street trader.
[3]
Clause
9(3) of the KSD municipal by-laws provides: ‘Any authorised
official acting in terms of subsection (1) [subsection
1 authorises
removal and impoundment] must, except where goods have been left or
abandoned, issue to the person carrying on business
of a street
trader, a receipt for any property so removed and impounded, which
receipt must:-
(a)
itemise the property to be removed and impounded; . . .’
[4]
Minister
of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) para 11.
[5]
National
Employers General Insurance Limited v Jagers
1984 (4) SA 437
(E) at 440 D-G.
[6]
Stellenbosch
Famer’s Winery Group Ltd and Another v Martell et Cie and
Others
2003 (1) SA 11
para 5.
[7]
Kruger
v Coetzee
1966 (2) SA 428 (A).
[8]
See
clause 12(1) of the KSD municipal by-laws.
[9]
Santam
Insurance v Biddulph
[2004] 2 All SA 23
(SCA). At para 5, the court held, ‘it is
equally true that findings of credibility cannot be judged in
isolation but require
to be considered in the light of proven facts
and the probabilities of the matter under consideration’.
[10]
Minister
of Safety and Security v Slabbert
above n 4.
[11]
Section
152 (2) of the Constitution of the Republic of South Africa Act 108
of 1996, the Constitution