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[2022] ZAECMKHC 113
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South African Post Office Soc Limited v Viviers (CA 216/2021) [2022] ZAECMKHC 113 (13 December 2022)
FLYNOTES:
WRONGFULNESS AND A SHORT CUT TO THE BAR
Delict
– Storm water drain – Uncovered – Claim against
Post Office – Plaintiff injured when taking
a short cut
after hours – Not a customer of Post Office – Short
cut not a normal pathway for public to access
postal services or
the bar that was his destination – No legal duty or
wrongfulness.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. CA 216/2021
In
the matter between:
SOUTH
AFRICAN POST OFFICE SOC LIMITED
APPELLANT
And
DEON
VIVIERS
RESPONDENT
JUDGMENT
GQAMANA
J:
[1]
This appeal is with the leave of the Supreme Court of Appeal against
the judgment
and order of the trial court, which held the appellant
liable for such damages as the respondent may prove consequent to the
injuries
he sustained on 14 July 2012 at Grahamstown Road, Swartkops,
Port Elizabeth (now known as “Gqeberha”) and to pay costs
of such action. For convenience the parties shall be referred
to as cited in the trial. The plaintiff is Mr
Deon
Viviers
and the defendant is
South
African Post Office Soc Limited
, an
organ of State.
[2]
Central to this appeal is the element of wrongfulness in a claim
based on delict.
To be precise, the issue is whether the
defendant owed the plaintiff the legal duty to prevent harm and to
ensure the plaintiff’s
safety when the latter took a short cut
route to Village bar, an entertainment venue on a Saturday evening
and stepped into an
uncovered storm water drain and injured himself.
[3]
The facts foundational to this appeal can
be summarized as follows. Just over a decade ago, on 14 July
2012, the plaintiff
fell into an uncovered storm water drain which
was located adjacent to the Telkom building on the boundary of the
paved parking
area. It is common cause that the defendant has
entered into a lease agreement with Telkom in terms of which it
leased premises
from the Telkom building referred to ‘
the
Swartkops ETE and Post Office measuring approximately 308 square
metres in the Buildings situated on the Property subject to
the final
measurements according to SAPOA and 3 parking bays
.’
[4]
The plaintiff caused summons to be issued against both Telkom SA
Limited and the defendant
for the recovery of damages arising out of
the injuries sustained when he fell into the uncovered storm water
drain. The
action was later withdrawn against Telkom, and he
proceeded to trial only against the defendant.
[5]
The plaintiff’s cause of action was couched on the basis of a
general duty to
prevent harm that the defendant owed the plaintiff
towards ensuring the latter’s safety when he took a short cut
over the
property destined to the Village bar on a Saturday evening,
during which he injured himself. It was specifically pleaded in
the particulars of claim that the defendant breached its duty towards
the plaintiff in that it failed to ensure that the aforementioned
storm water drain was covered by safety grids or similar covering,
alternatively, it failed to take steps to cordon it off.
[6]
In resisting the claim, the defendant,
inter
alia
,
denied that it was in control of the property where the alleged
uncovered drain was located and pleaded that it had the
responsibility
to maintain only the portion of the leased premises as
defined in the lease agreement with Telkom, and not the property.
The defendant also denied that it owed the plaintiff a duty to
prevent harm in any respect relating to the property. The defendant
further pleaded that its liability for delict in public law is
limited in terms of the provisions of s 26 of the South African
Post
Office Act.
[1]
[7]
After closure of the plaintiff’s case, the defendant applied
for absolution
from the instance but same was refused. Evident
from the judgment, the trial court was alive to the fact that amongst
the
contested issues was the element of wrongfulness. In
refusing the application for absolution, the trial court was
persuaded
by the fact that the plaintiff’s claim was a common
law delictual claim and not based on public law liability.
Further
on the lease agreement issue, the trial court concluded that
the defendant was the lessee of the property which is connected to
the drain in question.
[8]
On the issue of wrongfulness, the trial court found that, based on
legal convictions
of the community, the defendant had the legal duty
to take reasonable steps to prevent the members of the public from
the harm
or injury and the uncovered drain constituted a source of
danger.
[9]
In this appeal, counsel for the defendant argued that the defendant,
as an organ of
State, had neither public law obligation in terms of
the common law nor any statutory duty towards the plaintiff.
Much argument
by the defendant was directed at what was termed ‘the
public law of delict’ versus ‘the private law of
delict’.
We have no aspiration to venture into that
debate as this matter can be resolved without any consideration of
that submission.
The gist of the argument for the defendant was
that- the defendant could only be held delictually liable to the
plaintiff if there
was a legal duty derived from either a statute
[2]
or the Constitution to ensure the safety of the plaintiff in the
circumstances.
[10]
With reference to the Constitutional Court judgment in
BE
obo JE v Member of the Executive Council for Social Development,
Western Cape,
[3]
counsel for the defendant argued that a public body has a legal duty
to ensure the safety of citizens only if its enabling legislation
creates such duty. Because the defendant was an organ of State,
plaintiff had to allege and prove a duty to act which is
a different
duty from a general duty of care. And in order for the
defendant to be held liable, it must have a duty to act,
which duty
in itself could only be founded on its enabling legislation.
[4]
She argued that if a specific breach of duty to act is relied upon,
the nature of the duty must be stated.
[5]
[11]
The defendant further submitted that, in order to prove a breach of
duty of care, the plaintiff
had to first prove that a right owed to
him. Therefore, the plaintiff must prove the act or omission on
which the breach
of duty is premised. In the present matter,
because the defendant is an organ of State, such a duty would arise
from the
existence of a relationship between the defendant and its
customers, either based on a contract or its public law statutory
obligations.
As an insulation to this argument, counsel placed
reliance on the
dicta
by
Moseneke
DCJ (then), in
Steenkamp
v Provincial Tender Board of the Eastern Cape
[6]
that:
“
It
appears to me that if the breach of a statutory duty, on a conspectus
of the statute, can give rise to damages claim, a common-law
duty
cannot arise. If the statute points in other direction, namely
that there is no liability, the common law cannot provide
relief to
the plaintiff because that would be contrary to the statutory
scheme.
”
[12]
The argument, therefore, was that in terms of the provisions of s 26
of the Post Office Act,
the defendant’s liability is
circumscribed and the case pleaded by the plaintiff fell foul
thereof. It was fervently
argued that in order for the
defendant to attract liability, the plaintiff had to allege and prove
that the defendant had a statutory
duty to act preventative towards
him and that, it unlawfully and or, in a grossly negligent manner and
or in bad faith and or fraudulently
omitted to do so, thereby
infringed his rights, because it failed to secure a short cut for the
plaintiff to take to the Village
bar on a Saturday evening – a
duty which would have a chilling effect if it were to be extended to
the plaintiff under the
circumstances.
[13]
The plaintiff, in response, argued that the defendant’s
submissions are flawed because
his claim hinges not on a breach of a
statutory duty, but on a common law duty. In developing that
thesis, he argued that:
“
Conduct
is wrongful if it either infringes a legal recognized right of the
plaintiff or constitutes the breach of a legal duty owed
by the
defendant to the plaintiff. The legal duty may be imposed by
statute or by the operation of common law, in which case
the
imposition of duty depends upon the particular circumstances of the
case
.”
[7]
[14]
The plaintiff submitted that in determining the question of a legal
duty vested on the defendant,
the question of control of the relevant
property is a factor to be considered. The plaintiff supported
the findings by the
trial court that the defendant was in control of
the premises and it carried on its business from the premises in
question.
As such it was under a duty to warn the plaintiff of
the nature of hazard and the risk involved by issuing appropriate
warnings
of the hazard and therefore its failure to do so amounts to
a wrongful omission.
[8]
The plaintiff’s counsel further placed reliance on the
unreported judgment in
Melissa
Van Schalkwyk v John De Villiers Melville
NO and
Others
,
[9]
where
Plasket
J (then) said:
“
[20]
… In Minister van Polisie v Ewels,
[10]
Rumpff CJ held that an omission is regarded as wrongful when the
legal convictions of the community demand legal liability be imposed
in respect of the failure to act positively to avoid harm. The
role of the element of wrongfulness was summarized by the
Constitutional Court in Country Cloud Trading CC v MEC, Department of
Infrastructure Development
[11]
in which Kampepe J stated that the element of wrongfulness ‘functions
to determine whether the infliction of culpably caused
harm demands
the imposition of liability’ and so acts as ‘a break on
liability, particularly in areas of the law of
delict where it is
undesirable or overly burdensome to impose liability:
[22]
In deciding on the wrongfulness element – i.e whether a person
‘was under a duty not to
act negligently’ – a court
is required to ‘exercise a value judgment embracing all
relevant facts and involving
consideration of policy.”
[15]
It is trite law that wrongfulness in the case of an omission is not
presumed; there is an obligation
on the plaintiff to allege and prove
facts relied upon to support the wrongfulness allegation.
[12]
For wrongfulness to be established, reliance must be placed on a
legal duty.
[13]
Because
the plaintiff’s claim was based on omission, as a general rule,
the defendant’s liability would have
followed only if the
omission was wrongful, meaning the defendant had a duty to act
positively to prevent the harm from occurring
and that it failed to
comply with such duty.
[14]
[16]
Further, it was aptly stated in
Minister
of Justice and Constitutional Development v X
,
[15]
by
Fourie
AJA
that:
“
A
negligent omission will be wrongful only if the appellant is under a
legal duty to act positively to prevent the harm suffered
by the
respondent. The omission will be regarded as the wrongful when
the legal convictions of the community imposed a legal
as opposed to
a mere moral duty to avoid harm to others by positive action
”
[17]
It was made clear by the Constitutional Court in
Steenkamp NO v
Provincial Tender Board, Eastern Cape
, that in determining
wrongfulness, the enquiry is an after the fact objective assessment.
It was held that:
“
[41]
… the enquiry into wrongfulness is an after-the-fact,
objective assessment of whether the conduct which
may not be prima
facie wrongful should be regarded as attracting legal sanction.
In Knop v Johannesburg City Council
[16]
the test for wrongfulness was said to involve objective
reasonableness and whether the boni mores required that ‘the
conduct
be regarded as wrongful’. The boni mores is a
value judgment that embraces all the relevant facts, the sense of
justice
of the community and considerations of legal policy, both of
which now derive from the values of the Constitution.
[42]
Our courts – Faircape, Knop, Du Plessis and Duivenboden –
and courts in other common–law
jurisdictions readily recognise
that factors that go to wrongfulness would include whether the
operative statute anticipates, directly
or by inference, compensation
of damages for the aggrieved party; …, whether the object of
the statutory scheme is mainly
to protect individuals or advance
public good; …, whether an imposition of liability for damages
is likely to have a ‘chilling
effect on performance of
administrative or statutory function; whether the party bearing the
loss is the author of its misfortune,
whether the harm that ensued
was foreseeable. It should be kept in mind that in the
determination of wrongfulness foreseeability
of harm, although
ordinarily a standard for negligence, is not irrelevant. The
ultimate question is whether
on a
conspectus of all the relevant facts and considerations, public
policy and public interest favour holding the conduct unlawful
and
susceptible to a remedy in damages.
Our emphasis is underlined
.
”
[18]
Although in
Steenkamp
,
the focus was on a statutory duty, the principle equally applies to
claims based on the common law duty to prevent the harm.
[19]
I disagree with the defendant’s contention that the defendant
could attract liability only
under circumstances prescribed in s 26
of the Post Office Act. In my view, the origin and existence of
the duty allegedly
owed to plaintiff has to be established through a
proper assessment of the evidence. Liability would depend on
the existence
of a legal duty owed by the defendant to the plaintiff
and to take steps to prevent harm causing conduct that gave rise to
the
claim.
[17]
[20]
It is common cause that the defendant provides postal services to its
customers. The plaintiff
was not the defendant’s customer
and had no business to attend to the post office at that hour of the
night. It is
also common cause that the plaintiff did not
attend the property to make use of postal services when the incident
happened.
On the plaintiff’s own evidence, he ventured
onto the area where the storm water drain was purely for purposes of
attending
the Village bar on a Saturday evening between 19h00 and
20h00 outside of the business hours of the defendant. On his
own
evidence, he took the short cut to prevent himself from getting
wet because it was raining. The area is not sheltered and the
plaintiff
was familiar with the environment in and around the Village
bar.
[21]
The plaintiff was a regular customer and patron to the Village bar
even before the incident took
place. The storm water drain was
clearly visible both during the day and at night.
[22]
In addition, the plaintiff conceded that the short cut route he took
was not a normal pathway
used by members of public to access either
the postal services or the entrance to the Village bar. The
entrance to the bar
where the plaintiff was destined to, directly
faces and is adjacent to a paved driveway leading to the back of the
property which
is occupied by Telkom ETE. The entrance to the
aforementioned building is secured by a large gate. Parking and
entrance therein
by members of the public or the defendant’s
customers was prohibited. The area is a clearly demarcated
driveway reserved
for use by Telkom’s vehicles only.
[23]
Unlike in
Swinburne
v Newbee Investments (Pty) Ltd
,
[18]
the route that the plaintiff ventured onto was a short cut and not
the usual route to get to the Village bar or to the Post Office.
As indicated above, the plaintiff took that route to shield himself
against the rain.
[24]
The defendant exercised no control over the area where the drain was
located. Evident from
the lease agreement is the portion of the
building leased by the defendant: ‘
Swartkops
ETE and Post Office measuring approximately 308 square metres in the
Building on the Property and 3 parking bays
.’
The storm water drain was on the outside of the building. The
lease agreement limits the defendant’s
obligations to the
premises leased as defined in agreement. The drain was not
connected to the portion of the building rented
and occupied by the
defendant. In terms clause 11.12.1 of the lease agreement, the
defendant had a legal obligation to maintain
drain(s) only where same
is connected to the leased premises as defined in the lease
agreement.
[25]
As postulated by Brand JA (then), in
South
African Paragliding
(
supra
)
that, in relation to liability for omission, wrongfulness is not
presumed but it depends on the existence of a legal duty.
And
the imposition of such legal duty is a matter for judicial
determination according to the criteria of public and legal policy
consistent with the constitutional norms.
[26]
In my view, on the
boni mores
or legal duty convictions of the community, having regard to a
conspectus of all the relevant facts herein and considering public
policy consistent with constitutional norms, the plaintiff failed to
prove any legal duty owed to him by the defendant. The
defendant cannot be expected to ensure the safety of the patrons
attending the Village bar after hours, in the evening on a weekend.
The short cut ventured onto by the plaintiff was not the normal
pathway to either the entrance of the Post Office or to the Village
bar. The plaintiff took the short cut to shield himself from
the rain. The trial court erred in finding that the element
of
wrongfulness was established by the plaintiff.
[27]
With regard to costs, there is no reason why the costs should not
follow the results. I
must, however, express my displeasure
with the manner the appeal record was prepared. The record was
voluminous and most
of it was unnecessary taking into account the
limited issue on this appeal. Judicial time and resources were
wasted in reading
the unnecessary record. This was pointed out
to the defendant’s counsel during argument and she readily
conceded that.
However, based on her submission that initially
both wrongfulness and negligence elements were hotly contested hence
the entire
record of the trial proceedings was incorporated in the
appeal record, no portion of the defendant’s costs of this
appeal
will be disallowed.
[26]
In the circumstances the following order is made:
1.
The appeal is upheld with costs.
2.
The judgment by the trial court is substituted with the following
order:
“
(a)
The plaintiff’s claim is dismissed.
(b)
The plaintiff shall pay the defendant’s costs of suit
.”
N
GQAMANA
JUDGE
OF THE HIGH COURT
I
agree:
S
M MBENENGE JP
JUDGE
PRESIDENT OF THE HIGH COURT
I
agree:
R
KRUGER AJ
APPEARANCES:
For
the Appellant :
A E Lourens
Instructed
by : Madhlopa &
Thenga Incorporated, Parktown North C/O Wheeldon
Rushmere & Cole
Inc. Attorneys, Makhanda
For
the Respondent :
P H Mouton
and
P Westerdale
Instructed
by : Lessing Heys
Keyter & Van der Bank Inc,
Gqberha C/O Borman &
Botha Attorneys, Makhanda
Date
heard :
7 November 2022
Date
judgment delivered :
13 December 2022
[1]
Act 28 of 2015 (the Act).
[2]
The Act,
Occupational Health and Safety Act 85 of 1993
and
Postal
Services Act 124 of 1998
.
[3]
2022 (1) SA 1
(CC) at para [21] & [22].
[4]
The Act.
[5]
SAR&H
v Marais
1950 (4) SA 610
(A),
Minister
of Forestry v Quathlamba (Pty) Ltd
1973
(3) SA 69
(A) at 83 and
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
1992 (1) SA 783 (A).
[6]
2007 (3) SA 121 (CC).
[7]
Joubert LAWSA 2
nd
Edition vol 8 part 1 p 33.
[8]
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) at para 11.
[9]
Unreported judgment Case number 2270/08 delivered on 12 December
2017.
[10]
1975 (3) SA 590
(A) at 597 A – C.
[11]
2015 (1) SA 1
(CC) at para 20.
[12]
South
African Hang and Paragliding Association v Bewick
2015 (3) SA 449
(SCA) para [6].
[13]
The
Memorable Order of Tin Hats v Kenneth Paul Els
(488/2021)
[2022] ZASCA 99
(22 June 2022) para [17].
[14]
Bergrivier
Municipality v Van Ryn Beck
2019 (4) SA 127
(SCA) para [43].
[15]
2015 (1) SA 25
[SCA].
[16]
1995 (2) SA 1
(A) at 27 E – I.
[17]
Bergrivier
Municipality
supra.
[18]
2010 (5) SA 296
(KZN).