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[2021] ZAGPPHC 54
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Khabu and Others v Matlosana City Council and Others (56948/2014) [2021] ZAGPPHC 54 (1 February 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
DATE:
1 FEBRUARY 2021
Case
Number: 56948/2014
SINAH
JULIA KHABU
O[....]
J[....] K[....]
M[....]
K[....]
First Plaintiff
Second Plaintiff
Third
Plaintiff
And
MATLOSANA
CITY COUNCIL
First
Defendant
COENRAAD
LOUWRENS STANDER N.O.
GERT
LOUWRENS STEYN DE WET N.O.
SOPHIE
THABANG KEKANA N.O.
LILY
MAMPINA MALATSI-TEFFO N.O.
Second
Defendant
NDLOVU
PLANT HIRE CC
Third
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
On 9 March 2013 Tshehla Famen Khabu (“the deceased”)
tragically lost his life when the wall of a trench he was working in
caved in and buried him in the soil.
[2]
The first plaintiff, in her capacity as the wife of the deceased
and
the second and third plaintiffs, in their capacities as children of
the deceased instituted this action claiming damages in
the form of
loss of support suffered due the demise of the deceased.
[3]
The court issued a separation of issues in terms of rule 33(4) and
the trial proceeded only in respect of liability.
Locus standi
[4]
Prior to dealing with the merits of the claim, I deem it prudent
to
address the
locus standi
of each of the plaintiffs.
[5]
Ms Khabu, the first plaintiff, testified that she was married to
the
deceased for approximately 23 years. Their marriage certificate
issued by Home Affairs was submitted into evidence.
[6]
Ms Khabu had a child, O[....] J[....] K[....], the second plaintiff
when she met the deceased. The deceased raised the second plaintiff
and it appears from a birth certificate admitted into evidence
that
the deceased must have adopted the second plaintiff at some stage, as
the deceased is registered as the father of the second
plaintiff in
the records of Home Affairs.
[7]
The third plaintiff, M[....] K[....], was born from the marriage
between Ms Khabu and the deceased.
[8]
Ms Khabu stated that she was not employed prior to the deceased’s
death and that the deceased was the sole breadwinner in the family.
[9]
The second and third plaintiffs were also unemployed and the deceased
maintained and supported them financially.
[10]
Ms Khabu explained the situation after the deceased’s death as
follows:
“
There was
no-one employed in the household. I was the sole one that needed to
keep the fire burning purely by doing some sewing
work, alteration
for people who normally will bring clothes to repair or to sew.”
[11]
On the aforesaid evidence, I find that all three plaintiffs do have
locus standi
.
Defendants
[12]
The first defendant, Matlosana City Council (“the City
Council”), is
the owner of the property situated at [....]
(“the site”) at which a blocked sewerage pipe had to be
repaired (“the
work”).
[13]
The second defendant, GS Poultry, conducted business as an abattoir
at 20D Radium
Street, Uraniaville, Klerksdorp. GS Poultry has since
the inception of the matter has been placed in liquidation and the
plaintiffs
withdrew their claim against GS Poultry.
[14]
The third defendant is Ndlovu Plant Hire CC (“Ndlovu”)
which conducts
business in excavation work and in the hiring and
letting of excavation machinery.
Background
[15]
The background facts are common cause between the parties. GS Poultry
a chicken abattoir
operated adjacent to the site. During its
operations GS Poultry caused chicken waste to wash into the sewerage
draining system
which led to a constant problem of blocked
drainpipes.
[16]
The City Council is responsible for the proper functioning of the
sewerage system
in its area of jurisdiction, which area includes the
property on which the construction work was executed.
[17]
The problem was a regular occurrence and in an effort to alleviate
the situation,
GS Poultry offered to assist the City Council to
unblock the sewerage pipe. GS Poultry’s assistance entailed the
hiring of
an excavator and excavator operator from Ndlovu.
[18]
The City Council, in turn, engaged the services of GTC Plumbing, the
employer of
the deceased to do the plumbing work on site.
[19]
On 9 March 2013 and during the execution of the construction work,
the deceased was
in the excavation when one of the walls caved in and
buried the deceased in the soil.
[20]
The events of the day will unfold through the evidence of the
witnesses referred
to
infra
.
Evidence
[21]
In order to place the evidence in perspective, it is apposite to
refer to the different
role players on the day in question, being:
21.1 Mr Theuns van
Schalkwyk (“Van Schalkwyk”), the owner of GTC Plumbing
and the employer of the deceased;
21.2 Mr Thansanqa
Nkhuku, a co-employee of the deceased;
21.3 Mr Piet Breedt
(“Breedt”), an employee of the City Council who
represented the City Council on site;
and
21.4 Mr Matshipe
(”Matshipe”), the operator of the excavator.
[22]
As will become apparent
infra
the City Council chose not to
call Breedt or Matshipe as witnesses. The witnesses were present, and
their evidence would have assisted
the court in better understanding
what exactly transpired on 9 March 2013. Be that as it may, it is up
to the parties to present
the evidence they deem necessary to prove
their respective cases.
[23]
The evidence of the witnesses is referred to insofar as their
evidence is relevant
to the issues to be determined herein.
[24]
Nkukhu confirmed that he is employed by GTC Plumbing and that he was
present on the
day of the incident. Nkukhu explained that his duties
entailed the digging of trenches for pipes and the laying of sewerage
pipes.
Nkukhu testified that the excavator was digging a trench and
at the stage when the excavation was so deep that the whole arm of
the excavator could go into the trench, the leaking pipe became
visible. Nkukhu stated that he got into the bucket of the excavator’s
arm and was lowered into the trench to measure the pipe. Although
both Van Schalkwyk and Breedt were standing at the edge of the
excavation, neither of them stopped Nkukhu from entering the trench.
When asked whether the operator of the excavator warned him
not to go
into the trench, Nkukhu answered that he did not hear anything to
that effect.
[25]
Nkukhu stated that he considered the trench as being dangerous
because the trench
was deep and wet from the bottom to the top.
[26]
When asked why he entered the trench when it was apparently dangerous
to do so, he
replied that he had no choice as he was ordered to do so
and his refusal would have been deemed as him not wanting to work.
Later
during his evidence when the same question was asked, Nkukhu
spontaneously gave the following answer: “
You see, with us
we were adamant or in a hurry to finish up the job. We wanted to
finish as quick as we can”.
It transpired that the quicker
the pipe could be measured, the quicker the correct pipe could be
brought on site, thus speeding
up the work considerably.
[27]
Mr De Waal SC, counsel for the plaintiffs, then rephrased the
question as follows:
“
My question is a different one.
Perhaps I should just rephrase it, and why did you decide at that
particular time when you went
down, to go down, to measure, as you
say, did you just decide it out of your own or were you told to do
so?”
[28]
Nkukhu reverted to his original answer and stated that he did it
purely because he
was ordered to do so by Van Schalkwyk.
[29]
The trench was according to Nkukhu more than ten metres deep and the
walls were vertical.
[30]
Once the pipe was measured, he was lifted to the ground and the
deceased was lowered
into the trench. When asked why he did not
measure the other side whilst he was in the trench, Nkukhu answered
that the deceased
was actually the one who volunteered to go down
first. When asked why the deceased did not go first, Nkukhu answered
that “
it’s purely because I just hurried, ja, hurried
up and I was the first one to go down
.”
[31]
When the deceased was in the trench, he walked to the opposite end to
measure the
pipe on that side. Nkukhu testified that the deceased had
to walk to the other end because the hand of the excavator could not
reach that point. According to the evidence the trench was 25 metres
in length.
[32]
Upon reaching the other side the deceased first had to clear the mud
from the pipe
before he could measure it. Nkukhu explained that
because the pipe was broken, both ends of the pipe had to be
measured.
[33]
The incident is described by Nkukhu as follows:
“
He
(the
deceased)
was
trying to clear the mud around the pipe, opening it up, exposing the
pipe itself. Before he could even expose the pipe, as he
was standing
from his left-hand side the soil caved into on him. He was totally
buried by this soil. We couldn’t see him
anymore.”
[34]
Nkukhu thereafter explained the desperate steps that were taken to
save the life
of the deceased which were all in vain.
[35]
During cross-examination by Mr Laka, counsel for the City Council,
Nkukhu gave the
following reason for the deceased’s decision to
enter the trench: “
Yes, he said ‘we have to hurry up’,
he needs to go and watch a soccer game between the two Soweto giants:
Kaizer Chiefs
and Orlando Pirates. They were playing on that day. He
was a Pirates fan.”
[36]
It appeared during the evidence presented at the trial that the
deceased was indeed
a huge fan of Orlando Pirates and he was
described by Nkukhu as an avid loyal supporter who never missed an
Orlando Pirates game.
[37]
Mr Hitge, counsel for Ndlovu, asked Nkukhu during cross-examination
who instructed
the excavator operator to lower him and the deceased
into the trench, to which he replied that it was Van Schalkwyk.
[38]
It was put to Nkukhu that Van Schalkwyk will deny that he instructed
or authorised
him and the deceased to enter the trench. Nkukhu
insisted that they only entered on the instruction of Van Schalkwyk.
It was further
put to Nkukhu that Breedt’s plan was for one end
of the excavation to be shallow, i.e. terraced to enable the workers
to
enter the excavation. Nkukhu responded that, when he and the
deceased entered the trench, it was not terraced.
[39]
Mr Hitge proceeded to put Van Schalkwyk’s version to Nkukhu.
Van Schalkwyk
will testify that he saw Nkukhu in the trench when he
arrived at the site between 10:00 and 12:00. Van Schalkwyk asked
Nkukhu what
he was doing in the trench and who instructed him to get
into the trench. Nkukhu answered “
nobody did”
and
told Van Schalkwyk that he went down out of his own accord to measure
the pipe. Van Schalkwyk instructed Nkukhu to immediately
exit the
trench. Van Schalkwyk ordered all his employees to move to a trailer,
which was parked approximately 20 metres away from
the excavation.
Nkukhu and the deceased initially complied with his instructions and
moved to the trailer.
[40]
Whilst at the trailer, some of the workers requested “a money
advance”
and Van Schalkwyk proceeded to write down their names.
Van Schalkwyk told the workers to remain at the trailer until he has
discussed
the safety situation regarding the excavation with Breedt.
Van Schalkwyk will testify that when he looked up he saw Nkukhu,
notwithstanding
his clear instructions, once again on the edge of the
trench. He proceeded to the trench to see why Nkukhu was at the edge
of the
excavation.
[41]
When Van Schalkwyk reached the edge of the excavation he saw the
deceased in the
trench. Van Schalkwyk instructed the deceased to
immediately get out of the trench and scolded him for disobeying his
instructions.
Van Schalkwyk thereafter had a meeting with Breedt to
discuss the safety measures that had to be taken to make the
excavation safe.
[42]
After the meeting Breedt asked whether a few of Van Schalkwyk’s
workers could
accompany him to the Municipal stores. Directly
thereafter the excavation partially caved in and the deceased was
buried under
the soil.
[43]
Nkukhu denied Van Schalkwyk’s version in its totality.
[44]
Willie Renier Du Preez (“Du Preez”), a civil engineer,
was called by
the plaintiff as an expert witness. Du Preez has been
in the industry for 37 years and his experience and achievements are
impressive.
[45]
To place Du Preez’s evidence in context, he explained that:
“
Excavations
are normally a dangerous exercise on any construction site, because
of vibrations on the site, excavations on the site,
the type of soil
that you get on the site, the equipment that’s moving around on
the site”
and
“
Because
excavations are done in different types of soil, different conditions
on site, it is always a danger and it is seen on all
construction
sites as a risk. You will find in any risk matrix in any construction
site, because it is a risky thing to do. Whether
it’s a bridge
excavation, culver excavation or pipe excavation, it is always a
dangerous activity on site.”
[46]
It is for this reason that strict measures have been put in place by
the legislator
to ensure, as for as possible, the safety of any
person involved in the process. Du Preez explained that there are two
methods
in the industry to secure an excavation, to wit:
46.1
shoring or bracing, a process of placing temporary support, either
steel or wooden beams
and boards, in the excavation to prevent
collapse; and
46.2
sloping, a process of digging the edges of the excavation at
approximately every one and
a half metres to a maximum relative to
the horizontal plane.
[47]
Du Preez stated that when soil gets wet, as was the case
in casu
,
it will slip much easier because it is in a semi-liquid state. In
such circumstances, the reason to adhere to the strict guidelines
is
self-evident.
[48]
Du Preez referred to Construction Regulations, 2003 (“the
regulations”) promulgated
and published in terms of the
Occupational Health and Safety Act, 85 of 1993 (“the Act”)
and more specifically to regulation
11 that specifically deals with
excavations. A handy extract of the safety measures prescribed for
excavations are found in a summary
of Du Preez’s evidence and
are summarised as follows:
48.1
a contractor has to ensure that all excavation work is carried out
under the
supervision of a competent person
who must be appointed for that purpose;
48.2
a contractor who performs excavation work must take reasonable and
sufficient steps in
order to prevent, as far as reasonably
practicable, any
person from being buried
or trapped by a fall or dislodgement of
material in an excavation;
48.3
a contractor may neither require nor permit any person to work in an
excavation
which had not been adequately shored or
braced;
48.4
where shoring and bracing is not necessary because the sides of it
were
sloped to at
least the maximum angle of repose; or
48.5
where such excavation will be stable material and the required
permission
had been given by the appointed
competent person.
[49]
A “
competent person”
is, according to Du Preez,
either an engineer or if an engineer is not on site a foreman who has
the relevant experience and training
in excavations. Du Preez also
referred to the definition of a competent person in the regulations
which describe a competent person
in relation to construction works
as “
any person having the knowledge, training and experience
specific to the work for the task being performed”
.
[50]
A “
contractor”
is defined in regulation 1 as “
an
employer
,
as defined in section 1 of the Act, who
performs construction work”
and an “
employer”
is defined in section 1 of the Act as “
any person
who employs or provides work for any person and remunerates that
person or expressly or tacitly undertakes to remunerate
him.”
[51]
At the time the aforesaid regulations pertained to any excavation
that is deeper
than one and a half metres.
[52]
It is common cause that the excavation
in casu
was much deeper
that one and a half metres and was neither shored nor sloped when the
deceased and Nkukhu entered the excavation.
[53]
In respect of the conduct of the operator of the excavator, in
lowering Nkukhu into
the excavation, Du Preez made it clear that any
construction-related machinery is only to be used for the purpose it
had been designed
for. An excavator should
never
be used as a
mode of transport.
[54]
In summary, Du Preez was of the view the excavation was made in a
manner which was
incorrect, unsafe, unacceptable, unsupervised and
without compliance with the regulations. In addition the lowering of
persons
into an unsafe and very deep exaction with the excavator
bordered on reckless conduct.
[55]
During cross-examination, Du Preez stated that a competent person
needs to be nominated
each time an excavation is planned. In other
words, someone amongst the various role players on the site on 9
March 2013 had to
be nominated as the competent person for purposes
of complying with the regulations.
[56]
Du Preez was referred to section 14 of the Act that places
certain obligations
on employees. Du Preez was more specifically
referred to subsection (a), which was read into the record, namely:
“
Every
employee shall at work-
(a)
Take
reasonable care for the health and safety of himself and of other
persons who may be affected by his acts or omissions;
(b)
As
regards any duty or requirement imposed on his employer or any other
person by this Act, cooperate with such employer or person
to enable
that duty or requirement to be performed or complied with;
(c)
And
carry out any lawful order given to him and obey the health and
safety rules and procedures laid down by his employer and by
anyone
authorised by his employer, in the interest of health or safety; and
(d)
If
any situation which is unsafe or unhealthy comes to his attention, as
soon as practicable report such situation to his employer
or to
health and safety Rep for his workplace, as the case may be.”
[57]
Du Preez agreed that for purposes of the section, Nkukhu and the
deceased were employees
and GBC Plumbing the employer. Mr Du Preez,
furthermore, agreed that, should such employee ignore a lawful
instruction not to enter
an excavation such employee would be
neglecting his or her statutory duties as prescribed in section 14
of the Act.
[58]
Du Preez in response to questions by Mr Hitge relating to the
knowledge Ndlovu would
have had of the precise type of excavation
that would have been done on 9 March 2013, explained that someone
needs to explain to
the operator of the excavator what is expected of
him, what the purpose of the excavation is and where exactly he must
excavate.
Pertaining to Ndlovu’s involvement, Du Preez
explained that it should have known what the nature of the works was
to send
the correct machine. Du Preez referred to Ndlovu as
specialist suppliers of excavation machinery.
[59]
The case on behalf of the plaintiffs was closed and the witnesses, Mr
Matseng, a
co-employee of the deceased as well as Mr Matshipe, the
excavator operator were made available to the defendants.
[60]
The City Council presented the evidence of Mr Johannes Pilusa
(“Pilusa”),
who was the Assistant Director: Sewage
Services Division at the time of the incident. Pilusa testified that
Breedt was on standby
on the weekend of 9 March 2013 and that he
received a call from Breedt informing him that someone was buried
beneath the soil.
[61]
Pilusa proceeded to the scene and found the emergency services, the
South African
Police Service and Labour Department at the scene.
[62]
Pilusa explained that Breedt was the senior on the weekend and
reported to him directly.
With reference to a works order and
pro-forma invoice, Pilusa confirmed that GTC plumbing was appointed
as a contractor to fix
the sewerage pipe on the site. The appointment
was in accordance with the Municipal bylaws pertaining to sewage and
plumbing.
[63]
According to Pilusa, once a contractor is appointed to do work for
the City Council,
that contractor, also referred to as the prime
contractor, assumes responsibility for the works.
In
casu
GTC Plumbing, being the appointed contractor was responsible for
the works which included responsibility for the excavator.
[64]
Pilusa explained that Breedt’s only responsibility on site was
to look after
the interest of the City Council. The interest in
question was explained as follows by Pilusa:
“
Firstly he
needs to focus
[on
the]
interest
of the municipality, make sure that no one gets injured, make sure
that nobody’s property gets damages and again
to make sure that
anything that is laid underground, things like water pipes, power
cables, the same don’t get damaged during
the process.”
[65]
During cross-examination Pilusa agreed that it was the City Council’s
obligation
to unblock blockages in the main sewerage systems. Pilusa,
furthermore, agreed that only employees from the City Council or an
authorised plumber may work on the municipal sewerage system. Pilusa
confirmed that GTC Plumbing was an authorised plumber that
performed
sewage duties on behalf of the City Council, i.e. as a representative
of the City Council.
[66]
Pilusa testified that the City Council was aware of and authorised
the excavation
on the site in order to reach the broken sewerage
pipe. It was put to Pilusa that his evidence contradicts the
allegation in the
City Council’s plea that the excavation was
unauthorised. Pilusa could not explain the contradiction.
[67]
Pilusa agreed that one of Breedt’s responsibilities on the day
in question
was to make sure that the excavation is made in the
correct place. When asked why it was necessary for Breedt to make
sure that
nobody gets injured, Pilusa said because the site was on
municipality property. Pilusa, however, did not agree that Breedt was
in control of the City Council’s property on the day and
insisted that the contractor, GT Plumbing, was in control.
[68]
It was put to Pilusa that Breedt was in fact in control of the site
on 9 March 2013,
which Pilusa denied. Pilusa did, however, agree that
he was not there on the day and would not know what factually
happened as
far as Breedt’s involvement is concerned. It was
put to Pilusa that only Breedt will be able to tell the court exactly
what
his involvement was on the day.
[69]
Pilusa then gave a totally different reason for Breedt’s
presence on the site
on 9 March 2013 and testified that Breedt was
purely there “
on compassion or humanitarian grounds”
.
Pilusa expanded on this new explanation and stated that Breedt had
inter alia
to inspect the excavation to make sure it is safe
to enter for plumbing purposes. Pilusa agreed that the City Council
knew the excavation
would be deep and therefore dangerous.
[70]
Pilusa testified that Breedt had more than 15 years’ experience
in sewage drainage
and confirmed that Breedt was the competent person
for purposes of the regulations.
[71]
It was put to Pilusa that Van Schalkwyk would testify that Breedt was
in total charge
on the day of the operation, he was the responsible
and competent person as well as the site supervisor. This was denied
by Pilusa.
The first defendant did not call any further witnesses and
closed its case.
[72]
Van Schalkwyk testified on behalf of Ndlovu. Van Schalkwyk testified
that GTC Plumbing
is a plumbing business that renders services for
malls, complexes, etc. The deceased was in GTC Plumbing’s
service since
1995, had an excellent work record, was a loyal worker
and was well versed in the plumbing business. On 9 March 2013, GTC
Plumbing
was the main contractor for the laying of the sewerage pipe,
whilst the City Council was the main contractor for the excavation
and Breedt oversaw the whole project.
[73]
Van Schalkwyk testified that he attended a site meeting on 8 March
2013, the day
before the excavation. Breedt and a certain Magoro was
present on behalf of the City Council and there was also a
representative
of GS Poultry. Ndlovu was not part of the meeting.
[74]
Van Schalkwyk stated that safety precautions were discussed at the
meeting because
no excavation had previously been done on the site.
No one was aware of what would happen to the ground that was supposed
to be
excavated. Van Schalkwyk testified that he drew Breedt’s
attention to the fact that an excavation deeper than one and a half
metres would entail that the excavation must be sloped or shored.
[75]
Breedt acknowledged that it is his responsibility to make sure the
excavation is
safe and undertook to implement the necessary safety
measures. The City Council had to provide the material for the works,
and
GTC Plumbing only provided the manpower. Van Schalkwyk did not
interact with the operator of the excavator. Breedt instructed the
operator of the excavator because he had the municipal plans and knew
where the pipe was and how deep the excavation needed to
be.
[76]
According to Van Schalkwyk, the trench was approximately four metres
deep and was
not sloped. The excavation was, according to Van
Schalkwyk’s observation, approximately 25 metres in length, was
wet, unstable
and appeared to be dangerous. Van Schalkwyk was adamant
that he did not instruct any of his employees to enter the
excavation.
He testified that it was a standing rule that he is the
only person who will give instructions to his employees to enter.
They
will not take instructions from anyone else.
[77]
Once the representative from the City Council tells him that the
excavation is safe,
he will first do his own investigation to ensure
the excavation is safe before he will allow his employees to enter.
If the trench
was sloped the workers could easily walk into the
trench, but if the trench is shored they have to use stepladders to
gain access.
[78]
Apparently a power cable was damaged during the excavation and the
work was stopped
to attend to the problem. Van Schalkwyk deemed the
situation to be dangerous and instructed his workers to assemble at a
trailer
that was parked some 20 metres from the excavation.
[79]
After the electricity problem was sorted out Van Schalkwyk proceeded
to Doringkruin
where he had another project to attend to. Van
Schalkwyk only returned to the site between 11:00 and 11:30. Van
Schalkwyk repeated
the version that was put to Nkhuku in respect of
what transpired after his return to the site.
[80]
It appears that notwithstanding Van Schalkwyk’s earlier
instructions, his employees
were, upon his return, once again close
to the excavation and he instructed them for a second time to move to
the trailer. Once
back at the trailer, Van Schalkwyk told his
employees to “
stay put”
and informed them that he
is going to discuss the way forward with Breedt. Before he could
leave, the employees asked for the money
advances and he first
attended thereto.
[81]
During his discussion with Breedt, Breedt requested that some of Van
Schalkwyk’s
employees accompany him to the City Council’s
yard. After that Van Schalkwyk testified that he heard a “
dowwe
plofgeluid, ‘n dowwe slag”
.
[82]
Mr Hitge then asked Van Schalkwyk if had an opportunity to observe
his employees
before
he spoke to Breedt. This question
prompted Van Schalkwyk to state that he saw all his employees at the
trailer prior to collecting
a pen and paper to note the money
advances.
[83]
Mr Hitge then proceeded as follows:
“
MR
HITGE:
And now
you’ve done the station, the writing up work. Did you have
occasion to see where Mr Nkhuku was after doing this, the
writing up
work?
MR VAN
SCHALKWYK
:
After I finished with the writing, I then saw that Mr Nkhuku
was
standing next to, or at the trench.”
[84]
Van Schalkwyk then changed his previous version of events and
testified that this
happened before he spoke to Breedt.
[85]
Be that as it may, Van Schalkwyk testified that he walked to Nkhuku
to find out what
he was doing at the edge of the trench. As he walked
closer he was “
shocked”
to find the deceased
inside the trench and asked him what he was doing in the trench. The
deceased answered that he wanted to measure
the size of the pipe on
his own. Van Schalkwyk ordered the deceased to immediately exit the
trench and testified that he was a
bit angry that the deceased did
not adhere to his instructions. Van Schalkwyk had no idea how the
deceased got into the trench.
[86]
Upon a question from the court as to how it was possible for the
deceased to enter
the trench, Van Schalkwyk changed his earlier
version that the trench was vertical without any sloping and
testified that the trench
was not straight down but actually had
steps that enabled a person to walk into the trench. Van Schalkwyk
further testified that
the excavator was at that stage on the other
side of the trench and was switched off. Shortly thereafter Van
Schalkwyk testified
that he could only guess where the deceased
actually entered the trench.
[87]
Van Schalkwyk testified that the deceased acknowledged his
instruction and that he
believed that the deceased would immediately
vacate the trench because “
he is not a person that would not
adhere to instructions”
.
[88]
Somewhat surprisingly it appears that the employees once again
disobeyed Van Schalkwyk’s
instructions. Upon a question of what
he did after he admonished the deceased, Van Schalkwyk testified as
follows: “
It became worse, M’Lady, because at that
stage I wanted to get everyone away from the trench and at that stage
I was also
trying to get Mr Breedt and they wanted to go back to the
trench”.
[89]
Van Schalkwyk then returned to his earlier version in respect of his
conversation
with Breedt and the sound he heard whilst speaking to
Breedt. According to Van Schalkwyk the time period between his last
instructions
to the deceased and when he heard the “
dowwe
slag”
was approximately ten minutes. The excavation caved
in in the middle of the trench where Van Schalkwyk saw the deceased
the last
time. The deceased had had a mere 12 metres to walk to get
out of the trench. It would have taken the deceased less than a
minute
to exit the excavation if he used the steps that were created
whilst excavating.
[90]
Van Schalkwyk was referred to the employer’s report that was
completed in compliance
with the Compensation for Occupational
Injuries and Diseases Act. Van Schalkwyk’s attention was
inter
alia
drawn to the question that requires a short description of
how the accident occurred. Van Schalkwyk confirmed that the following
answer was provided: “
Entered trench without
instruction/permission, and wall of excavated area collapsed”
.
[91]
During cross-examination Van Schalkwyk confirmed that both the
deceased and Nkhuku
were disciplined and trustworthy employees who
had always, prior to 9 March 2013, adhered to his instructions.
[92]
Confronted with his evidence that his employees time and again went
back to trench
against his strict instructions to remain at the
trailer, Van Schalkwyk changed his version and testified that it was
only the
deceased and Nkhuku who kept on returning to the trench.
[93]
Turning to Van Schalkwyk’ s evidence that upon finding Nkhuku
in the trench,
he immediately wanted to know how he got in whereas on
his own version, the most logic place to enter is at the steps, Van
Schalkwyk
answered that electricians were busy at the other end of
the trench. Upon further questioning, Van Schalkwyk responded by
saying
he did not look at that end because his attention was focussed
on Nkhuku.
[94]
Van Schalkwyk could not say who instructed the operator of the
excavator to lower
Nkhuku into the trench. Van Schalkwyk explained
that the operator sat in a glass-encased box and would not have heard
any instructions
given to him. When asked how the operator knew that
he had to immediately lift Nkhuku from the excavation, Van Schalkwyk
said it
is most probably because he, at that stage, spoke in a loud
voice.
[95]
When asked why the deceased would remain five minutes in the
dangerous excavation
if he could, after Van Schalkwyk’s
admonishment, get out within a few seconds, Van Schalkwyk could not
give a plausible explanation.
When asked why the deceased would want
to measure a pipe in the middle of the excavation whereas the
evidence is that the pipe
was at the end of the excavation, Van
Schalkwyk said that he assumed the pipe might have broken and that
pieces were lying in the
middle of the trench.
[96]
It was further put to Van Schalkwyk by Mr De Waal that the steps he
referred to in
his evidence were never mentioned to Nkhuku. Mr Hitge
objected and stated that it was put to Nkhuhu. In view of the
aforesaid,
I deem it prudent to refer to the version put to Nkhuku in
this regard in detail, namely:
MR HITGE
:
Mr Van Schalkwyk will also testify that Mr Breedt’s
plan
was for one end of the excavation to be shallow,
terraced and from that end, the workers in the end would enter the
excavation.
That would be the entrance, if I can put it that way.
And that from
that shallow end, that is where the workers
would
, in the end,
have entered the trench once they were authorised to do so.”
MR NKHUKU
:
No, M’Lady that was not the pattern that was used. It was just
digged (sic), because he was in a hurry. He just wanted
to see the
job done.”
Evaluation of
evidence
[97]
Nkhuku’s evidence was straightforward and given in a
spontaneous manner. The
only time the flow of his evidence became
constricted was when counsel directed his evidence in a certain
direction. He spontaneously
testified that “they” were in
a hurry on the day in question. The deceased wanted to get the work
done as quickly as
possible and indicated that he will go down in the
bucket of the excavator to measure the pip. Nkhuku, was, however,
closer and
was the first one to be lowered into the trench.
[98]
The deceased was Nkhuku’s senior and he ordered Nkhuku to get
out of the trench
so that the deceased could measure the pipe on the
other end of the trench. It follows logically and makes sense that
upon Nkhuku’s
return to the top, the deceased would immediately
have entered the bucket to measure the pipe on the opposite end of
the trench.
[99]
It was on all accounts important to measure the pipe as soon as
possible. As set
out
supra
, the sooner the correct pipe is
brought to the site, the sooner the work could be executed.
[100] In
the result, I accept Nkhuku’s evidence insofar as it pertains
to the manner and the time,
the deceased entered the trench.
[101]
Nkhuku’s evidence that he and deceased were instructed by Van
Schalkwyk to enter the trench
is, in view of the enthusiasm with
which he and the deceased both wanted to measure the pipe,
improbable. During his evidence,
the fact that Van Schalkwyk
instructed them to enter the trench was not part of Nkhuku’s
initial spontaneous narrative, but
was rather extracted from him by
pertinent questions posed to him.
[102]
Insofar as the person responsible for the safety of the excavation is
concerned, it is not in dispute
that Breedt was right next to the
spot where Nkhuku and the deceased was lowered into the trench. It is
also not in dispute that
Breedt was in control of the excavator and
that he directed the operator of the excavator where and how deep to
dug. Taking the
above into account, the only reasonable conclusion is
that Breedt instructed the operator of the excavator to lower Nkhuku
and
the deceased into the trench.
[103] It
was never put to Nkhuku that either he or the deceased gave
instructions to the operator of the
excavator to lower them into the
trench. Considering their position as workers on the site it would,
in any event, have been highly
improbable that they had the authority
to issue instructions to the operator of the excavator.
[104]
Even in the event that Breedt was a mere bystander and did not
instruct the operator of the excavator
to lower Nkhuku and the
deceased into the trench, Breedt was still the person who had to make
sure that no one enters the trench
until it is safe to do so. His
failure to do so is, for present purposes, significant.
[105] The
failure by the City Council to call Breedt and Matshipe strengthen
this probability. As stated
supra
both Breedt and Matshipe
were made available to the City Council to call as witnesses. In
conducting the defence of a defendant,
I can hardly imagine that
counsel will not present evidence that would strengthen the
defendant’s defence.
[106] The
only logical conclusion is that neither Breedt nor Matshipe was
called, because their evidence
would have had an adverse effect on
the City Council’s defence. In the premises, I draw a negative
inference from the City
Council’s failure to present the
evidence of Breedt and Matshipe. [See:
Galante v Dickson
1950
(2) SA 460
AD]
[107] Van
Schalkwyk’s evidence was for the most part self-serving and an
attempt to exonerate himself.
Mr De Waal suggested that the pending
Police and Labour Department Investigation might explain his absolute
insistence that he
told his employees, according to his version, at
least three times to move away from the excavation. Bearing in mind
that, on his
own version, the deceased was a loyal and trustworthy
employee who worked for him for the better part of 12 years and had
never
before the day in question disobeyed his instructions, his
version that deceased did it twice on the 9
th
of March
2013, is highly improbable and simply does not may any sense.
[108] The
convoluted sequence of events given by Van Schalkwyk also does not
make sense. If one is to believe
Van Schalkwyk’s version of
events, it took the deceased, from the moment Van Schalkwyk arrived
on the scene, approximately
20 minutes to do one simple task, measure
the pipe on the opposite end of the excavation. Van Schalkwyk could
not give a plausible
explanation for his version that the deceased
was in the middle of the excavation when the soil caved in, whereas
the deceased’s
only urgency was to measure the pipe at the end
of the trench.
[109] Van
Schalkwyk’s version that the excavation was already terraced
was only given after he was
asked how it was possible for the
deceased to have entered the excavation without being lowered in the
bucket of the excavator’s
arm. The version that was put to
Nkhuku was that Breedt “
planned”
to terrace the
excavation at one end so that workers “
would“
be
able to walk in. If Breedt had already executed his plan, it does not
make sense that it was necessary for Nkhuku to be lowered
into the
trench in the bucket of the excavator. To walk 25 metres along the
trench to safely enter at the other end would have
made more sense.
[110]
Viewing the evidence in its totality, Breedt permitted both Nkhuku
and the deceased to enter the excavation
whilst it was patently
dangerous to do so. Breedt, furthermore, instructed or at the very
least allowed the operator of the excavator
to lower Nkhuku and the
deceased into the excavation.
[111] The
evidence of Pilusa did not take the matter any further.
Legal Principles
[112] In
order to succeed with their claim the plaintiffs’ need to prove
that the damages claimed
by them was caused through a wrongful and
negligent act of the first and/or third defendant. [See:
Greenfield
Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd
1978 (4)
SA 901
N]
Wrongfulness: Act or Omission
[113]
Liability depends on the wrongfulness of the act or omission of a
defendant.
In casu,
the plaintiffs rely on the liability of
the first defendant for an omission and on the conduct of the third
defendant. The first
defendant’s liability would only arise if
the first defendant had a legal duty towards the plaintiffs to act.
[114] In
Minister of Safety and Security v Van Duivenboden
2002 (6) SA
431
SCA liability arising from an omission was explained as follows:
[12]
Negligence, as it is understood in our law, is not inherently
unlawful – it is unlawful, and thus actionable,
only if it
occurs in circumstances that the law recognizes as making it
unlawful.1 Where the negligence manifests itself in a positive
act
that causes physical harm it is presumed to be unlawful, but that is
not so in the case of a negligent omission. A negligent
omission is
unlawful only if it occurs in circumstances that the law regards as
sufficient to give rise to a legal duty to avoid
negligently causing
harm.3 It is important to keep that concept quite separate from the
concept of fault. Where the law recognises
the existence of a legal
duty it does not follow that an omission will necessarily attract
liability – it will attract liability
only if the omission was
also culpable as determined by the application of the separate test
that has consistently been applied
by this court in Kruger v
Coetzee,4 namely, whether a reasonable person in the position of the
defendant would not only have foreseen
the harm but would also have
acted to avert it. While the enquiry as to the existence or otherwise
of a legal duty might be conceptually
anterior to the question of
fault (for the very enquiry is whether fault is capable of being
legally recognised), nevertheless,
in order to avoid conflating these
two separate elements of liability it might often be helpful to
assume that the omission was
negligent when asking whether, as a
matter of legal policy, the omission ought to be actionable.”
[115] In
determining whether a legal duty exists in the present factual matrix
it is important to have regard
to the regulations applicable to
excavations of this nature. It is common cause between the parties
that the regulations did apply
to the works that led to the tragic
death of the deceased.
[116] The
evidence, furthermore, established that the City Council was the
“
contractor”
for purposes of the regulations, in
that it “
employed”
the operator of Ndlovu to do
the excavation and “
employed”
GT Plumbing to
repair the sewerage pipe. In both instances, the operator and GT
Plumbing were to be remunerated for the work provided.
Breedt’s
conduct will for present purposes be attributed to the City Council.
[117] In
Pienaar and others v Brown and Others
2010 (6) SA 365
(SCA)
the owner of the house affixed a balcony to his house, without
submitting plans for approval by the local authority. In so
doing the
owner breached section 4(1) of the National Building Regulations
and Building Standards Act 103 of 1977 which makes
the submission and
approval of plans a prerequisite for any building work.
[118] In
determining whether the mere breach of a statutory obligation makes
the omission unlawful, the
court held as follows:
“
[15]
As already indicated Pienaar did not submit any plans for the balcony
in question as he had done previously when
he did alterations and
additions to his house in 2002. He did not make enquires from his
builder, Classen, as to whether plans
were required for undertaking
this type of work. Consequently, the question that arises is whether
this failure rendered Pienaar
liable in damages arising from the
collapse of the balcony. In the way the case has been pleaded it does
not appear that the plaintiffs
are relying on the breach per se as
creating liability or providing them with a right to claim damages.
How one goes about determining
whether the statute provides for such
a right of action was alluded to by Cameron JA in Olitzki Property
Holdings v State Tender
Board [2001]
ZASCA 51;
2001
(3) SA 1247
(SCA)
at para 12 where he said:
‘
Where
the legal duty the plaintiff invokes derives from breach of a
statutory provision, the jurisprudence of this Court has developed
a
supple test. The focal question remains one of statutory
interpretation, since the statute may on a proper construction by
implication
itself confer a right of action, or alternatively
provides the basis for inferring that a legal duty exists at common
law. The
process in either case requires a consideration of the
statute as a whole, its objects and provisions, the circumstances in
which
it was enacted, and the kind of mischief it was designed to
prevent.’
[16]
On a proper reading of the Act there is nothing to suggest that a
failure to comply with its
requirement would necessarily lead to
liability. On the facts of this case what makes it particularly
problematic is that on the
available expert evidence it is not the
failure to submit plans that caused the balcony to collapse, but the
manner in which it
was fixed to the wall. It is unnecessary to
consider whether in other circumstances a failure to submit plans for
approval may
ground a claim for damages. In this case it cannot do so
because there is no causal link between that failure and the collapse
of the balcony.”
[119]
In
casu,
all the witnesses were
ad idem
that digging a trench
of approximately four to six metres deep created a dangerous
situation. The regulations were specifically
drafted to ensure that
the dangerous situation is safely managed. The causal link between
the death of the deceased and the conduct
prohibited by regulations
are manifest, to wit:
119.1 the failure to
take reasonable steps, i.e. shoring or sloping, in order to prevent
the deceased from being buried
by the fall of the soil in the
excavation; and
119.2 permitting
and/or not prohibiting the deceased from entering the excavation that
had not been adequately shored
or sloped.
[120] I
have no doubt that the caving in of the excavation was the “
mischief”
the regulations were designed to prevent. The regulations created
a legal duty, which was breached by the City Council and consequently
renders its omission to comply with the regulations unlawful.
[121]
Even if the regulations in itself did not create a legal duty, will
it in any event be reasonable
to compensate the plaintiffs in the
prevailing circumstances, i.e. will it be reasonable to impose a
legal duty on the City Council?
[122] In
Olizki Property Holdings v State Tender Board and Another
2001
(3) SA 1247
SCA at paragraph [12], the determination of
reasonableness was defined as follows:
“
[12]
The determination of reasonableness here, in turn, depends on whether
affording the plaintiff a remedy
is congruent with the court’s
appreciation of the sense of justice of the community. This
appreciation must unavoidably include
the application of broad
considerations of public policy determined also in the light of the
Constitution and the impact upon them
that the grant or refusal of
the remedy the plaintiff seeks will entail.”
[123]
Would justice demand that the plaintiffs should be compensated for
the loss suffered as a result of
the deceased’s demise? The
first plaintiff has been left to fend for herself financially due to
the tragic death of the deceased.
The two children of the deceased
are without the benefit of a father who provided for their everyday
needs including a safe place
to stay, food and the other necessities
of day to day living.
[124] The
loss is totally unnecessary. Had the City Council complied with their
duty of care towards the
deceased, the family would not have been
left destitute.
[125] In
my view justice demands that the City Council should be held liable
for the loss the plaintiffs
have suffered as a result of its
omission.
[126] In
the premises, I am satisfied that Breedt’s failure was unlawful
for purposes of a claim in
delict.
[127] In
respect of the conduct of Matshipe, it is trite that negligence that
manifests itself in a positive
act that causes physical harm is
presumed to be unlawful. [See:
Minister of Safety and Security v
Van Duivenboden, supra
]
[128]
Should it be found that Mashipe’s conduct was negligent,
wrongfulness will follow.
Negligence
[129]
Once the legal duty has been established, the question whether Breedt
and/or Matshipe were negligent
arises.
[130] In
Van Duivenbodem
supra
the test was formulated as
follows:
“
[23]
The classic test for negligence as set out in Kruger v Coetzee 47 has
since been quoted with approval
in countless decisions of this Court:
whether a person is required to act at all so as to avoid reasonably
foreseeable harm, and
if so what that person is required to do, will
depend upon what can reasonably be expected in the circumstances of
the particular
case. That enquiry offers considerable scope for
ensuring that undue demands are not placed upon public authorities
and functionaries
for the extent of their resources and the manner in
which they have ordered their priorities will necessarily be taken
into account
in determining whether they acted reasonably. “
[131]
Would a reasonable person in Breedt’s position have foreseen
the reasonable possibility that
his omission would injure the
deceased and cause patrimonial damage to the plaintiffs? Van
Schalkwyk testified that he alerted
Breedt the previous day that
precautions need to be taken should the excavation be deeper than one
and a half metres.
[132]
Both Nkhuku and Van Schalkwyk testified that the soil was wet and the
excavation looked patently dangerous.
Du Preez testified that wet
soil is, due to its liquid nature, more unstable and caused a greater
possibility of sliding. Breedt
has, according to Pilusa, 20 years’
experience in maintaining sewage infrastructure, which includes the
activities that were
performed on 9 March 2013.
[133] In
view of the patent danger and Breedt’s experience, I am of the
view that a reasonable person
in Breedt’s position would have
foreseen the reasonable possibility that without shoring or sloping,
the walls of the excavation
might cave in.
[134] The
reasonable steps to be taken to prevent the wall of the excavation
from caving in, is prescribed
in the regulations and according to Du
Preez’s evidence, standard practice in the industry. A
reasonable person in Breedt’s
position would have instructed
Matshipe to slope the trench as the excavation proceeded. If sloping
was not the preferred method,
a reasonable person would have obtained
the necessary material to shore the excavation prior to allowing
anyone to enter the trench.
[135]
Breedt failed to take any of these steps. There is no evidence on
record that the steps would be overly
burdensome. In the premises,
Breedt’s omission on the day in question falls short of the
conduct of a
diligens paterfamilias
and he was negligent.
[136]
Would a reasonable person in Matshipe’s position have foreseen
the reasonable possibility that
his conduct would injure the deceased
and cause patrimonial loss to the plaintiffs? Matshipe is on all
accounts an experienced
excavator operator.
[137]
This would entail that Matshipe would have known that an excavator’s
arm is not suitable for
transporting persons. The inherent danger of
lowering someone into a trench that is four to six metres deep is
obvious. It is an
extremely dangerous move. Being an experienced
operator Matshipe would no doubt have gained knowledge of the type of
terrain in
which an excavation is done. Matshipe would have seen that
the soil being removed by the excavator is wet.
[138] Du
Preez testified that a 21-ton excavator is normally used in deep
excavations. One would assume,
deeper than one and a half metres.
This would entail that Matshipe is no doubt aware of the safety
precautions that should be taken
when excavating deeper than one and
a half metres. Matshipe would in all probability in the past have
been requested to slope an
excavation. He would have noticed that
without sloping the excavation is shored.
[139] His
direct involvement in the industry pertaining to excavations leads to
the reasonable inference
that he would have foreseen the reasonable
possibility of danger if a person is lowered into a four to six-metre
trench that has
not been sloped or shored.
[140] In
the result, a reasonable person in Matshipe’s position would
have foreseen the reasonable
possibility that his conduct would cause
the deceased’s death.
[141] A
reasonable person in Matshipe’s position would not have lowered
the deceased into the excavation
and Matshipe in doing so, was
negligent.
Causation
[142] In
Van Duivenbodem supra,
Nugent JA postulated the test as
follows in paragraph [26]:
“
[26]
A plaintiff is not required to establish the causal link with
certainty but only to establish that the wrongful
conduct was
probably a cause of the loss, which calls for a sensible
retrospective analysis of what would probably have occurred,
based
upon the evidence and what can be expected to occur in the ordinary
course of human affairs rather than an exercise in metaphysics.”
[143] It
is clear from the evidence that Breedt’s failure to shore or
slope the excavation created
a dangerous situation. The dangerous
excavation in itself did not result in the deceased’s death.
Breedt could still, on
the evidence, have shored the excavation which
would have removed the danger.
[144] In
instructing the operator of the excavator or in allowing the operator
of the excavator to lower
the deceased into the patently dangerous
excavation causally links Breedt’s conduct to the ultimate
demise of the deceased.
[145]
Breedt’s conduct was in my view both factually and legally the
cause of the deceased’s
death which in turn resulted in the
loss suffered by the plaintiffs.
[146] In
respect of Matshipe, the same facts give rise to the factual and
legal causation in respect of
Breedt’s conduct and establish
causation between Matshipe’s conduct and the demise of the
deceased.
Vicarious liability
[147]
Having established that the conduct of both Breedt and Matshipe was
wrongful and negligent and caused
the loss suffered by the
plaintiffs, the next question is whether the first and third
defendants can respectively be held vicariously
liable for their
conduct.
[148]
Vicarious liability is established when:
148.1 the person that
committed the delict was an employee of the defendant;
148.2 the employee
performed the delictual act in the course and scope of his/her
employment; and
148.3 the scope of
the employee’s duties at the relevant time.
[See:
Amler’s
Precedent of Pleadings,
Harms, 7
th
edition at page 390]
[149] The
evidence establishes all three requirements in respect of Breedt’s
conduct and the City
Council is vicariously liable for the loss
suffered by the plaintiffs as a result thereof.
[150] The
question whether Ndlovu can be held vicariously liable for the loss
suffered by the plaintiffs
as a result of Motshipe’s conduct is
somewhat more problematic.
[151]
Factually it is common cause that Ndlovu was not engaged to do the
excavation, but merely supplied
the 21-ton excavator and operator at
an agreed price. The agreement of hire was entered into between GS
Poultry and Ndlovu.
[152] As
mentioned
supra
GS Poultry undertook to obtain an excavator to
assist the City Council in performing the works. On the strength of
the aforesaid
facts, Ndlovu denies that Matshipe was acting within
the course and scope of his employment with Ndlovu on the day in
question.
Matshipe was performing services for the City Council and
not Ndlovu. Ndlovu, furthermore, had no control over Matshipe on 9
March
2013. Matshipe was under the sole control of Breedt.
[153] The
facts are akin to those in
Midway Two Engineering &
Construction Services v Transnet Bpk.
1983 (3) SA 17
SCA. Midway
was trading as labour brokers and hired drivers of heavy vehicles to
Transnet. Midway, therefore, derived a financial
benefit from the
contract between the parties. Transnet, however, managed and
controlled the drivers in the same manner in which
it managed and
controlled its own drivers.
[154] The
issue of control played an important role in
Midway supra
and
the court held that Midway was not vicariously liable for the
negligent conduct of the drivers who were performing their duties
under the direct control and on instructions of Transnet.
[155]
From the moment that Matshipe arrived on site, he was under the
control of Breedt. Breedt instructed
Matshipe where and how deep to
excavate. Whether Breedt instructed Matshipe to lower the deceased in
the bucket of the excavator
into the trench or merely allowed him to
do so does not detract from the control Breedt exercised over the
work performed by Matshipe.
[156]
Bearing the test in
Midway supra
in mind, I am satisfied the
plaintiffs have established, on a balance of probability, that the
City Council is vicariously liable
for Mathipe’s conduct.
[157] Is
it relevant that Matshipe was hired by GS Poultry and not the City
Council? I believe not, the
fact that Matshipe was under the control
of the City Council via Breedt, justifies a finding on policy
considerations that the
City Council should be held vicariously
liable for Matshipe’s conduct. [See:
Messina Associated
Carriers v Kleinhaus
2001 (3) SA 868
SCA]
[158] In
excavating the trench Matshipe also furthered the “
business”
or interest of the City Council, namely in complying with its
constitutional imposed duty to deliver services to the community.
[See:
F v Minister of Safety and Security and Others
2012 (1)
SA 536
CC at 134 C-E]
Costs
[159]
Costs should follow the result.
ORDER
[160] In
the premises, I grant the following order:
1. The first
defendant is held liable for the plaintiffs’ agreed or proven
damages.
2. The first
defendant is ordered to pay the plaintiffs’ costs.
3. The claim
against the third defendant is dismissed with costs.
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATES
HEARD PER COVID19 DIRECTIVES:
2
nd
to 6
th
of November 2020.
DATE
DELIVERED PER COVID19 DIRECTIVES:
1 February 2020
APPEARANCES
Counsel for the
Plaintiffs:
Advocate De Waal SC
Instructed
by:
Adams and Adams Attorneys
Counsel
for the First Defendant:
Advocate S. Laka
Instructed
by:
Labethe Attorneys
Counsel
for the Third Defendant:
Advocate M.G. Hitge
Instructed
by:
Meyer, Van Sittert and Kropman Attorneys