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[2021] ZAGPPHC 460
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Morgan v Member of the Executive Council for Gauteng Department of Agriculture, Conservation Environment and Land Affairs and Others (72869/2013) [2021] ZAGPPHC 460 (30 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA GAUTENG DIVISION,PRETORIA
CASE
NO: 72869/2013
In
the matter between:
VERNON
MORGAN
PLAINTIFF
and
MEMBER OF THE EXECUTIVE
COUNCIL FOR GAUTENG DEPARTMENT OF AGRICULTURE,
CONSERVATION
ENVIRONMENT AND
LAND AFFAIRS
1ST DEFENDANT
PROTEA
HOSPITALITY GROUP (PTY) LTD
2ND DEFENDANT
PROTEA
HOSPITALITY GROUP (PTY)
LTD THIRD
PARTY
LEAVE TO APPEAL-
JUDGMENT
N V KHUMALO J
Introduction
[1]
This is an application for leave to Appeal to the full bench of this
court or the Supreme Court of Appeal against this court’s
Judgment delivered on 3 December 2020, dismissing the Applicant’s
claim for damages against the 1st Respondent/1st Defendant
with
costs. The Applicant was also ordered to pay the 1st Defendant’s
costs occasioned by the Third Party claim.
[2]
Prior to the hearing of the matter I had in terms of Rule 42 (1) (b)
sought to correct patent errors on the authorities cited
and the text
that was intended to be quoted on paragraphs
[55] to [57] of the
Judgment. This then takes care of the concerns raised by the
Applicant in paragraphs 2 to 4 of his Notice of
leave to appeal.
[3]
The claim of the Applicant, Mr V Morgan (Plaintiff in the main
action) arose as a result of injuries he sustained on 4 December 2010
when he fell down a wooden staircase in one of the chalets where he
was a guest at a Protea Hotel owned by the 1st Respondent,
the
Department of Agriculture, Conservation Environment and Land Affairs
and managed by the Protea, the 2nd Respondent, who were,
respectively, the 1st and 2nd Defendant in the main action,
(henceforth I will refer to parties as in the main action). The
Plaintiff
alleged that the negligence of the 1st Defendant or
alternatively of the 2nd Defendant or alternatively of both the
1st Defendant
and the 2nd Defendant and or their employees
acting within the course and scope of their employment was the sole
cause of the accident.
[4]
The 1st and 2nd Defendants were alleged to have been negligent
by allowing the condition and the state of repair of the staircase
and the table at the bottom of the stairs to pose a danger to the
guests and by failing to take adequate steps to prevent or warn
the
public of such potential danger and ensure that such is suitable for
public use, as a result failed to
exercise
such care and skill
a reasonable person in the position of the 1st Defendant
,
would
have normally done, by for instance providing a handrail for guests.
The Plaintiff had alleged to have knocked his head against
the coffee
table at the bottom of the stairs.
[5]
The 1st Defendant in its main defence admitted as owner, to
have a legal duty to take reasonable care that the premises,
including
the wooden staircase, were safe for use by resort guests
and to have complied with such duty
.
It alleged that the
Plaintiff ‘s own negligence was the sole cause of his fall,
since he failed to descend the staircase
in a safe and proper manner,
and or holding onto the staircase whilst descending.
[6]
The 1st Defendant filed a 3rd Party Notice against the 2nd
Defendant, based on their management contract and joined issue with
the
2nd Defendant, seeking indemnification or a contribution from 2nd
Defendant should it be held liable to pay the Plaintiff’s
proven or agreed damages.
[7]
A day after commencement of the trial, the Plaintiff and the
2nd Defendant settled the matter between them. The details of the
settlement
were not divulged to the court. The parties subsequently
proceeded as if there was no settlement. It led to the court’s
oversight,
failing in its judgment to make a pronouncement on the
fate of the 3rd Party claim as between the 1st Defendant and the
2nd
Defendant (although having confirmed that due to the finding of
the court the issue of the 3rd Party claim did not arise) and the
related costs. On dismissal of the Plaintiff’s claim against
the 1st Defendant with costs, the Plaintiff was also ordered
to pay
the costs of the 1st Defendant occasioned by the issuing of a 3rd
Party Notice, since the issue of the 3rd Party claim remained
relevant as long as the Plaintiff’s claim against the 1st
Defendant was still to be resolved. On further submissions made
by
the parties in that regard, it became clearer that the 2nd Defendant
was also kept alive as a party to the proceedings owing
to the 3rd
Party claim whose fate had to be pronounced. It is therefore
justifiable for the court to correct its error and make
a
pronouncement on the 3rd Party claim and the attendant costs payable,
which will have to be consistent with the outcome.
[8]
In
the ordinary courts the general rule is that the costs follow the
result; see
Khumalo
and Another v Twin City Developers (Pty) Ltd and Others
[2017]
ZASCA 143.
The judgment is therefore to be corrected accordingly to
include an order dismissing the 1st Defendant’s 3rd Party
claim
with costs, inclusive of costs of senior counsel.
Legal
framework on leave to appeal
[9]
It has become common place that for an Applicant to succeed in
its Application for leave to appeal the requirements as set out in
s
17 (1) of the Superior Court Act 10 of 2013, have raised the bar of
the test that he will have to be meet. The subsection compels
a court
to grant leave to appeal only when it is of the believe that there
are reasonable prospects that another court would come
to a different
conclusion.
[10]
The threshold to which the test is raised is outlined in the
unreported decision of the Land Claims Court in
The Mont Chevaux
Trust v Goosen
2014 JDR 2325 (LCC) which held per Bertelsmann J
at para [6], albeit obiter, that:
"It is clear that
the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new
Act. The former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different
conclusion, see
Van
Heerden v Cronwright & Others 1
985 (2) SA 342
(T) at 343H.
The use of the word
"would
" in the new statute
indicates a measure of certainty that another court will differ from
the court whose judgment is sought
to be appealed against." [My
emphasis)
[11]
The
Supreme Court of Appeal,
confirmed
i
n
Notshokovu
v S
(157/15)
[2016] ZASCA 112
(20 September 2016) at para [2] recognising the new
challenge, that an Appellant now faces a higher and stringent
threshold in
terms of the Act.
In
MEC
for Health, Eastern Cape v Mkhitha and Another
(1221/2015[2015]
ZASCA 176 (25 November 2016) the court held at par [17] that:
“
[17]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There
must be sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[12]
In
Democratic Alliance v President of
the Republic of South Africa and Others
(2124/
2020) [2020] ZAGPPHC 326 (29 July 2020) at par [4] – [5] the
Full Court following on
Mkhitha supra
held as follows:
“
More
is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that
the case
cannot be categorised as hopeless. There must in other words be a
sound, rational basis for the conclusion that there
are prospects of
success on appeal. This dictum serves to emphasise a vital point:
Leave to appeal is not simply for the taking.
A balance between the
rights of the party which was successful before the court a quo and
the rights of the losing party seeking
leave to appeal need to be
established so that
the
absence of a realistic chance of succeeding on appeal dictates that
the balance must be struck in favour of the party which
was initially
successful.”
(my
emphasis).
[13]
It is due to this realisation of the higher threshold that
needs to be met, that I consider the grounds of appeal in this
Application.
Grounds of appeal
[14]
The Plaintiff’s grounds for seeking leave to appeal are
that the court erred as follows;
Ad paragraph 1.1
and 1.2
1.1
By finding that, the general rule (of our law is as the English law),
that an employer is not responsible for the negligence
or the
wrongdoing of an independent contractor employed by him, finds
application in this instance, as the Plaintiff does not seek
to hold
the 1st Defendant liable for the negligence of the independent
contractor.
1.2
In not finding that the principle as set out in
Spencer v Barclays
Bank
1943 (3) SA 230
(T) namely that the different categories of
persons visiting premises are said to be those visiting by
invitation, express or implied
of the occupier (that would be the
1st Defendant in the present case), those visiting with the
leave and licence of the occupier,
trespassers and that the duty
which rests upon the occupier of the premises (that would be the 1st
Defendant in the present case
) towards the persons who come to such
premises differs according to the category into which the visit
falls. The highest duty
exists towards those persons who fall into
the first category, and those who are present by the invitation of
the occupier (that
would be the Plaintiff in the present case).
Towards such person, the occupier has the duty of taking reasonable
care that the
premises are safe.
[14.1]
No finding is made as alleged in par 1.1 of the Plaintiff’s
Notice of Application for Leave to Appeal, but a general
rule is
mentioned. Further highlighted is StratfordACJ’s outlining the
rationale of the rule in the context of facts in
Dukes v
Marthinusen
1937, stating at paragraph 17, that:
“
The English law on
the subject as I have stated it to be is in complete accord with our
own
,
both
systems rest the rule as to the liability of an employer for any
damage caused by work he authorises another to do upon the
law of
negligence... In all questions of negligence that imaginary person,
the reasonable man, must be invoked and must be made
to pronounce his
suppositious view. What should a reasonable man anticipate? What
should he do to avoid possible injurious consequences
of his acts
which reasonably he should anticipate? Questions of negligence are
nearly always difficult, and it has been said more
than once in this
Court (quoting Beven, I think) that the question of negligence can
never be disentangled from the facts. (my
emphasis) see [54].
[14.2]
The application to appeal against the mentioning or use of a certain
principle or doctrine is objectionable and has no value
since what is
appealable is the court order or judgment;
A
court order or judgement is described in
Zweni
v Minister of Law and Order of the Republic of South Africa
(310/91)
[1992] ZASCA 197
;
[1993] 1 All SA 365
(A)
1993 (1) SA 523
(A) at 532D
as follows:
“
The word
“judgment” has (for present purposes) two meanings, first
the reasoning of the judicial officer (known to American
jurists as
his “opinion)” and second, “the pronouncement of
the disposition” (Garner, A Dictionary of Modern
Legal Usage s
v Judgments, Appellate Court) upon relief claimed in a trial action.
In the context of s 20 (1) we are concerned
with the latter meaning
only.”
[14.3]
The fact that
a considerable number of
interesting and difficult points of law are raised is not a
sufficient reason to make views expressed by
the court on any of
those points the subject of a pronouncement in the judgment –
all the more so when the view taken on
the point in question makes no
difference to the outcome of the case: see
Absa
Bank Limited v Mkhize and Another, Absa Bank Ltd v Chetty, Absa Bank
Ltd v Mlipha
(716/12)
[2013] ZASCA
139
;
2014 (5) SA 16
(SCA) where Ponnan JA opined that:
“Thus
the fact that the high court granted leave carries the matter no
further, since its power to do so arises only in respect
of ‘a
judgment or order’ within the meaning of that expression. In
truth the matter was approached as if an appeal
lies against the
reasons for judgment. It does not. Rather, an appeal lies against the
substantive order made by a court.”
(Western Johannesburg Rent
Board & another v Ursula Mansions (Pty) Ltd
1948 (3) SA 353
(A)
at 355.)
[14.4]
Furthermore in paragraph 1.2 the Plaintiff indicates his
misconception of the application of the doctrine of duty of care
and
the categories into which the 1st Defendant or 2nd Defendant fits.
The occupier in this matter as per his illustration in the
context of
Spencer
cannot
be the 1st defendant but the 2nd Defendant.
The
Plaintiff’s action was instituted against 1st Defendant as an
owner, alternatively liability attributed to 2nd Defendant’s
negligence. The issues in relation to this particular case being
fairly obvious, are outlined in the judgment starting from paragraph
55, where it is clearly stated that the 1st Defendant’s duty of
care is not in dispute. Furthermore, paragraphs 56 - 59 dealt
substantively with the test in the context of the circumstances of
this case, also from the
Swissburne
’s
perspective, which I am not going to repeat here. The complexity of
this sphere of law is elaborated comprehensively by
Ponnan J in
Chartaprops 16 Pty Ltd and Another v
Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
SCA.
Consequently, this contention, which is not repeated in the
Plaintiff’s heads of argument has no merit.
Ad
paragraph 5.1 and 5.2
5.1
In finding that in
order to establish
reasonableness of the employer’s conduct and determine where
liability lies, the Plaintiff had to prove
that the 1st Defendant
had the expertise to be able to realise the potential of harm and the
means to guard against the said
harm. The 1st Defendant’s
failure to guard against the harm must be proven to have resulted in
the harm that was envisaged.’
5.2
In not finding that where the defect in premises is one likely to
cause harm to others and
is in itself
of such a character that it should have been discovered
by
the
exercise
of
reasonable
care
on the part of the owner/landlord (in this instance, the 1st
Defendant)
the latter is negligent in
permitting the defect to continue to exist.
[14.5]
Paragraph [29] of the Judgment is instructive on the mentioned
contentions.
The
locus
classicus
relevant to this issue is
indeed
Kruger v Coetzee
1966
(2) SA 428 (A) as referred to by the 1st
Defendant’s Counsel, Mr Patel. At page 430 paragraphs [E] and
[F] of
the judgment, Holmes JA pronounced on the applicable law as
follows:
‘
For
the purposes of liability culpa arises 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; and
(b)
the defendant failed to take such steps.
This
has been constantly stated by this Court for some 50 years.
Requirement
(a) (ii) is sometimes
overlooked. Whether a diligens paterfamilias 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. No
hard and fast basis can be
laid down. Hence, the futility, in general, of seeking guidance from
the facts and results of other
cases.’
[14.6] Consequently
whether conduct is reasonable, is objectively tested (being from a
perspective of a reasonable man in
the position of the 1st
Defendant), and relative to foreseeability of potential harm, which
is established from the facts; see
Peri- Urban Areas Health Board
at 373H
as quoted in the judgment. It does not happen in a vacuum
but circumstances prevailing in each case dictates foreseeability and
reasonableness of conduct. The 1st Defendant had a duty towards
guests to circumvent any foreseeable danger posed by the staircase
whether due to a structural or design defect. For the 1st Defendant
to comply with such duty the defect must be detectable or capable
of
being detected by a person in the 1st Defendant’s position
exercising reasonable care and skill. The Plaintiff had therefore
to
prove that the potential harm or danger posed was foreseeable, the
defect being detectable to the person in 1st Defendant’s
position, applying reasonable care and skills. Failure then to guard
against such foreseeable potential harm would under the circumstances
be negligent. As established in
Langley Fox
at 13A-C, the
nature of the danger, the context in which the danger may arise, the
degree of expertise available to the 1st Defendant
to avert the
danger are factors relevant for determination of foreseeability and
the reasonableness of conduct. The list is not
meant to be
comprehensive.
[14.7] Heher JA in
Member
of the Executive Council for Education Mpumalanga v Onica Skhosana
o.b.o SS MEC for Education: Mpumalanga v Skhosana
(523/11)
[2012]
ZASCA 63
(17 May 2012) albeit dissenting, established in the context
of that case that the test for negligence on the Defendant part
requires
consideration of how a reasonable teacher in the same
circumstances would have behaved. Further that the application of
that test
presupposes that the court is adequately apprised of the
circumstances. Due to the plaintiff’s case being silent on the
age,
training, skills, experience and worldly knowledge of the
teacher concerned. He found that the plaintiff’s case left the
court with unanswered questions on all these material aspects and did
not consider that the onus was discharged. Commenting that,
this
might not matter as much in a more sophisticated context but here one
does not even know whether the school environment was
urban or rural.
Mindful also of the Defendant’s failure to testify.
[14.8] Furthermore, for
liability to arise from the duty of care, besides proving negligence,
the Plaintiff had to also prove that
such negligence was wrongful in
that the injuries sustained were as a direct result of such
negligence. It is a fact that, considering
the evidence of the
Plaintiff and Fullard, the Plaintiff failed to prove not only that
the potential harm allegedly posed by the
structural defect, albeit
the handrail, was foreseeable, but also that the injuries he
sustained were as a result of the Defendant’s
alleged
negligence (the failure to supply handrails).
Ad
paragraph 6.1 – 6.2, 6.2.1 – 6.2.4
6.1 and 6.2
In the assessment of evidence of the Plaintiff and Fullard and the
finding with regard thereto as set out
from paragraph 60-67 and
ultimately reaching the conclusion that the Plaintiff had failed to
indicate how the handrails could have
assisted him when he failed to
use the existing one and that no one could have foreseen that the
Plaintiff would descend the stairs
clumsily without using the
assistance of the existing rails.
6.2.1 and 6.2.2 by not
coming to the conclusion that the 1st Defendant conceded that the
staircase in question had a defect as a
result of the design flaws
contained therein, that Fullard opined that the stepladder was not
safe for use by design flaws contained
therein.
6.2.3
in finding that with all the evidence taken into consideration it
must be accepted that the stepladder in question was
unsafe for its
intended use and that the incident in which the Plaintiff fell and
sustained serious bodily injuries was a direct
result of the
stepladder being unsafe for its intended use.
6.2.4 the unrefuted
evidence of the Plaintiff was that had there been handrails fitted to
the staircase in question he would
have used them, would have been
able to control his descent and would have not fallen. Obviously
disregarding the existence of
the grabrails.
[14.9] The
judgement is very clear on how the conclusions made were consistent
with the Plaintiff and Fullard’s evidence.
Once more, the
Plaintiff is misguided in his approach, as it is a well- established
principle in our law that a
n appeal or cross
appeal can be noted only against the substantive order of a Court and
not against the reasons for the order, as
clearly expounded by the
Appellate Division in
Western
Johannesburg Rent Board and Another supra
at
355, when Centlivres JA,
stated as
follows:
‘
[I]t
is clear that an appeal can be noted not against the reasons for
judgment but against the substantive order made by a Court.
For
instance, it is open to a respondent on appeal to contend that the
order appealed against should be supported on grounds which
were
rejected by the trial judge: he cannot note a cross- appeal …
unless he desires a variation of the order.” See
Municipal
Council of Bulawayo v Bulawayo Waterworks, Ltd
.
(1915)
Ad 611
at
pp. 625, 631, 632)’.
[14.10] Any
conclusions or findings the court made where established from and
dictated by the facts. In respect of Fullard’s
evidence,
Fullard was satisfied that he found the cause of the accident, which
was a structural and design defect, that is, the
absence of a
handrail and the protruding soft timber treads beyond the aluminium
angle tread supports, amounting to a weak spot
in the stepladder’s
structure. Those were the two defects Fullard identified to have
existed at the time, which were likely
to have caused the accident,
the one defect not ordinarily identifiable except through certain
expertise. Fullard indicated that
the harm envisaged on the treads
was capable of being discovered only by an expert not by any ordinary
person. Foreseeability therefore,
was out of the question for the
person in 1st Defendant’s position even with the exercise of
reasonable care and skills.
Fullard’s direct comment being
that: ‘only a structural engineer‘s design review could
have indicated if the
staircase was indeed safe in terms of the
structural defect.’
[14.11] In
addition, it was not the Plaintiff’s case that the staircase
posed a danger due to a structural defect, but
its state of disrepair
and absence of handrails. Since Fullard confirmed that the stairs did
not show any state of disrepair, so
what was only relevant to the
Plaintiff’s case was the finding on the absence of handrails.
The Plaintiff was required to
prove that the absence of handrails was
negligent and the cause of his fall, a
lis
between the
handrails and the Plaintiff’s fall being important, which he
failed to do. Fullard’s testimony was that
the existent grab
rails might have assisted on the first and second treads if one was
to descend holding the stringers but beyond
the second treads the
grabrails were out of reach. According to Fullard, when not using the
grabrails, Plaintiff’s fall would
have exerted pressure on the
next treads. It is a fact that the Plaintiff never mentioned the
existence or alleged to have ever
used the grabrails.
Ad
paragraph 7.1 to 7.1.1 to 7.1.7
In finding that no
special duty of care rested on the 1st Defendant.
Not differentiating
between grabrails which formed part of the Loft structure and
handrails. Finding that there were handrails available
to negotiate
part of the stairs and the Plaintiff disregarded the
grabrails.Finding that the falling down the stairs was not caused
by
the absence of the handrails but his own conduct that was devoid of
forethought and contrary to what a reasonable person would
do.
Finding that the fall of the Plaintiff cannot be connected to the
absence of handrails. Finding that a reasonable man like
the
Plaintiff would have foreseen the likelihood of harm and guard
against his conduct accordingly.
[14.12]
Plaintiff is once again ill-advised in following this approach,
raising issues that are subject to the trite rule
that disallows an
appeal against reasons of a judgment. In Erasmus: Superior Court
Practice pages A2-36 and A2-37 it is clearly
explained that: “An
appeal can be noted only against the judgment itself (i.e., the
substantive order), not against the reasons
for judgment and a notice
which purport to appeal against the reasons for judgment is bad".
[
14.13]
Tecmed Africa (Pty) Ltd v Minister of Health & another
[2012]
4 All SA 149
(SCA), is instructive in that issue and Ponnan JA put it
thus in paras 17
“
[17] First,
appeals do not lie against the reasons for judgment but against the
substantive order of a lower court. Thus, whether
or not a Court of
Appeal agrees with a lower court’s reasoning would be of no
consequence if the result would remain the
same.”
[14.14] In
Atholl
Developments v The Valuation Appeal Board for the City of
Johannesburg
[2015] ZASCA 55
(30 March 2015 Salduker concluded
that:
“
[11] As the appeal
is directed at the reasons as opposed to the substantive order of the
court below, there is no proper appeal
before us. It must follow that
the appeal must be struck off the roll.”
[14.15]In the often
quoted judgment of
Western Johannesburg Rent Board & another v
Ursula Mansion (Pty) Ltd
1948 (3) SA 353
(A) at 354, Centlivres
CJ said the following: ‘This court mero motu drew counsel’s
attention to the fact that the so-called
notice of appeal was not a
notice of appeal at all, for it does not purport to note an appeal
against any part of the order made
by the court a quo. Even apart
from sub-rules (2) and (3) of Rule 6 of this Court, it is clear that
an appeal can be noted not
against the reasons for judgment but
against the substantive order made by a Court.’
[14.16] Also
alleging the evidence that was led by the Plaintiff and Mr Fullard,
to be findings of the court. Nevertheless,
all being factual, the
appeal court would be reluctant to interfere in the factual findings
of the court a quo.
Ad paragraph 7.2, 7.2.1
to 7.2.5
[14.17] All the
conclusions of law in relation to the authorities that are applicable
to the relevant facts have been considered
properly and sufficiently
in the judgment and the Plaintiff’s repeat of the arguments
herein not warranted and a fundamental
flaw.
Ad
paragraph 8, 9.1 to 9.2.
8.
The court erred in finding that the expert Fullard was not impartial,
not neutral and not helpful and that his evidence was of
little
value. In not finding the evidence of Fullard as being acceptable and
reliable in toto.
9.1
In finding that there is no case for the 1st Defendant to answer.
That 1st Defendant’s failure to lead the
evidence put to
Fullard did not jeopardise the 1st Defendant’s case.
9.2 In not finding
that the failure by the 1st Defendant to lead evidence put to the
Plaintiff or Fullard in cross examination
prejudiced the Plaintiff
and that the court cannot rely on the statement made or consider such
statements in deciding the Plaintiff’s
case.
[14.18] Paragraphs
71 to 72 of the judgment cover extensively the assessment of the
evidence and the reasons for the findings.
Nothing more could
persuade another court to deal differently with the evidence which
clearly point to a failure by the Plaintiff
to build a prima facie
case. The alleged statements that were put to Fullard were hardly
disputed but instead confirmed and not
put in contention. Besides,
Fullard’s expert opinion was that the potential danger that
would have rendered the 1st Defendant
liable to guard against such
danger happening was not foreseeable due to the latent defects. In
addition, he at one stage conceded
as an expert, saying that he would
not be surprised that there has been no prior incident with the
stepladder. He furthermore acknowledged
the existence of the grab
rails on the staircase, and admitted to not have inspected them or
gone up the staircase he was required
to give an expert opinion on,
failing as an expert to do the structural review. These are facts,
not criticism.
[14.19]
Likewise there was nothing in the evidence of the Plaintiff that
burdened the 1st Defendant with a duty of rebuttal
or disproof. The
judgement in paragraph 80 deals extensively with this contention.
Plaintiff ‘s testimony on how he fell
was illogical and did not
correspond with the injuries he sustained. This is all factual and
would doubt if the appeal court would
interfere with the conclusion
of the court in that regard.
[14.20] The conduct
of the 1st Defendant cannot be said to have resulted in failure to
guard against a foreseeable danger.
The alleged defects that created
the potential harm were latent structural defects the character of
which Fullard had confirmed
could only be identified through an
expert’s review. As a result, they would not be detectable to a
reasonable man of the
1st Defendant’s position. Furthermore, he
confirmed that the issued engineer and architectural completion
certificate said
all structural components were fine and that his own
inspection did not show any visual flaws or cracks or failure on the
treads.
He did not see any defect or distress in the timber, that is
treads. Since visual inspection could not reveal any defect or
cracks,
he said even the use thereof would not have indicated any
defect.
Ad paragraph 10 and 11
10. In finding that
the first Defendant is not liable to compensate the Plaintiff for the
damages sustained by him and dismissing
the Plaintiff’s claim
with costs. In finding that the Plaintiff is liable to pay the 1st
Defendant’s costs occasioned
by the issuing of the 3rd Party’s
notice and not finding that the 1st Defendant is liable to pay the
Plaintiff’s costs.
11.
In not finding that the Plaintiff settled his claim against the
2nd Defendant as set out in paragraph 1 of the 2nd
Defendant’s
heads of argument. The 1st Defendant chose to keep the 2nd Defendant
involved in the litigation regardless of
the settlement and is
therefore liable to pay the 2nd Defendant’s costs relating to
the 2nd Defendant’s notice and
subsequent trial.
[14.21] The
Plaintiff failed to prove that the injuries he sustained were as a
result of the 1st defendant’s negligence
and therefore not
entitled to be compensated for the said injuries with the costs
having to follow the result.
[14.22] The
Plaintiff is referred to paragraph 7, 8 and 9 of this judgment. The
details or terms of the settlement reached
between the Plaintiff and
2nd Defendant was not disclosed. All the same, the Third Party claim
became redundant as argued by the
2nd Defendant only when the
Plaintiff’s claim was dismissed. Prior thereto the 1st
Defendant would not have known that the
Third Party claim was to end
up unessential. For that reason, the Third Party claim remained
significant until final determination
of the claim against the 1st
Defendant. Therefore, the order against the Plaintiff to pay costs
occasioned by the issuing of a
Third Party Notice remains justified.
[14.23] It is the
basic rule of our law that an award for costs is in the discretion of
the court, which discretion must be
exercised judicially. In
Kruger
Bross & Wasserman v Ruskin,
1918 AD 63
at 69. Innes CJ held
that:
“
The rule of our
law is that all costs –unless expressly otherwise enacted –
are in the discretion of the Judge. His
discretion must be judicially
exercised, but it cannot be challenged, taken alone and apart from
the main order without his permission.”
[14.24] The 1st
Defendant was correctly found
not liable to
compensate the Plaintiff for the damages sustained, with the
Plaintiff’s claim then dismissed, the costshad
to follow the
result. The 1st Defendant’s 3rd party claim also being
dismissed with costs,
which costs are to
include the costs of Senior Counsel
. The
judgment is amended accordingly.
[15]
Accordingly having considered the Applicant’s grounds
for leave to appeal, there are no prospects of another court arriving
at a different conclusion
Under
the circumstances the following order is made:
1. The Application
for leave to appeal is dismissed with costs, which costs include the
costs of senior counsel.
N.V. Khumalo
Judge of the High
Court
Appearances
:
For
Plaintiff/Applicant:
Adv F de Klerk
Instructed
by: Lindsay
Keller Attorneys
email:
sroos@lindsaykeller.com
For 1st Defendant/
1st
Respondent: Mr
Patel
Instructed
by State
Attorney, Pretoria
Gauteng
Division, Pretoria
email:AWasserman@justice.gov.za
For the 2nd Defendant
2nd
Respondent: T.A.L.L.
Potgieter SC
Instructed
by:
Savage, Jooste & Adams Inc
e
mail:
pieterv@savage.co.za