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[2017] ZASCA 124
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Van Vuuren v eThekwini Municipality (1308/2016) [2017] ZASCA 124; 2018 (1) SA 189 (SCA) (27 September 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
CASE
NO: 1308/2016
In the
matter between:
KARLIEN
VAN
VUUREN
APPELLANT
and
eTHEKWINI
MUNICIPALITY
RESPONDENT
Neutral
Citation:
Van
Vuuren v eThekwini Municipality
(1308/2016)
[2017] ZASCA 124
(27 September 2017).
Coram:
Navsa
ADP, Majiedt & Mathopo JJA and Plasket & Tsoka AJJA
Heard:
7
September 2017
Delivered:
27
September 2017
Summary:
Municipality
providing a beachside facility of a pool with slides – whether
legal duty on Municipality to provide supervision
or access control –
whether Municipality negligent – foreseeability.
ORDER
On
appeal from
:
The KwaZulu-Natal Division of the High Court, Durban (Steyn J sitting
as court of first instance).
The
following order is made:
1
The appeal is upheld, with costs.
2
The order of the court below is set aside and replaced with the
following:
‘
1
The defendant is liable to pay such damages as may be proved by the
plaintiff, in her personal capacity and as the guardian on
behalf of
her minor son, John Ray Jacques van Vuuren, in respect of the
injuries he sustained in the incident that occurred on
the 21
st
May 2011;
2
The defendant is ordered to pay the costs of the action to date.
3
The trial is adjourned sine die.’
JUDGMENT
Navsa
ADP (Majiedt & Mathopo JJA and Plasket & Tsoka AJJA
concurring):
[1]
On 21 May 2011 John Ray Jacques Van Vuuren (Jacques), then eight
years old, accompanied by his mother, the appellant, Ms Karlien
Van
Vuuren, paid a visit to the beachfront in Durban, KwaZulu Natal, for
what promised to be an enjoyable day. Little did he know
that a
descent down a water slide at a pool on the Promenade would result in
allegedly serious injuries due to an awkward landing
at the end. The
water slide and pool are facilities provided for the use of children
by the respondent, the eThekwini Municipality
(the Municipality).
[2]
On his descent down the slide, Jacques appears to have lost his
balance, apparently due to being pushed by another child in
the queue
behind him. It is common cause that the Municipality did not employ
or have in attendance a person or persons to supervise
children at
play in the pools and control the use of the slide. More
specifically, there was no-one to ensure that a child at the
top of
the slide would be safe from being pushed by or colliding with
another child in close proximity.
[3]
During July 2012 the appellant, in her personal and representative
capacity, instituted an action in the KwaZulu Natal Division
of the
High Court, Durban for damages flowing from the injuries sustained by
Jacques which, it was alleged, included a fracture
of his jaw and
loss of teeth that required surgical intervention and future
operative procedures. The basis for liability on the
part of the
Municipality is set out as follows in the appellant’s
particulars of claim:
‘
The
Defendant, alternatively the Defendant’s employees,
alternatively their agents were negligent in one or more of the
following
ways;-
a.
in failing to ensure that the construction of the slide was of such a
nature that it was safe for all those who made use of it;
b.
in failing to ensure that the materials used for the construction of
the slide made it safe for members of the public to use;
c.
in failing to ensure that appropriate materials were used so that
users of the slide would be protected at all times;
d.
in erecting a structure which the Defendant, its employees
alternatively agents knew would be predominately used by children
knowing that such structure was inherently unsafe;
e.
in failing to ensure proper control and adult supervision by
qualified and competent persons at the swimming pool and the slide;
f.
in failing to control access or limit the number of children using
the swimming pool and the slide at the same time to ensure
that it
was utilised in a safe manner;
g.
in failing to ensure that access to the slide was controlled in such
a manner that it remained safe for children using this facility.’
[4]
The Municipality in its plea denied that it was negligent and stated
the following:
‘
In
the alternative, and in the event that the Plaintiff proves that her
child was injured as pleaded, the Defendant pleads that:
5.1
the Plaintiff knew that unsupervised children using the pool and
slide facilities would be dangerous and may result in injury;
5.2
the Plaintiff was fully aware of the risks involved in allowing her
child to utilise the pool and slide facilities;
5.3
despite this knowledge, and whilst appreciating the risk, the
Plaintiff nevertheless allowed her child to use the pool and slide
facilities;
5.4
accordingly, the Plaintiff consented to be subject to the risk of
injury to her child and, in the premises the Defendant is
not liable
for any loss or damage suffered.’
This
is the defence of voluntary assumption of risk which will be dealt
with in due course. In addition, the Municipality pleaded
that in the
event of the court finding that it had been negligent the appellant
too was negligent in one or more of the following
respects:
‘
13.1
the Plaintiff failed to take reasonable steps to ensure that John Ray
Jacques van Vuuren was properly supervised whilst utilising
the
slides provided in the pools at the beachfront area;
13.2
failed to ensure that John Ray Jacques Van Vuuren utilised the slide
facilities at the beachfront area in the manner intended.’
The
Municipality went on to state that it was the aforesaid negligence
that contributed to Jacques losing control as he descended
the slide
leading to the injuries sustained by him. In that event the
Municipality sought a reduction in terms of s 1 of the Apportionment
of Damages Act 34 of 1956, of such damages as might be awarded to the
appellant.
[5]
The matter proceeded to trial before Steyn J. After agreement by the
parties the court ordered that liability and quantum be
separated and
that the issue of liability be determined first. At the outset, the
learned judge stated that the issue for adjudication
was ‘whether
a parent exercising parental control over a child can legally expect
of a local authority to either share in
the duty of parental control
or usurp the duty and responsibility’. After considering the
totality of the evidence, including
the testimony of an expert, she
reached the conclusions recorded hereafter:
(i)
Jacques was injured as he came down the water slide approximately 60
metres away from an observation tower that was manned;
(ii)
the structure was and is safe;
(iii)
there was no evidence that the harm Jacques suffered could have been
prevented if the Municipality had a person in attendance
controlling
access to the slide;
(iv)
there was nothing alerting the mother to any danger and she did not
consider it necessary to intervene;
(v)
in light of what is set out in (iv) above one could hardly place a
more onerous burden on the Municipality.
[6]
I consider it necessary to quote the following four paragraphs of the
judgement in full:
‘
[29]
In my view to place a duty on the local authority to act under
circumstances where it is not expected of the parent to act
would
impose an unsustainable, if not intolerable burden on local
authorities to supervise other people’s children in instances
where the parents are present but fail to do so. It is not reasonable
to saddle the local authority with a greater duty of care
than what
is imposed on parents.
[30]
To expect the defendant to employ gatekeepers at the slides to
control the number of children using it at a specific time is
unreasonable given the circumstances and the facts before me. I am
not persuaded on the facts of this case that such a finding
would
merely result in the defendant employing “playground police”
at this one pool. In fact, such a finding would
lead to a duty to
secure supervisors or playground police at all playgrounds under the
control of the defendant. If such a duty
is imposed on the defendant
in circumstances where the parent is sufficiently able and capable of
exercising parental control,
then parents would always be exonerated
from exercising parental supervision and care at any playground used
by their children.
In my view public policy dictates that parents
should fulfil the duty of parental care and supervision. They are
obligated to do
that and act in the interest of their own children.
[31]
Can it be said that the defendant ought to have provided a supervisor
at the slide just as a matter of caution? In my view
it would be
unreasonable to expect the local authority to provide such
supervision at an enormous cost just in case of an eventuality.
To
make such a finding would lead to limitless liability.
[32]
Whilst it is sad that the plaintiff’s young child suffered harm
on this day, there is no reason to find that the plaintiff
should be
compensated for any loss suffered. The fact that he suffered harm
does not translate into a finding that the defendant
should be held
accountable in circumstances where there is no legal duty. To impose
a legal duty on the defendant where no need
for such duty has been
proved, would not be in accordance with public policy, nor with one’s
sense of justice. The plaintiff’s
interest to be compensated
is, in my view, outweighed by the greater societal interest.’
[7]
The court then went on to dismiss the appellant’s action with
costs. It is against that order and the abovementioned findings
that
the present appeal, with the leave of the court below, is directed.
[8]
Before us, and indeed in the court below, it was unchallenged that
the slide was safely constructed and designed for use by
children.
The core of the appellant’s case was that the Municipality was
obliged to provide supervision, independent of parental
control, in
order to prevent events such as the one in question. It is apt at
this stage to have regard to the material evidence
presented in the
court below.
[9]
Before dealing with the evidence of the only two witnesses who
testified, it is necessary to have regard to a photograph of
the pool
and slide in question.
It
is common cause that the slide was for use only by children under 12
years of age. The slide facility is located in one of three
pools
within the municipal pool area. As appears from the photograph, there
are stairs leading up from edges at opposite sides
of the pool
towards a stairhead which is supported by a column with a slide on
opposite sides leading into the pool. The slides
are made of a
moulded material that appear to be fibreglass and which have smooth
surfaces that are slippery when wet.
[10]
Two witnesses testified in support of the appellant’s case. The
Municipality called no witnesses. The first witness was
Mr Theodore
Gregersen (Gregersen), a qualified mechanical engineer and
occupational health and safety consultant. During November
2013,
almost two and a half years after the incident in question, he
inspected the pool where the waterslide is situated, and noted
that
an observation tower was located 60 metres away from the pool.
[11]
Gregersen testified that at the time of his inspection there were
numbers of children using the facility with no access control
in
place. Children crowded the steps leading to the top of the slide and
were pushing each other. They did not slide down individually
but in
groups, sometimes up to five at a time. Gregersen noted that the
descent down the slide is at ‘quite a speed’.
Children
who were nervous to descend were pushed. In his view, access control
would lead to greater safety and an unimpaired descent.
He insisted
that there should be Municipal staff at the pool to ensure the safety
of the children. Significantly, he stated that
there was access
control in place at other facilities in Durban. This statement was
not challenged.
[12]
Under cross-examination Gregersen accepted that the slide itself was
safely constructed, but insisted that if a child were
to be pushed it
would lead to a dangerous situation as the child would then come down
the slide in an awkward position. He conceded
that when he paid a
visit to the facility in question there was a signboard stating that
there should be no ‘rough play’.
It is common cause that
at the time of the incident there was no such sign.
[13]
The appellant was the second and last witness to testify. Jacques is
her only child. She recalled the fateful visit to the
facility in
question. The event occurred at around midday. Jacques had without
incident already descended the slide on two occasions
before his
disastrous fall. She kept him under observation every time he
descended the slide with other children in close proximity.
There
were 10 to 15 children behind him on the stairs waiting to descend.
The third time Jacques descended the appellant saw children
coming
down from behind and bumping into him. It was then that he lost
control, could not hold onto the sides and bumped his face
at the
bottom of the pool. Upon approaching him she saw an abundance of
blood and that his teeth were pushed up into his nose.
She then ran
to the observation tower to seek assistance, but found no-one in
attendance. There was no medical assistance to be
found.
[14]
The appellant transported Jacques to Addington hospital where speedy
assistance did not appear to be forthcoming, so she took
him to
Kingsway Hospital in Amanzimtoti, where he received treatment. She
went back to the pool the next day where she observed
children using
the facility without supervision.
[15]
That then is the totality of material evidence against which the
appeal has to be decided. Counsel before us were agreed that
the
court below had misidentified the issue to be addressed. It will be
recalled that Steyn J considered the following to be the
issue to be
adjudicated:
‘
[W]hether
a parent exercising parental control over a child can legally expect
of a local authority to either share in the duty
of parental control
or usurp the duty and responsibility.’
Counsel
agreed that the primary issue was rather, whether there was a legal
duty on the part of the Municipality to supervise and
control access
to the slide. The Municipality also contended that there had been no
negligence on its part and in particular, that
the consequences
suffered by Jacques had not been foreseeable.
[16]
In
Hawekwa Youth Camp & another v Byrne
2010 (6) SA 83
(SCA), this court restated the following jurisprudential truism in
para 22:
‘
[N]egligent
conduct which manifests itself in the form of a positive act causing
physical harm to the property or person of another
is prima facie
wrongful. By contrast, negligent conduct in the form of an omission
is not regarded as prima facie wrongful. Its
wrongfulness depends on
the existence of a legal duty. The imposition of this legal duty is a
matter of judicial determination,
involving criteria of public and
legal policy consistent with constitutional norms. In the result, a
negligent omission causing
loss will only be regarded as wrongful and
therefore actionable if public or legal policy considerations require
that such omission,
if negligent, should attract legal liability for
the resulting damages.’
[17]
In
Le Roux & others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
[2011] ZACC 4
;
2011
(3) SA 274
(CC) the following appears at para 122:
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict:
(a)
the criterion of
wrongfulness ultimately depends on a judicial determination of
whether – assuming all the other elements
of delictual
liability to be present – it would be reasonable to impose
liability on a defendant for the damages flowing
from specific
conduct; and
(b)
that
the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance
with constitutional norms. Incidentally, to avoid confusion it should
be borne in mind that, what is meant by reasonableness in
the context
of wrongfulness has nothing to do with the reasonableness of the
defendant’s conduct, but it concerns the reasonableness
of
imposing liability on the defendant for the harm resulting from that
conduct.’
[18]
In
Hawekwa
,
Brand JA warned against confusing the delictual elements of
wrongfulness and negligence and went on to state that, depending on
the circumstances, it may be appropriate to enquire, first, into the
question of wrongfulness, in which case negligence might be
assumed
for the purposes of the inquiry and in other cases it may be
convenient to do the opposite.
[1]
In
Hawekwa
a
substantial part of the contentions on behalf of the Minister was
devoted to the element of wrongfulness. Brand JA dealt with
wrongfulness before considering negligence.
[19]
In the present case, as agreed by counsel, it is convenient to deal
with the question of wrongfulness first, that is, whether
there was a
legal duty to supervise and control access to the slide.
[20]
As to a legal duty arising where there is prior positive conduct the
following is to be noted:
‘
A
duty may arise when the defendant has by lawful prior positive
conduct (commissio) created a potential risk of harm to others.
If
the actor omits to take reasonable steps to prevent the risk from
materialising (omissio), the duty is breached.’
[2]
[21]
As a starting point it is important to note that, in providing the
pool with the slide, the Municipality created a potential
risk of
harm to others. In its plea, after denying that Jacques was injured
as alleged, the Municipality stated, in the alternative,
that the
appellant as a parent was aware that using the pool and slide
facilities ‘would be dangerous and may result in injury’.
Further, the Municipality stated the following:
‘
despite
this knowledge, and whilst appreciating the risk, the Plaintiff
nevertheless allowed her child to use the pool and slide
facilities;
Accordingly,
the Plaintiff consented to be subject to the risk of injury to her
child and, in the premises the Defendant is not
liable for any loss
or damage suffered.’
I
shall in due course deal briefly with the pleaded defence of
voluntary assumption of risk. For the moment, it suffices to say
that
the creation of the slide facility posed a potential risk of harm to
others.
[22]
In determining whether a duty ought to be imposed on the
Municipality, the following factors appear to me to be significant.
First, the children allowed access to the slide are below the age of
12, suggesting a fair degree of immaturity and indiscipline.
The
applicable by-laws at the time made it an offence for any person
above the age of 12 to enter upon, be on, or use the slide
in
question.
[3]
Secondly, s 28(2)
of the Constitution provides:
‘
A
child’s best interests are of paramount importance in every
matter concerning the child.’
This
is a constitutional norm that must be taken into account in
determining whether a duty ought to be imposed.
[23]
It was obvious to Gregersen that children were using the slide in a
chaotic manner. The appellant herself witnessed uncontrolled
access
to the slide with the result that children bunched up against each
other. This would also have been obvious to any official
or employee
of the Municipality responsible for the facility in question. Public
policy would require a municipality to prevent
this kind of chaos
which threatens the safety of the children using the facility.
[24]
The concern expressed by the court below that the imposition of a
legal duty on the Municipality would result in an abdication
of
parental control loses sight of the fact that parents are not allowed
entry to the facility itself, because its use is restricted
to
children under the age of 12. They are therefore precluded from
entering or being proximate to the slide to control the actions
of
their children. Furthermore, they have no authority over the actions
of other children. After all, the facility is the Municipality’s
and lies within its administration and control. The assumption on the
part of the court below that children at public facilities
will
always have parents in attendance is doubtful. Significantly,
attendance at the facility was not made dependent on parental
control
and supervision.
[25]
The additional concern expressed by the court below, that providing
supervision and access control would place an intolerable
financial
burden on the Municipality, is also without foundation. As can be
seen from the photograph, access to the slides can
be controlled at
the top of the
stairhead
by an official. As stated
above, the evidence by Gregersen, that this is all that would be
required, was unchallenged. The appellant’s
evidence that there
is supervision at other public pools was also uncontradicted. It
might well be that a simple and safely constructed
turnstile on
either side of the slide with an official centrally placed might be
even more effective. I hasten to add that there
was no evidence on
that score. However, it was clear that a municipal official at the
top of the stairhead could exercise control.
The Municipality chose
deliberately not to lead any evidence about the extent of the burden,
financial or otherwise, it would have
to bear in the event of the
imposition of a duty.
[26]
Over and above ensuring municipal supervision at the top of the slide
or, perhaps as an alternative, access control could be
provided at
the foot of the stairs leading up to the slide. When supervision is
not available access could be blocked off altogether.
Perhaps one
side of the staircase could be blocked off and supervision could be
exercised at the open end. None of these steps
were considered, let
alone implemented. The steps that could be implemented do not appear
to be financially prohibitive, but, of
course, no evidence concerning
this was tendered by the Municipality.
[27]
The court below was also concerned that imposing a duty in this
instance would mean that such a duty would exist in respect
of all
public facilities controlled by the Municipality. That concern, too,
is unwarranted as in the present matter one is dealing
with the
circumstances and facts of this particular case and no other.
[28]
In
Pro Tempo v Van der Merwe
(20853/2014)
[2016] ZASCA 39
(24
March 2016) this court, in dealing with liability of educators and
administrators in respect of young children, had regard,
amongst
others, to the decision in
Transvaal Provincial Administration v
Coley
1925 AD 24.
In para 21 of
Pro Tempo
the following
appears:
‘
In
Coley
the
planting of wooden stakes in a play area was rightly seen as
constituting a sufficient basis to create a duty on the part of
the
Administration to prevent there being a danger to children in that
vicinity.
Coley
is
not distinguishable from the present case. By placing a steel rod
within a playground where children engaged in ball games the
appellant created a dangerous situation. It did not take reasonable
steps to prevent a foreseeable risk of harm through misadventure
from
materialising. Section 28(1)
(b)
of the Constitution
dictates that every child has the right to appropriate alternative
care when removed from the family environment.
Having regard to all
the circumstance of the case, including the fact that one is dealing
with children who struggle with learning
disabilities and that Jaco’s
hyperactivity was known to the school and considering the factors set
out in para 19 above,
the conclusion is compelled that the
appellant’s submission that the public policy considerations
demand that liability should
not be extended to the appellant is
wholly unfounded.’
[29]
As stated above, the Municipality, by providing the slide and pool
facility for the use of young children, created a potential
risk of
harm due to misadventure. Considering, in relation to wrongfulness,
the criteria of reasonableness, constitutional norms
and policy, the
compelling conclusion is that in the circumstances set out above, a
legal duty is owed by the Municipality to avoid
negligently causing
harm to persons in the position of Jacques.
[4]
As appears from what is stated earlier, the steps that could be taken
to prevent harm by ensuring access control are relatively
simple and
would not place an intolerable financial burden on the Municipality.
[30]
I now turn to the question of negligence. The well-known test for the
determination of negligence is the one formulated in
Kruger v
Coetzee
1966 (2) SA 428
(A) at 430H-E, which provides that
negligence is established 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.’
[31]
As stated above, foreseeability was fiercely contested by the
Municipality, particularly on the basis that parents are obliged
to
care for their children and that the Municipality was entitled to
assume that parents would look after and supervise their children.
It
was contended on behalf of the Municipality that since the appellant
herself did not foresee that Jacques would be injured,
it follows
that the Municipality itself could not be expected to foresee harm of
the kind suffered by Jacques. We are here concerned
with whether,
objectively, a sensible person in the position of the Municipality
would foresee the reasonable possibility of operating
the facility
without access control causing harm to children in the position of
Jacques. As stated above, it was obvious to Gregersen.
From his
evidence, it would have been obvious to any official operating the
facility on behalf of the Municipality, that unattended
access had
the effect of children bunching up and pushing against each other and
that the kind of harm which ensued in this case
was a reasonable
possibility. The Municipality failed to take steps to guard against
such an occurrence.
[32]
Thus, the Municipality’s contention that failure to provide
supervision or access control was not negligent, must fail.
The
defence of
volenti
non fit injuria
or voluntary assumption of risk, briefly alluded to above, was
rightly abandoned in argument before us. The appellant could hardly
consent to risk of injury to her minor child. The defence of
contributory negligence on the part of the appellant was also raised
by the Municipality. It was contended that this flowed from the
appellant’s negligence in failing to supervise her child’s
use of the slide.
[33]
In
Road Accident Fund v Myhill N O
2013 (5) SA 426
(SCA),
Leach JA said the following of the rule that a debt owed to a minor
by a debtor cannot be set off by that debtor against
a debt owed him
or her by the minor’s guardian:
‘
[28]
Not only has this been accepted as a correct reflection of the law
for many years but there seems to me to be no reason in
principle why
the general rules of set-off, which exclude a debt owed by or to an
individual in his personal capacity being set-off
against a debt owed
by or to that person in a representative capacity, should not operate
in respect of claims brought by custodian
parents on behalf of their
minor children. Not to apply the general rule can only be to the
disadvantage of any such minor. While
there do not appear to be any
reported decisions advancing the contrary conclusion, I think the
time has now come for this court
to put the matter beyond doubt and
to rule that a debtor liable to a minor child, when sued by the
child’s custodian parent,
may not set off against its liability
to the child any amount that it may personally be owed by the
custodian parent.
[29]
That being so, it was impermissible to reduce the appellant’s
liability . . . by way of setting off against their claims
the
alleged personal liability of the plaintiff to it arising from
contributory negligence on her part, and the two children were
clearly prejudiced by having done so.’
[34]
Faced with that authority, counsel on behalf of the Municipality
accepted that contributory negligence could not apply in respect
of
the claims brought by the appellant in her representative capacity.
On the other hand, counsel for the appellant accepted that
insofar as
the appellant’s personal claims in respect of medical expenses
and loss of earnings as a result of time taken
off to attend when
operative procedures were performed on Jacques, as set out para 10 of
the particulars of claim, were concerned,
contributory negligence,
assuming there to be an assessment of such on the part of the
appellant, could come into operation. It
is important to note that
para 10 contains a composite of claims in both the appellant’s
personal and representative capacities.
Because of the conclusions
reached by the court below, it did not embark on an apportionment of
damages assessment in terms of
the Apportionment of Damages Act 34 of
1956. That, counsel agreed, is an issue they were willing to have the
trial court adjudicate
in conjunction with the determination of
quantum. The substituted order that follows has to be read in light
thereof.
[35]
For the reasons set out above, the court below erred in not holding
the Municipality liable for such damages as the appellant
in her
personal and representative capacity may ultimately prove.
[36]
The following order is made:
1
The appeal is upheld, with costs.
2
The order of the court below is set aside and replaced with the
following:
‘
1
The defendant is liable to pay such damages as may be proved by the
plaintiff, in her personal capacity and as the guardian on
behalf of
her minor son, John Ray Jacques van Vuuren, in respect of the
injuries he sustained in the incident that occurred on
the 21
st
May 2011;
2
The defendant is ordered to pay the costs of the action to date.
3
The trial is adjourned sine die.’
______________________
M
S Navsa
Acting
Deputy President
Appearances:
Counsel
for Appellant:
R Pillemer
Instructed by:
A C de Sousa Attorneys, Durban
Honey Attorneys, Bloemfontein
Counsel
for Respondent:
W N Shapiro
Instructed by:
Ngidi & Company Inc.,
Pietermaritzburg
Strauss Daly, Bloemfontein
[1]
See
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
(SCA) para 12 and
Hawekwa
para 24.
[2]
See J R Midgley and J C van der Walt
on ‘Delict’, 2
Lawsa
2 ed para 65.
[3]
‘
City of Durban Pool ByLaws’
Provincial Notice No. 85 of 1989, published in
Provincial
Gazette
NO. 4683 dated 16
March 1989. Clause 9(xx).
[4]
See
Gouda
Boerdery
at para 12.