About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2019
>>
[2019] ZANCHC 19
|
|
Van Zyl v Siyancuma Municipality (655/2016) [2019] ZANCHC 19 (29 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.
Not Reportable
Case no:
655/2016
In the matter
between:
MARTHA
JACOBA VAN ZYL
PLAINTIFF
and
SIYANCUMA
MUNICIPALITY
RESPONDENT
Heard: 13
February 2019
Delivered: 29
March 2019
Judgment
PHATSHOANE ADJP
[1]
This is a delictual claim for damages by Ms Martha Jacoba Van Zyl,
the plaintiff,
presently
87 years old, against Siyancuma Municipality, Griekwastad, Northern
Cape.
The claim
arises from the injuries she sustained when she stumbled and fell off
the municipality’s stairs.
[2] The
parties agreed to separate the issues of the merits from the quantum.
Having granted the application
in terms of Rule 33(4) of the Uniform
Rules the matter proceeded on the question of liability only.
[3]
There
are three set of stairs, without hand rails, leading into the main
entrance of the municipal building. Access into the municipal
offices, by members of the public, can also be gained by means of a
ramp, situated approximately five meters from the three stairs.
The
door leading into the offices at the end of the ramp was locked
following public protest action which took place around October
2013.
Its burglar bars were sealed off using cement/mortar or the like
substance by the protestors during the unrest. Since then
the
entrance in question has not been in use. Members of the public can
only gain access into the municipal offices using the three
stairs.
[4]
A week prior to 27 February 2015 the plaintiff, then 83 years old,
visited the municipality to purchase
electricity but returned without
buying it because the door at the end of the ramp was locked. Due to
her advanced age and frailty
she walked slowly; was cautious; and had
difficulty climbing the stairs. On 27 February 2015, when her
electricity was about to
run out completely, she visited the
municipality once more. Due to the closure of the door at the end of
the ramp she attempted
accessing the municipal building using the
three stairs. As she stepped on the second stair she slipped and fell
backwards on her
left arm and elbow thereby sustaining injuries.
[5]
She conceded that on the unmeasured far right of the stairs there is
a wall that she could have leaned
on to support her in ascending the
stairs. However, she had been using the ramp to access the building
and never used the stairs.
She also did not think of asking someone
to assist her to climb the stairs. Following the incident, prior to
her relocation to
Pretoria in March 2017, she started to lean against
the wall to support her to gain entry into the municipal offices.
[6]
The defendant called two witnesses. Mr Nicolaas Witbooi, a member of
the public, and Ms Anna Sesenyamotse,
one of its employees. Mr
Witbooi was two steps behind the plaintiff when she fell. He helped
her to her feet and noticed that her
elbow was bleeding. He walked
her inside the municipal offices where she was attended to by
municipal officials. Ms Sesenyamotse
was inside the municipal offices
and did not witness the fall. She knows that the plaintiff, like most
of the elderly and people
with disabilities, used the ramp to access
the building. She drove the plaintiff to a local clinic to receive
medical attention.
As at January 2019 the door at the end of the ramp
was still not in use because the municipality took no steps to repair
it.
[7]
What arises for consideration is whether there was any negligence on
the part of the municipality and/or
its employees which resulted in
the plaintiff falling and sustaining injuries. In the event it is
found that the municipality was
negligent it should be established
whether the plaintiff contributed causally to the negligence and if
so the degree of her contributory
negligence must be determined.
[8] In
H
L & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty)
Ltd
[1]
the Court restated the essential elements of delict as follows:
‘
[13]…As
with delictual claims in general the essential elements are (a)
conduct, initiating wrongfulness, by the defendant;
(b) fault,
in this instance negligence, by the defendant; (c) harm suffered by
the plaintiff; and (d) a causal connection between
(a) and (c). The
section is concerned only with element (b), where negligence is the
fault complained of. While the onus remains
on the plaintiff to
establish elements (a), (c) and (d), the section relieves him of, and
instead encumbers the defendant with,
the burden of proving or
disproving element (b).
[14]
Conduct (element (a) above) can take the form of a
commissio
,
for example where the fire causing the loss was started by the
defendant (cf Steenberg v De Kaap Timber (Pty) Ltd
1992 (2) SA 169
(A)), or an
omissio
, for example the failure to exercise
proper control over a fire of which he was legally in charge (cf
Simon's Town Municipality v Dews and Another
[1992] ZASCA 165
;
1993 (1) SA 191
(A) at 194C - E), or the failure to contain a fire when, in the
absence of countervailing considerations adduced by him, he was
under
the legal duty, by virtue of his ownership or control of the
property, to prevent it from escaping onto a neighbouring property
thereby causing loss to others (
Minister of Forestry v Quathlamba
(Pty) Ltd
1973 (3) SA 69
(A); and compare
Administrateur,
Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A)).’
[9]
In
Kruger v Coetzee
[2]
the Court held:
'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.'
[10] The municipality’s
conduct in this case took the form of an
omissio
.
An omission is not considered wrongful unless there was a duty to act
positively to prevent harm to the plaintiff and it is reasonable
to
expect of the defendant to have taken positive measures to prevent
the harm.
[3]
At para 10 of its plea
t
he
municipality admitted owing to the plaintiff and other members of the
public a legal duty to prevent injury by providing safe
access to its
premises.
[11] The foreseeability of
harm depends on the degree of probability of the manifestation of the
harm (or how great
the chance or possibility is that it will occur).
Therefore, the greater the possibility that damage will occur, the
easier it
will be to establish that such damage was reasonably
foreseeable, the contrary is also true. See
Law of Delict
forth edition, Neethling
et al
at 141-142.
[12] Absent any access
into the premises by means of the ramp, or the provision of hand
rails to the three stairs, the
risk of harm occurring was forever
present.
It was reasonably
foreseeable that an elderly person, who finds it difficult to climb
the stairs, would stumble and fall. This is
so because t
he
ramp was constructed mainly to cater for those members of the public
who are not able to use the stairs.
[13] To argue that in a
period of 15 years, that Ms Sesenyamotse had been in the employ of
the municipality, no member
of the public fell from the three stairs
cannot avail the municipality. On the evidence, the municipality
failed to take reasonable
steps to ensure safe access to its building
by the plaintiff. It is disquieting that since the unrest,
which is said to have
taken place almost 6 years ago, nothing was
done to repair the burglar bars to the door leading into its offices
through the ramp.
Neither did the institution of this action prompt
the municipality to effect repairs to the burglar bars and to unlock
the door.
There was no shred of evidence suggesting that there had
been, in this case, anything inhibiting the municipality from taking
such
steps to ensure safe access to its building by its customers.
The costs could not have been prohibitive.
[14] In my view, regard
being had to the circumstances of this case, it will be illogical to
attribute any form of negligence
to the plaintiff. I am satisfied
that the plaintiff proved on a balance of probabilities that the
exclusive causal negligence of
the municipality caused her injuries.
She therefore should succeed on the merits. The costs will follow the
result.
Order
1.
Judgment
is granted in favour of Ms
Martha
Jacoba Van Zyl,
the
plaintiff, against
Siyancuma
Municipality,
the
defendant, on the merits;
2.
The
defendant is ordered to pay all such damages of the plaintiff flowing
from the incident of 27 February 2015, when the plaintiff
fell off
the stairs of the defendant’s premises, as the plaintiff will
be able to prove;
3.
The
defendant is ordered to pay the plaintiff’s costs of the trial
on the merits;
4.
The
hearing on the question of quantum is postponed
sine
die
;
MV Phatshoane
Acting Deputy
Judge President
APPEARANCES:
FOR
THE PLAINTIFF:
Adv J.M Rust
Instructed
Venters Incorporated
FOR
THE DEFENDANT:
Adv AG Van Tonder
Instructed by
Engelsman Magabane Inc
[1]
2001 (4) SA 814
(SCA)
820 para 13
[2]
1966 (2) SA 428
(A) at 430 E
[3]
See the unreported judgment of this Court in
Ratebelelo
Samuel Motlhaleemang v Transnet Limited
Case
No 1744/2008 at 9 para 26 (handed down on 05 December 2012) and
authorities cited therein.