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[2019] ZAECMHC 27
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Sinukela v King Sabata Dalindyebo Municipality and Another (3123/17) [2019] ZAECMHC 27 (4 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
[Not
Reportable]
CASE
NO: 3123/17
Heard
on: 28/05/19
Delivered
on: 04/06/19
In
the matter between:
CHURCHILL
SINUKELA
Plaintiff
and
KING
SABATA DALINDYEBO MUNICIPALITY
1
st
Defendant
MUNICIPAL
MANAGER
2
nd
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
The plaintiff is Sinukela Churchill, an adult male person residing at
321 Matolweni
Street, Ngangelizwe Location, Mthatha. On 11 July
2017 he instituted an action for damages against King Sabata
Dalindyebo
Municipality (the Municipality) for a reason, as alleged
by him, that on 08 January 2016 he fell into a street water drainage
tank,
the property of the Municipality situated at the corner of
Mabovula Road and Tembu Road, Ngangelizwe Location that had been left
open due to the negligence of the employees of the Municipality who
by exercise of reasonable care should and could have ensured
that
they left the drainage tank properly closed with a lid as soon as
they had finished working on it.
[2]
The pleaded defence of the Municipality is, firstly, that it did not
deploy any of
its workers to attend to the drainage tank under
question and; secondly, that the lid of the water drainage tank had
been removed
by thieves. On those bases the Municipality seeks
a dismissal of the action.
[3]
It is common cause that the plaintiff caused a statutory notice of
his intention to
sue, as is envisaged in sections 3 and 4 of Act 40
of 2002, to be delivered upon the Municipality before issuing
summons.
In such notice full particulars of the claim were set
out in order to inform the Municipality of the nature, the
circumstances
and the amount of compensation sought to be recovered
for the delict caused by its employees and for which the Municipality
is
vicariously liable to pay. Despite this, the Municipality
failed to respond thereto with the result that summons had to be
issued.
[4]
At the trial one Mr Thobelani Nogwavu, the supervisor in the Roads
Section of the
Municipality testified.
[5]
The evidence adduced may be summarised as that during the morning of
08 January 2016
the plaintiff saw a group of employees of the
Municipality all dressed in uniform attending to control water
drainage leaks at
the corner of Mabovula and Tembu Roads where the
drainage tank in question is situated. The identity of the
water drainage
tank was confirmed by Mr Nogwavu when he testified.
The plaintiff stated further that he took a taxi at Tembu Road en
route
to the town to get to Southernwood Township where he had been
contracted to do some work. In the afternoon he knocked off
from his work for the day and went back to Ngangelizwe where he
alighted from the taxi and walked down the pavement of Tembu Road
to
join Mabovula Street. It was in the early evening, but already
dark, when he got to Tembu Road. When he reached
the corner of
those two roads, and unaware that the drainage tank was open, he fell
into the tank and dislocated his left ankle.
According to him
there were no barricades or any sign put up on the road to warn him
and other pedestrians about the danger posed
by hole created by the
open drainage tank. He was trapped in the hole for a
considerable period of time. He cried out
for help until he was
rescued by people residing at Mabovula Road. He was later on
taken to the hospital where he was admitted,
treated and discharged
after some days. He told the
c
ourt
that the injuries he sustained on his ankle are serious in nature.
[6]
Mr Nogwavu testified that he was only informed by his employer about
the plaintiff’s
claim on 06 May 2019 before he testified in
c
ourt on 07 May 2019.
On that occasion he got to know for the first time about the danger
posed by the open drainage
tank. As a result he discovered upon
conducting an inspection that the steel lid of the tank had been
removed. He quickly
made arrangements for the tank to be
covered by a new lid made of metal to prevent thieves, bent towards
“trading”
in stolen steel materials, from removing it
again. This witness denied that the lid was removed
on 08 January
2016 because he ordinarily would not have had workers
on any site deployed by him who would work on a drainage tank and
thereafter
leave it uncovered by a lid without barricading the area
around which it is situated.
[7]
In my opinion the evidence of Mr Nogwavu is unhelpful to the
Municipality due to the
fact that it is hypothetical in nature.
It cannot be said that it contradicts the version proffered by the
plaintiff.
That leaves the evidence of the plaintiff, coupled
with the concession regarding the identity of the water drainage
tank, as the
credible evidence upon which the issue of negligent
omission on the part of the Municipality must be decided.
[8]
The evidence that Mr Nogwavu immediately attended to replace the lid
of the drainage
tank upon having become aware of the plaintiff’s
claim confirms that the Municipality owed a duty to the plaintiff by
ensuring
that it provided the lid to prevent the plaintiff, and any
other member of the public, from falling into the tank. This is
a statutory duty, which derives from the constitutional mandate of
the Municipality in terms
of section
152
of the Constitution, not only to provide services to people but to
ensure that such services are safe and healthy to use.
A
failure to comply with that mandate, as is the case here, amounts to
wrongful omission which
correctly found in
the
plaintiff’s claim – see
Minister of Safety &
Security v Van
Duivenboden
[2002]
3 All SA 741
(SCA) and
Cape Town
Municipality v Bekkerud
2000 (3) SA
1049
(SCA).
[9]
However, it remains for the plaintiff to prove the causal connection
between the wrongful
omission and the damage suffered by him.
In this regard the case of
International Shipping Co (Pty) Ltd v
Bently
1990 (1) SA
680
(A) is
apposite. With reference to
Bently,
Brand JA in
ZA v
Smith
2015 (4) SA 574
(SCA) re-stated the test for legal
causation as follows at para [30]:
“
The
criterion applied by the court a quo for determining factual
causation was the well-known but-for test as formulated, eg by
Corbett CJ in
International
Shipping Co (Pty) Ltd v
Bentley
1990
(1) SA 680
(A)
… at 700E-H. What it essentially lays down is the enquiry –
in the case of
an
omission – as to whether, but for the defendant’s
wrongful and negligent failure to take reasonable steps, the
plaintiff’s
loss would not have ensued. In this regard this
court has said on more than one occasion that the application of the
‘but-for
test’ is not based on mathematics, pure science
or philosophy. It is a matter of common sense, based on the practical
way
in which the minds of ordinary people work, against the
background of everyday-life experiences. In applying this
common-sense
,
practical test, a plaintiff therefore has to establish that it is
more likely than not that, but for the defendant’s wrongful
and
negligent conduct, his or her harm would not have ensued. The
plaintiff is not required to establish this causal link with
certainty.”
[10]
On the consideration of the facts of this case, the replacement of
the lid by Mr Nogwavu on 06
May 2019 which could have been replaced
before the plaintiff was injured on 08 January 2016 was unreasonable.
[11]
I find that the plaintiff has succeeded to prove that a reasonable
person in the position of
the Municipality ought to have foreseen the
possibility of harm to the plaintiff, would have taken steps to avoid
it but failed
to take preventive steps by either ensuring that the
lid of the water drainage tank was always in place or, if not, an
appropriate
warning sign was put up around the tank to alert the
pedestrian such as the plaintiff about the existence of danger.
And,
in my opinion, the omission on the part of the Municipality is
placed sufficiently close to the injuries sustained by the
plaintiff.
Consequently, liability for the delict is proved in
this case because the facts of this case prove the requisites for
liability
as stated in the case of
Kruger v Coetzee
1966 (2)
SA 428
(A) at 430 E-F.
[12]
The determination of the
merits
of the case was separated from
that issue of
quantum
. The costs attended to the hearing
of the
merits
must follow the result of the trial
.
[13]
In the result the following order shall issue:
(a)
The first defendant be and is hereby held liable for damages suffered
by the plaintiff
on 08 January 2016.
(b)
The first defendant shall pay the costs of the hearing on the issue
of the
merits
.
(c)
A hearing on the issue of
quantum
be and is hereby postponed sine die.
_________________________
________
______________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the plaintiff : Adv.
S.M. Luzipo
Instructed
by
: MK Majavu &
Associates
MTHATHA.
Counsel
for the defendant :
Adv. P.V. Msiwa
Instructed
by
: Mnikelo Dalasile &
Associates
MTHATHA.