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[2018] ZAFSHC 98
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Stone v Mangaung Metropolitan Municipality (4976/2016) [2018] ZAFSHC 98 (25 May 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
4976/2016
In
the matter between:
ADRIE
STONE
PLAINTIFF
and
MANGAUNG
METROPOLITAN MUNICIPALITY
DEFENDANT
CORAM:
M
OPPERMAN, AJ
HEARD
ON:
8,9
AND 11 MAY 2018
JUDGEMENT
BY:
M
OPPERMAN, AJ
DELIVERED
ON:
25 MAY
2018
INTRODUCTION
[1]
This was a trial on merits only.
[1]
The
case eventuates from an incident that occurred at the Stadium
Swimming Pool, Bloemfontein; a public swimming pool, the property
of
the defendant and under its control and management in terms of the:
Swimming
Pools
By-Laws, Local Authority Notice No. 98 of 2002, Date of Commencement:
27 September 2002, Published in Provincial Gazette No.
63 Dated 27
September 2002. Amended by
Provincial
Notice 95 in Provincial Gazette 34 dated 24 June 2016.
[2]
It
is common cause that the plaintiff was injured whilst ascending steps
to exit the pool.
THE
JURISTIC RELATIONSHIP BETWEEN THE PARTIES
[3]
The plaintiff, a 45-year-old lady sues in her capacity as private
citizen on the basis of delict.
[2]
The
defendant is M
angaung
Metropolitan Municipality an organ of the state; established by
Provincial Notice Number 261 of 28 March 2011, issued in
terms of
section 12 of the Local Government: Municipal Structures Act, 1998
(Act No. 117 of 1998).
[3]
[4]
The facts and arguments demonstrated that the juristic relationship
that was formed between the parties on this day of the 6
th
of December 2015 might have stemmed from a hybrid of contract and
public law obligation that culminated into delict.
THE
CLAIMS
[5]
The plaintiff claims that the defendant acted wrongfully and in a
culpable way that caused harm to her. It is alleged that:
[4]
5.1 The
lower step of the steps/ladder was broken and as the plaintiff
stepped on the top of the steps/ladder it too
broke. Plaintiff fell
back into the swimming pool and a part of the steps/ladder ribbed her
right leg and permanently bruised her
left lower leg.
5.2 The
cause of the accident was due to the sole negligence of the defendant
and the defendant owed the plaintiff,
and the public in general, a
duty of care to prevent accidents of this nature from occurring. The
ownership of the pool requires
extra diligence and care.
[6]
The defendant
6.1 The
defendant
denies
negligence or that it contributed to the incident or the injuries
sustained by the plaintiff. The municipality did not owe
the
plaintiff any duty of care. The defendant claims, in the alternative,
that the plaintiff was contributory negligent and that
the
plaintiff`s claim should be apportioned in terms of the provisions of
the Apportionment of Damages Act 34 of 1956.
6.2 It
is further claimed that they are indemnified from liability due to a
notice: “Enter at your own risk”
and that the plaintiff
accepted the “risk”.
6.3
Lastly; the defendant claims that the plaintiff did not take
reasonable care to prevent the incident.
THE
DISPUTES
[7]
The disputes are mainly located in conduct, wrongfulness and
negligence in that the defendant denies that it neglected to maintain
the steps, replace or repair the broken step, warn the public of the
risk of using the steps and that it did not act with due diligence
regarding to the safety of all persons entering its premises. The
defendant specifically denies that it owed and owes the plaintiff
and
the public a duty of care to prevent accidents of this nature from
occurring and that ownership of the swimming pool in itself
to
require extra diligence and care. There was an attempt to also deny
that the defendant placed the steps in the pool again and
it was
alleged that the plaintiff committed the act (conduct).
[8]
The judgement will deal with the case of the defendant first.
Adjudication of the defendant`s case on the law and the facts
causes
a logic conclusion. The plaintiff`s case will draw the judgement to
an end.
[9]
The versions of the parties will be measured by the established five
elements of delict namely, the act, wrongfulness, fault,
causation
and damage. The defenses will hereafter be deliberated.
[10]
As said; the disputed elements are conduct, wrongfulness and fault.
10.1
Conduct in delict is defined as the damage causing event.
[5]
10.2
Wrongfulness is an act committed in a legally inexcusable or
unreasonable manner.
[6]
The test
is whether a right and violation of a legal norm has been perpetrated
and if harm was caused.
[7]
10.3
Fault, in this case, lies in negligence and a defendant is negligent
if the reasonable person in his position would have
acted differently
if the unlawful causing of damage was unreasonable and
foreseeable.
[8]
[11]
The defenses advanced by the defendant are indemnity due to a “Enter
at own risk”-notice and that the plaintiff
did not take
reasonable care when she used the steps.
PUBLIC
USE AND AN ORGAN OF THE STATE
[12]
In terms of section 1 of the above By-Laws a
"swimming
pool" means a
swimming pool, including the appurtenant grounds, buildings and
works, that is owned and controlled by the municipality,
and made
available for public use from time to time.
[13]
“Public use” of a facility of an organ of the state (The
municipality) is what the plaintiff had when she, her
sister and her
niece paid their entrance fees and entered the pool on the 6
th
of December 2015.
NEGLIGENCE
[14]
When an organ of the state makes its property available for public
use the Constitutional Court pointed out in
Mashongwa
v
Passenger
Rail
Agency
of
South
Africa
[2016]
JOL
34753
(CC)
at paragraph [39]
that the standard of a reasonable person in our common law was
developed in the context of private persons. However,
given the
fundamental differences between the state and individuals, what is
seen to be reasonable from an individual's point of
view is not
necessarily also reasonable in the context of organs of state.
The
standard to be applied is not that of the reasonable person, but that
of a reasonable organ of state.
[15]
Where harm to the public is foreseeable and the municipality only had
to comply with its own operating instructions without
requiring
additional resources, a conclusion that the conduct was negligent
naturally follows.
THE
NORM TO MEASURE UNLAWFULNESS
[16]
The standard of a reasonable organ of state is sourced from the
Constitution. The Constitution is abound with the phrase that
the
State must take reasonable measures to advance the realization of
rights in the Bill of Rights. Simplistically put; unlawfulness
in
this instance will be in the denial of the right of the public to
regard steps to get safely out of a pool as secure.
[17]
The factors
[9]
to consider are
stipulated in the words of Mogoeng CJ and O`Regan J and still in
Mashongwa
v
Passenger
Rail
Agency
of
South
Africa
at paragraphs 22 to 24.
17.1
Whether the operating statute
[10]
provides for a delictual claim for damages,
17.2 whether the
legislation's scheme is primarily about protecting individuals or
advancing public good,
17.3 whether the
public power conferred is discretionary,
17.4 whether the
imposition of liability for damages is likely to have a "chilling
effect" on the performance of
government functions,
17.5 whether the
loss was foreseeable and
17.6 whether
alternative remedies such as an interdict, review or appeal are
available to the claimant.
17.7
An
important consideration when delictual accountability of the State is
to be enforced is to carefully analyze constitutional norms
such as
the principles of effectiveness and the need to be responsive to
people's needs.
THE
PRINCIPLES OF EFFECTIVENESS AND THE NEED TO BE RESPONSIVE TO PEOPLE'S
NEEDS
[18]
It is common cause that the steps caused the injury.
[19]
THE STEPS
The
evidence of Mr. Hoffman
19.1 Steps, on the
evidence of witnesses for the defendant, were placed in the pool for
the safety of the public. The
lifeguard at the pool and witness
for the defendant, Hoffman, testified that he recommended the use of
steps to get out of the
pool and that he offered to help people out
of the pool should they struggle to get out. This is a definite
indication that the
public will believe the steps to be safe and for
their safety.
19.2 Mr. Hoffman
further testified that normally there were stepladders at each corner
of the pool; that is four. On the day
of the incident there was only
one stepladder in the pool. Another one was removed and placed next
to the pavilion because it was
damaged
and posed a danger to the
public
. He advised some members of the public not to use the
steps next to the pavilion but was vague and confusing as to the
identity
of the people he spoke to.
Normally we use four
access points to the pool. In the corners of the pool. How many
ladders were in the pool? Only two. The step
broke and caused the
incident. The step was next the pavilion. The morning before the pool
open uncle Ruben told me the step was
damaged. He took it out and put
it next to the pavilion. There was only one remaining in the pool. It
is F2 in the corner. The
one that caused the injury was at F1. The
ladder was in the pool. I did see the ladder next to the pavilion.
Do you know how it got
back? No.
Somebody in the F1 corner
asked to use the ladder. They talk of the ladder next to the
pavilion. It was the same ladder Fokase talked
about. There were
three or four people I just answered them; my focus was on the
people. I said if they needed help they must call
me. There was a
lady and small kids young aged children. Teenagers. I do not remember
am not sure how long after the incident the
injury took place.
19.3 An allegation
by the defendant that the steps were placed back into the pool by the
plaintiff fell flat here and is rejected
because not one of the
witnesses for the defendant could testify as to the manner in which
the steps got back into the pool. The
act or conduct cannot be
attributed to the plaintiff.
19.4 A vital
consequence of Hoffman`s testimony is that it is the case of the
defendant that it was a very busy day. Figures
of three hundred (300)
visitors were mentioned by the defendant during cross-examination. In
essence there was only one stepladder
to be use by this many bathers.
An inference by the court will be justified that it caused somebody,
in order to alleviate the
traffic at the one ladder, to put the
broken ladder back. This again to promote the safety of the bathers.
19.5 The defendant,
indirectly caused the perilous situation. Firstly; one step was not
enough to cater safely for the amount
of bathers. Secondly; this
caused the ladder to be placed back into the pool and lastly; if the
ladder was placed in storage out
of reach of the public the injury to
the plaintiff would not have happened. Mr. Ruben Fokase`s evidence
articulated the inference.
[20]
Mr. Ruben Fokase that also testified for the defendant was an
excellent and honest witness. He had been in the employ of the
defendant for decades and worked at the same pool all these years.
Although not part of his duties he noticed that a ladder was
broken.
He took the ladder out and put it next to the pavilion. The worker
responsible for this task was absent. When he arrived
the morning of
the incident, he pulled this ladder out and it caused only one to
remain in the pool. The ladder was dangerous.
The following excerpts
from his testimony prove the point:
1. Why did you take the
ladder out of the pool? This ladder was broken. That is why I took it
out. I noticed it on that morning
when I poured the chemical in the
water in the morning. This ladder caused the injury to the plaintiff.
I heard about it. This
happened when I was off duty.
2. How did the ladder get
back into the pool? I do not know.
3. As you inspect the
pool is it the practice to take a broken ladder out of the pool? I
would say so and it is the normal duty.
When you see the thing is
dangerous you remove it
. It is part of my job.
4. My co-worker was not
there so I did have to do his work as well. I must do his work. He
had to clean the toilet and see that
where the kids change is clean.
My duty was the pools and filter at the back. You had a lot of extra
work? Yes.
5. Did you have to report
the broken ladder? Since my supervisor was not present I reported it
to one of the lifeguards when he
reported on duty because they arrive
after us.
I told Hoffman it was broken and may not be used. I do
not know if that ladder was put back in the pool.
6.
It was easy to take the ladder out of the pool. It would have been
easy to put it back. It was dangerous to use and a risk to
use it. If
locked up nobody could have come and place it back into the pool. I
forgot to take it to the room because I was in a
hurry.
If
I did not have to do my co-workers work I would have placed it in the
store room.
7. There were other two
ladders that broke. It was not as strong as the older ones. These are
not the strong ones. They were replaced
after the renovations they
put in steel ones. They do not use this type of ladder anymore.
[21]
The testimony of the witnesses for the defendant proves beyond any
doubt that the workers as well as the defendant was well
aware of the
fact that:
21.1
The
broken steps were a danger to the public.
21.2
The
broken steps were placed back into the pool by an unknown person or
persons and this would not have happened if the broken and
precarious
stepladder was placed into secure storage.
21.3
The
need to place the steps back in the pool was clearly caused by the
defendant itself because it had only one ladder available
and for
hundreds of patrons. The usual amount was four; one in each corner.
21.4
It
was known by the defendant that the steps were flimsy; hence the fact
that it was replaced by other stronger steps.
21.5
Steps
were presented to the public as the safest manner to exit the pool
and thus the impression was created that the steps itself
is safe.
21.6
Significant
is that the steps in the facts of this case are not in the same
risk-league as a slide, the water, or a diving board.
[11]
Even
on the version of the witnesses of the defendant is was used for
safety; the public cannot on the basis of this evidence have
regarded
it as a risk.
“
ENTER
AT OWN RISK”: LEGISLATION
[12]
AND THE COMMON LAW
Statutory
Provisions
[22]
On the face of it section 19 of the By-laws gives one-sided statutory
indemnity to the defendant. According to this, the mere
fact that the
plaintiff purchased a ticket and used the pool caused indemnity to
the defendant. Although specific reliance was
not placed on the
legislation the defence of the defendant is substantially and in
essence based on it. The section reads:
Injuries
and damages
:
-
1) A person using a
swimming pool or any diving board or other appliance, facility or
apparatus in a swimming pool, do it at his
own risk, and the
Municipality accepts no liability whatsoever for any personal
injuries sustained by such person or, subject to
the provisions of
section 6, for any loss of or damage to such person's property
relating to or resulting from the aforementioned
usage of the
swimming pool.
[Sub-s. (1) amended by s.
25 of P.N. 95 in PG 34 dated 24 June 2016.]
(2) A person using a
swimming pool or any diving board or other appliance, facility or
apparatus in a swimming pool, accepts full
responsibility for any
incident, damages or injuries that may be caused by or that may
result from the afore-mentioned use of the
swimming pool and by the
purchasing of an entrance ticket, he indemnifies the Municipality,
its members, employees or agents, whether
in personal or official
capacity, against liability for all claims from whichever nature by
himself, his dependants or third parties
in respect of any
patrimonial loss, consequential damages, injuries or personal
prejudice that may be suffered or sustained in
connection with or
resulting from such a person's use of the swimming pool.
[Sub-s. (2) amended by s.
25 and s. 29 of P.N. 95 in PG 34 dated 24 June 2016.]
[23]
The defendant also places reliance on a self-styled disclaimer in
that they at all times displayed a notice at the entrance
to the
swimming pool depicting: “
TOEGANG
OP EIE RISIKO/ENTER AT YOUR OWN RISK”
It
is claimed that the notice:
Was
visible to all members of public including the plaintiff, the
plaintiff was aware of the content of the notice or it ought to
have
reasonably so, have come to the knowledge of the plaintiff. The
defendant was reasonably entitled to assume from the plaintiff`s
conduct that she has either read or assented to the terms of the
declaimer or is prepared to be bound by it without reading it
and is
bound by it. Either expressly or tacitly.
[24]
There is no reliable or proper evidence whatsoever forthcoming from
the defendant that proves the above except that the signs
were
displayed. Ms. Hepler for the defendant could only testify that the
notices were displayed. Definitely not that:
The
plaintiff was aware of the content of the notice or it ought to have
reasonable so, have come to the knowledge of the plaintiff.
The
defendant was reasonably entitled to assume from the plaintiff`s
conduct that she has either read or assented to the terms
of the
declaimer or is prepared to be bound by it without reading it and is
bound by it. Either expressly or tacitly.
[25]
There were two notices. The one only reads:
“
ENTER
AT YOUR OWN RISK:
[13]
The
second notice
[14]
reads:
ENTER AT YOUR OWN RISK
NO ALCOHOL
NO GLASS
NO HUBBLY
THANK YOU
RULES
TIMES 10H00-17H30
ENTRANCE FEE OPTIONAL
FROM SWIMMING
NO REFUNDS
PASS OUT ONLY VALID FOR
HALF AN HOUR (30)
ONLY TO FETCH THINGS IN
CAR OR
BUY FOOD NOT FOR OTHER
PURPOSE ONLY ONCE A DAY
[26]
THE COMMON LAW
26.1
Exemption clauses from the side of the defendant generally do not
offend constitutional norms and values.
[15]
26.2
However, courts have questioned whether public policy, as informed by
such norms and values, would favor the validity of clauses
that
exempt liability for negligently killing someone or for causing
physical injury.
[16]
26.3
The extent of a defendant's limitation of liability depends on the
interpretation of the particular exemption clause in light
of its
context and the background circumstances.
[17]
26.4
It is usual to follow a restrictive approach requiring that the
extent to which one is to be absolved is plainly spelt out.
[18]
26.5 Express and
unambiguous terms must be adhered to.
26.6 If there is no
express reference to negligence in the particular clause the court
must consider whether the words are extensive
enough in their
ordinary meaning to cover negligence on the part of the defendant.
26.7
In case of doubt, ambiguity or secondary meaning, the issue must be
resolved against the defendant.
[19]
26.8
Unless
it is clear that the parties intended this cause of action to be
covered by the exemption, the exclusionary clause will be
of no avail
to the defendant
.
[20]
26.9
A defendant who relies on a clause exempting him or her from
liability for negligence is not protected if the plaintiff
was not
aware that the document/contract contained contractual terms, or
where the alleged negligent activity did not fall within
the risks
which were envisaged by the exemption clause.
[21]
26.10 The State bears the
obligation to ensure that the aspirations held out by the Bill of
Rights are realized. The State, its
organs and functionaries cannot
be allowed to adopt an apathetic and careless attitude, at the
expense of the interests of the
public, without consequences. Such as
section 19 of the By-laws in this instance.
26.11
Public authorities and functionaries might be tempted to disregard
their duties to the public
and
that could create fertile ground for a culture of impunity. These
obligations cannot therefore be ignored without any repercussions,
particularly where there is no other effective remedy
for the private citizen.
REASONABLE
CARE BY THE PLAINTIFF
[22]
[27]
Reasonable care depends to a large extent on the legitimate
assumptions one may make about the situation one finds oneself
in or
the conduct of other persons. In this case; that the steps
recommended for save-exit from the pool will be safe for use.
[23]
IN
CONCLUSION
[28]
Even if the version of the defendant is accepted that the notice was
visible and the plaintiff took cognizance of it, the facts
of the
case does not allow indemnity when the above tests are applied. The
content of the notices is so feeble that indemnity cannot
follow.
[29]
In short on the facts;
29.1 The risk was
not described; it is wide and vague.
29.2
The municipality as an organ of the state may not superciliously,
unilaterally and unconstitutionally decide and proclaim
indemnity.
29.3 The steps were
purported to be for the safety of the bathers and could not have
been, in the widest sense, regarded as
a risk.
29.4
It
may never be legal to make a facility available for use by the
public, demand that they pay money for such use, cause a risk
of
injury and then place the blame on the user. Conduct such as this
does not pass muster in our common law of delict and definitely
not
constitutionally so.
[30]
The defendant is, on its own version, the cause of the accident and
this due to the sole negligence of the defendant. The law
on the
facts presented by the defendant prescribes that the defendant owed
the plaintiff, and the public in general, a duty of
care to prevent
accidents of this nature from occurring. The ownership of the pool
requires extra diligence and care and the indemnity
claimed is moot
and weak.
THE
CASE FOR THE PLAINTIFF
[31]
The facts as adduced in the case of the plaintiff is accepted where
it is in conflict with that of the defendant. The case
for the
plaintiff is simple and straightforward. Her evidence was
corroborated by that of her niece and sister where relevant and
where
it overlapped. They were good witnesses and trustworthy in their
observations. The testimony of the witnesses for the defendant
corroborates their evidence on all the vital aspects. The biggest
factual dispute is that they were not aware of the indemnity
sign and
they deny placing the steps in the pool.
[32]
Their testimony is that they did not see any notices when they
arrived at the pool. They looked for signs at the entrance to
establish the entrance fee but there was nothing.
[33]
As they entered the pool it was so full they had to slide in. The
witnesses testified that there were too many people to dive
in. They
bathed in the pool and when the plaintiff decided to get out she saw
the bottom step was broken. Her niece pushed the
plaintiff up to
reach the middle step because she was too short to reach it. She put
her left leg on the middle step. As she put
her right leg on the top
step it broke and she fell back into the pool.
[34]
The steps looked steady when she used it. It looked safe because
everybody used it. There were lots of people using the steps.
The
majority and a variety of people used the steps. People of small
build and “big guys” used it. There was no need
for her
to inspect the steps. There was no other manner to get out of the
pool.
FINDING
[35]
The defendant`s conduct caused the incident that caused the harm to
the plaintiff. The defendant`s conduct was unlawful because
it did
not show delictual and constitutional care and diligence for the
safety of the patrons at the facility under its management.
On the
version of the defendant the incident was foreseeable and care was
not taken to avoid injury and harm. The conduct, unlawful
action and
negligence caused the undisputed harm to the plaintiff.
[36]
The plaintiff has succeeded in meeting the onus on it whilst the
defendant has failed to prove its defenses. The court finds
in favor
of the plaintiff that the defendant is liable for whatever damages
that might be proven. On the basis of the principle
that the costs
follow success the defendant must pay such.
[37] ORDER
The
following order is made:
1.
The
defendant is solely liable for such damages as the plaintiff may
prove to have sustained in the incident on the 6
th
of December 2015.
2.
The
defendant must pay the costs of suit.
_________________
M
OPPERMAN, AJ
ATTORNEY
FOR THE PLAINTIFF
P
SCHUURMAN
HILL,
MCHARDY & HERBST INC
7
COLLINS ROAD, ABORETUM
BLOEMFONTEIN
TEL
NO. 051 4472171
EMAIL:
Pieter@hmhi.co.za
REF:
P SCHUURMAN/rs/G22640
ATTORNEY
FOR DEFENDANT
M
VOLSCHENK
PHATSOANE
HENNEY INC
C/O
MARKGRAAF & KELLNER STR
WESTDENE
TEL
NO: 051 400 4025
REF:
MV/wp/THE110/0186
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
4976/2016
In
the matter between:
ADRIE
STONE
PLAINTIFF
and
MANGAUNG
METROPOLITAN MUNICIPALITY
DEFENDANT
COURT
ORDER
ORDER
The
following order is made:
1.
The
defendant is solely liable for such damages as the plaintiff may
prove to have sustained in the incident on the 6
th
of December 2015.
2.
The
defendant must pay the costs of suit.
________________
M
OPPERMAN, AJ
25
MAY 2018
ATTORNEY
FOR THE PLAINTIFF
P
SCHUURMAN
HILL,
MCHARDY & HERBST INC
7
COLLINS ROAD, ABORETUM
BLOEMFONTEIN
TEL
NO. 051 4472171
EMAIL:
Pieter@hmhi.co.za
REF:
P SCHUURMAN/rs/G22640
ATTORNEY
FOR DEFENDANT
M
VOLSCHENK
PHATSOANE
HENNEY INC
C/O
MARKGRAAF & KELLNER STR
WESTDENE
TEL
NO: 051 400 4025
REF:
MV/wp/THE110/0186
[1]
Paragraph 6 read with paragraph 12 of the Rule 37 Notice.
[2]
Neethling et al, Law of Delict, Fifth Edition,
page 3-5. Also see
https://www.mylexisnexis.co.za/Index.aspx
dated 18 May 2018
.
[3]
Definition of "municipality" substituted by s. 24 (b) of
P.N. 95 in PG 34 dated 24 June 2016.
[4]
Paragraph 5, 6 & 7 of the Particulars of
Claim and Exhibit A.
[5]
Neethling et al, Law of Delict, Fifth Edition,
page 23.
[6]
Herschel v Mrupe
1954 3 SA 464
A at 490 and Gouda
Boerdery BK v Transnet
2005 5 SA 490
SCA at 498.
[7]
Premier, Western Cape v Faircape Property
Developers Pty Ltd
2003 6 SA 13
SCA at 31-32.
[8]
Kruger v Coetzee
1966 2 SA 428
A.
[9]
K v Minister of Safety and Security
2005 ZACC 8
,
2005 6 SA 419
CC,
2005 9 BCLR 835
CC and Carmichele v Minister of Safety and Security
(Centre for Applied Legal Studies intervening)
2001 ZACC 22
,
2001 4
SA 938
CC,
2001 10 BCLR 995
CC, also reported at
2001 JOL 8613
CC.
Steenkamp NO v Provincial Tender Board of the Eastern Cape
2006 ZACC
16
,
2007 3 SA 121
CC,
2007 3 BCLR 300
CC, also reported at
2006 JOL
18364
CC at par 37. See also Le Roux and others v Dey (Freedom of
Expression Institute and Restorative Justice Centre as amici curiae)
2011 ZACC 4
,
2011 3 SA 274
CC,
2011 6 BCLR 577
CC, also reported at
2011 JOL 27031
CC.
[10]
Section 19 of the mentioned By-laws; see
paragraph [22] of this judgement.
[11]
Shaun Rhoode v The City of Cape Town 923341/2011[2017 ZAWCHC 160 29
June 2017], the City of Cape Town v Rhoode (A314/2017[2018]
ZAWCHC
49 (17 April 2018), Karlien van Vuuren v Ethekweni Municipality
(1308/2016)[2017] ZASCA 124 (27 September 2017), Swinburne
v Newbee
Investments PTY LTD (10514/06)[2010] ZAKZDHC 16; 2010 5 SA 296
(KZD).
[12]
See the test in paragraph 17 in the text.
17.1 Whether the
operating statute provides for a delictual claim for damages,
17.2 whether the
legislation's scheme is primarily about protecting individuals or
advancing public good,
17.3 whether the
public power conferred is discretionary,
17.4 whether
the imposition of liability for damages is likely to have a
"chilling effect" on the performance
of government
functions,
[13]
This is the yellow sign, Photos 1 and 3 of
Exhibit A.
[14]
Photos 2,4 and 5 of Exhibit C.
[15]
Afrox
Healthcare Bpk v
Strydom 2002 4 All SA 125 (SCA); 2002 6 SA 21 (SCA).
[16]
Johannesburg Country Club v Stott
2004 5 SA 511
(SCA), Swinburne v
Newbee Investments (Pty) Ltd 2010 4 All SA 96 (KZD); 2010 5 SA
296 (KZD).
[17]
Van der Westhuizen v Arnold
2002 6 SA 453
(SCA) par 13 to 23;
Walker v Redhouse
2007 4 All SA 1217
(SCA);
2007 3 SA 514
(SCA)
par 12; Swinburne v Newbee Investments (Pty) Ltd supra par
26-29.
[18]
Wonderland (Pty) Ltd v Botha
1999 1 All SA 411
(SCA) 415;
1999
1 SA 982
(SCA) 989; Afrox Healthcare Bpk v Strydom supra par 9.
[19]
Durban's Water Wonderland (Pty) Ltd v Botha supra 415 (All SA) ;
989 (SA); Afrox Healthcare Bpk v Strydom supra par
9; Van
der Westhuizen v Arnold
2002 4 All SA 331
(SCA);
2002 6 SA 453
(SCA) par 38.
[20]
Cardboard
Packing
Utilities
(Pty)
Ltd
v
Edblo,
Tvl
Ltd
1960
3
All
SA
34
(W);
1960
3 SA
178
(W);
Hughes
v SA Fumigation Co (Pty) Ltd
1961 3
All SA 327
(C);
1961 4 SA 799
(C); Bristow v Lycett
1971 4
All SA 225
(RA);
1971 4 SA 223
(RA) 235-240; Lawrence v
Kondotel Inns (Pty) Ltd
1989 1 All SA 178
(D);
1989 1 SA 44
(D)
53-54; Visagie v Transsun (Pty) Ltd 1996 4 All SA 702 (Tk) 720.
[21]
Payne
v
Minister
of
Transport
1995
4
SA
153
(C)
159-161;
Holm
v
Sonland
Ontwikkeling
(Mpumalanga)
(Edms)
Bpk
2011 JOL 26649
(GNP);
2010 6 SA 342
(GNP) par 18.
Weinberg
v
Olivier
1943
AD
181.
[22]
See paragraph [34].
[23]
Gallante v Dickenson
1951 2 SA 460
A;
Southern
Insurance Association Ltd v Danneberg
1976 3 All
SA 585
(A);
1976 3 SA 253
(A); Griffiths v Netherlands
Insurance Co of SA Ltd supra; Rondalia Versekeringskorporasie
van SA Bpk v De Beer
1976 3 All SA 612
(A);
1976 4 SA 707
(A);
Martindale v Wolfaardt supra 244; SAR&H v Reed
1965 3 SA
439
(A) 442-444; Roeloffze v M Ranchod & Sons (Pvt) Ltd
1972 4 All SA 130
(RA);
1972 4 SA 80
(RA) 85; Netherlands
Insurance Co of SA Ltd v Brummer
1978 4 SA 824
(A).