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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 947
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Odendaal v Govan Mbeki Municipality (41405/2011) [2016] ZAGPPHC 947 (18 November 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
18/11/16
CASE NO: 41405/2011
Reportable: No
Of interest to other
judges: No
Revised.
In the matter between:
HJ
ODENDAAL
Plaintiff
and
GOVAN MBEKI
MUNICIPALITY
Defendant
JUDGMENT
NONYANE. AJ:
[1] The plaintiff sues
the defendant for damages arising out of personal injuries he
sustained when he fell into an open manhole
situated on a property
owned by the Govan Mbeki Municipality (the defendant). The manhole is
on the pavement immediately adjacent
to a business called Jungle Inn
Pub and Grill Bed and Breakfast (hereinafter referred to as "Jungle
Inn") in Lesley.
The incident took place on the evening of 20
February 2009.
[2] At the commencement
of the trial, by agreement between the parties, the Court made an
order in terms of Rule 33(4) separating
the quantum from the merits.
The trial proceeded on the merits only. At the outset of the trial,
the parties agreed that the sole
question to be determined regarding
the merits is whether the plaintiff fell into the manhole or not.
[3] The plaintiff's
version is that he was walking on the pavement at night when he
suddenly fell into the open manhole. In support
of his version, the
plaintiff testified on his own behalf and called Mr Charles Jordan,
the owner of Jungle Inn, and his cousin,
Hendrik Odendaal.
[4] The plaintiff
testified that on the 20 February 2009 he went with his cousin to
Jungle Inn. He was driving a bakkie and they
parked it outside Jungle
Inn on the street next to the pavement. They, after a while, decided
to go and he reminded his cousin
that he must drive as it was now his
turn to drive the bakkie.
[5] He then went to the
bathroom and his cousin went to the bakkie. From the bathroom he
followed his cousin to the bakkie. He walked
to the passenger side of
the bakkie and he suddenly felt the ground giving in and he fell into
the manhole with his wallet and
phone in his hands. On realisation
that he has fallen into a sewerage hole, he then picked himself up,
grabbed and pulled himself
out of the manhole.
[6] He was covered with
sludge all over. He took off his clothes and walked naked to Jungle
Inn where he asked for soap and to use
their tap. He then washed
himself with Sunlight liquid while his cousin was pouring water,
contained in a bucket, on him. He testified
that his cousin had extra
clothes with him and he then put them on and they left the place.
[7] The owner of Jungle
Inn, Mr Charles Jordan, corroborated the plaintiff's testimony. In
his _testimony, he testified that the
manhole was open and there had
been incidents of people falling into the manhole. He further
testified that he once helped take
out a child who had fallen into
the manhole. He was concerned about the open manhole as it posed a
danger to his customers. He
reported it to the municipality but the
municipality failed to act. He further testified that he was informed
by his staff about
the incident when they sought permission from him
to allow the plaintiff to use the shower.
[8] Hendrik Odendaal, the
plaintiff's cousin, also corroborated the plaintiff's testimony that
on the day of the incident they were
together at Jungle Inn. He
testified that he did not see the plaintiff when he fell into the
manhole because he was already inside
the car. He only heard him
screaming and when he went out to check, he saw the plaintiff covered
with sludge. He testified that
the plaintiff took off his clothes and
used the Sunlight liquid and water from the tap of Jungle Inn to wash
himself.
[9] The defendant denies
that the plaintiff fell into the manhole. The defendant called Phetha
Alfred Mangena who works for the
defendant as a Biochemist Water and
Sewer.
[10] Mr Mangena was not
testifying as an expert witness but as the employee of the defendant.
His testimony was that the manhole
was not open as at the time of the
incident. He also testified that it would not be possible for the
plaintiff to have fallen into
the manhole and if indeed he had fallen
into the manhole, it would not have been possible for him to take
himself out.
[11] The defendant
contended that there had never been an open manhole in the area or
the immediate vicinity of the area where the
plaintiff alleged the
incident occurred. The defendant contended that it was not possible
for the plaintiff, being an adult person,
to have fallen into the
manhole, even if he intentionally attempted to jump inside, taking
into account the very small size of
the opening of the manhole.
[12] The defendant
contended that even assuming that the plaintiff were to fall inside
the manhole, the depth of the said sewerage
holding hole was about
2.5 metres down below the ground level which would have been
impossible for the plaintiff to get out without
the assistance of
equipment. The defendant further contended that the plaintiff would
have drowned due to the sewerage sludge inside
the drain hole and he
would have been severely affected by methane gas fumes with skin
infection.
[13] The defendant
through the pleadings, the pre-trial minutes and further particulars
for purpose of trial admitted that: the
manhole is situated on
municipal property; the pavement is used by pedestrians; that it has
a legal duty to ensure the safety of
pedestrians using the pavement
and to keep the manhole closed and safe and that there was a
foreseeability of harm to any person
walking on the sidewalk should
the defendant not take reasonable precautions to close the manhole.
[14] The defendant
further admitted that any causal negligence on its part would be
wrongful and unlawful and that a closed manhole
will prevent
incidents in respect of the public in general.
[15] The defendant in
argument suggested that the plaintiffs negligence contributed to the
damages suffered by the plaintiff and
the Court should apportion
damages. Contributory negligence and apportionment of damages have to
be specifically pleaded. These
were not pleaded by the defendant and
the defendant is accordingly not entitled to any apportionment.
[16] In the light of the
admissions made by the defendant, the issue that has to be decided is
whether or not the plaintiff fell
into the manhole. If the question
is answered in favour of the plaintiff the liability of the defendant
will ensue. I am satisfied
that the evidence of the plaintiff's
witnesses was credible and reliable. Their evidence was also
supported by the photographs
submitted in Court. Nothing suggests
that their evidence is questionable or unreliable.
[17] The cross
examination of the plaintiff's witnesses did not put any aspect of
their evidence in doubt nor did it enhance the
defendant's case. The
same cannot be said of the defendant's evidence. The evidence of the
defendant amounted to a mere denial
of what actually happened without
tendering any plausible supporting evidence. The version of the
defendant is such that it cannot
be believed.
[18] In the light of t
evidence adduced on behalf of the plaintiff and the admissions made
by the defendant I am satisfied that
the plaintiff has proved its
entitlement to the relief it seeks on a balance of probabilities.
[19] In the result, I
make the following:
a. The defendant is
liable to compensate the plaintiff in full for his proven .or agreed
damages arising from the incident that
took place on 20 February
2009.
b. The defendant is
ordered to pay the plaintiff s costs of suit including the costs of
the inspection
in loco,
the fess of Adv BP Geach SC and the
costs of W Naude, the plaintiff s expert.
___________________________
NONYANE AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH
AFRICA, GAUTENG
DIVISION, PRETORIA
Counsel for the
Plaintiff
:
Adv. B P Geach SC
Instructed
by
:
Salome Le Roux Attorneys
Tel
:
012 346 5227
Counsel for the
Defendant
:
Adv. Malowa
Instructed by
:
TMN Kgomo & Associates Inc
Tel
:
012 346 1346