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[2015] ZAKZDHC 38
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Naidoo v Trustees for the Time Being of the Habib Arbee Family Trust (12544/2010) [2015] ZAKZDHC 38 (12 May 2015)

IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 12544/2010
BASMATHY
NAIDOO
.......................................................................................................
PLAINTIFF
and
THE TRUSTEES FOR
THE TIME BEING OF THE
HABIB ARBEE
FAMILY
TRUST
..................................................................................
DEFENDANT
JUDGEMENT
Delivered: 12 May
2015
MBATHA
J
[1]
The Plaintiff is Basmathy Naidoo, an adult female of Flat 2 Alpine
Road, Durban.  The Defendant is Habib Arbree Family
Trust of 183
Alpine Road, Springfield, Durban.  The names of the trustees
have been amended and they appear in exhibit “A”.
[2]
At the commencement of the trial and by consent between the parties,
the Court split the issues and ordered that the merits
of the
liability be determined first.  In regard to the merits the
Court had to determine the question of wrongfulness and
if
established, the issue of fault (
culpa
).
In respect of
culpa
,
the Court had to determine if there was any contributory negligence
on the part of the Plaintiff.
[3]
Exhibits “B” and “C” being various photos of
the rooftop of the building where the accident happened
were handed
in as well as exhibit “D” being a letter of demand
forwarded by the Plaintiff’s erstwhile attorneys
to the
Defendant.
[4]
It is common cause in this action that on the 10
th
of November 2008, on the rooftop of the premises at 183 Alpine Road,
Durban, the Plaintiff fell into the bathroom from the skylight
and
sustained severe injuries.  It is also common cause that at the
time when this happened the Plaintiff was a tenant in
flat number 2
in the building owned by the Defendant.
[5]
The Plaintiff avers that she sustained injuries as a result of the
negligence on the part of the Defendant, in that the Defendant
failed
to cover the glass/skylight with a metal grill, that the Defendant
failed to place any warning signs at all indicating that
the skylight
was covered with glass, failed to take into account that there was a
risk of the glass breaking if one stepped on
the cover thereof and
that this resulted in the Plaintiff sustaining injuries and suffering
damages to a tune of R429 000,00.
Accordingly,
the Defendant denies that they were negligent at all.  It avers
that the danger was within the knowledge of the
Plaintiff and she was
the author of her misfortunes.
[6]
In summary, the Plaintiff’s evidence is that on the rooftop
there are living quarters for the employees of the Defendant.

The roof which has washing troughs and washing lines is accessed
through the stairs leading to it.  The washing lines are
within
the vicinity of skylights, in fact, some of the lines run over the
skylights.  On this day in question, she had moved
from the
troughs with her washing, which was in a bucket and moved to the
washing lines to hang it.  The washing had been
drip dried and
ready for hanging.  She had a top on her hand that was ready to
be hanged.  What caused her to fall is
that she stepped on the
block surrounding the skylight and put her other foot on the same
structure, ready to hang the top on her
hands, but suddenly fell down
through the skylight and landed inside the neighbour’s
bathroom.  She denied tripping
on anything nor falling onto
anything that was on the rooftop, though there are various loose
objects on the floor of the rooftop,
including plastic buckets and
crates.
[7]
The Plaintiff called only one witness in support of her case, her
daughter, Samantha Naidoo, who corroborated her evidence in
that they
had never been prevented from going to the rooftop, that they had no
knowledge that the top of the skylight was made
of glass nor that it
was a skylight.  The skylight in their unit sounds like wood,
whenever she cleaned it with a mop and
supported the Plaintiff’s
version that the skylight is not visible inside their unit to show
that it is made of glass.
[8]
The Defendant called various witnesses in support of its case
including Mrs Mohamed, the Plaintiff’s neighbour, whose

evidence was that the Plaintiff knew that the skylights were made of
glass therefore dangerous.  Her evidence was further
that Mrs
Naidoo had informed her that she had slipped and fell on the
skylight.
8.1
The son of Mrs Mohamed, Mr Uweiss, was also called as a witness.
His evidence was that he had repaired the very same skylight
when it
had a crack, painted it in a red oxide colour and used a white colour
on top to write a warning for people not to step
on it.
8.2
Mr Arbee, a trustee of the Defendant, was also called as a witness.
His evidence was that the Naidoo’s unit also
had a glass
skylight but when they moved in, it was painted to give them
privacy.  He informed the Court that tenants were
not allowed on
the rooftop save for his employees who lived there.  They were
also not permitted to use the washing lines
on the rooftop.  He
did not erect the steel poles which held in place the washing lines.
There were gates leading to
the rooftop and the tenants’ gate
was supposed to be locked to prevent them from accessing the
rooftop.  He also had
been upset prior to the incident about the
Plaintiff’s washing that had been hung on the compressors,
which affected the
air-conditioning system in the supermarket below
and he had made her aware of his disgust about her conduct.
8.3
The last witness called by the Defendant was Mr Mabhika, an employee
of the Defendant, who lives at the quarters on the rooftop.
He
says that the washing lines were put up by the employees but not the
steel poles.  The steel poles have always been there
and Arbee
knew about them.  His version is that on the day in question he
saw the Plaintiff put her foot on the skylight,
warned her and moved
into his room, and then he left for work as she was rinsing a mop on
the troughs.
[9]
In the evaluation of the evidence presented before me, I have to
consider if the Defendant allowed a dangerous situation to
persist
and ought to have taken steps to safeguard against it.
[10]
This is a
delictual
claim, whereby it is trite that certain
requirements need to be proved:-
(a)
the commission or omission of an act (the
actus reus
),
(b)
which is unlawful or wrongful,
(c)
committed negligently or with a particular
intent (
culpa
);
(d)
which resulted in or causes harm
(
causation
);
and
(e)
the suffering of injury, loss or damage.
On
delictual
cases, the test is objective.
[11]
The Defendant allowed people to live on the rooftop with the full
knowledge of the existence of glass skylights.  It was
not
disputed that there are living quarters for his employees on the
rooftop.  Arbee’s evidence is that tenants are
not allowed
access to the rooftops, irrespective that there were two (2) sets of
steps leading to the rooftop, which were not fully
secured.
However, Mrs Mohamed stated that children had access to the rooftop
and that they used the rooftop to wash and hang
their laundry.
Mrs Mohamed’s son, Mr Uweiss’s evidence was also that he
also goes to the rooftop to hang his
washing about three (3) times a
week.
[12]
This rooftop was not a forgotten place.  Mr Arbee received
complaints about concerns of the tenants that there were people

peeping through the skylights and that there were fears of
housebreakings through the skylights.  This was a clear
indication
that there was a frequent presence of people on the
rooftop.  Mr Arbee had a problem about Mrs Naidoo hanging her
washing
over the air conditioners’ compressors.  These
were all the signs that should have made him aware of the ticking
time
bomb.  Irrespective of these signs, he still did not put
any warning signs either at the entrance, the floor, walls or any

other place on the rooftop warning people of a potential danger of
walking on the glass skylights.  The danger was not only
to the
tenants but on anyone who had access to the rooftop.
[13]
Mr Arbee denied having put the steel poles that secured the washing
lines.   Mr Mabhika’s evidence was that
they were
there when they put on the washing lines.  These steel poles
that stand at the exit points are next to the skylights
and the
washing lines run over them.  It cannot be conceived that the
employees had brought such expensive poles, secured
them in concrete
without the knowledge and approval of the Defendant.  My view is
that the person who could put a permanent
structure on the premises
was only the Defendant.  The way that the steel poles were
installed indicates a degree of recklessness
on the part of the
Defendant, who ought to have foreseen that there was a danger that
someone may step on the glass and get seriously
injured.  It is
my view that the landlord was always aware of the existence of these
steel poles, the washing lines running
over them and the danger
imposed by that.  Mr Arbee had been up there when there was a
problem with the compressors, if he
had not installed them, he would
have ordered that they be removed with immediate effect.
[14]
The presence of plastic buckets, crates and other objects on the
floor as they appear in exhibits “B” and “C”

indicate that there is a presence of human traffic in the rooftop.
It was suggested to Mrs Naidoo that she could have tripped
from those
objects, slipped and fell down.  I do not agree as these are
colourful objects, which are visible to any person
walking on the
rooftop.  The floor is made of dry concrete.  It does not
appear to hold puddles of water as it is exposed
to the natural
elements.  I accept Mrs Naidoo’s evidence that her washing
was not dripping of water as it was in a bucket,
which is not
disputed, and that she had wrung it before placing it on the bucket.
[15]
Mr Uweiss’s evidence is that the skylight was painted over and
he had put a warning sign on it.  He conceded that
it was a long
time ago and that the sign had faded.  This is confirmed by the
debris on exhibit “C3”, which appears
to be faded.
Furthermore, no attempt has been made by the Defendant to show that
on the broken slabs of glass there are any
visible letters of the
warning sign on it.  I accept that there was no way that the
Plaintiff had knowledge that there was
glass under the faded paint.
It was never suggested to Samantha that she was told that there was
glass underneath when she
testified before this Court.  Mr Arbee
also stated that a discussion took place between him and Samantha
when she came to
the shop; this was also never put to Samantha.
There is no evidence indicating that the Plaintiff had knowledge of
the existence
of glass on that skylight.
[16]
Mr Arbee’s evidence had versions which were not put to the
witnesses, which in my view is an indication that he was tailoring

his evidence to the questions put to him.  I gained the
impression that he was grabbling at straws.  His evidence was

that the washing was not to be put on the compressors by Mrs Naidoo,
it does not say that there must be no washing done on the
rooftop
because of the existing danger.  I accept that the tenants were
only told after this incident that they should not
access the
rooftop.  On exhibit “B1” one of the steel poles lie
down in a very dangerous and awkward position,
has never been fixed,
thus creating another potential danger to the people who have access
to the rooftop.
Uweiss’s
evidence was clear in that the rooftop was used for laundry purposes
and for hanging the washing, everyone was allowed
access thereto, the
landlord was made aware of the cracked glass, the steel poles holding
the washing lines were always there and
that he had seen Arbee and
his brother on the rooftop.
[17]
Mrs Mohamed also stated that the rooftop was used for hanging the
washing.  Furthermore, that the paint had peeled off,
light
filtered in at the time when Mrs Naidoo fell through.  The
evidence of Uweiss and Mrs Mohamed confirms the evidence
of the
Plaintiff in a material respect, in that as tenants they were allowed
to use the rooftop.
[18]
Arbee introduced a lot of new facts in his evidence which were not
put to the Plaintiff and her witness in trying to shift
the blame to
the Plaintiff.  He was also aware that the gate was never locked
at all times, and this gave easy access to the
rooftop.
[19]
Mabhika’s evidence cannot be correct when he said he saw her
put her foot on the skylight, warned her, left for his quarters
and
when he emerged again she was rinsing the mop on the troughs as by
then she had already fallen through the skylight.
He lives up
there permanently, but he did not take notice of the paint on the
skylight.  This confirms that this warning was
not visible to
the naked eye.  The danger posed by the skylights was not only a
threat to the tenants but to all that had
access to the rooftop,
including Mabhika.
[20]
Mr Frost on behalf of the Defendant submitted that in her letter of
demand, exhibit “D”, the word “slipped”
had
been used.  There is no evidence before this Court suggesting
that she slipped.  The same applies to the reference
to the
skylight as an air vent.  Mrs Naidoo is a lay person and the
misuse of a word by her ex-attorneys should not be attributed
to her.
[21]
The Defendant’s argument is that she failed to take the
necessary precautions and ought to have exercised some degree
of care
as she had ignored a warning by Mabhika and others.  It was also
submitted that she had prior knowledge of the danger,
disregarded
warnings and was imprudent.  In short, she was not supposed to
be there and there was contributory negligence
on her part.
[22]
I was referred to various authorities by both parties, which I have
all considered.  I am relying on
Kruger
v
Coetzee
[1]
to establish if the Plaintiff has established the element of fault
where Holmes JA at page 430E-G held that:-
“
For
purpose 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 occurrences; and
(b)
The Defendant failed to take such
steps.  This had 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.”
[23]
I will apply these principles to the relevant facts of this case.
In applying the test for negligence as stated in abovementioned
Kruger v Coetzee
judgment, it is my view that the incident was reasonably foreseeable,
that reasonable steps could have been taken to prevent the
occurrence
of the incident and that the Defendant failed to take steps to
prevent the occurrences of the incident.  On the
facts of the
case, the Plaintiff has proved the requirements of
cupla
.
[24]
The Defendant referred the Court to
Ablort-Morgan
v White Bank Farms (PTY) LTD
[2]
,
a full bench decision by the Eastern Cape High Court, where the Court
on page 536 (D-E) stated as follows:-
“
He
was thus a normal adult with no idiosyncrasies likely to make him
more accident-prone than the ordinary run of people.

Ablort-Morgan knew this.  He was, accordingly, entitled to
expect the plaintiff to make ‘a given degree of care of
himself’, per De Villiers JP in Cecil v Champion Ltd
1933 OPD
27
at 31.  Ablort-Morgan had no reason to think that the pit
would not be observed by a normal person entering the workshop.

Sun was shining into the room through the two windows on the eastern
wall and the door was partly ajar.  It was light enough
for him
and the plaintiff to look for the L-end key, which is about four
inches long, without requiring any artificial light.
He had no
reason, so he says, to think that the plaintiff had not seen the
inspection pit on entering the workshop.”
The
Plaintiff’s case is not an open pit case like in the
Ablort-Morgan case.  Had the Plaintiff tripped on any visible

object and fell in an open pit in broad daylight, the position taken
by this Court would have been different.
[25]
In the matter of
Cape
Town Municipality v Bakkerud
[3]
,
besides considering the issue of the liability of the Municipality,
it also considered whether the Appellants’ failure to
repair
the holes constitutes an unlawful act or omission and whether the
Appellant was negligent.  In the Bokkerud case, the
Appellant
conceded that she was aware of the holes in question and that she
stepped into the hole because she must have been thinking
about other
things.  This is completely different from the facts of this
case.  The situation here was, I would say,
more volatile as it
was not obvious to the naked eye and there were no warning signs.
I cannot find that Mrs Naidoo was to
any degree to blame for the
damages she suffered, in the light thereof.
[26]
The criticism meted to Mrs Naidoo as not being a good witness cannot
be accepted.  The Defendants’ witnesses were
the ones who
were unsatisfactory witnesses, in particular Mr Arbee, as they
contradicted each other materially and tailored the
evidence to suit
their defence.
[27]
In
Swinburne
v Newbee Investment (PTY) LTD
[4]
,
the Court dealt with a similar scenario to the one before me.  A
tenant in the Defendants’ building sustained injuries
when he
slipped and fell some distance off a flight of stairs leading to his
flat.  The Court held that there were a number
of instances
where our Courts have imposed a legal duty upon the owner of property
in relation to the condition and use of staircases,
such a
Spencer
v
Barclays
Bank
[5]
,
which confirmed that, where the landlord provided a staircase to
occupiers of flats as a means of entry into and exit out of their

flats, he was under a legal duty to see that the staircase was not
dangerous.  The stairs in the present case were the obvious
and
natural route for tenants, and others visiting the premises, to use
in order to gain access to and exit the flats, and accordingly
the
Defendant owed Plaintiff a legal duty to ensure that the stairs were
safe to be used. (Paragraphs 13 and 14 at 303F –
204G.)
[28]
The Court further held that the Defendant’s legal duty having
been established, the next question which arose was whether
a
reasonable person, in the position of Defendant, would have:-
(i) foreseen the
possibility of his conduct leading to injury to others; and
(ii)
would have taken reasonable steps in guarding against such injury.
The
nature of the surface of the staircase suggested that the material
such as sand and water could render it slippery.  A
reasonable
person in the position of the defendant would therefore have foreseen
the possibility of someone slipping on the staircase,
losing their
balance and falling.  The provision of a handrail was the
obvious step in guarding against such injury, and failing
to do so
was negligent on the part of the Defendant.  (Paragraphs 15 and
19 at 204G-H and 306C-E.)
[29]
Consequently, it is my view that the Defendant acted negligently as a
result that the Plaintiff suffered damages.  It
should not have
happened if the Plaintiff had taken reasonable and necessary
precautions.  I also find that there was no contributory

negligence on the part of the Plaintiff.
[30]
In the result the order that I make is as follows:-
(a) The Defendant is
ordered to pay the Plaintiff such damages as either agreed or as the
Plaintiff may establish at trial.
(b) The Defendant is
ordered to pay the Plaintiff’s costs of hearing to date.
_______________
MBATHA
J
Date
of hearing : 10 December 2014
Date
delivered: 12 May 2015
Appearances
:
For
the Applicant : Adv. Harrison
Instructed
by: Mooney Ford Attorneys, Durban
For
the Respondents : Adv. Frost
Instructed
by : Audie, Botha Attorneys, Durban
[1]
[1966]
2 All SA 428 (A).
[2]
1988
() SA 531 at page 536.
[3]
1997
(4) SA 356.
[4]
2010
(5) SA 296
(KZD), 2010 (5) DS 295 KZD.
[5]
1947
(3) SA 230
(T).