Green v C-Way Computers CC (15639/12) [2014] ZAGPPHC 219 (13 March 2014)

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[2014] ZAGPPHC 219
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Green v C-Way Computers CC (15639/12) [2014] ZAGPPHC 219 (13 March 2014)

REPUBLIC
OF SOUTH AFRICA
IN
THE NORTH GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA,
PRETORIA
CASE
No.: 15639/12
DATE:
13 MARCH 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
JOHN
GREEN
..................................................................................................................
PLAINTIFF
and
C-WAY
COMPUTERS
CC
.
.......................................................................................
DEFENDANT
JUDGMENT
HIEMSTRA
AJ
[1]
On 15 July 2010 at or about 19:00, the
plaintiff, Mr John Green, a sixty-year old security officer employed
by a security company
in Standerton, was dispatched to 20 Princess
Street, Standerton in response to an alarm triggered at the premises.
The
building at the said address adjoins
the building on 22 Princess Street. 22 Princess Street is the
property of the defendant. I
shall refer to it as the “building”.
The plain­tiff, while conducting an investigation, heard a
scraping sound
from the building and went to investigate. He climbed
onto a veranda in front of the building and fell into a manhole. He
broke
his leg and ankle and instituted action for damages arising
from his injuries against the plaintiff.
[2]
Upon request of both parties I ordered
that the question of the defendant’s liability be separated
from the quantum of the
plaintiff’s damages in terms of Rule
33(4).
[3]
The building has a veranda along most of
its front facing Princess Street. The ve­randa is 0.8 m above the
pavement level and
a set of steps provides easy access to it. Behind
the veranda are shop windows and entrances to the building. At the
time of the
incident in question, there were metal railings at each
end of the veranda. At the front of the veranda, metal railings ran
for
about 1.5 m from the corners. The rest of the veranda was not
protected. The building was vacant and in a poor state of re­pair,

in particular the floor surface of the veranda, where many tiles were
missing or broken. Towards western end of the veranda, in
front of an
entrance, was a manhole. The manhole provided access to water pipes
running from inside the building to the municipal
sewage network. It
is common cause between the parties that the manhole is on the
premises of the defendant.
[4]
The plaintiff testified that he had
walked on the veranda to the western railings and looked around the
corner. He could not see
anything due to long grass on a va­cant
piece of land next to the building. He turned around to walk back,
but fell into the
open manhole.
Plaintiff had a torch with him, but did not use it. Counsel for the
de­fendant submitted that the plaintiff had
been at least
partially responsible for his own misfortune for not using his torch.
The plaintiff answered that he did not use
it, as it would have
exposed him to any delinquent. He also said that if one uses a torch
and thereafter switches it off, one suffers
a few moments of night
blindness. I take judicial notice of the fact that it is dark in
Standerton at 19:00 on 15 July.
[5]
The plaintiff said that on the evening
of the incident he had regarded the buildings on Princess Street 20
and 22 as part of the
same building. Counsel for the defendant
severely criticised this evidence, as it conflicts with the
plaintiffs particulars of
claim in which the addresses of both
premises are set out. This, according to counsel, makes it clear that
the plaintiff knew that
there were two addresses and that he had
trespassed on the defendant’s property.
Í
disagree. At the time of the
drawing of the particulars of claim, the plaintiff had established
that there are two addresses. He
said that when he visited the
addresses, he considered them to be one. Photographs of the buildings
show that they are adjoining.
It is eminently reasonable, especially
at night, to consider the buildings as one.
[6]
The plaintiff’s brother, Mr J.H.
Green, who is employed in a different capacity by the same security
firm, testified in support
of the plaintiff’s case. He took
photographs of the scene the day after the incident, and also later
after the plaintiff
had been dis­charged from hospital. It
appears from the later photographs that renovations had at that stage
commenced, in
that the outside of the building had been painted.
[7]
The plaintiff’s attorney, Mr
Rosier De Ville also testified on his behalf. He said that he had
spoken to the sole shareholder
of the defendant, Mr Marius Lubbe. The
gra­vamen of his evidence is that Mr Lubbe had admitted to him
that he had been aware
before the incident that the manhole had no
cover. He said that he had immediately thereafter written a letter to
his correspondent
in Pretoria, setting out the details of this
conversation with Mr Lubbe. However, the plaintiff did not discover
this letter, and
no explanation has been tendered for this omission.
I can therefore attach no weight to his evidence in this regard.
[8]
Mr Lubbe testified that he had purchased
the building from Mr and Mrs Schutte during January 2008 for his
computer business. He
was unable to renovate and cus­tomise the
building for his purposes immediately and only commenced therewith in
August or September
2010. The building was left unattended and vacant
for the whole period. Mr Lubbe testified that he had been aware of
the existence
of the manhole, but that it had been covered with an
iron lid when he purchased the build­ing. He had no reason to
further
concern himself with it as he had no reason to sus­pect
that the lid would be removed. He said that, in any event, the
building
was in a quiet part of the business district, with very few
passers-by. He had no reason to an­ticipate that anyone would
enter
onto the premises, especially at night.
[9]
Mr Lubbe said that he had visited the
building between the sale and the incident about 3 times. However, he
did not go onto the
veranda as he entered through steel doors next to
the veranda. He did not dispute that the manhole had been open on the
night in
question, but he did not know when the lid had been removed
and by whom He was asked by his counsel during his evidence-in-chief

when he became aware that the manhole had been open, he said that he
could not remember whether it was before or after the incident.

However, under cross-examination he was adamant that he only heard
about it when the plaintiff visited him at his office and told
him
about the accident. The implication of his evidence-in-chied is that
he might have been aware of the open manhole before the
incident, in
which case the question arises why he had not taken steps to have it
closed. I could have disposed of this issue on
the basis that he
might have misunderstood the question put by his counsel. Howev­er,
the same question was put to the defendant
in a question submitted on
behalf of the plaintiff to the defendant for the purposes of
preparation for the trial and he gave the
identical response. This is
problematic for the defendant, but not necessarily fa­tal. When
weighing up the probabilities in
this case, I shall attach due weight
to this issue. Even if Mr Lubbe knew about the open manhole, I still
have to decide whether
there rested a duty on him to ensure at all
times that it is closed.
[11]
Mrs
M. Marx was, together with her deceased husband, Mr Schutte, the
previous owner of the building. She and her late husband had

conducted two businesses from the building, namely a glass works and
a courier business. The entrance to the glass business was
on the
veranda right behind the manhole. The courier business did not have a
door on the street front, but an entrance for vehicles,
which was
closed with steel gates. She said that the manhole had always been
covered. However, it had been stolen on several occasions.
Each time
they had merely contacted the munici­pality, which immediately
replaced the lid free of charge. Later the municipality
dis­continued
this service and they had to purchase new lids. Mrs Marx was shown
the photographs of the building taken before
the renovations had been
effected by Mr Lubbe and was shocked by its dilapidated state.
[10]
The
plaintiff alleges that the defendant is liable on the grounds of his
omission to ensure that the manhole was covered. The point
of
departure is that an omission is not considered wrongful unless there
was duty to act positively. The law is reluctant to assume
too
readily the existence of a legal duty to act positively.
[1]
This principle was succinctly stated in Van Eeden v (formerly Nadel)
v Minister of Safety and Secu­rity
[2]
as follows:
“
An
omission is wrongful if the defendant is under a legal duty to act
positively to prevent the harm suffered by the plaintiff.
The test is
one of reasonableness. A defendant is under a legal duty to act
positively to prevent harm to the plaintiff if it is
reasonable to
expect of the defendant to have taken positive measures to prevent
the harm.”
Our
law reports are replete with dicta around the concept of
reasonableness, and a complete analysis by me will not add to the
existing learning on the topic. Reasona­bleness is a value
judgment the court is called upon to make, based on the legal
convictions
of the community. The question is whether the defendant
ought reasona­bly and practically to have prevented harm to the
plaintiff.
Courts are required to bal­ance several factors:
(a)
foreseeability and the possible extent of harm; (b) the degree of
risk that the harm will materialise; (c) the interests of
the
defendant and the community; (d) constitu­tional obligations; (e)
who was in control of the situation; (f) the availability
of
practical preventative measures and the chances of success; (g)
whether the cost of prevent­ing the harm is reasonably
proportional to the harm and (h) whether or not other practical and
effective remedies are available.
[3]
[12]
In
deciding this case, I shall consider those of the above factors that
find applica­tion to the present facts.
Foreseeability
and the possible extent of the harm
[13]
The question is not whether it was
foreseeable that the plaintiff or another securi­ty officer might
fall into the manhole during
an inspection at night. The question is
whether it was foreseeable that anyone might fall into the manhole at
any time. An open
manhole generally creates a dangerous situation. I
say ‘generally’ because it is not always dangerous. It
depends on
its locality and whether people would in the normal course
of affairs, or even only occasionally find themselves in its
vicinity.
If it is on a sidewalk where pedestrians normally walk, it
would certainly be foreseeable that someone might fall into it, even

in daylight. In the present case it was on private property on the
veranda of a derelict building where few people would find the
urge
or necessity to enter. The veranda was closed off on both ends with
railings, so that it could never be used as a short cut
anywhere. The
building was clearly empty and abandoned. Not even burglars would
have any interest in it. It also provided no shel­ter
from the
elements.
[14]
Not only must it have been foreseeable
that persons would find themselves near the manhole. The owner must
also have foreseen that
the lid might be stolen or re­moved for
some reason. Mrs Marx, the former co-owner, testified that during
their occupancy of
the building, the lid had been stolen several
times. That was her per­sonal experience, but I do not believe
anyone would necessarily
anticipate regular theft of such a cover.
Mrs Marx did not say whether or not she had informed Mr Lubbe of the
thefts.
[15]
Mr Lubbe saw the covered manhole when he
inspected the building before he purchased it and I accept that it
must have appeared completely
innocuous. He said that he had walked
over it towards the entrance. The law does not require special
prescience from the owner
of such a potentially dangerous structure.
[16]
As far as the possible extent of the
harm that had to be foreseen in order to found an action based on an
omission, it is clear
that the harm, if it occurred, could be
considerable, as was the case in the present matter.
The
degree of risk that the harm will materialize
[17]
This is closely connected to the general
foreseeability factor. For the reasons set out above, I am of the
opinion that the risk
that someone would fall into the manhole in the
present circumstances was remote.
The
interests of the defendant and the community
[18]
It is not in the interests of the
defendant or the community that they be saddled with liability for
omissions where they had no
duty to act positively. Mr Lubbe was an
unsuspecting purchaser of a building which posed no obvious dangers
to the public.
The
availability of practical preventative measures and the chances of
success; whether the cost of preventing the harm is reasonably

proportional to the harm and whether or not other practical and
effective remedies are available
[19]
These factors are conveniently considered under one heading. There
are obvi­ous preventative measures that can be taken.
The obvious
one is to ensure that the manhole is covered at all times. Whether
that is practical and reasonably proportional to
the potential harm,
is not obvious. To achieve this, the premises will have to be guarded
24 hours per day. In view of what I have
already found, namely that
the probability that the harm would materialise is remote, I do not
believe that it is rea­sonable
or proportional to require from
the defendant to take such measures.
[19]
In the circumstances, I find that the
defendant has not acted wrongfully.
In
the result, the plaintiff’s claim is dismissed with costs.
J
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
heard: 5 March 2014
Date
of judgment: 13 March 2014
Counsel
for the Plaintiff: Adv.D.J. Venter
Attorney
for the Plaintiff: Rosier De Ville Attorneys,
do
Kriek Wassenaar & Venter Postnet
Suite #A7,
Private
Bag X592
Silverton
0127
Tel:
012 803 4719
Ref:
J Kriek/ldc/HV0009
Counsel
for the Defendant: Adv H.M. Barnardt
Attorney
for the Defendant: Christo Coetzee Attorneys
1009
Stanza Bopape Street
Hatfield
Pretoria
Tel:
012 342 1930
Fax:
012 342 3357
Ref:
C Coetzee/se/QC0002
[1]
LAWSA, 2
nd
edition, Volume 8. Part 1. para 58
[2]
2003 (1) SA 389
(SCA) par 9
[3]
LAWSA, supra, par 65 at page 102. together with the authorities
referred to.