Moqhaka Municipality v Mariti (A227/2007) [2009] ZAFSHC 41 (2 February 2009)

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[2009] ZAFSHC 41
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Moqhaka Municipality v Mariti (A227/2007) [2009] ZAFSHC 41 (2 February 2009)

FREE
STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.:
A227/2007
In the matter between:-
MOQHAKA
MUNICIPALITY
Appellant
and
M.
A. MARITI
Respondent
_______________________________________________________
HEARD
ON:
2
February 2009
_______________________________________________________
CORAM:
C.J.
MUSI, J et MOLOI, AJ
JUDGEMENT
BY:
C. J. MUSI
DELIVERED
ON:
[1] This
is an appeal against a judgment by the magistrate Kroonstad. The
magistrate found that the appellant’s act or omission
wrongly and
negligently caused the respondent to suffer damages. The magistrate
further found that the appellant was 100% negligent.
[2] The
respondent made the following allegations in his particulars of
claim:
“
1. Die Eiser is MA MARITI, ‘n
meerjarige man woonagtig te Symmonsstraat 55B, Kroontad.
2. Die Verweerder is MOQHAKA
MUSIPALITEIT, ‘n Plaaslike owerheid bekleë met
regspersoonlikheid ooreenkomstig die betrokke
wetgewing handelende
met plaaslike owerhede.
3. Gedurende
Februarie 2004 het werknemers van Verweerder handelende in die
uitvoering van hulle dienste en pligte met Verweerder
sekere herstel
werk gedoen aan ondergrondse pype en / of bedrading te Symmonsstraat,
Kroonstad.
4. Sodanige herstel werk het behoef
die grawe van slote in Symmonsstraat voor Eiser se woonplek.
5. Voormelde
werknemers het opsetlik alternatiewelik nalatiglik versuim om die
betrokke slote tot so ‘n mate te bedek na werk
gestaak is die
middag van die 18de Februarie 2004 dat Eiser toegaan kon verkry tot
sy eiendom met sy motorvoertuig.
6. As gevolg van
voormelde versuim deur die werknemers van Verweerder was Eiser
verplig om sy voertuig die nag van die 18de tot
19de Februarie 2004
in die straat
voor sy woonplek geleë te Symmonsstraat 55B te laat staan. ‘n
Inbraak is die betrokke nag in die voertuig gemaak en is
goedere
gesteel en skade aangerig aan die betrokke voertuig gesteel en skade
aangerig aan die betrokke voertuig in die bedrag van
R6 364.94.
7. Alternatiewelik
het Verweerder se werknemers ‘n regsplig gehad om toe te sien dat
enige grondwerke wat hulle uitgevoer het
op die voormelde datums en
plek in so ‘n mate herstel is dat Eiser kon toegang kry tot sy
woonplek met sy voertuig ten einde
die voertuig veilig kon toesluit
vir die betrokke nag.
8. Ten spyte van sodanige regsplig het
hulle geweier en /of versuim om die nodige te doen. Die nodige
aanmaning ingevolge die wet
op beperking van regsgedinge is aan die
Verweerder gestuur maar het Verweerder ten spyte van die verstryking
van 30 dae versuim
en / of geweier om die geëisde bedrag te
betaal.
WESHALWE
SMEEK EISER OM VONNIS VIR:
1. Betaling van die
bedrag van R6 364.90 plus a tempora morae (sic).
2. Koste in die geding;
3. Verdere en / of alternatiewe
regshulp.
[3]
The
appellant only admitted paragraphs 1 and 2 (the parties) of the
particulars of claim. The rest of the allegations were denied.
The
appellant also pleaded that the respondent was 100% negligent
alternatively that he was contributory negligent.
[4] In response to a
request for further particulars the respondent stated that his
property is fenced and that his vehicle
“
word veilig binne sy erf in die
binnekant van ‘n omheining toegesluit.”
Seemingly there is an
enclosure on the property in which the car is parked. He also stated
that the quantum was calculated as follows:
Panasonic Car radio R2
100.00
Sony loudspeakers R
599.00
Cobra tweeter R
70.00
Adidas bag R
695.95
Track suit R
899.95
Damage to vehicle R2
000.00
[5] During the trial the
parties agreed that only the issue of liability should be adjudicated
upon and that quantum should be determined
at a later stage. After
the magistrate’s findings on the merits the appellant admitted the
quantum.
[6] The
facts of this case are deceptively simple. Only the respondent
testified during the trial. He testified that he resides
at 54
Symonds Street, Kroonstad. He is employed by the South African
National Defence Force. A few days before 18 February 2004,
he
called the appellant to complain about a damaged water pipe.
[7] On
18 February 2004 he went to work. On his return from work between
21H00 and 22H00 he saw that a trench was dug in front
of his
driveway. As a result thereof he could not drive his car onto his
premises. He could also not park his car at his neighbour’s

premises because there was no space. He was forced to park his
vehicle in the street. The next morning he discovered that one
of
his vehicle’s windows was broken and that the items mentioned in
paragraph 4 above were removed from the vehicle.
[8] On 19 February 2004
he and a certain Mr Pretorius assisted by other people closed the
trench. Nobody from the appellant came
to enquire anything about the
closure of the trench.
[9] Before
they closed the trench he saw that the water pipe was repaired and
according to him the work was completed. All that
had to be done was
to close the trench. He further testified that the appellant knew
about the water pipe problem because it supplied
them with water from
a water tank.
[10] During
cross-examination he stated that he did not think about removing the
other items from his car, when he parked it in
the street, but he
could not remove the car radio and speakers.
[11] Mr
Cronje
,
on behalf of the appellant, argued that the respondent did not allege
in his summons that the occurrence of the loss was foreseeable
and
that the conduct of the appellant was wrongful. He further argued
that the respondent did not show a causal link between the

appellant’s act or omission and the damage.
[12] Mr
Khang, on behalf of respondent
,
argued that there was a legal duty on the appellant to close the
trench; that it acted wrongful by not doing so after completing
the
repair work, that the appellant created a new source of danger by
means of its positive act of digging the trench and its failure
to
eliminate the danger resulted in the damages that the appellant
suffered.
[13] The
particulars of claim do not allege that the appellant acted wrongful.
It is only alleged that the appellant’s omission
was intentional
alternatively negligent. Both these speak to fault and not
wrongfulness. It is trite that the plaintiff in a
delictual claim
must allege and prove that the act / omission of the respondent
wrongfully and negligently caused the damage/ loss.
See
Lillicrap,
Wassennar & Partners v Pilkington Brothers
1985 (1) SA 497
A at 496 I to 497 A;
Local
Transitional Council of Delmas and Another vs Boshoff
2005(5) SA 514(SCA) at paragraph [23].
[14] The
appellant did not raise an exception to the pleadings in the court a
quo. It is in any event clear that the respondent
presented and
argued its case based on all the elements for delictual liability.
The appellant also presented its case along the
lines of specifically
disputing wrongfulness. The appellant was not prejudiced. Mr Cronje
did not allege any prejudice. This matter
although not properly
pleaded was fully canvassed during the trial. There being no
exception raised by the appellant, in the court
a quo, the magistrate
was fully justified in continuing with the matter – see rule 17 of
the Magistrate’s Courts Rules.
[15] The
appellant denied that it dug the trench. There is no direct evidence
as to who dug the trench. Only the plaintiff testified.
He was not
discredited as a witness. In fact, his version was not seriously
disputed during cross-examination. There is no reason
to reject his
version. I accept his evidence.
[16] On
his evid
ence
the following facts emerge: A water pipe was damaged. He called the
appellant to repair the water pipe. The main water supply
was
disconnected. The appellant supplied them with fresh water. On the
day that the trench was dug in front of his gate the water
pipe was
repaired. It is highly unlikely if not preposterous to postulate that
someone else could benevolently repair a water pipe
on behalf of the
appellant without any mandate. The appellant did not allege that it
engaged an independent entity or person to
repair the pipe. It is
the appellant’s function to supply portable water systems and to
render public work relating thereto.
See section 84(1)(b) and (n) of
the
Local
Government Municipal Structures Act
,
No117 of 1998.The inference is ineluctable that the appellant’s
employees, acting in the cause and scope of their employ, dug
the
trench. The magistrate’s finding in this respect is in my view
unassailable.
[17] The
omission to close the trench was preceded by a positive act of
digging it. Mr Cronje correctly argued that the act of
digging the
trench was not wrongful. The enquiry, unfortunately, does not end
there. The omission to close the trench is what
is central to the
enquiry at this stage. The allegation is that, that conduct was
wrongful. Was there a legal duty on the appellant?
In
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
(SCA) at paragraph [12] Scott JA said the following:
“
It is now well
established that wrongfulness is a requirement for liability under
the modern Aquilian action. Negligent conduct
giving rise to loss,
unless also wrongful, is therefore not actionable. But the issue of
wrongfulness is more often than not uncontentious
as the plaintiff’s
action will be founded upon conduct which, if held to be culpable,
would be prima facie wrongful. Typically
this is so where the
negligent conduct takes the form of a positive act which causes
physical harm. Where the element of wrongfulness
gains importance is
in relation to liability for omissions and pure economic loss. The
inquiry as to wrongfulness will then involve
a determination of the
existence or otherwise of a legal duty owed by the defendant to the
plaintiff to act without negligence:
in other
words to avoid negligently causing the plaintiff harm. This will be
a matter for judicial judgment involving criteria of reasonableness,

policy and, where appropriate, constitutional norms. If a legal duty
is found to have existed, the next inquiry will be whether
the
defendant was negligent. The test to be applied will be that
formulated in Kruger v Coetzee, involving as it does, first,
a
determination of the issue of foreseeability and, second, a
comparison between what steps a reasonable person would have taken

and what steps, if any, the defendant actually took. While
conceptually the inquiry as to wrongfulness might be anterior to the

enquiry as to negligence, it is equally so that without negligence
the issue of wrongfulness does not arise for conduct will not
be
wrongful if there is no negligence. Depending on the circumstances,
therefore, it may be convenient to assume the existence
of a legal
duty and consider first the issue of negligence. It may also be
convenient for that matter, when the issue of wrongfulness
is
considered first, to assume for that purpose the existence of
negligence. The courts have in the past sometimes determined
the
issue of foreseeability as part of the inquiry into wrongfulness and,
after finding that there was a legal duty to act reasonably,

proceeded to determine the second leg of the negligence inquiry, the
first (being foreseeability) having already been decided.
If this
approach is adopted, it is important not to overlook the distinction
between negligence and wrongfulness.”
[18] Legal
duty in relation to wrongfulness should not be confused with duty or
legal duty in context of the test for negligence.
See
McIntosh
v Premier, KwaZulu Natal and Another
2008 (6) SA 1
(SCA) at paragraph [12].
[19] The
question is therefore whether there was a legal duty on the appellant
to do something to avoid the risk of harm eventuating.
In
Halliwell
v Johannesburg Municipality Council
1912 AD 659
at 672 it was put thus:
“
For the decision
of the present dispute it is sufficient to say that where in
consequence of some positive act, a duty is created
to do some other
act or exercise some special care so as to avoid injury to others,
then the pers
on
concerned is under Roman Dutch Law liable for damage caused to those
to whom he owes such duty by an omission to discharge it.”
[20]
The
appellant dug the trench, repaired the water pipe and left the trench
open in front of the respondent’s driveway. The appellant
was
informed about the broken water pipe, a few days before it was
repaired. The appellant did not inform those affected, especially
the
respondent, when the water pipe would be repaired. When it became
clear that a trench would be dug right across the respondent’s

driveway rendering access to his premises,by car, impossible no
alternative arrangements were made. It should have been clear
to the
appellant that the respondent would not be able to gain access to his
premises with his car whilst the trench was left open.
The appellant
should therefore have foreseen that the owner of the house or any
person staying there would not be able to drive
onto those premises.
The result of this could be that those persons would have to find
alternative parking for their vehicles
or leave them in the street
until they could gain access to the premises. The appellants could
easily have erected a ramp across
the trench to enable the respondent
to temporarily gain access to his premises where he could park his
car in a safe place. The
appellant by its prior conduct created a
new source of danger or engaged in activity that is potentially
noxious. See
Silva’s
Fishing Corporation (Pty) Ltd v Maweza
1957 (2) SA 256
(AD) at 261 E – G,
Halliwell
v Johannesburg Municipality Council
(
supra
)
at 673. In the circumstances of this case, there was a legal duty on
them to take reasonable steps to avoid harm. As pointed
out above
they did not. In my view, the appellant’s omission was wrongful.
[21] In
Minister
of Safety and Security and Another v Carmichele
2004 (3) SA 305
at paragraph [45] Harms JA reaffirmed and elaborated
on the well thumbed and oft quoted test for negligence. He stated it
thus:
“
[45] The test for determining
negligence is that enunciated in Kruger v Coetzee:
‘
For the purposes
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 … and causing him …
loss; and
(ii) would take reasonable steps to
guard against such occurrence; and
(b) the defendant failed to take
such steps’.
But
‘
it should not be overlooked that in
the ultimate analysis the true criterion for determining negligence
is whether in the particular
circumstances the conduct complained of
falls short of the standard of the reasonable person. Dividing the
inquiry into various
stages, however useful, is no more than an aid
or guideline for resolving this issue.
It is probably so that there can be no
universally applicable formula which will prove to be appropriate in
every case.’
And
‘
it has been recognised that, while
the precise or exact manner in which the harm occurs need not be
foreseeable, the general manner
of its occurrence must indeed be
reasonably foreseeable’.
Further
‘
In considering
this question [what was reasonably foreseeable], one must guard
against what Williamson JA called “the insidious
subconscious
influence of ex post facto knowledge” (in S v Mini
1963 (3) SA 188
(A) at 196 E – F). Negligence is not established by showing merely
that the occurrence happened (unless the case is one where
res ipsa
loquitur), or by showing after it happened how it could have been
prevented. The diligens paterfamilias does not have
“prophetic
foresight”. (S v Burger (supra at 879 D).) In Overseas Tankship
(UK) Ltd v Morts Dock & Engineeering Co Ltd
(The Wagon Mound)
[1961] UKPC 1
;
1961 AC 388
(PC) ([1961]
[1961] UKPC 1
;
1 All ER 404
Viscount Simonds said at 424
(AC and at 414 G – H (in All ER):
“
After the event,
even a fool is wise. But it is not the hindsight of a fool; it is
the foresight of the reasonable man which alone
can determine
responsibility.”
(Footnotes
omitted).
[22] When
applying the test for negligence, in this case, I must be mindful of
the fact that the appellant is a public authority.
In assessing the
evidence in relation to the appellant’s negligence, if any, I am
enjoined to also ensure that:
“
undue demands
are not placed upon public authorities and functionaries for the
extent of their resources and the manner in which
they have ordered
their priorities will necessarily be taken into account in
determining whether
they
acted reasonably”
See
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at paragraph [23].
[23] Whether
a particular occurrence was foreseeable will depend on the facts and
circumstances of each case. The appellant need
not have foreseen the
actual event or the conjunction of occurrences for it does not have
prophetic foresight.
[24] The
trench was dug in front of a driveway giving the respondent entry to
his premises. The first risk of harm that the appellant
ought to
have foreseen is that the owner of that particular property would not
be able to drive his car onto his premises if he
had a car. That
being the case, he would have to park his car outside or at a place
less safe or a place other than where he normally
parked his vehicle.
[25] Theft
of, from and or out of motor vehicles is commonplace in South Africa.
This kind of theft has become so commonplace that
it has created a
whole new industry: car-guards. It is impossible now a days to park
ones car at shopping malls, shopping centres
or other public places
without being asked by a car guard or two to look after one’s
vehicle. The proliferation of car guards
is an indication of the
extend to which this crime is commonplace in this country. One does
not have to refer to the gargets that
are fitted on motor vehicles to
prevent theft from or out of motor vehicles. The situation is worse
at night. In fact Mr Swanepoel
on behalf of the appellant in the
court a quo was seemingly acutely aware of this problem. His first
question during cross-examination
to the respondent was as follows:
“
Mnr Mariti, die
aand toe jy nou jou voertuig parkeer, waarom het u nie maar in die
buurman se erf gaan toesluit, gegewe die nuwe
Suid-Afrika waarin ons
deesdae woon nie?”
It is
unfortunate but clear that the new South Africa that he is referring
to relates to the crime situation in our country.
[26] It
would not have been difficult for the appellant to ascertain whether
the respondent or any person living at that particular
house had a
car. It could have done that by asking the neighbours if it did not
have access to the premises to see that there is
a safe place where
the respondent parked his car. In my view a reasonable person in the
position of the appellant would have foreseen
the reasonable
possibility that its omission to close the trench might cause the
respondent harm specifically in relation to his
motor vehicle because
he would not be able to park it at its regular safe place.
[27] In
dealing with the second question of the test for negligence I must
have regard to the nature and extent of the risk inherent
in the
appellant’s conduct; the seriousness of the damage if the risk
materialised and damage followed; the relative importance
and object
of the appellant’s conduct; the cost and difficulty of taking
precautionary measures. See
Neethling
et al: Law of Delict 5
th
Ed
at page 131 to 133. Because the appellant is a public authority the
factors mentioned in
Duivenboden
supra
at paragraph [23] will also have to be considered in conjunction with
the cost and difficulty factor mentioned above.
[28] On
the facts of this matter it is, in my view, clear that a reasonable
person in the position of the appellant would have taken
reasonable
steps to guard against the occurrence of the damage. The appellant
knew in advance about the water pipe burst. It
supplied fresh water.
One assumes that when inspection was done to see where the source of
the problem was the appellant would
have been aware that a trench
would have to be dug in front of the respondent’s driveway. It
could have informed him timeously
of when the trench would be dug so
that he could make alternative arrangements. If the necessity to dig
the trench at that particular
place only arose on the day then one
would expect a reasonable person to close the trench as soon as the
repair work was done or
alternatively to put a temporary ramp over
the trench so that the respondent could get access to his premises.
Getting a make-shift
ramp to cover the trench would not have been
that much costly or an inconvenience. The appellant must have been
engaged in this
kind of activity in the past and it is in my view not
unreasonable to expect it to have the necessary equipment to make
such ramp
or to acquire such equipment. What makes it even worse in
this case is that the appellant had completed the work and all that
was left to do was to close the trench. No evidence was led by the
appellant as to why the trench was not closed after the repair
work
was done or why a temporary structure was not erected over the trench
to give the respondent access to his premises. Although
the
appellant was engaged in an important activity a reasonable person
would foresee that harm could eventuate if the respondent’s
car was
stolen or goods stolen from it. No warning signs were placed at or
near the trench. Mr Cronje on behalf of the appellant
conceded that
a reasonable person in the position of the appellant would have
foreseen that the respondent might drive his car
into the trench but
argued that such person would not foresee that another person would
steal goods from the car. I have already
dealt with the
foreseeability part of his argument. The fact that the concession is
made in relation to the respondent driving
into the trench is a clear
indication that the appellant ought to have taken reasonable steps to
guard even against such harm.
There was no evidence or suggestion
that any preventative steps would have necessitated changing or
abandoning priorities or would
have been strenuous on the appellant’s
budgetary or other resources. It did not take any steps to guard
against any kind of
harm. In my view, the appellant was negligent.
[29] I now consider the
issue of causation in order to determine whether the appellant’s
negligence caused the harm that the respondent
suffered. Causation
is the causal link between the conduct of the appellant and the
result suffered by the respondent.
[30] Causation
involves a two stage enquiry. The first stage is the
“but
– for”
or
condicto
sine qua non enquiry
.
This is a factual enquiry. In terms of this test the appellant
would only be held liable for the respondent’s damage only
if the
respondent’s damage would not have happened
“but
– for”
the negligence of the appellant. See
International
Shipping Co Pty Ltd v Bentley
1990 (1) SA 680
(A) at 700 E to 701 F. In
Duivenboden
supra
at paragraph [25] however, it was pointed out that:
“
plaintiff is not
required to establish the causal link with certainty, but only to
establish that the wrongful conduct was probably
a cause of the loss,
which calls for a sensible retrospective analysis of what would
probably have occurred, base
d
upon the evidence and what can be expected to occur in the ordinary
course of human affairs rather that an exercise in metaphysiscs.”
This
was also the sentiments of Lord Hoffman in
Express
Car Company (Abertillery) Ltd v National Rivers Authority
[1998] EV LR 396 where he said that:
“
I doubt whether
the use of abstract metaphysical theory has ever had much serious
support and I certainly agree that the notion
of causation
should
not be overcomplicated. Neither, however, should it be
oversimplified”.
[31] It
seems to me that the respondent only had to show that the appellant’s
wrongful and negligent act was probably a cause
of the harm that he
suffered. The wrongful omission of the appellant must be a
substantial factor in bringing about the damage
or harm. The
respondent therefore only has to show that it is more likely than not
that the harm would have happened as opposed
to showing that the harm
would certainly have happened in the manner that it did. In
Barnard
v Santam Bpk
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA) at 214B the Supreme Court of Appeal quoted with
approval the dictum in
The
Council of the Shire of Wyong v Shirt and Others
[1980] HCA 12
;
146 CLR 40
(HCA),where it was said that:
“
A risk of injury which is quite
unlikely to occur… may nevertheless be plainly foreseeable.
Consequently, when we speak of a
risk of injury as being
“foreseeable” we are not making any statement as to the
probability or improbability of its occurrence,
save that we are
implicitly asserting that the risk is not one that is far-fetched or
fanciful”.
[32] In
this case the appellant was responsible for the digging of the trench
and it wrongfully and negligently omitted to close
it. But for the
trench the respondent would have driven his car onto his yard and
parked it safely under lock and key on his premises.
His car would
not have been parked outside overnight and the goods therein would
therefore not have been stolen.
[33] The
second stage of the enquiry is one of legal causation. Applying only
the
“but
– for”
test might lead to boundless liability and have unfair and unjust
outcomes. Legal causation is a means of ensuring that the outcome
is
just and fair. It is a matter that is determined by considerations
of policy. Even though the factual enquiry might be satistified
or
proved legal causation is a way of determining whether a party should
be held liable or be absolved from liability.
[34] In
mCubed
International v Singer
(118/08)
[2009] ZASCA 6
at paragraph
[27]
it was said that:
“
The issue of
legal causation or remoteness is determined by considerations of
policy. It is a measure of control. It serves as
a “longstop”
where right minded people, including judges, will regard the
imposition of liability in a particular case as untenable,
despite
the presence of all other elements of delictual liability.
”
The
test for legal causation is not a strict one; the test is flexible
and supple.
Therefore
the
“
existing
criteria of foreseeability , directness etc. should not be applied
dogmatically but in a flexible manner so as to avoid
a result which
is so unfair or unjust that it is regarded as untenable”
.
See
mCubed
International
supra
at paragraph [31]; See also
Standard
Chartered Bank of Canada v Nedperm Bank Ltd
[1994] ZASCA 146
;
1994 (4) SA 747
A at 765 A – B.
[35] The
issue of legal causation is complicated in this matter by the fact
that the independent and deliberate actions of the thief
or thieves
has, strictly speaking, nothing to do with the appellant’s
negligence in not closing or covering the trench. However
the risk
that the appellant created is of the kind that forced the respondent
to park his car outside. The Criminal act of theft
is in my view
within the risk zone that was created by the appellant whilst the
appellant should have foreseen the risk eventuating.
[36] Foreseeability
is however not an overriding consideration. It is but one of the
factors that need to be considered together
with factors such as the
presence of a
novus
actus
interveniens; legal policy, reasonableness, fairness and justice.
See
Road
Accident Fund v Sauls
2002 (2) SA 55
(SCA) at paragraph [12]. Even where the damage or
harm was unforeseeable, which is not the case here, a party may still
be held
liable by using the flexible approach to legal causation.
See
Smit
v Abrahams
1994 (4) SA 1
(AD) at 19 C – D. In
Smit
v Abrahams
supra
the
defendant was held liable for the expenses that the plaintiff
incurred for hiring a car after his vehicle was damaged in a
collision caused by the negligence of the defendant. Botha JA at 15
E – F emphasised that the question is:
“
of daar ‘n
genoegsame no
ue
verband tussen handeling en gevolg bestaan”.
[37] The
novus
actus
of the thief was not of the kind that would break the causal chain
between risk created and harm or damage suffered. Theft out
of a
motor vehicle under these circumstances is not an abnormal or
unexpected event in the light of human experience. See
in
Cubed International
at paragraph [30]. Theft out of motor vehicle when a car is parked
in the street at night is as already discussed above a familiar
fact
of life and not abnormal or extraordinary. In
OK
Bazaars (1929) Ltd v Standard Bank of South Africa Ltd
2002 (3) SA 688
(SCA) at paragraph [33] Nugent JA put it thus:
“
I have already
drawn attention to the fact that the test for legal causation is, in
general, a flexible one. When directed specifically
to whether a new
intervening cause should be regarded as having interrupted the chain
of causation (at least as a matter of law
if not as a matter of fact)
the foreseeability of the new act occurring will clearly pl
ay
a prominent role… If the new intervening cause is neither unusual
nor unexpected and it was reasonably foreseeable that it
might occur,
the original actor can have no reason to complain if it does not
relieve him of liability.”
In my
view the
novus
actus
in this matter was also reasonably foreseeable. The causal chain was
in my view not broken.
[3
8]
In
Stansbie
v Troman
[1948] 2 K.B 48
the salient facts where that a contractor carrying
out decorations in a house was left alone by the householder’s
wife. During
her absence he closed the front door without locking
it. During his absence, a thief entered the house and stole property
from
the house, the value of which the householder claimed from the
decorator. Tucker LJ, with whom Somervell LJ and Roxburgh J agreed,

said the following:
“
the act of negligence itself
consisted in the failure to take reasonable care to guard against the
very thing that in fact happened.
The reason why the decorator owed
a duty to the householder to leave the premises in a reasonably
secure state was because otherwise
thieves or dishonest persons might
gain access to them; and it seems to me that if the decorator was, as
I think he was, negligent
in leaving the house in this condition, it
was as a direct result of his negligence that the thief entered the
front door, which
was left unlocked and stole these valuable goods”.
[3
9]
Hart
and Hanore: Causation in the Law 2
nd
Edition
1985 at 284 close their discussion on foreseeability and risk with
the following prophetic words:
“
To some extent therefore, the law
is in transition from a stage at which liability was based almost
exclusively on negligently causing
harm to one in which it is based
not merely on causing harm but also on exposing others to a risk of
harm by providing other persons
or things with the opportunity of
doing harm”.
[40] In
legal terms the transition to liability based on exposing a party to
risk of harm did not take long. In
Chappel
v Hart
[1998] HCA 55
a medical negligence matter that was decided by the
High Court of Australia McHugh J in his minority judgment set out the
legal
position as follows:
“
Before the
defendant will be held responsible for the plaintiff’s injury, the
plaintiff must prove that the defendant’s conduct
materially
contributed to the plaintiff suffering that in
jury.
In the absence of a statute or undertaking to the contrary,
therefore, it would seem logical to hold a person causally liable
for
a wrongful act or omission only when it increases the risk of injury
to another person. If a wrongful act or omission results
in an
increased risk of injury to the plaintiff and that risk eventuates,
the defendant’s conduct has materially contributed
to the injury
that the plaintiff suffers whether or not other factors also
contributed to that injury occurring. If, however,
the defendant’s
conduct does not increase the risk of injury to the plaintiff, the
defendant cannot be said to have materially
contributed to the injury
suffered by the plaintiff. That being so, whether the claim is in
contract or tort, the fact that the
risk eventuated at a particular
time or place by reason of the conduct of the defendant does not
itself materially contribute to
the plaintiff’s injury unless the
fact of that particular time or place increased the risk of the
injury occurring.”
(Footnotes
omitted).
[41] The
House of Lords
in Chester v Afskar
[2004] UKHL 41
also dealt with a medical negligence case. Although
the majority in this case did not agree with the conclusions of Mc
Hugh J
in the
Chappel
v Hart
case none of the Lords found any fault with his reasoning as set out
above.
[4
2] If
one looks at the facts of this particular case against this
background it is clear that the appellants negligent act increased

the risk of harm being done to the respondent. It is because of the
appellant’s conduct that the respondent had to alter his
course and
park his car outside – after he could not get parking space at his
neighbours house. The duty of the appellant in
the light of the
facts of this case included having to take preventative or evasive
steps against theft out of the respondent’s
vehicle. It is the
failure to take these steps that allowed the thief easy access to the
respondent’s car. It is the appellant’s
functions and powers to
supply portable water systems. It must also provide municipal public
works relating to the supply of portable
water systems. The preamble
to the
Local
Government Municipality Structure’s Act
,
supra reads as follows:
“
Whereas there
is fundamental agreement in our country on a vision of democratic and
developmental local government, in which municipalities
fulfil their
constitutional obligations to ensure sustainable, effective and
efficient municipal services, promote social and economic

development,
encourage
a safe and healthy environment by working with communities in
creating environments and human settlements in which all
our people
can lead uplifted and dignified lives;”
See
also section 41 (1) of
the
Constitution
,
1996.
[43] The
municipal public works relating to the repair of the water pipe in
this case was not rendered efficiently. After the pipe
was repaired
and the problem therefore solved the appellant left the trench open.
In fact the appellant did not return the next
day to close the
trench. The respondent with the help of others had to close the
trench. It is my judgment that the appellant
acted unreasonably.
Public policy dictates in my view that where the negligent omissions
or actions of a municipality is sufficiently
causally linked to the
damage or harm suffered by a party that municipality should be held
liable. Obviously the facts and circumstances
of each case must be
considered on its own merits. I also don’t think that fairness and
justice requires the appellant to escape
liability under these
circumstances. Municipalities should not be allowed to do their work
with impunity fuelled by the knowledge
that Courts are generally slow
to impute responsibility or liability on them for their negligent
actions. Considerations of public
policy fairness, reasonableness
and justice dictate that where a municipality acts in this negligent
manner without due regard
to the proprietary interest of those that
they are enjoined to serve it should be held liable for the damages
that result from
its negligent conduct. It exposed the respondent to
damages that he would otherwise, in all likelihood, not have been
exposed
to.
[44] The appellant
specifically pleaded that the respondent was
negligent
or contributory negligent by, inter alia, not removing some of his
goods from the motor vehicle in order to mitigate the
foreseeable
harm/loss. The respondent could not give any explanation as to why he
did not remove the Adidas bag and the tracksuit
from the car. If he
did, he would not have suffered any loss in relation thereto. He
should have foreseen the possibility of these
things being stolen
from the car and should have taken reasonable steps by removing them
from the car- to guard against it. He
failed to take such steps. In
my view he was negligent in relation to those items. The magistrate
erred by not finding that the
respondent was negligent in relations
to those items. The amount of damages should be adjusted accordingly.
[45] The respondent was
substantially successful and there is no
reason why the
costs should not follow the result in this matter.
[46] I
accordingly make the following order:
a)
The appeal on the merits is dismissed
b)
The appellant is ordered to pay the respondent an amount of
R4 769.00 plus
interest a tempora morae.
c)
The appellant is ordered to pay the respondents costs in respect
of
the
proceedings
in the court a quo and of this appeal.
_______________
C.J.
MUSI, J
I
concur
_________________
K.J MOLOI, AJ
On
behalf of the Applicants:
Adv.
P. R. Cronje
Instructed
by:
Naudes BLOEMFONTEIN
On
behalf of the Respondent:
Mr
M. Khang
Instructed
by:
Mphafi
Khang Inc.
BLOEMFONTEIN
/AR