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[2009] ZAKZPHC 7
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Msunduzi Municipality v Telkom SA Limited (6923/2004) [2009] ZAKZPHC 7 (17 March 2009)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL, PIETERMARITZBURG
In the matter between:
CASE NO: 6923/2004
AR 408/08
THE
MSUNDUZI
MUNICIPALITY
Appellant
and
TELKOM SA
LIMITED
Respondent
JUDGMENT
MSIMANG, J:
1] In South Africa
utilities are provided by various service providers and, for the
purpose of providing those services,
those service providers have to
lay underground cables and pipes. To avoid the destruction of those
cables and pipes, the providers
have devised methods of co-operation
with each other. It is this co-operation which forms the subject of
the present appeal.
2] The
appellant (defendant in the Court
a quo)
is a local authority,
the duties of which constitute,
inter alia,
the provision of
water services to the residents of its area and the respondent (the
plaintiff in the Court
a quo)
is a para-statal body
responsible for the provision of telephone services to the public.
3]
It would appear that, during 2002, a need arose for the replacement
of the appellant’s underground water mains in
the Cedar Road
vicinity of the Pietermaritzburg suburb of Mountain Rise. On 11
November 2002 while the appellant’s employees
were digging
trenches for the laying of the water pipes, they damaged respondent’s
cable, causing the respondent to suffer
financial loss. It was for
this reason that the respondent instituted action for damages against
the appellant out of the Pietermaritzburg
Magistrate’s Court,
alleging that its cable had been damaged through the negligence of
appellant’s employees acting
within the scope of their
authority as such.
4] In
its plea, while it admitted that, at all material times, its
employees had acted in their capacity and within the scope
of their
authority as such and that the respondent was the owner of a 600 PR
underground cable which had been damaged during the
appellant’s
excavations at or near 17 Cedar Road, Mountain Rise, Pietermaritzburg
on 11 November 2002, the appellant denied
that the said damage had
been caused by the negligence of its aforesaid employees. In
the alternative and in the event of
the Court finding that the
appellant’s employees had been negligent, and only in that
event, the appellant pleaded that the
damage was caused also by the
negligence of the respondent which had not laid its cables in terms
of appellant’s approved
plan and therefore that respondent’s
claim be dismissed with costs or, alternatively, that any amount
awarded to the respondent
as damages be reduced in terms of the
Apportionment of Damages Act, 1956.
5] At
the commencement of the trial in the Court
a quo
the parties
agreed that the issues of liability and quantum would be separated
and that the trial would proceed only on
the issue of liability. However, on 18 August 2008,
respondent’s attorney appeared before the learned Magistrate
and informed
her that the issue of quantum had been settled by the
parties, the appellant having consented to the quantum of
respondent’s
claim. Judgment was accordingly granted in favour
of the respondent for the said amount plus interest and costs.
6]
The only issue which then had to be determined by the Court
a quo
was whether the respondent’s cable had been damaged through
the negligence of appellant’s employees and, if so, whether
the
respondent was also negligent and whether the negligence had also
contributed to the damage, in which latter event, respondent’s
agreed amount of damages would be reduced in relation to the degree
of that party’s own negligence.
7]
The issue upon which the Court
a quo
found for the respondent
on the question of negligence and the issue which engaged the
parties’ substantial argument before
us is the issue, which the
parties termed, the wayleave procedure. The procedure constitutes one
of the methods of co-operation
between the service providers. It was
common cause, pursuant to this procedure, that since the appellant
had intended to perform
excavation works in the Cedar Road area,
before engaging in those excavations, it had to inform the respondent
of its intentions.
It would draw what is termed an AO plan upon which
would be depicted the remedial work proposed to be done and dispatch
that plan
to the respondent.
8]
Upon receipt of this plan from the appellant, the respondent would
cause to be affixed on the same its red rubber stamp,
indicate its
existing service thereon, prepare a covering minute and, thereafter
and under cover of the said minute, send the plan
back to the
appellant. The completed plan would enable the appellant to become
aware of the location of the respondent’s
services in the area
and therefore avoid damaging same during its excavation works.
9] In
the Court
a quo
the respondent’s official, occupying the
position of operations manager, testified on the issue. He had been
in respondent’s
employ for approximately twenty five
years and, during that period, he had acted as a wayleaves manager
for a period of four
years. In that capacity, all the wayleave
applications made to the respondent would be directed to him. He had
searched through
respondent’s records, both manual and on
computer, but could not find any record of any wayleave application
having been
made by the appellant for the Cedar Road operations
either prior to or during November 2002. It was this appellant’s
failure
to comply with, what it termed, an established trade
practice, which led the Court
a quo
to find for the respondent
on the issue of negligence, finding that such a failure on the
appellant’s part amounted to negligence
which caused the damage
to respondent’s cable.
10] In
its grounds of appeal, and during argument before us, the appellant
submitted that the learned Magistrate erred in
accepting that
official’s evidence that respondent never received a wayleave
application from the appellant. This submission
is apparently based
on that official’s responses to the questions put to him during
cross-examination
by appellant’s counsel in the Court
a quo
as
well as on the contents of a document which was entered in evidence
and marked Exhibit “C”.
11]
Dealing first with the official’s responses during
cross-examination, Mr.
van Rooyen,
who appeared for the
appellant, submitted that, in those responses, the official had
conceded that the information relating to respondent’s
services
reflected on the document could only have emanated from the
respondent. He accordingly argued that this concession
was sufficient to sustain a finding, at least on a preponderance of
probability, that a wayleave application relating to appellant’s
November 2002 excavations in the Cedar Road area had been given to
the respondent. I have carefully perused and considered
the
record of the proceedings in the Court
a quo
and I can find no
such concession in the official’s responses. Much as the
official conceded that the information would
be obtainable at
the respondent’s wayleave office, he made it clear that he did
not know how the appellant had obtained the
same.
12]
Besides, I am at a loss to fathom how the contents of the document
could have advanced appellant’s case. The document
constitutes
a reconstruction by the appellant’s official of a plan and the
information contained on the original AO plan
after it had been
returned to the appellant by the respondent’s wayleave office.
Upon perusing that official’s evidence,
I had initially gained
an impression that he had based that reconstruction on the
information which he had stored on his computer.
However, as ably
demonstrated by Mr.
Dayal,
who argued the appeal on behalf of
the respondent, a close reading of the record shows that this was not
the case. What the official
had stored on his computer had been a
blank plan. The information contained
therein was gathered by him from other
departments. The information accordingly
constituted
inadmissible hearsay evidence.
13]
It seems to me that the Court
a quo
concluded that the
incidence of onus was a determining factor in deciding the issue
between the parties in this matter and, in that
connection, it
pronounced itself,
inter alia,
as follows :-
“
In these circumstances my inclination would be to
hold that the overall onus to prove that it did comply with the trade
usage rests
upon the defendant as the alleged compliance would be
within its peculiar knowledge.”
14] The
passage attracted heavy criticism from Mr.
van Rooyen
who
submitted that the learned Magistrate misconstrued the incidence of
the onus of proving negligence and that she should have
found that
the
onus
rested upon the respondent to prove that the damage
was caused negligently by the appellant due to a failure to comply
with the
wayleave procedure.
15]
The
locus classicus
on
the rules governing the incidence of proof is
Pillay
v Krishna and another.
[1]
Dealing
with the different senses in which the word
onus
is often
used,
Davis AJA
had the
following to say
:-
“…
..the only correct
use of the word ‘onus’ is that which I believe to be its
true and original sense ….. namely,
the duty which is cast on
the particular litigant, in order to be successful, of finally
satisfying the Court that he is entitled
to succeed on his claim, or
defence, as the case may be, and not in the sense merely of his duty
to adduce evidence to combat a
prima
facie
case made
by his opponent…… this duty alone unlike a true onus,
shifts or is transferred …..”
[2]
16]
The second sense in which the word is often used is sometimes
referred to as “the evidentiary burden” and :-
“…
..may shift, or be transferred in the
course of the case, depending upon the measure of proof furnished by
the one party or the
other.”
[3]
17]
Upon perusing the above-quoted passage in the judgment of the Court
a
quo,
I gained an impression that what the learned Magistrate was
probably referring to in that passage was not the
onus
in its
true and original sense but that she had in mind the duty to adduce
evidence to combat the
prima facie
case made by the respondent
(the plaintiff in the Court
a quo).
This may well have been a
situation referred to by
Corbett JA
in
South
Cape Corporation (supra)
where :-
“
The use, without proper definition of the term
onus
in this context
has, I believe, been a source of some confusion”.
[4]
18]
When this proposition was put to Mr.
van Rooyen
I did not
understand him to dispute the same. It must therefore be
accepted, for purposes of the present appeal, that
what the
learned Magistrate contemplated by her use of the word
onus
in
the above quoted passage was the duty to adduce evidence to combat
the
prima facie
case which had been made by the respondent in
the Court
a quo.
19]
In appropriate cases, where a party fails to adduce evidence or
adduces unsatisfactory evidence to rebut such a
prima facie
case,
the Court may find in favour of a party upon which the
onus
proper
rests. But it must be borne in mind that the evidence which sustains
a
prima facie
case amounts to a mere inference casting upon
the other party a burden of adducing –
“…
.. evidence of facts …..
which tended to displace the inference of no irreparable harm”.
[5]
and that such evidence does not alter the original
onus
which, in the present case, throughout,
rested upon the respondent to show, on a preponderance of
probability, that the appellant’s
employees were negligent.
[6]
20]
In the Court
a quo
the respondent had adduced evidence, which
was accepted by the appellant, that there existed a practice which
required the latter
to make a wayleave application to the respondent
before commencing with the excavation works so as to avoid the
destruction of
respondent’s cables located in the area of
intended excavation. The respondent’s further evidence was that
the appellant
had failed to comply with this practice and proceeded
with its excavations, in the process, damaging respondent’s
cables
and therefore that the appellant was negligent.
21]
Clearly this evidence called for a rebuttal from the appellant
in respect of which rebuttal the appellant adduced evidence
of its
official who relied on the document which was marked Exhibit “C”
and which, as I have indicated, amounted to
inadmissible hearsay
evidence. Regarding the original AO plan which had been allegedly
completed by the respondent and dispatched
back to the appellant, the
official testified that the same had been destroyed. The official,
however, acknowledged that there
existed in appellant’s
possession, correspondence which had accompanied appellant’s
wayleave application to the respondent
as well as the
completed AO plan back to the appellant. It was when he
was later questioned regarding that correspondence that this official
made
a startling remark which led the learned Magistrate, in her
judgment, to characterize the appellant’s failure to timeously
obtain those documents as displaying “a totally lackadaisical
attitude” and consequently to find that the plaintiff
had
established that the appellant had not complied with the wayleave
procedure and therefore that it was negligent.
22]
I can find no fault in the learned Magistrate’s approach in
dealing with the evidence in this matter neither could
I fault her in
her finding on the appellant’s non-compliance with the wayleave
procedure, which finding is, in my judgment,
consonant with the rules
relating to the incidence of
onus
which have been enunciated
above.
23]
The quantity of proof required for delictual liability based on
negligence was propounded as follows in the well-known
decision in
Kruger v Coetsee :-
[7]
“
(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
occurrence; and
(b) the defendant failed to take
such steps.”
24]
Clearly the evidence adduced by the respondent in the Court
a
quo
was sufficient to sustain such proof. That
Court therefore did not err when it found that the appellant
was negligent and that such negligence led to the damage
of respondent’s cable.
I
would accordingly dismiss the appeal with costs.
MSIMANG,
J
TSHABALALA,
JP
It is so ordered
For the Appellant: Adv. R M
van Rooyen (instructed by Lister & Lister)
For the Respondent: Adv. S K Dayal (instructed by Siva
Chetty & Co.)
Matter argued: 6
March 2009
Judgment delivered: 17
March 2009
[1]
1946
AD 946;
[2]
Ibid.
at 952 – 953;
[3]
Per
Corbett JA in South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty)
Ltd
1977(3) SA 534 (A) at 548 B;
[4]
Ibid.
at 547 – 548A;
[5]
Ibid.
at 548 G;
[6]
See
also Venter v Bophuthatswana Transport Holdings (Edms) Bpk 1997(3) SA
374 (A) at 388
C-
E;
[7]
1966(2)
SA 428 (A) at 430 E-G.