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[2006] ZAFSHC 61
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Newstadt v H Amm (Pty) Ltd (3) (2328/2002) [2006] ZAFSHC 61 (14 December 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION
Case
No. 2328/2002
In
the matter between:-
ALLAN
HENRY NEWSTADT
Appellant
and
H.
AMM (PTY) LTD
Respondent
_______________________________________________________
CORAM:
CILLIé
J
et
EBRAHIM J
et
VAN DER MERWE J
_______________________________________________________
JUDGMENT
BY:
VAN DER MERWE J
_______________________________________________________
HEARD
ON:
21 AUGUST 2006
_______________________________________________________
DELIVERED
ON:
14 DECEMBER 2006
_______________________________________________________
[1] I
have read the judgments prepared in this matter by Cillié J
and Ebrahim J. I agree that the appeal must fail and with
the order
proposed. However, I consider it necessary to briefly set out the
reasons for my conclusion.
[2] In
my view, the appellantâs claim is clearly based on delict, although
it arose in a contractual setting. The trial court found
however,
that on the appellantâs own evidence, the respondent was not
contractually obliged to supply the appellant with ladders
required
for the performance of the work in terms of the contract. I agree
with the trial court, for the reasons stated by him.
In my judgment
the respondent gave permission to the appellant to use the
respondentâs ladders, but did not give an undertaking
animo
contrahendi
to provide ladders. I make reference to this as the
questions of wrongfulness and negligence must be determined in this
context.
[3] For purposes hereof I
accept that the ladder in question was unsuitable or unsafe for the
purpose for which it was required by
the appellant. I also assume,
without deciding, that if the respondent was negligent in making the
ladder available as alleged,
its conduct would be wrongful.
[4] The
question then is whether negligence attributable to the respondent
was proved. On appeal the appellant relied in this regard
on two
aspects, namely first, that the respondentâs employee Mr. Maile
provided the appellant with a dangerous ladder and second,
that the
ladder in question was defective as a result of poor manufacturing
thereof by the respondent.
[5] The
trial court found that at the time Mr. Maile was employed by the
respondent and acted in the course and within the scope of
his
employment as such. This finding was not challenged on appeal.
According to the evidence the appellantâs assistant, Mr. Miya,
requested Mr. Maile to provide a ladder. I accept that Mr. Maile
made the ladder in question available, either in person or through
another employee of the respondent. I am not satisfied that Mr.
Maile acted negligently in providing the ladder in question. There
is no evidence that Mr. Miya told Mr. Maile what the ladder was to be
used for. To the appellant, a man with approximately 18 years
experience of regular use of ladders, the ladder in question appeared
to be functional and in reasonable condition. A reasonable
man in
the position of Mr. Maile could therefore not be faulted for having
the same impression. Moreover, Mr. Maile could in the
circumstances
reasonably expect that the appellant would not make use of the ladder
in conditions that are unsafe or if the ladder
appeared to be
dangerous.
[6] The
question of the negligent manufacture of the ladder was not raised in
the pleadings. I am also not sure that a firm finding
can be made on
the evidence that the ladder in question was actually manufactured by
the respondent. It matters not however, as
in my judgment it was not
shown by the appellant that the ladder was manufactured defectively.
_______________________
C.H.G. VAN DER MERWE,
J
/sp