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2024
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[2024] ZAECMHC 47
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Mzaca v King Sabata Dalindyebo Local Municipality and Another (1320/2020) [2024] ZAECMHC 47 (18 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO.:
1320/2020
Reportable
Yes
In
the matter between:
NOMBULELO
MZACA
Plaintiff
and
KING
SABATA DALINDYEBO
LOCAL
MUNICIPALITY
First Defendant
OR
TAMBO DISTRICT MUNICIPALITY
Second Defendant
REASONS
FOR
JUDGMENT
NOTYESI
AJ
Introduction
[1]
The plaintiff, Ms Mzaca, instituted a delictual claim against the
defendants, King
Sabata Dalindyebo Municipality (KSD) and O R Tambo
District Municipality (ORTDM). The claim emanates from an incident
that is alleged
to have occurred on 10 January 2019 at York Road,
Mthatha, where the plaintiff had tripped and fallen on the pavement
at or near
Jet Stores, whereafter she slid into a boundary of an open
hole that was left without a lid. As a result of that fall, the
plaintiff
sustained injuries. Sequel thereto, the plaintiff sued the
defendants.
[2]
She had based her claim on allegations of negligence by the
defendants, alternatively
the employees of the defendants, who had
allegedly left the manhole uncovered.
[3]
The defendants, in their plea, disputed the allegations of the
plaintiff and averred
that KSD had no duty to construct and maintain
an underground drainage system and safety measures and consequently,
KSD had no
obligation to close manholes or pits with lids in order to
prevent injuries to road users. Likewise, the ORTDM also denied
liability
and the obligation to compensate the plaintiff for any
damages.
[4]
On 4 March 2024, the plaintiff adduced evidence in support of her
claim. She was the
only witness who testified. Following the
closure of the plaintiff’s case, the defendants sought for
absolution from
the instance. Consequent the hearing of the parties’
submissions, this Court delivered an ex-tempore judgment. The
absolution
order was granted. The plaintiff has sought for reasons
for the grant of the absolution. Although the reasons for the
absolution
order are sufficiently provided in the ex-tempore
judgment, this Court has deemed it necessary to provide those
requested reasons.
Issues
to be decided
[5]
The question for determination by the court was whether the
defendants or their employees
were negligent and if so, whether their
negligence had caused the damages or injuries suffered by the
plaintiff.
The
facts
[6]
The plaintiff testified that on or about 10 January 2019, she fell on
York Road on
the pavement at or near Jet Stores. Having fallen, she
had one of her legs slide into the boundary of an open hole that was
left
without a lid. She could not stand up after her fall.
Thereafter, she was taken to Umtata General Hospital where it was
found,
on x-ray, that both her ankles had been fractured. She was
referred to Bedford Hospital.
[7]
The plaintiff’s husband had misgivings about Bedford Hospital.
He took her to
Port Edward Hospital. She was later admitted to the
Port Edward Hospital. The plaintiff had described the hole in which
she had
slid into as a rectangular hole. She testified that the hole
was ringed with an iron. According to the plaintiff, the hole was
open in circumstances where it was apparent that it would have had
some sort of a lid and there was no lid. She described the conduct
as
negligence on the part of the defendants. The plaintiff was
cross-examined on her evidence.
[8]
During cross-examination, she could not tell this Court the basis of
her claim against
ORTDM. She readily accepted a proposition by the
defendants’ counsel that ORTDM is not responsible for
stormwater drains.
The plaintiff conceded that there is no cause of
action against the ORTDM. In this regard, I quote from the transcript
–
Mr
Bodlani:
OR Tambo District
Municipality has nothing to do with stormwater drains.
Ms
Mzaca:
I do not know
anything about that My Lord.
Mr
Bodlani:
And this is
regardless of whether there are illegal connections or not.
Ms
Mzaca:
I have no comment.
Mr
Bodlani:
The municipality is
not responsible for those pipes – that is, KSD now, not
responsible for those pipes. It did not
fit them.
Ms
Mzaca:
Yes, I follow.
[9]
On questioning by this Court, the plaintiff testified that she is not
sure whether
the hole belonged to ORTDM or KSD. The plaintiff
testified that she had no knowledge regarding the operation of the
different
municipalities. She had alleged that she is suing both the
KSD and ORTDM on the basis that they were municipalities. According
to her, the hole was in a public area where people walk about and
that is all that she knows. She later changed her version and
suggested that the place in which she had fallen, is under the KSD.
She provided no basis for this conclusion.
[10]
Regarding her falling, the plaintiff testified that she was walking
along the pavement. It was
during the day and the visibility was
clear. She tripped as she was walking and fell down. Her falling was
not as a result of a
hole. She does not know what caused her to trip.
According to her, the area is a bit sloppy. Subsequent to her
falling, she slid
to the boundary of the open hole which was a
distance from where she tripped.
[11]
That was the case for the plaintiff. The defendants applied for
absolution from the instance.
The
applicable law
[12]
To
obtain a judgment holding the defendants liable to pay delictual
damages, the court in
Minister
of Safety & Security v Van Duivenboden
[1]
stated that the plaintiff must prove, on a balance of probabilities,
that the act(s) or omission(s) of the defendants were wrongful
and
negligent and have caused the loss. The approach in our law to the
plaintiff’s claim is not controversial. It is trite
that in
order to succeed in her delictual claim for damages, the plaintiff
must establish that the wrongful and negligent conduct
of the
defendants or their employees, acting within the course and scope of
their employment, had caused her harm.
[2]
[13]
In
Kruger
v Coetzee
[3]
it was held –
‘
For
the purposes of liability culpa arises if –
(a)
a diligens paterfamilias in the position of the defendant (or his
employees)
(i)
would foresee the reasonable possibility of his (their) 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 (or his employees) failed to take such steps.’
[14]
In
Naude
NO v Transvaal Boot and Shoe Manufacturing Co
[4]
it was held –
“
Although
the onus of proving negligence is on the plaintiff, the plaintiff
does not have to adduce positive evidence to disprove
every
theoretical explanation which is exclusively within the knowledge of
the defendant, however unlikely, that might be devised
to explain
(his paraplegia) in a way which would absolve the defendant and his
employees of negligence.’
[15]
In
Monteoli
v Woolworths (Pty) Ltd
[5]
the court confirmed that the onus, nevertheless, remains with the
plaintiff. The defendant has an evidential burden to show what
steps
were taken to comply with the standards to be expected.
[16]
In
Minister
of Safety & Security & Another v Carmichele
[6]
where
the court confirmed that causation has two elements –
‘
1.
The factual issue to be established on a balance of probabilities by
the plaintiff
by using the “but for” test would involve
the mental elimination of the wrongful conduct in the posing of the
question
as to whether upon such hypothesis, the plaintiff’s
loss would have ensued or not;
2.
The legal causation, namely whether the wrongful act is linked
sufficiently closely
or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This is a
juridical problem
and considerations of policy may play a part in the
solution thereof.’
[17]
In the
Member
of the Executive Council for Health, Eastern Cape v DL obo AL
[7]
Molemela P, dealing with the test for causation held-
‘
The
test for factual causation is whether the act or omission of the
defendant has been proved to have caused or materially contributed
to
the harm suffered. Where the defendant has negligently breached a
legal duty and the plaintiff has suffered harm, it must still
be
proved that the breach is what caused the harm suffered. In the
present matter, the question is whether the brain damage sustained
by
AL would have been averted if the hospital staff had properly
monitored the mother and foetus and had acted appropriately on
the
results? If so, factual causation is established and one is left with
only wrongful conduct without proof that it caused the
harm
suffered.’
[18]
In an application for absolution from instance, the question that the
court must consider is
whether the plaintiff has adduced evidence
upon which a court, applying its mind reasonably or carefully, could
or might find for
the plaintiff; in other words, the real question is
whether the plaintiff has made out a prima facie case.
[8]
Evaluation
of evidence and submissions
[19]
The plaintiff admitted that after she fell, she tried to stand up,
but could not. It was only
at that stage that she realised that she
had been injured. What is clear is that the plaintiff did not know
the stage at which
she was injured. There are three instances in
which the plaintiff’s injuries could have occurred. The first
is at the time
of her tripping as she was walking along the pavement.
At this stage, her tripping is not linked to the open hole or
manhole. The
second is at the stage when she slid, but before she
could reach the boundary of the hole. She could have been injured and
fractured
at that stage. The third stage is when her legs hit the
boundary of the hole. She could have been injured and fractured. In
respect
of the first and second stages, the hole had no role, both
factually and legally. For any injuries that could have been
sustained
at that stage, both KSD and ORTDM could not be held
responsible for the injuries and resulting damages. On this ground
alone, the
plaintiff failed to make out a case against both
defendants. This Court had no evidence regarding the cause of the
plaintiff’s
injuries.
[20]
I agree with Mr
Bodlani
’s submission that it is trite
law that where the defendants had breached a legal duty and the
plaintiff has suffered harm,
it must still be proved that the said
negligence caused the harm suffered. In respect of causation, two
elements must be established;
the first is the factual issue, the
answer to which can be determined by applying the ‘but for’
test. This entails
the asking question whether but for the negligent
conduct of the defendants, the injury or harm would have occurred. In
the case
of positive conduct on the part of the defendants, the
negligent conduct is mentally removed to determine whether the
relevant
consequence would still have occurred. The second issue; is
the legal causation which answers the question of whether the
wrongful
act is linked sufficiently closely to the harm suffered, if
the harm is too remote, then there is no liability.
[21]
Mr
Melane
who appeared for the plaintiff, could not submit to
the contrary or persuade this Court to the contrary and instead, in
my view,
he correctly conceded the legal position. Mr
Melane
had sought to overcome the difficulties in the plaintiff’s case
by submitting that the presence of the hole and the fact
that the
plaintiff had slid to the hole was sufficient enough to establish a
prima facie case. I disagree. The uncontroverted evidence
is that the
plaintiff fell on her own and slid into and stopped by the boundary
of the hole. There is no evidence regarding the
stage at which the
injuries were suffered.
[22]
More significantly, the plaintiff has not made out any case against
the defendants. The plaintiff
had a duty to establish that the hole
belonged to one of the municipalities and that such municipality was
negligent when leaving
the manhole open. In this regard, the
plaintiff was unconvincing and she was generalising, merely
contending herself that it is
the duty of the municipality to ensure
that the manhole is always covered or closed. That cannot be enough
to make out a case.
In my view, the plaintiff’s case was poorly
investigated and brought to court with insufficient facts to sustain
a case or
establish a cause of action against the defendants. In all
the circumstances set out above and the evidence presented, the Court
was satisfied that the application for absolution should succeed.
Conclusion
[23]
On a proper analysis of the evidence and having considered the
submissions by the parties, this
Court was satisfied that the
plaintiff had failed to establish a prima facie case and concluded
that absolution from the instance
should be granted. The general rule
is that costs should follow the event and accordingly, there were no
basis to depart from the
general rule. The defendants were awarded
costs.
Order
[24]
In the circumstances, the
following order was granted –
1.
The defendants are absolved from the instance with costs.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Appellant:
Adv
Melane
Instructed
by:
Mgxaji
Zazaza Attorneys
Mthatha
Counsel
for the Respondent:
Adv
Bodlani SC & Adv Z Mashiya
Instructed
by:
Jolwana
Mgidlana Inc
Mthatha
Heard
on:
04
March 2024
Judgment
Delivered on:
18
June 2024
[1]
Minister of Safety & Security v Van Duivenboden
2002 (6) SA 431
SCA at para [12]; LD obo AD v Member of the Executive Council
responsible for the Department of Health
[2021] JOL 49623
(ECM) at
para 2.
[2]
KX
v Member of the Executive Council for Health, Western Cape
[2021]
JOL 51401
(WCC) at para 3.
[3]
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E.
[4]
Naude
NO v Transvaal Boot and Shoe Manufacturing Co
1938 AD 379
at 392(3).
[5]
Monteoli
v Woolworths (Pty) Ltd
2000 (4) SA 735
(W) at 127.
[6]
Minister
of Safety & Security & Another v Carmichele
2004 (3) SA 305
(SCA)
[7]
Member of the Executive Council for Health, Eastern Cape v DL obo AL
[8]
Mazibuko
v Santam Insurance Co Ltd and Another 1982 (3) 125 (A) at 132H-133A;
Gascoyne v Paul and Hunter
1917 TPD 170
at 173; R v Shein 1925 AD
6 at 9; Claude Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409
G-H