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[1987] ZASCA 140
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S v Bochris Investments (Pty) Ltd. and Another [1987] ZASCA 140; [1988] 4 All SA 207 (AD) (27 November 1987)
THE SUPREME COURT OF SOUTH AFRICA
(APPELLANTE DIVISION)
In the matter between:
BOCHRIS INVESTMENTS
(PTY) LIMITED
First Appellant
CORNELIUS JACOBUS JOUBERT
.
Second Appellant
and
THE STAT
E Respondent
CORAM
: CORBETT, BOTHA, SMALBERGER, VIVIER JJA et NICHOLAS AJA.
Heard
: 23 NOVEMBER 1987
Delivered
: 27 November 1987
JUDGMENT
NICHOLAS
, AJA :
/Wilderness .....
2
Wilderness Pleasure Resort, at Muldersdrift near Krugersdorp,
has a large swimming pool in a setting of lawns and trees, and other
facilities
such as a trampoline, swings and cable slides. A popular family resort, it
attracts a daily average of 500 visitors at
weekends, and upon occasion as many
as 3 000 in a day.
On Sáturday 28 October 1984 Mr Edward Robert Andresen was picnicking
at the resort with his two children - his daughter, and
his 9 year old son, Ryan
Edward Andresen. The three of them were bathing in the pool when, at about 2
p.m., the daughter got out
of the water, followed by her father. Andresen
called
to
3
to Ryan to come out and join them. Ryan, who was a good
swimmer, called back, "Hang on a sec, I want to show you how I can touch the
bottom". He dived under the water. When he had not surfaced after about 10
seconds, Andresen dived in. He found Ryan jammed in an
outiet pipe near a corner
of the pool at the deep end. His body was doubled up, and only his hands and
feet were visible at the entrance
to the pipe. Andresen made several vain
attempts to pull Ryan out, and it was only later that the boy was extracted from
the pipe.
He had drowned.
Arising
4 Arising out of the death, three persons were charged in the
Regional Court, sitting at Krugersdorp, with culpable homicide, alternatively
with contravening certain statutory regulations: namely, Bochris Investments
(Pty) Ltd ("Bochris"), the owner of Wilderness Pleasure
Resort; Cornelius
Jacobus Joubert ("Joubert"), a director and the majority shareholder of Bochris,
and the manager of the resort;
and his wife, Christel Dorothea Joubert, also a
shareholder and director of Bochris, who was employed at the resort. All three
accused
pleaded not guilty. Bochris and Joubert were convicted of culpable
homicide, but Mrs Joubert was acquitted. Bochris was fined R300-00,
and
5
and Joubert was sentenced to a fine of R300-00 or 6 months'
imprisonment, the whole of which was condi-tionally suspended. An appeal
to the
Transvaal Provincial Division was unsuccessful, but leave was granted to appeal
to this Court.
The State called three witnesses: Det. Sgt Streicher of the South African
Police; Andresen; and Lieut R J B Norman, also of the South
African Police, who
gave expert evidence. Joubert was the only defence witness.
Streicher put in a plan of the swimming pool
and
photographs of the pool and its surroundings and
of the opening of the outlet pipe. This is located
in
6
in the wall of what appears from the photographs
to be a shallow sump in the floor of the pool near to a corner. The underside of
the pipe is somewhat below the bottom of the sump. Streicher gave the
measurements of the swimming pool: it is some 48 m long and
some 24 m wide; and
its depth varies between 1.02 m at the shallow end and 1.85 m at the deep
end.
Andresen gave the evidence of the occurrence which is summarized in the
second paragraph of this judg-ment. He was asked in cross-examination
by the
defence whether Ryan had said that he was going to sit on the bottom of the
pool, and he agreed that this was so.
Norman is registered as an engineer-in-training
with
7
with the South African Council of Professional Engineers. He
holds the degree of B.Sc. in mechanical engineering of the University
of the
Witwatersrand, and he has expe-rience in the installation of water pumps.
He
went to the resort on 29 October 1984 in order to investigate the occurrence. He
examined the outlet pipe. It was a 25 cm pipe,
the opening to which had been cut
at an angle, so that it presented the appearance of an ellipse, with a long axis
of 30 cms. Water
was pumped through it to a filtration plant and then back to
the pool.
In summary, Norman's explanation of how
Ryan's
8
Ryan's body came to be jammed in the outlet pipe was
this. Ryan sat down against the opening of the outlet pipe,
so that his
buttocks effectively closed it. The pump
no longer exerted any significant
suction, because there
was then no water for it to act on. A vacuum was
created
which would have exerted "a very small suction". But
the water in the pool above him exerted on the boy a force
of some 600 kgs, pressing his buttocks, followed by
his jack-knifed body, into the pipe.
According to Norman, the pressure exerted by
the
water on a body at the entrance would depend on the
extent to which the
opening was blocked. It was only
when the pipe was largely blocked off that the pressure
would
9 would become noticeable. Norman said that he swam down and
blocked the opening with his body in order to see what sort of suction
would
occur, and there was very little suction until he blocked as much of the opening
as he could, and then "nothing happened to
me". If the buttocks of a person
sit-ting at the opening were wider than the opening, he would not be pressed
into the pipe by the
force of the water. Norman put an arm, and then a leg into
the pipe, and he ex-perienced "very little noticeable force". He dangled
his
foot in front of the opening, and there was "very, very little suction". The
flow of water through the pipe was no stronger with
the pump in operation than
it would have been if the water had run out under the force of gravity.
When
10 When Norman arrived on 29 October 1984, the opening had been
covered with a guard. While this was adequate, Norman recommended
that it be
replaced with wire mesh in the shape of a dome.
Under cross-examination,
Norman agreed that in view of the location of the opening, a bather would not
pass near it in the ordinary
course of diving or swimming, and there would be no
nóticeable suction unless he came very close to the opening.
Joubert said that he had been personally involved in running the resort since
1958. There was then no fil-tration plant: when the
pool was emptied for
cleaning pur-poses, the water flowed out under the force of gravity. In
1967
11
1967 the pool was altered and improved: it was
made shal-lower, and a pump and filtration system were designed and installed at
a
cost of R5853,00. A new outlet pipe was in-stalled. The work was done by
Safilco (Pty) Ltd, water and waste engineers of Randburg,
who are specialists in
the design of filtration plants. Joubert was present when the altered pool was
commissioned, and regarded
it as "a good job". He knew of the opening to the
outlet pipe but he was not aware that it was a source of danger. It was not
covered
with a guard: it did not occur to anyone that this was called for. The
pool was swept weekly, when the broom was taken right up to
the hole, but it
came away easily.
Possibly
12
Possibly 300 000 people had visited the resort
since the altered pool was commissioned. No untoward in-cident had ever occurred
and
Joubert was not aware, and it was never reported to him,that there was
strong suction at the outlet. He had never heard of a case
of a child being
sucked into the outlet pipe of a swimming pool. The plant was de-signed by
specialists and installed by specialists
and he accepted it as such. The outlet
would be blocked only if someone covered it with set purpose.
Since the occurrence, a grille has been placed over the opening at a cost of
about R50,00.
At the end of the evidence the defence made a formal admission that at all
times when the swimming pool was
in
13
in use (including 28 October 1984), the
filtration plant was in operation.
It was alleged in the main count that the
three accused were guilty of the crime of culpable homicide in that they
"wrongfully and
negligently killed Ryan Edward Andresen in life a 9-year old
male". No particulars of negligence were given, and none were asked
for. It
appears, however, that the case for the State was -
(1)
that the unguarded opening
to the outlet pipe was potentially dangerous to pool users while the filtration
plant was in operation;
(2)
that Joubert was
the person in control of the swimming pool,which was open to the public
(including children),and as such he had a
duty to do all that was reasonably
requisite to ensure the safety of users;
and
(3)
14
(3) that Joubert realised, or ought to have realised that the
unguarded opening was dangerous: he ought to have foreseen that, unless
reasonable steps were taken to prevent it, death to users could result.
The onus of proving
culpa
was on the State,
which had to establish
a failure by the accused to observe
that degree of carewhich a reasonable man
would have ob-
served. The reasonable man is the
diligens
paterfamilias
of Roman Law, the average prudent person, "that
notional
epitome of reasonable prudence", in the words of HOLMES JA
in
Peri-Urban Areas Health Board v. Munarin
, 1965(3) SA
367 (A) at 373 F. The reasonable man is the embodiment of
the social judgment of the Court,which applies "common
morality and common sense to the activities of the common man".
(per
15
(per DIPLOCK LJ in
Doughty vs. Turner Manufacturing Co Ltd
,
(1964) 1
QB 518
(CA) at 531). The criterion of liability for
culpa
in both civil
and criminal cases is reasonable foreseeability. In a case of culpable homicide,
the question is whether a
diligens paterfamilias
in the po-sition of the
accused would have foreseen the possibility of death resulting from his conduct.
(See
S v. Burger
, 1975(4) SA 877(A) at 879 A;
S v. Bernardus
1965(3) SA 287 (A)).
There was no direct evidence of the way in which Ryan
met his death, and the trial court had to rely on inference from the evidence,
mainly that of Norman. His evidence was not always clear and consistent,
and
16 and there are aspects of it which I do not fully under-stand.
Nevertheless the explanation accepted at the trial, and not disputed
in this
Court, was that Ryan dived down to the bottom of the pool and seated himself on
the floor with his back to the opening to
the outlet pipe in such a way as to
substantially block it with his posterior. The pressure of the water above him
forced his buttocks
into the pipe where he was trapped. The likelihood is that
his seating himself at the opening was a deliberate, not an inadvertent,
act.
In holding "that Joubert ought reasonably to have foreseen the possibility of
at least serious injury", the magistrate relied on
S v. Poole
, 1975(1) SA
924 (N),which, he said, was "a case with corresponding facts".
Poole's
17
Poole's
case was an appeal against a conviction
for culpable homicide arising out of the death of a child in a public tidal pool
at Scottburgh.
It appeared that while the pool was being emptied, the child had
become stuck in an outlet sump in the pool, and had drowned. On
appeal counsel
for the appellant conceded (rightly, in the view of the court) that on the facts
of the case, harm, of the nature
which oc-curred, was foreseeable as a
possibility by the reasonable man.
I do not consider that case to be of any as-sistance in the decision of this
appeal. In
Kruger v.Coetzee
1966(2) SA 428 (A), HOLMES JA pointed out at
430G that a finding of
culpa
"...must
18
"....must always depend upon the particular
circumstances of each case. No hard and fast basis can be laid down. Hence
the futility, in general, of seeking guidance from the
facts and results of
other cases."
See also
Rex v. Wells
,
1949 (3) SA 83
(A) where CENTLIVRES JA said at
87-88:
"Decided cases are .... of value not for the
facts but for the principles of law which they lay down. In this connection I
cannot do better than quote the remarks of LORD FINLAY
in
Thomson v. Inland
Revenue
(1919, S.C. (H.L.) 10):
'No enquiry is more idle than one which is devoted to seeing how nearly the
facts of two cases come together: the use of cases is
for the proposition of law
they contain, and it is no use to compare the special facts of one case with the
special facts of another
for the purpose of endeavouring to ascertain what
conclusion you ought to arrive at in the second case'."
It is
19
It is, therefore, to the facts of this case that regard must
be had.
In regard to (1), it is apparent from Norman's evidence that the
opening to the outlet pipe did not cónsti-tute a danger in
the ordinary
course. That is shown, too, by the fact that the pool was in operation for 17
years, during which it was used by about
300 000 people, and no untoward
incident occurred.
But the occurrence has shown that, in the cir-cumstances
in which it took place there was a danger, namely, when the opening was
effectively
blocked by gluteal muscles of a size such as to fit into and plug
the pipe.
In regard to (2), Joubert was admittedly in
control
20
control of the swimming pool to which the public was invited,
and was clearly under a duty to take all reasonable steps to ensure
that it was
safe.
The crucial question arises in regard to (3): ought Joubert to have
realised that the unguarded opening was dangerous - more specifically,
ought he
to have foreseen that, unless steps were taken to guard it, death could re-sult
to a user of the pool?
In considering this question, 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
21
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
(U.K.) Ltd
v. Morts Dock and Engineering Co Ltd
(
The Wagon
Mound
)
[1961] UKPC 1
;
1961
AC 388
(P.C.), VISCOUNT SIMONDS said at 424:
"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."
It would seem that the only possible way in
which death could have resulted from the fact that the opening
was unguarded, was death by drowning. The fact that Ryan
drowned, shows that death can be caused where there is a com-
bination of circumstances such as that in the present case;
but
22
but from Norman's evidence it does not appear
that there is any other way. I do not think that the
diligens
paterfa
-
milias
would have foreseen that freakish combination of
cir-cumstances. On the evidence, it was not reasonably fore-seeable that a child
would try, the buoyancy of the human body notwithstanding, to sit on the floor
of the pool against the opening. (It may be that a
child sitting across the
opening with part of his buttocks on either side of it, would be pinned against
the wall by the weight of
the water above him, but this is speculation for which
there is no support in the evidence.) In reply to a question by the magistrate,
Norman said that he thought that it would appeal to a 9 or 10 year old child to
go and sit on a hole that size - "it definitely would
have appealed to me when I
was a 9 or 10
year
23
year old child." In his judgment in the Court a
quo
,
HEYNS J made a point of the fact that Joubert's attorney did not in
cross-examination "place in issue the point of view ex-pressed
by the witness
about the proclivity of a child to do something like that." In my opinion
Norman's evidence on this point was not
admissible: the question was one for the
trial court, not for an engineer. Nor do I think that the
diligens
paterfamilias
would have appreciated the magnitude of the forces involved,
or the mechanism by which an accident of this kind could happen. Without
such
appreciation the possibility of death could not reasonably have been
foreseen.
It can be accepted that, as the prosecutor put it to Joubert in
cross-examination, children, being naturally inquisitive, "always
poke their
hands and feet and noses into
things
23 A
things that a normal person would not do." Nevertheless, it
was not Norman's evidence that such conduct could result in death, and
in my
view that was not a reasonably foresee-able consequence.
During
24
During the argument the question was raised by a
member of the Court - and counsel for the State adopted the point - whether a
diligens paterfamilias
, seeing the opening, would not have sought advice
from an expert as to its potential danger - either from the firm which installed
it or from an independant consultant. But even if that be accepted (I express no
opinion upon the matter), I do not think that Joubert's
failure to seek such
advice was shown to be causally connected with Ryan's death: one does not know
what the advice would have been.
In my view, therefore, the State failed to establish that Joubert or Bochris
was guilty of culpable homicide.
Counsel
25 Counsel for the State did not seek convictions on any of the
alternative counts in the event of the appeal against the conviction
for
culpable homicide being upheld, and it is accordingly unnecessary to deal with
those counts.
The appeal is allowed. The convictions and sentences are set
aside.
H C NICHOLAS, AJA
CORBETT, JA )
BOTHA, JA ) Concur SMALBERGER, JA )
VIVIER, JA )