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2024
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[2024] ZAECMHC 53
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Myathaza v Sportcene Mthatha (5545/2022) [2024] ZAECMHC 53 (20 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE
NO: 5545/2022
In
the matter between:
NONDUMISO
MYATHAZA
Plaintiff
and
SPORTCENE
MTHATHA
Defendant
JUDGMENT
CORAM:
PITT AJ
Introduction
[1]
The plaintiff, Nondumiso Myathaza (“Ms Myathaza”)
instituted a claim against the defendant, Sportscene Mthatha
(“Sportscene”) for damages allegedly suffered after she
slipped and fell at the entrance of the defendant’s premises
on
3 December 2019 at approximately 17h00.
[2]
Ms Myathaza alleged that she slipped on a mat at the entrance to the
premises of Sportscene, which mat was wet with water
from the rain.
Ms Myathaza alleged that she injured her left ankle as a result of
the fall. Sportscene denied liability and alleged
that Ms Myathaza
tripped over her own legs outside of the premises of Sportscene and
fell into the entrance of Sportscene. These
are two mutually
destructive versions, and the court must decide which of the two
versions to accept, and which one to reject
in hoc casu.
[3]
At the commencement of the trial, both Counsel for the parties
requested the court to separate the issues of liability
and quantum,
and that the matter proceed on liability only. The request for
separation was granted in terms of Rule 33(4) of the
Uniform Rules of
Court and the issue of quantum was postponed for determination at a
later stage.
[4]
The main issue to be determined is whether Sportscene is to be held
liable for damages allegedly arising from the injury
sustained by Ms
Myathaza as a result of her slipping and falling at the entrance of
the premises of Sportscene. The defendant also
contended that if the
court finds that the plaintiff fell outside the premises of
Sportscene, that the mall should be held liable
instead.
The
two versions.
[5]
The plaintiff’s version is that she had gone to Sportscene to
purchase some clothing items on 3 December 2019, which
was a rainy
day. She was a teacher at the time, and she had left school after
16h00 on the day. It had been raining since earlier
in the day. When
she reached the entrance to Sportscene, she shook the rain off her
umbrella outside the premises before she turned
to go inside. The
entrance to Sportscene was on her left- hand side. She further
alleged that she turned to her left- hand side,
and she walked into
the entrance. After she had taken about three steps, she slipped on
the mat at the entrance which was wet and
fell after breaking her
left ankle. After she had fallen, she rolled around in pain a few
times before coming to a halt at the
entrance with her legs outside
of the entrance. She was not certain whether she had taken three or
four steps before she slipped
and fell, but she was certain that she
slipped on the mat and fell inside the premises of Sportscene. While
she was lying on the
floor, she felt that her legs were wet from the
mat.
[6]
The defendant’s version of the incident, according to the
witness who testified on behalf of Sportscene, Mrs Ronetha
Chantell
Gonzalves (“Mrs Gonzalves), is that she was standing near the
entrance where Ms Myathaza fell. She saw Ms Myathaza
approaching the
entrance and subsequently falling. Ms Myathaza did not slip on the
mat inside the premises. Ms Myathaza fell outside
of the premises
when she crossed her right leg over her left leg, thereby tripping
and falling down. Ms Myathaza fell into the
shop after tripping over
her own legs, and that is how she injured herself.
[7]
In addition to the plaintiff testifying, another witness, Ms
Ntombomzi Lwebuga (“Ms Lwebuga”), was called
to give
evidence. The defendant did not call any other witnesses to testify.
PLAINTIFF’S
WITNESS:
Ntombomzi
Lwebuga.
[8]
Ms Lwebuga testified that she was a friend of the plaintiff for over
ten years. The plaintiff was one of her clients at
the business at
which Ms Lwebuga worked as a hairdresser. The business was situated a
few minutes’ walk from where the incident
took place. According
to Ms Lwebuga, she received a telephone call from another client of
hers that the plaintiff had been injured
shortly after the incident
took place. Upon hearing the news of the plaintiff’s injury,
she hurried to Sportscene to see
if she could assist the plaintiff in
any way. When she arrived there, the plaintiff was already lying on
the floor on the mat to
the entrance of Sportscene and crying in
pain. She gave evidence that she asked the plaintiff what had
happened, and that she told
her that she slipped on the mat and fell.
She bent down and felt with her hand that the mat was wet. She did
not witness the incident.
DEFENDANT’S
WITNESS
Ronetha
Chantell Gonzalves.
[9]
The defendant only called one witness, Gonzalves, as referred to
above. The following is her evidence in support of the
defendant’s
version that the plaintiff fell outside the premises of Sportscene
and not inside the premises. Mrs Gonzalves
was no longer employed by
Sportscene and she had resigned at the end of 2019. She is
self-employed and decided to testify out of
her own will and at her
own expense. She was the only staff member of Sportscene who
witnessed Ms Myathaza falling. There were
other staff members on duty
on the premises, but they were not in the position that she was in to
witness the incident. That is
why only she testified on behalf of the
defendant. The plaintiff landed at the entrance of the Sportscene. On
a photograph which
was handed in as evidence, Mrs Gonzalves indicated
that the plaintiff fell on her left- hand side on the mat, and that
she rolled
over to her right-hand side. She ran over to the plaintiff
when she fell, and tried to assist her as she was trained in first
aid.
During this time, she had knelt over the plaintiff, and she did
not feel that the mat was wet where she was kneeling at the time.
The
mat was a non-slip mat embedded into a gap in the floor of the
premises. The purpose of the mat was to trap dirt and water.
Over the
entrance of Sportscene there was a roof which prevented the rain from
entering the premises, more especially the entrance.
The tiles next
the mat before the entrance were wet because persons entering the
premises tracked water from the rain onto the
tiles. Ms Gonzalves was
an assertive witness who gave an account of what she recalled she
saw. When asked whether the mat would
get wet during the course of
such an afternoon as the one on which the incident occurred, she
merely stated that the mat was dry
where she was. She further
insisted that the mat would not get wet after it was put to her that
the mat would probably get wet
after foot traffic or customers were
to traverse the mat with wet feet.
The
law.
[10]
As mentioned above, the court is faced with two mutually destructive
versions of the incident. The question is which
one of the versions
should be accepted. It is trite that courts, when faced with two
mutually destructive versions, resolve factual
disputes as was held
in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell and Others
[1
]
“
To come to a
conclusion on the disputed issues a court must make findings on: (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probability or improbability of each party’s
version on each of the disputed issues. In
light of the assessment of
(a), (b) & (c) the court will, as a final step, determine whether
the party burdened with the onus
of proof has succeeded in
discharging it. The hard case, which will doubtless be a rare
one, occurs when a court’s
credibility findings compel it in
one direction and its observations and evaluation of the general
probabilities in another. The
more convincing the former, the less
convincing will be the latter. But when all factors equipoised
probabilities prevail”.
[11]
In
National
Employers’ General Insurance Co Ltd v Jager
[2]
a
similar approach was echoed “
in
that the onus can
ordinarily
only be discharged by adducing credible evidence to support the case
of the party on whom the onus rests. Where there
are two mutually
destructive stories, he can only succeed if he satisfies the court on
a preponderance of probabilities that his
version is true and
accurate and therefore acceptable and the other version is therefore
false or mistaken and falls to be rejected.
In deciding whether the
evidence is true or not, the court will weigh up and test the
plaintiff’s allegations against the
probabilities. When
considering the probabilities of both versions and if the balance of
probabilities favours the plaintiff the
court will accept his version
as being probably true. If, however, the probabilities are evenly
balanced in the sense that they
do not favour the plaintiff’s
case anymore that they favour the defendant’s, the plaintiff
can only succeed if the
court nevertheless believes him and is
satisfied his version is true and that of the defendant is false”.
[12]
In
Dreyer
v AXZS Industries
[3]
the
court reiterated the approaches in the
Stellenbosch
and
Jagers
cases.
The court referred to the probabilities inherent in the respective
conflicting versions and that the maxim that the party
who bears the
onus must satisfy the court on a balance of probabilities that his
version, taken into account the probabilities
of the two destructive
versions, is true and should be accepted.
Evaluation
of the evidence.
[13]
I am satisfied that the plaintiff’s version is the most
probable for a number of reasons. I found the plaintiff
to be a
credible and reliable witness. The plaintiff testified that she did
not trip over her own legs before she fell. She also
testified that
she slipped on the mat which was wet. Further, she gave evidence that
she fell on her left-hand side. This was confirmed
by Mrs Gonzalves.
The plaintiff fractured her left ankle. Although she was not asked
how exactly she sustained this injury, I assume
that she twisted her
foot and ankle when she stepped on it and that is most probably how
she injured it. She fell on her left-hand
side, and it confirms that
the plaintiff took a fourth step before falling, which she could not
remember. The plaintiff was honest
enough to say she could not
remember if she took a fourth step before falling. It is most
probable that she did take a fourth step
before falling. From the
photos it is clear that there was water on the tiles or cobble pavers
just before the mat. It is most
probable that there was water tracked
onto the mat at the entrance to Sportscene.
[14]
Ms Lwebuga was a reliable and credible witness. She appeared truthful
and was not evasive at all when asked questions
under
cross-examination. She admitted straight away that she did not see
the incident happen, and that she does not know where
the plaintiff
had slipped and fallen. She told the court what the plaintiff had
told her about how and where she had slipped and
fallen.
[15]
Mrs Gonzalves correctly testified that the purpose of the mat was to
trap dirt and water. In all probability, the mat
did trap the water
tracked onto it by the customers who walked into Sportscene on that
day. A mat, even a non-slip mat, which was
wet from the rainwater
tracked onto it by wet shoes will most probably become slippery and
its grip function become impeded by
the water. Ms Myathaza testified
that her legs were wet from the water while she was lying on the mat
after she had fallen. Ms
Lwebuga also testified that the mat was wet
when she felt it. Mrs Gonzalves gave evidence that the mat was wet
where she had knelt
down when she assisted the plaintiff after she
had fallen. She did not testify that the rest of the mat was not wet.
It is probable
that the mat was wet where the plaintiff alleged that
she had stepped on it before she slipped and fell.
[16]
The plaintiff testified that after she had fallen, she rolled in pain
and that is why she ended up lying with her feet
outside the entrance
as depicted in one of the photographs referred to at the trial. Mrs
Gonzalves also confirmed that the plaintiff
rolled to her right-hand
side after she had fallen down. It explains why the plaintiff was not
lying inside the premises with her
whole body at the time when the
photograph was taken. The version of the plaintiff is far more
probable and ties in with the factual
position where the plaintiff
was found after the fall.
Costs.
[17]
The general rule is that the successful party should be awarded his
or her costs, and unless there are exceptional circumstances.
I am of
the view that there are no exceptional circumstances to deviate from
the general rule. The purpose of a cost order is for
the successful
party to recover from the losing party the expenses incurred as a
result of the case.
[4]
Order.
Accordingly,
the following order shall issue:
1. The defendant is
held 100% liable to the plaintiff for damages suffered as a result of
injuries sustained by the plaintiff
on 3 December 2019.
2. The defendant
shall pay the plaintiff’s costs on High Court scale A.
DV PITT
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant:
Adv J Hobbs
Instructed
by:
JA le Roux Attorneys
Mthatha
Counsel for the
Respondents:
Adv Westerdale
Instructed
by:
Joubert Galpin Searle
C/O J
Sikungo Attorneys
Mthatha
Heard
on:
5 and 6 February 2024
Date judgment
delivered:
20 June 2024
[1]
2003
(1) SA (SCA) 1
at [5].
[2]
1984
(4) SA 437
(ECD)
at 440D-441A.
[3]
2006
(5) SA 548
SCA
.
[4]
See Herbstein & Van Winsen,
The
Civil Practice of the Supreme Court of South Africa
4th Ed p 701.