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2024
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[2024] ZAFSHC 277
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Cobra Towing CC v Mangaung Metropolitan Municipality and Others (5264/2021) [2024] ZAFSHC 277; [2024] 4 All SA 423 (FB) (5 September 2024)
FLYNOTES:
MUNICIPALITY – Liability for fire damage –
Water
supply
–
Failure
to provide water – Absence of water in fire hydrants –
Mobile equipment utilised could not contain fire
–
Inadequate – Fire would not have spread if water was
available – Reignited when water tanker left to
refill –
Water interruption to area resulted in premises and fire hydrants
left empty – Omission of defendant
was prima facie wrongful
– Element of negligence proven – Claim for damages
succeeds.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 5264/2021
In
the matter between:
COBRA
TOWING CC
Plaintiff
[Registration
Number: 2005/050619/23]
and
MANGAUNG
METROPOLITAN MUNICIPALITY
1
st
Defendant
MUNICIPAL
MANAGER: MANGAUNG METRO-
POLITAN
MUNICIPALITY
2
nd
Defendant
CHIEF
FIRE OFFICER: MANGAUNG METRO-
POLITAN
MUNICIPALITY
3
rd
Defendant
CORAM:
VAN ZYL, J
HEARD
ON:
5 MARCH 2024
DELIVERED
ON:
5 SEPTEMBER 2024
[1]
The plaintiff instituted a delictual action against the Mangaung
Metropolitan Municipality and related parties
(“the
defendants”) for damages as the result of a fire which ignited
at its premises situated at 17 Henry van Rooijen
Street, East-End,
Bloemfontein (“the premises”) on 16 November 2018.
The amount claimed by the plaintiff amounts
to R785 714.30,
which amount, in terms of the particulars of claim, consists of the
following:
“
22.1
General Damages consisting of the value of the total loss of vehicles
and spare parts as indicated in “E”
appended hereto
amounting to R648 542.02; and
22.2
Consequential Damages in the form of loss of income from the sale of
the aforesaid vehicles and spare
parts as indicated in “E”
appended hereto amounting to R185 292.58.
[2]
Ms Ferreira appeared on behalf of the plaintiff. On behalf of the
defendants Mr Ayayee appeared during the
trial and drafted the
defendant`s heads of argument, whilst Mr Mabuda dealt with the oral
arguments presented on behalf of the
defendants.
The
pleadings:
[3]
The issues in dispute reflected on the pleadings, have been
considerately restricted, firstly as a result
of the admissions made
by each party as reflected in the rule 37A(10) minute, and secondly,
as borne out by the evidence.
Although I deem it apposite to
quote certain portions of the pleadings, it will be restricted to the
averments pertaining to the
interruption of the water supply and the
defendants` plea thereto. For the sake of ease of reading, I will
combine the quotations
from the particulars of claim and the plea by
quoting the relevant part of the particulars of claim and immediately
thereafter
I will quote the plea thereto:
“
6.
The
Premises, and more specifically the water supply to the Premises, is
provided by the First Defendant in terms of the legislative
framework
as pleaded herein.”
“
AD
PARAGRAPH 6:
7.
Save to note that the terms of the legislative framework have not
been pleaded, as alleged,
it is admitted that it is the
responsibility of the Municipality to ensure within its means and
available resources, water supply
to residents and businesses in its
territory.”
“
12.
The
Fire could have easily been contained had it not been for the
wrongful and negligent omission of the First Defendant as set
out
below.”
“
AD
PARAGAPH 12:
19.
The contents of this paragraph are denied. In amplification,
the fire spiralled out of control
and presented difficulty in
extinguishing as a result of …”
“
13.
The
sole cause of the spread and continuation of the Fire was the failure
by the First Defendant to supply water to the East End
area, and more
specifically, the Premises on the day of the Fire. ….”
“
AD
PARAGRAPH 13:
20.
The contents of the paragraph are denied. In amplification….”
“
14.
When
connected to sufficient water supply and being fully operational, the
System designed and installed by the Defendant at the
Premises would
have suppressed and extinguished the Fire at the Premises with
limited damage, which damage would have been confined
to the
immediate surrounding area of the vehicle in which the fire ignited.”
“
AD
PARAGRAPH 14:
21.
The contents of the paragraph are denied. In amplification …”
“
15.
At
the time of the Fire the System was however not operative due to the
fact that there was no water supply for fire-fighting to
the Eastern
area and Premises by the Defendant.”
“
AD
PARAGRAPH 15:
22.
The contents of this paragraph are admitted.”
“
16.
If
the Premises were supplied with water and same could have been
utilized to suppress the Fire, then the extensive damage to the
Premises and its contents, caused by the spread of the Fire, would
not have occurred, and,
in the alternative
, would have been
limited.”
“
AD
PARAGRAPH 16:
23.
The contents of the paragraph are denied. …”
“
17.
The
Plaintiff suffered extensive damages as pleaded below. The
aforesaid damages were suffered as a result of the Defendant’s
negligent and wrongful failure to supply water to the Premises,
conduct which is contrary to the legal duty of the First Defendant
as
required both in terms of the Defendant’s:
17.1
Constitutional mandate and functions;
17.2
Legislative mandate including its own by-laws;
17.3
The contractual relationship between the Plaintiff and Defendant.”
“
AD
PARAGRAPH 17:
24.
The contents of this paragraph are denied. In amplification,
the Municipality’s mandate
is to provide access to water,
within its available means.
25.
It is denied that the Municipality acted negligently and was
accordingly the cause and/or alternatively
the sole cause of the
damage suffered by the Plaintiff.”
“
18.
The
Constitutional duties of the First Defendant imposes upon it a duty
of care in the form of:
18.1
The right to lawful, reasonable and procedurally fair administrative
action;
18.2
The duty to ensure the provision of services to communities in a
sustainable manner;
18.3
The duty to promote a safe and healthy environment.”
“
AD
PARAGRAPH 18:
26.
The contents of the paragraph are admitted.”
“
19.
The
First Defendant breached the aforesaid duty of care by failing to
supply water to the Premises.”
“
AD
PARAGRAPH 19:
27.
The contents of the paragraph are denied.”
“
20.
The
Plaintiff, at all material times, made payment of all amounts due and
payable to the First Defendant in respect of the provision
of
services, including water supply. There is therefore no basis
for the First Defendant’s failure to adhere to the
aforesaid
duty of care.”
“
AD
PARAGRAPH 20:
28.
The contents of the paragraph are denied and the Plaintiff is put to
the proof.”
“
21.
As
a result of the Defendant’s failure to provide water supply to
the Premises, and the spread of the Fire which occurred
as a direct
result thereof, the Plaintiff suffered extensive damage to vehicles
and spare parts situated at the Premises.”
“
AD
PARAGRAPH 21:
29.
The contents of the paragraph are denied. In amplification it
is denied that the lack of
water supply to the area was the cause of
the fire and/or its spread.”
“
24.
The
damages suffered by the Plaintiff was suffered as a direct result of
the negligent and wrongful omission of the First Defendant.”
“
AD
PARAGRAPH 24:
32.
The contents of the paragraph are denied.”
“
WHEREFORE
THE FIRST PLAINTIFF PRAYS FOR JUDGMENT AGASINT THE FIRST AND SECOND
DEFENDANTS, JOINTLY AND SEVERALLY, THE ONE TO PAY,
THE OTHER TO BE
ABSOLVED, IN THE FOLLOWING TERMS …
”
“
WHEREFORE,
the
Defendants jointly move for an order dismissing the Plaintiff’s
action with costs on an attorney and client scale.”
Rule
37A(10) minute:
[4]
The admissions made by each party were recorded in the said minute to
be the following:
“
7.1
Condonation Notice in terms of Act 40 of 2002.
7.2
Citation and identities of Parties.
7.3
Date of incident 16 November 2018.
7.4
Plaintiff is the tenant of the property situated at 17 Henry van
Rooijen Street, East End,
Bloemfontein.
7.5
Plaintiff rents the property from Apex Trust IT: 187/2012.
7.6
Deed of transfer.
7.7
Plaintiff conducts the business of a Scrapyard from the premises.
7.8
That the Plaintiff occupied the premises.
7.9
The water supply to the premises is supplied by the First Defendant.
7.10
The premises are fitted with permanent fire-fighting equipment
connected to the water supply of the
First Defendant.
7.11
That it is the responsibility of the First Defendant to ensure within
its means and available resources,
water supply to residents and
businesses in its territory.
7.12
Fire started as a result of utilization of grinder by the Plaintiff’s
employee.
7.13
Water interruption to the East End Area on the day of fire and
premises had no water.
7.14
The system was not operational due to the fact that there was no
water supply for fire-fighting to
the East End Area.
7.15
Resultant fire damaged the building on the premises and some of the
vehicle wrecks.
7.16
Municipality has a duty to provide water in terms of Constitution and
Section 73 of Municipal Systems
Act.
7.17
The business conducted by the Plaintiff from the Premises is by
nature, a business in which fire hazards
occur from time to time.
7.18
The Plaintiff requires a permanent fire-fighting system and
fire-fighting equipment to be operative
at the premises.
7.19
Annexure “C” and Annexure “D” to the
Particulars of Claim were completed by
Acting Station Officer of the
First Defendant.
7.20
The content of Annexure “C” and “D” are
admitted.
7.21
The Constitutional duties of the First Defendant imposes upon it a
duty of care in the form:
7.21.1
The right to lawful, reasonable and procedurally fair administrative
action;
7.21.2
The duty to ensure the provision of services to communities in a
sustainable manner;
7.21.3
The duty to promote a safe and healthy environment.
7.22
It is admitted that the Plaintiff demanded payment from the
Defendant.”
[5]
The issues in dispute as recorded in the aforesaid minute are (or
were at the time) the following:
“
8.1
Joinder of the Chief Fire Officer dispute.
8.2
Extent of damages to the vehicle wrecks.
8.3
Whether the permanent fire-fighting equipment on the premises were
serviced and in an operational
state.
8.4
The adequacy of the permanently installed equipment at the premises
as the first line of
defence in containing or extinguishing the fire.
8.5
The obligation to maintain adequate fire-fighting equipment is not
discretionary but one
imposed by the stipulations of Part T of the
National Building Regulations, issued in terms of the National
Building Regulations
and Building Standards Act, 1977.
8.6
That these legislative provisions are aimed at ensuring safety in the
design construction
and equipping of buildings against fire hazards,
as are other pieces of legislation aimed at achieving occupational
health and
safety. Compliance with such legislation are not
discretionary.
8.7
That the operator of the grinder was duly trained and qualified.
8.8
That the operator of the grinder acted diligently in operating such
equipment around combustible
material.
8.9
The interpretation of Annexure “C” and “D” is
in dispute:
the particular aspect in dispute is the meaning of
the phrases ‘
bringing a fire under control
’ and
‘
extinguishing the flames
’.
8.10
That the Defendants admit the time of ignition of the fire: In
paragraph 12 of the Defendant’s
Plea the time at which the Fire
ignited is ‘noted’ whilst in paragraphs 13 and 14 of the
Defendant’s Plea the
issue is disputed.
8.11
Whether the fire was reported immediately by Plaintiff’s
representatives.
8.12
Plaintiff’s employees first attempted to combat the fire
utilizing the available equipment of
the Plaintiff.
8.13
That the fire had already been raging for a period prior to it being
reported.
8.14
Whether B5 and B2 (the fire engines) had water in when they arrived
at the Premises.
8.15
That the fire could have easily been contained had it not been for
the wrongful or negligent omission
of the First Defendant.
8.16
That the fire spiralled out of control and presented difficulty in
extinguishing as a result of:
8.16.1
The Plaintiff not having properly equipped the Premises with
fire-fighting equipment (properly maintained) which fire
extinguishers
and/or other portable fire-fighting equipment should
have been employed as a first line of defence.
8.16.2
The late reporting of the fire.
8.16.3
The haphazard layout of scrap at the Premises which prevented easy
access to the fire by creating the danger of falling objects,
as well
as, aided the quick spread of the fire.
8.16.4
The risk of the fire spreading to the nearby administrative offices,
which had to be protected first, prior to giving full
attention to
extinguishing the flames.
8.17
When connected to sufficient water supply and being fully
operational, the system would have supressed
and extinguished the
fire at the Premises with limited damage, which damage would have
been confined to the immediate surrounding
area of the vehicle in
which the fire ignited.
8.18
Sufficiency of the Plaintiff’s mobile fire-fighting equipment.
8.19
The issues of wrongfulness and negligence on the part of both Parties
are in dispute.
8.20
The ambit of the obligations of the Municipality is in dispute.
8.21
The nature of negligence sought to be imputed on the pleadings is
disputed.
8.22
It is denied that the First Defendant breached his duty of care by
failing to supply water to the premises.
8.23
That the plaintiff, at all material times, made payment of all
amounts due and payable to the First
Defendant in respect of the
provision of services, including water supply. There is
therefore no basis for the First Defendant’s
failure to adhere
to the aforesaid duty of care.
8.24
The damage suffered by the Plaintiff is denied.
8.25
Liability to make payment is denied.
8.26
It is denied that the damages suffered by the Plaintiff was suffered
as a direct result of the negligent
and wrongful omission of the
First Defendant.
8.27
It is denied that as a direct consequence of the incident and the
negligence of the First Defendant:
8.27.1
No water was available at the Premises to utilize to contain the
fire.
8.27.2
The fire spread to such an extent that the Premises burnt down
completely.
8.27.3
The Plaintiff suffered damages as set out in the Particulars of
Claim.”
[6]
The defendants have at the commencement of the hearing of the action
indicated that the quantum of the plaintiff`s
claim for general
damages is no longer in dispute, only the liability aspect thereof.
The claim for the consequential damages is,
however, still in
dispute.
[7]
With regard to the duty to begin and onus of proof, the parties
agreed as per the rule 37A(10) that the plaintiff
carries the duty to
begin as well as the onus of proof.
Witnesses
/ Evidence:
[8]
On behalf of the plaintiff the following witnesses testified:
1.
Mr Steyn Wepener (“Steyn”), who is the manager of the
plaintiff. He was not at the scene
on the day of the incident,
since he was out of town. He, however, followed the events
which occurred on the day by means
of security cameras at the
premises to which he had access via his cell phone.
2.
Mr Eduan Wepener (“Eduan”), who is the son of Steyn and
who was in the employment of the plaintiff
at the time of the
incident. He was at the scene when the fire ignited and
throughout all the events and he therefore presented
evidence as to
the happenings on the day.
3.
Mr Jeandré Wepener (“Jeandré”), who was
also in the employment of the plaintiff at
the time of the incident.
Originally he was not at the scene of the incident, since he was
collecting his daughter from school.
However, Ms Bianca Fourie
phoned him and informed him about the fire. He then rushed to
the scene. He presented evidence
as to what he observed on the
day of the incident.
4.
Ms Bianca Fourie, who was employed as personal assistant at the
plaintiff at the day of the incident.
She was advised by Eduan
about the ignition of the fire and immediately attempted to phone the
fire brigade, but was unsuccessful
to make contact with them.
She was the one who phoned Steyn and Jeandrè to advise them
about the fire.
5.
Mr Marius Whitehead was called as an expert witness and,
inter
alia
, testified about the contents
of his two expert reports, of which due notice had been given and the
reports had been duly filed.
He has been involved in the fire
industry for the past 43 years, He is currently the acting CEO of OFS
Fire Services. He is also
a director and founding member of the Cento
Group, which group is collectively the largest fire entity in South
Africa.
6.
No disrespect is meant by referring to the Wepener-witnesses by means
of their first names. It is merely for ease of distinguishing
between
the different Wepener-witnesses.
[9]
On behalf of the defendants the following witnesses testified:
1.
Mr Tsumi Radebe, who has been and still is in the employment of the
Fire Department for the past 16 years as a fire fighter.
He was
one of the fire fighters who attended the scene in the fire truck
B5. He testified as to what he observed on the day
of the
incident.
2.
Mr Russell van Deventer, who is a Fire Safety Officer at Bayswater
fire station and who attended the scene some time after the
fire had
already started. He used his drone to take photographs of the
scene and stood on one of the border walls to look
at the fire.
Although the defendant attempted to present his evidence as that of
an expert, it was objected against on the
basis that no expert notice
and report had been filed in respect of him. Mr Van Deventer
consequently presented factual evidence
regarding the observations he
made on the day of the incident.
[10]
In the particular circumstances of this case I do not deem it
necessary to give a full exposition and summary
of the evidence
presented by all the witnesses. I have, however, considered all
the evidence presented on behalf of the respective
parties. I will
deal with particular aspects of the evidence of the respective
witnesses later in the judgment when I address specific
issues.
[11]
However, in order to provide a factual background to the present
matter to place the respective issues in
context of the events of the
day, I will give an overall summary of the evidence of Eduan, being
the only witness who was at the
scene the whole time from when the
fire first ignited to the evening and who observed, from his point of
view, the relevant events.
[12]
A bundle of documents was presented in evidence on behalf of the
plaintiff and all the witnesses referred
to applicable documents and
photo’s contained in the said bundle during the presentation of
their evidence.
Mr
Eduan Wepener:
[13]
Prior to the incident Eduan saw an employee of the plaintiff grinding
on one of the vehicle wrecks.
The employee had a fire
extinguisher with him and took preventative action by placing a
bonnet in the area where he was grinding.
According to Eduan
the specific employee had received the required basic training to
perform the grinding. It was also not
for the first time that
he was performing grinding on vehicle wrecks.
[14]
Eduan was at the desk in the office in the admin building doing
sales, whilst the employee was performing
the grinding in a store
room adjacent to the admin building. He could not see the employee
from his office.
[15]
Eduan did not know that there was no water on the day. He had not
used water or restrooms earlier the day.
[16]
Eduan became aware of the fire when the employee shouted that there
is a fire. He ran outside to where
the grinding was taking
place and saw the employee with the fire extinguisher in his hand,
with its pin already extracted.
Eduan instructed the employee
to use the fire extinguisher to extinguish the fire. At that
stage it was a small fire which
was restricted to the particular
vehicle wreck.
[17]
Eduan ran to the hose reel inside the building and rolled it off
completely. When he opened it, there
was no water. The
hose was long enough to allow him to stand within about five metres
from the fire.
[18]
Outside the building was a second hose reel which he then took,
tested it for water, but there was also no
water available.
[19]
The vehicle wreck where the fire ignited then set alight the vehicle
which was packed on top of it.
[20]
Eduan ran to one of the other premises of the business which is
situated approximately two blocks from the
premises to fetch a second
fire extinguisher. When he returned, people from Bronco next
door was already at the scene with
their own fire extinguishers
trying to extinguish the fire. They had four fire
extinguishers.
[21]
He estimated the time since the fire started to the time that he
returned from the other premises to be approximately
fifteen minutes,
being five minutes from the start of the fire to when the worker
called him and he arrived at the store, five
minutes to collect both
reels and find that there was no water and five minutes to run to the
other premises and back.
[22]
The plaintiff also had a portable fire fighter which was full of
water and parked on the other side of the
street across the
premises. One Louwtjie fetched the fire fighter on a forklift
and they attempted to extinguish the fire
with the water in the fire
fighter, but was unsuccessful in doing so. They decided to take
out some of the other vehicles,
since they were told that the fire
department was on its way and they wanted to remove the vehicles to
make space for the fire
department. They also removed some of
the vehicles in an attempt to prevent the fire from spreading any
further.
[23]
Eduan testified that the vehicles were stored two vehicles on top of
the other with a distance of about two
metres space between the
vehicles next to each other, since the space is required for the
doors of the vehicles to be opened when
a vehicle is to be stripped
or when a client wants to buy a whole door panel of a vehicle.
After about 25 minutes after the
fire started a fire truck arrived,
which turns out to have been B5. The hoses thereof were rolled out,
but the truck had no water.
The fire fighters tried to connect
the hoses to the fire hydrant outside, but there was also no water.
[24]
After approximately five to seven minutes later a water tanker of the
fire brigade arrived. It did
have water in and it was connected
to the fire truck in order for the fire truck to use the water from
the water tanker to extinguish
the fire. According to Eduan the fire
was, at that stage, contained to the store and the vehicles inside
the store.
[25]
At one stage, after approximately 10 to 15 minutes after the fire
truck started spraying water, the water
of the water truck was also
emptied out. The fire was under control at that stage, although it
was still smoking.
[26]
The water truck left to refill at Lemo Mall, but while it was away,
the fire re-ignited. In the meantime,
they had also filled their own
fire fighter with water again and used it on the fire. Eduan
and Jeandré also used
buckets to pick up water from the ground
and threw it onto the admin building to keep it from also alighting.
[27]
According to Eduan the water truck was away for about 15 to 20
minutes to refill and in that time the fire
started all over again.
The vehicles outside the store also caught fire.
[28]
After the water tanker returned, the fire truck again sprayed water
on the fire to extinguish it, but by
that time it had spread.
[29]
According to Eduan the fire brigade did not use their water for the
admin building. Although the admin
building did burn lightly,
they were successful in keeping it from alighting by throwing the
buckets of water onto the building.
[30]
When the fire brigade left the scene, the fire was not fully
extinguished. There were no flames, but
Jeandrè and
Eduan still used the buckets to throw water onto the areas which were
still smoking.
[31]
During cross-examination Eduan testified that Bianca worked in the
building down the street, being the building
from where Eduan fetched
the second fire extinguisher, and he informed her about the fire and
instructed her to phone the fire
brigade.
[32]
Eduan testified that the fire brigade was able to access the premises
for purposes of fighting the fire.
He denied that the wrecks caused
them not to be able to access the fire. Reference was made to the
paragraphs to indicate how close
the fire brigade could come to the
fire and to demonstrate that their access was not blocked.
Findings
on issues in dispute excluding the alleged wrongful and negligent
conduct of the defendants regarding their failure to
provide water:
[33]
As far as the defendants allege that the plaintiff did not comply
with the National Building Regulations
and Building Standards Act,
the undisputed evidence of Mr Whitehead was that the plaintiff was,
in fact, compliant. Mr Whitehead
testified that the third defendant
itself declared the plaintiff to be compliant. He also referred to
the documentation attached
to his report in this regard.
[34]
With regard to the question whether the permanent fire-fighting
equipment on the premises were serviced and
operational, the
plaintiff provided invoices pertaining to the said equipment having
been serviced and Mr Whitehead confirmed that
his company has in fact
attended to the servicing of both the permanent and the temporary
equipment.
[35]
On the papers the training and qualifications of the grinder operator
were placed in dispute. However, both
Steyn and Eduan testified that
he received the necessary training and that he was experienced in
dong the grinding work. Eduan
also testified about the precautionary
measures which the employee took.
[36]
The adequacy of the permanent installed fire-fighting equipment at
the premises as a first line of defence
in containing or
extinguishing a fire, was also questioned. From the evidence of both
Steyn and Eduan it was evident that the temporary
or mobile equipment
utilised could not contain the fire. A constant flow of water, which
could only have been obtained from the
hydrants, was necessary to
have extinguished the fire. Had water been available, Eduan would
have been able to extinguish and contain
the fire by means of the
hose reels which he attempted to use. Mr Whitehead testified that it
ought to have been contained at the
5-minute inception stage, which
would have been possible if there had been a constant flow of water.
The fact that Eduan was not
able to contain the fire, was not due to
the inadequacy of the plaintiffs’ permanent fire-fighting
equipment, but due to
the absence of water for the hose reels. The
fire would therefore not have spread if it had not been for the
absence of water when
Eduan attempted to use the hose reels.
[37]
In my view it is also evident form the plaintiff`s witnesses that the
“second” spreading of the
fire occurred when the water
tanker left to fill up with water. Had there been water in the fire
hydrants, the water tanker would
not even have been necessary, as the
fire truck would have extracted water directly from the fire
hydrants. The re-ignition and
the spreading of the fire during the
time when the water truck was away and the fire truck could not spray
water, consequently
also occurred as a result of the absence of water
in the fire hydrants.
[38]
The defendants disputed that the fire was immediately and promptly
reported by the plaintiff. The evidence
of Eduan is clear in this
respect and it is evident that he reported the fire to Ms Fourie when
he ran to fetch the extra fire
extinguisher and she immediately
attempted to phone the fire brigade. The fact that she could
not get hold of them is irrelevant
for present purposes, because it
is evident that one “Rob” had reported the fire at
approximately the same time.
[39]
The defendants initially disputed the fact that the plaintiff`s
employees themselves attempted to combat
the fire. The evidence
presented on behalf of the plaintiff in this regard is overwhelming
in support of the fact that the employees
in fact attempted to combat
the fire and the evidence in this regard stand undisputed.
[40]
In so far as the defendants averred that the plaintiff did not pay
the first defendant the amounts due and
owing to it, Steyn`s evidence
regarding the payment of the accounts and that no amount was overdue,
is to be accepted. It is in
any event not the defendant`s case on the
pleadings that the water had been discontinued due to an overdue
account and no notice
in this regard had in any event been given to
the plaintiff by the first respondent.
[41]
With regard to the layout of the scrapyard, it is evident from the
evidence of Eduan and the photos that
the vehicle wrecks did not
prevent the fire brigade from accessing the fire. The plaintiff`s
employees were also able to access
the fire with the fire fighter on
the forklift. Furthermore, the evidence of the plaintiff`s witnesses
was that no more than two
cars were packed on top of each other. This
was even confirmed by the defendants` witness, Mr Van Deventer, who
pertinently testified
that he did not see more than two cars packed
on top of each other.
[42]
The aforesaid issues have, in my view, been proven by the plaintiff
on a balance of probabilities and the
plaintiff consequently
discharged its onus in respect thereof.
[43]
The issue pertaining to whether B5 had water or not when it arrived
at the premises, has, in my view, become
irrelevant. When Mr Radebe`s
evidence is considered in relation to the capacity of the fire truck
B5 and that of the water tanker,
it is clear that even if B5 was
filled with water when it arrived at the premises, it would in any
event have run out of water
in the absence of water in the fire
hydrant and the water tanker would then in any event have had to
leave the premises to go and
fill up with water at Lemo Mall. I
consequently consider it unnecessary to make a determination in this
regard.
Contributory
negligence:
[44]
In terms of section 1 of the Apportionment of Damages Acts, 34 of
1956, a defendant may claim an apportionment of damages
in his plea
because of the contributory negligence of the plaintiff. However, the
defence must be pleaded and appropriate relief
of apportionment must
be sought in the plea.
[45]
As already raised by Ms Ferreira during the trial, the
defendants did not pertinently plead contributory negligence
in this
instance, nor are they claiming an apportionment of damages in their
plea. No argument was raised to the contrary in the
defendants` heads
of argument nor was it raised in the oral argument presented on their
behalf.
[46]
Having said that, the plea of the defendants seems to contain a
haphazard attempt to possibly have pleaded
contributory negligence.
In this regard, I refer,
inter alia,
to the following
paragraphs of the plea:
“
AD
PARAGRPH 16
23.
… The cause of the fire and the difficulty to contain and/or
extinguish a fire, were as
a result of the plaintiff`s actions as
pleaded.
…
AD
PARAGRAPH 17
24.
…
25.
It is denied that the Municipality acted negligently and was
accordingly the cause and/or alternatively
the sole cause of the
damages suffered by the plaintiff.”
[47]
In addition to the aforesaid, it was noted in the rule 37A(10) minute
that one of the issues in dispute is
the following:
“
8.19
The issues of wrongfulness and negligence on the part of both
-Parties are in dispute”
[48]
In
Amler`s Precedents of Pleadings
, LTC Harms, Ninth
Edition at p. 274 the following is stated:
“
A
court may order apportionment in the absence of proper pleadings if
the issue was fully canvassed.”
See
A.A Mutual Insurance Association v Nomeka
1976 (3) SA
45
(A).
[49]
Therefore, in so far as it may be considered that the issue of
contributory negligence had been fully canvassed
in the evidence, I
deem it necessary, for the sake of completeness, to make a finding in
respect of contributory negligence.
[50]
I have not yet made a determination about the defendants` negligence
or the absence thereof. However, in
so far as I may find against the
defendants in this regard, I make the finding that in view of the
findings I already made above
in respect of those issues that were in
dispute, it cannot be found that the plaintiff had been contributory
negligent in any degree
in having caused the damages suffered by the
plaintiff.
Wrongfulness
of the conduct of the defendant:
[51]
For purposes of the law of delict, liability only follows if an
omission was in fact wrongful and this will
be the case only if in
the particular circumstances a legal duty rested upon a defendant to
act positively to prevent harm from
occurring, and the defendant
failed to comply with that duty. See
Law of Delict,
J
Neethling
et al,
Fifth Edition, at p.51, para 5.
[52]
It is common cause between the parties that there was a water
interruption to the East End area on the day
of the fire and that
there was consequently no water available at the premises of the
plaintiff.
[53]
For the sake of ease of reference, I repeat the following aspects
which were agreed upon between the parties
in terms of the rule
37(A)10 minute:
“
7.9
The water supply to the premises is supplied by the first defendant.
7.11
That it is the responsibility of the first defendant to ensure
within its means and available resources, water supply to residents
and businesses in the territory. (My emphasis)
7.16.
The Municipality has a duty to provide water in terms of the
Constitution and section 73 of the Municipal Systems
Act.
7.21
The Constitutional duties of the first defendant imposes upon it a
duty of care in the form of:
7.21.1
The right to lawful, reasonable and procedurally fair
administrative action;
7.21.2
The duty to ensure the provision of services to communities in a
sustainable manner;
7.21.3
The duty to promote a safe and healthy environment.”
[54]
I also repeat the relevant issues in dispute that were noted:
8.19
The issues of wrongfulness and negligence on the part of both parties
are in dispute.
8.20
The ambit of the obligations of the Municipality is in dispute.
8.22
It is denied that the first defendant
breached its duty of care by failing to supply water to the
premises.
” (My emphasis)
[55]
In the heads of argument filed on behalf of the defendants the
following contention was accentuated and also
repeated by Mr Mabuda
in his oral argument:
“
11.
Whilst it is common cause that there was no water in the Eastern End
area of Bloemfontein for fire-fighting purposes
on 16 November 2018,
the plaintiff did not address a single enquiry to the defendants`
witnesses, as to the reason why there was
a water interruption. This
is significant and we submit an insuperable hurdle to the plaintiff`s
case. The plaintiff did not establish
in evidence the reason why
there was a water interruption.
12.
To suggest as the plaintiff does, that any interruption in water
supply, whatever the reason,
would result in a situation where a
municipality may be held strictly liable is an absurd notion. For
example, a water interruption
necessitated by a need to carry out
critical maintenance works on Municipal water infrastructure, can
never be construed as being
either wrongful and/or negligent.”
[56]
The defendants advanced the aforesaid submission in conjunction with
their reliance on the fact that the
plaintiff accepted the onus in
terms of the rule 37A(10) minute.
Grounds
of justification:
[57]
Grounds of justification are special circumstances in which conduct
that appears to be wrongful is rendered
lawful. The violation of
interests is therefore not unreasonable or
contra bonos mores
.
A ground of justification therefore excludes wrongfulness by
eliminating the apparent wrongfulness of the defendant`s conduct.
See
Law of Delict,
supra,
at p. 70. Para 6.1.
[58]
The onus to prove the existence of such a ground of justification
rests on the defendant. See
Mabaso v Felix
1981 (3) SA
865
(A) at 874.
[59]
One such ground of justification is statutory authority which entails
that a person does not act wrongfully
if he performs an act (which
would otherwise have been wrongful) while exercising a statutory
authority. To determine whether the
permitted act fell within the
boundaries of the authorisation, the defendant`s conduct must have
been reasonable; in other words,
it must not have been possible to
prevent or limit the damage by other reasonably feasible measures or
methods. Here the onus is
on the plaintiff to show that reasonable
alternative methods indeed existed and that the defendant had
therefore acted unreasonably.
See
Law of Delict,
supra,
at p. 95 - 97. Para 6.6.
Pleadings in general:
[60]
The following general principles regarding pleadings are contained in
Amler`s Precedents of Pleadings
, supra,
at p.1:
“
Purpose
of pleadings:
A
party must define its cause of action and defence in the appropriate
pleading in the court of first instance, to inform the other
parties
to the matter of the case they must meet and of the relief sought
against them in that court. This is a fundamental principle
of
fairness in the conduct of litigation, which promotes the parties’
rights to a fair hearing guaranteed by section
34 of the
Constitution.
…
The
purpose of pleadings is to define the issues for the other party and
the trial court and for any court of appeal. The duty of
those courts
is to adjudicate upon the disputes and those disputes alone.
…
The
oft-repeated statement that ‘pleadings are made for the court
not the court for the pleadings’ may be misunderstood.
As
mentioned, pleadings are made primarily for the parties. They are
also made for the court, meaning that they circumscribe the
function
of the court in the matter. However, the court should not be hampered
in deciding a matter by pleading technicalities.
Clarity
and conciseness:
Every pleading
must contain a clear and concise statement of the material facts upon
which the pleader relies for the claim, defence
or answer, with
sufficient particularity to enable the opposite party to reply
thereto.
…
Fact
and law:
Pleadings are
accordingly about facts from which legal conclusions may be drawn and
not about law. …”
Application
to the facts:
[61]
In the present instance the legal duty or statutory duty of the first
defendant to ensure within its means
and its available resources,
water supply to residents and businesses in the East End area on the
day of the fire, is not in dispute
and has been conceded by the
defendants. It is also common cause that a water interruption to the
East End area in fact occurred
on the day of the fire, which resulted
in the premises and the fire hydrants to have been without water
during the time of the
fire. That omission of the first defendant was
therefore
prima facie
wrongful.
[62]
If the defendants wanted to rely on a ground of justification, such
as that it was not within the first defendant`s
means and available
resources and therefore it had the statutory authority not to supply
water at that stage, they should have
pleaded same, in which instance
they would have had the onus to proof the pleaded justification. In
that instance the plaintiff
would probably not have agreed that it
bears the onus on all the issues in dispute.
[63]
The defendants are also relying on the Mangaung Metropolitan
Municipality by-laws relating to water services
promulgated in the
Provincial Gazette, No. 60 of 25 October 2013, as general
justification in the instance of any water interruptions,
also the
interruption in the present instance. Under the heading of “
General
Conditions of Supply”
it,
inter alia,
determines as
follows:
“
33.
(1) Subject to the provisions of the Act, the
supply of water by the Municipality does not constitute
an
undertaking by it to maintain at any time or at any point in time in
its water supply system -
(a)
an uninterrupted supply;
(b)
a specific pressure or rate of flow in such supply; or
(c)
a specific standard of quality of water
…
(3)
The Municipality may, in an emergency, interrupt the supply of water
to any premises without prior notice.”
[64]
Similarly as above, I am of the view that the defendants cannot rely
on the by-laws without having pleaded
same as justification. Let me
immediately state that I know that one does not plead the law, but
facts. Therefore, what should
have been pleaded is again statutory
authority in terms of the by-laws, without pleading the by-laws as
such. That would also have
granted the plaintiff the opportunity to
have replicated thereto by pleading, for example, the illegality or
unconstitutionality
of the by-laws.
[65]
In the circumstances I am satisfied that the plaintiff proved the
wrongfulness of the first defendant`s conduct
due to its failure to
have complied with its (conceded) legal duty or statutory duty.
Negligence:
[66]
In my view a reasonable person in the position of the first defendant
would have foreseen the reasonable
possibility that the extended
interruption of the water could injure another person`s property and
cause patrimonial loss and such
a reasonable person would have taken
reasonable steps to guard against such occurrence. The first
defendant failed to take such
reasonable steps. The first respondent
could easily have forewarned or informed, depending on the
circumstances, the residents
and businesses in the East End area of
the interruption of water by means of different media - and social
media platforms, which
would have eliminated the risks. In this
regard Eduan himself testified, when he was asked during
cross-examination why they performed
grinding operations well knowing
that there was no water, he testified that he was not aware that the
water supply had been interrupted
and had he been notified about it,
they would not have performed grinding activities.
[67]
In the circumstances I am satisfied that the plaintiff also
discharged its onus in respect of the element
of negligence.
Damages:
[68]
As previously indicated, the quantum of the plaintiff`s general
damages is not in dispute.
[69]
With regard to the consequential damages claimed by the plaintiff,
it is pleaded
to be damages in the
form of loss of income from the sale of the vehicles and spare parts
lost in the fire.
[70]
A
plaintiff must allege and prove the quantum of damages suffered
because of the defendant’s wrongful and negligent act.
[71]
Steyn testified about the plaintiff`s damages with reference to
annexure “E” to the particulars
of claim. He attempted to
explain how the amount of R 185 292.58 was compounded and
calculated, but was unable to do so. The
calculation which he
explained in court, totalled an amount far more than R185 292.58.
Ms Ferreira submitted than since the
amount claimed is a lesser
amount than the calculation Steyn made in court, the lesser amount
can be awarded.
[72]
I can unfortunately not agree with the aforementioned submission.
Damages and the basis for the calculation
thereof are to be proven,
not guessed. If the amount as calculated in court was more than the
amount claimed, the correct calculation
may just as well turn out to
be less that the amount claimed. No proper and reliable evidence was
placed before me on the basis
of which I can award any amount of
damages in respect of consequential damages.
Causation:
[73]
Based on the findings I have already made in relation to the
merits of this action, it is on balance of probabilities
evident that
the wrongful and negligent omission of the first defendant was the
cause of the plaintiff`s general damages and it
should be held
responsible for the payment thereof to the plaintiff.
Costs:
[74]
The parties are
ad idem
that the general rule that costs
follow the outcome, should be applied in this instance and I am in
agreement therewith.
Order:
[75]
The following order is made:
1.
The first and second defendants are ordered to pay the plaintiff the
following, jointly and
severally, payment by the one the other to be
absolved:
1.1
The amount of R 648 542.02 (Six hundred and forty-eight thousand
five hundred and forty-two rand and
two cents.
1.2
Interest
a tempora morae
on the aforesaid amount from the date
of service of the Summons to date of payment.
1.3
Costs of the action.
C.
VAN ZYL, J
On
behalf of Plaintiff:
Adv J
Ferreira
Instructed
by:
Bezuidenhouts
Inc
BLOEMFONTEIN
E-mail:
wynand@bezuidenhouts.co.za
On
behalf of Defendants:
Adv
AE Ayayee (Trial)
Adv
TV Mabuda (Closing Arguments)
Instructed
by:
Moruri
Attorneys Inc
B
LOEMFONTEIN
E-mail:
kagisho@moruriattorneys.com