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2024
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[2024] ZAKZPHC 74
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Bland v Abaqulusi Municipality (8144/2019P) [2024] ZAKZPHC 74 (23 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 8144/2019P
In
the matter between:
IRENE
ELFRIEDE BLAND
PLAINTIFF
And
ABAQULUSI
MUNICIPALITY
DEFENDANT
ORDER
1.
The application for absolution from the instance is dismissed.
2.
The defendant is ordered to pay costs.
JUDGMENT
Delivered:
Mngadi
J
[1]
The Plaintiff claims damages from the Defendant for injuries she
sustained when she fell whilst
walking on a sidewalk along the
street.
[2]
The plaintiff is Irene Elfriede Bland an adult female pensioner. The
defendant is Abaqulusi Municipality
a Local Authority constituted in
terms of the Local Government Municipality Systems Act 32 of 2000 and
the
Local Government Municipal Structures Act 117 of 1998
.
[3]
The plaintiff sued the defendant in that the sidewalk was not well
maintained which caused her
to fall and it was the defendant's duty
to have the sidewalk and pavements within its area of jurisdiction
properly maintained
ensuring the safety of users, and if there was a
danger, to warn users of such danger.
[4]
The defendant in the plea pleaded no knowledge of the incident and
put to the plaintiff to the
proof of her claim including proof of the
defendant's liability.
[5]
By consent at the commencement of the trial in terms of Uniform Rules
33 (4) the issue of liability
was separated from the issue of
quantum. The trial proceeded on the issue of liability.
[6]
The plaintiff lead evidence of two witnesses and closed her case.
The defendant applied
for absolution from the instance.
[7]
Irene Bland testified as follows. She was the plaintiff. She was 75
years old. She stayed in South
Street in Vryheid Town. She has lived
in Vryheid for all her of her life.
[8]
On 26 April 208 she was walking down the street in town. She was
shopping. At about 9h45 she was
walking down High Street. She fell
into a hole. The hole was on the pavement. She fell hard and she
broke her left hip. Mubarak
with a shop nearby came and assisted her
to stand up. She could not walk. Mubarak assisted her to sit in a
chair lnfront of his
shop. She than called her husband. He arrived
and she was assisted to get into a car, and she was taken to the
doctor. The doctor
examined her in his surgery. The doctor called an
ambulance, which came and took her to Newcastle Private Hospital. She
was admitted
for about five (5) days in Hospital and received medical
treatment.
[9]
The plaintiff testified that when she fell, she was walking normally.
She had not fallen anywhere
on that day. She did not see the hole
before she fell into it. There was a shadow of a building covering
where the hole was which
caused her not to see the hole. Plaintiff,
when shown a bunch of photos, testified that she was present when the
phots were taken.
She did not remember the date the photos were
taken. She testified that there the pavement as it depicted in the
photos was like
that on the date she fell.
[10]
The set of photos consists of sixteen (16) photos. They depict
a chair next to a shop entrance, the
pavement on part of it has
smooth concrete slabs. Where there is a missing smooth slab there is
a concrete mix slab covering the
area. The concrete mix slab in some
areas is cracked and chipped creating unevenness with the smooth
concrete slabs. The plaintiff
testified that she was unable on the
photos to point out the hole into which she fell. The photos
depicting the section lnfront
of the shop with the chair in the
entrance it is not known what they depict because the plaintiff fell
about five (5) metres to
the right of a person sitting on a chair
facing the pavement. She had walked past that spot. The nature of the
pavement on that
spot depicts the kind of the pavement around that
area. There is a photo depicting plaintiff and next to her left leg
there is
some unevenness on the pavement. There are also photos
depicting holes on the pavement when a slab meets with the smooth
concrete
slabs and other holes in the pavement, but again there is no
evidence connecting those uneven depicted area with the spot-on which
plaintiff fell.
[11]
The plaintiff testified that she tripped and fell. The hole caused
her to trip and fell. Her shoes
or anything she was wearing did not
cause her to trip and fall. The weather was clear. The pavement was
not wet.
[12]
In the pre-trial conference the parties that document filed are what
they purport to be and they including
copies are admissible without
the necessity of proof, save that there is no admission as to the
truth of the contents.
[13]
The plaintiff was referred to pathology reports of April 2018 showing
that she had a blood haemoglobin of
9.0, a red cell counts of 2.84
and haematocrit of 27.7 under comment it is stated 'Anaemia with some
microcytic cells and rouleaux
formation Retrophilia with toxic
granulation and mild left shrift noted, lymphopenia noted. Occasional
small platelet clumps noted
on slide-the platelet count may be higher
than reported and should be confirmed in fresh specimen.' The
defendant's counsel argued
that the pathology report shows the
plaintiff as someone prone to falling which the plaintiff denied.
[14]
The plaintiff was referred to a report by Dr Johan H. Ehlers dated 30
April 2018 addressed to Dr M Pieters
stating: 'Baie dankie vir die
verwysing van bg. soos telefonies besprrek.
Mev.
Bland het in the dorp rondgeloop en volgens haar het die linker been
net onder haar padgee en het sy toe geval'.
The
plaintiff said she did not remember telling that to the doctor. She
however, confirmed that Dr Ehlers treated her and they communicated
in Afrikaans.
[15]
The Mediclinic records shows the following: '26 April 2018 at 15h50
admissions
female came from Dr Pieterse's
rooms in an ambulance, history of fell in the street-- injury her hip
left leg'.
Dr Ehlers in the
above - mentioned report stated: 'By ondersoek: Klinies by ondersoek
in die hospitaal kon 'n mens duidelik die
verkoting van die linker
been sien met die been wat in eksterne rotasie le,' Erge pyn is
teenwoordig rondom die linker heup.
X-strale
toon soos genome n fermur nek fraktuur'. A report dated 27 April 2018
by a Nickey Haupt Fleisch a physiotherapist shows
that on diagnosis
the plaintiff had a left femur neck fracture treated by being
mobilised.
[16]
The plaintiff was referred to a medico report by Dr Vic Oelofse which
on page 3 recorded under a heading
"Full Description of incident
(In Clients own words): 'She was walking south on the right-hand
pavement between Utrecht and
Church Street in Vryheid (a few meters
away from the traffic light). Due to the shade provided by buildings
she did not see the
broken pavement and stepped into the hole and
fell'.
[17]
Lastly, the plaintiff was referred to a Fall Risk Assessment
examination conducted on her on admission at
Mediclinic on 26 April
2018 which found her to be of a high risk of falling, and it recorder
under 'Prior History of falls with
last 3 months' a Yes. The
plaintiff denied that she was prone to falling. She stated that fell
in her home in 2019.
[18]
The plaintiff as a second witness called Mr Mubarak Bachcha.
(Bachcha). He testified that on 26 April 2018
he was sitting on a
chair lnfront of his store. He observed about 5 meters away from him
a lady falling. She fell on a pavement
into a hole. He proceeded to
her, and he assisted her to stand and to go and sit in a chair. She
was Mrs Bland. Before that date
he did not know her. She then phoned
her husband. The husband came with a vehicle, and he took her to
hospital. The lady when he
approached her, she did not report
anything to him. He also did not say anything to her. The husband
took a photo of where the
lady had fallen in the pavement. He did not
know who took and on what date the rest of the photographs. Bachcha
testified that
the photo on page 10 showed the hole to which the
plaintiff fell. The whole was about 5 cm deep. He also put an X mark
on a photo
depicting plaintiff walking towards the traffic lights.
The mark is on the right-hand side of the plaintiff in the middle of
the
pavement. He stated that the hole can't been seen on the photo
because it is blocked by the plaintiff in the photo Bachcha confirmed
that the other photos show the pavement in front of his shop.
[19]
Bachcha admitted that he had not paid any attention to the plaintiff
before she fell when she walked past
him to his right. What drew his
attention was the plaintiff falling. He then saw the hole in the
pavement that the plaintiff fell
into. He immediately went to her to
help her. Except the hole in. the pavement nothing caused or could
cause the plaintiff to fall.
The pavement as depicted in the photos
is still like that. On the day of the incident the pavement was in
the same condition as
depicted in the photos.
[20]
The defendant in the application for absolution from the instance
contends that the plaintiff was the owner
of her misfortune. She had
anaemia caused by low haemoglobin which made her to be high risk of
falling. There is no delict, contended
the defendant's counsel, that
has been proved against the defendant.
[21]
Uniform Rule 39 provides that at the close of the case for the
plaintiff the defendant may apply for absolution
from the instance,
in which event the defendant or one advocate on his behalf may
address the court and the plaintiff or one advocate
on his behalf may
reply. The test is whether the evidence presented by the plaintiff
establish on the preponderance of probabilities
a
prima facie
case. Whether there is evidence upon which the court could or
might find for the plaintiff. See
Mazibuko v Santam Insurance Co
Ltd and Another
1982 (3) SA 125
(A) at133.
[22]
The burden of proof is on the plaintiff to establish the factual
basis for a claim. The factual basis must
be established as a matter
of probability on a balance of probabilities. What is required is
that the probabilities in the case
be such that, on a preponderance,
it is probable that the particulars state of affairs existed. See
Schwikkard and Van De Merwe
Principles of Evidence
3
rd
ed
at 580.
[23]
There is no doubt that as claimed in the particulars of claim the
defendant has a legal duty to keep the
pavements in its area of
jurisdiction in such a condition that they don't pose a danger to the
persons using the pavements. The
photos show that the area in
question had holes and uneven areas which posed a danger to the
users, in particular, to the weak
and the elderly.
[24]
The defendant has not led any evidence that the plaintiff fell
because of her compromised physical condition.
There was no evidence
that a person with haemoglobin level that the plaintiff had would be
physically weak and be unable to walk
on the pavement without
falling. A person prone to falls might also fall where the
nature of what caused her to fall could
have caused a person not
prone to fall to fall. Defendant's counsel argued that the low level
of haemoglobin in plaintiff's blood
together with other deformities
caused the plaintiff to fall. Counsel, in my view, cannot rely on his
knowledge or refer to articles
on the subject, without expert
evidence there are no evidential basis for such a contention.
[25]
The photographs shows that the pavement in the area where the
plaintiff fell is in a poor condition with
cracks, uneven surfaces
and portholes. It is true that on the photographs the porthole which
the plaintiff claims caused her to
fall is not clearly identified.
However, the evidence of Bachcha who is familiar with the area and
who is an independent witness
shows that where the plaintiff had
fallen there was a porthole. Bachcha who was physically there at the
time in question and immediately
attended to the plaintiff saw that
what caused the plaintiff to fall was the hole in the pavement.
This makes it probable
that the plaintiff tripped on the pothole and
fell. The defendant has not pleaded that it had no legal duty to
repair the pavement,
if unrepaired and constituting a danger, to warn
members of the public of the danger. Pavements in town are for use by
pedestrians.
They must be suitable for such use and not be in a state
of disrepair constituting a danger to the users. The users are not
expected
to carry out repairs to the pavements. A municipality of a
medium sized town must be in a financial position to carry out
repairs
on the pavements in CBD in its town. See
Cape Town
Municipality v Bakkerud
2000 (3) SA 1049
(SCA) at para [28].
[26]
The plaintiff immediately after falling was taken to the doctor and
medically examined. She was found to
have on the left femur neck
fracture. She received extensive medical examination. There was
nothing found to be medically wrong
with her physical condition
except the injury on her left leg sustained when she fell. The
examination including laboratory results
would have revealed if
something caused her leg to collapse. A leg cannot just collapse and
on examination it be found to be physically
intact. The defendant
presented no expert evidence that the laboratory results show that
the plaintiff's leg could just collapse.
The report by Dr Ehlers that
the left leg suddenly gave way is, in the context of the totality of
the evidence, not correct, it
must have been as a result of.
miscommunication. In any case, Dr Ehlers himself find nothing
medically that could have caused the
plaintiff's leg to suddenly
collapse.
[27]
The application for absolution from the instance falls to be
dismissed.
[28]
It is ordered as follows:
3.
The application for absolution from the instance is dismissed.
4.
The defendant is ordered to pay costs.
Mngadi
J
APPEARANCES
Case Number:
8144/19P
For the Plaintiff
Adv. Matlamela
Instructed by:
G Grobbelaar
Incorporated
c/o Austen Samith
Attorneys
PlETERMARITZBURG
For the Defendant:
Adv RM Mahlatsi
Instructed by:
Mathopo Attorneys
c/o Sangham
Incorporated
PIETERMARITZBURG
Heard on:
5 August 2024
Judgment delivered
on:
23 August 2024