IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CIRCUIT LOCAL DIVISION, GEORGE]
Case no: 20124/19
In the matter between:
JOHN GEORGE COOPER LAW Plaintiff
and
KNYSNA LOCAL MUNICIPALITY Defendant
GUARDRISK INSURANCE LTD Third party
JUDGMENT DELIVERED (VIA EMAIL) ON 12 SEPTEMBER 2024
___________________________________________________________________
SHER, J:
1. The plaintiff has sued the defendant for damages he allegedly sustained when
he fell, on 22 March 2017 , outside a business centre (known as ‘Millwood
Court’), which is situated at the intersection of Queen Street and Main Road in
Knysna. The centre runs in a roughly north-south line in Queen Street. The erf
on which the centre stands slopes downwards in a southerly direction . As a
result, at its northernmost end in Main Road the centre has a single level or
storey, which becomes two levels or storeys as one moves southwards in
Queen Street.
2. The incident occurred when the plaintiff stepped off the end of a concrete
pedestrian walkway or ‘ramp’, as he referred to it , which runs alongside the
western side of the centre. It allows visitors to access businesses in the centre
from the adjacent parking area in Queen Street.
3. By agreement between the parties the matter proceeded in respect of the
merits i.e . liability issues only, with quantum standing over for later
determination. At the commencement of proceedings the plaintiff’s counsel
handed up a trial bundle, by agreement, which inter alia contained a series of
11 photographs. Seven of these (photos 1-7) were taken by the plaintiff in
2023 for the purposes of trial. Three of them (photos 1-3) show the western
side of the centre and the walkway/ramp which abuts it and one (photo 5)
shows the north -western corner of the centre at the intersection of Queen
Street and Main Road, whilst the remaining three (photos 4,6 and 7) were
taken in a north -south direction, looking down the western side of the centre
and the walkway/ramp, in Queen Street . P hotos 8 and 9 are apparently
photographs which were taken by the plaintiff at the time of the incident in
2017 and depict the tree which one sees on photo 7, which is situated
towards the lowest i.e. southernmost end of the centre, and the two parking
bays on either side of it. These bays, marked with crosses, can also be seen
on photo 3. Photos 10 -11 apparently show a Google Maps Street view of
sections of the western side of the centre as it looked some 10 years ago , in
October 2014. In addition to the photographs a vi deo which depicts what can
be seen on the photos the plaintiff took in 2023, was also admitted into
evidence.
The evidence
4. In March 2017 t he plaintiff and his wife were in Knysna to celebrate their
birthdays, which were a day apart. The incident occurred the day before the
plaintiff’s 73rd birthday. As they had gone out for his wife’s birthday the
previous night and were planning to eat out again the following night for his,
on the evening of 22 March they decided to get takeaways from Sailor Sam, a
fish and chips shop in the upper level of the centre , which fronts onto Main
Road.
5. The plaintiff arrived at the parking area in Queen Street at about 19 h30 that
evening. It was his first visit to the centre. It was starting t o get dark, but he
could still see clearly. He parked his vehicle in the parking bay to the right of
the tree, in a position similar to that shown on photo 8. After alighting from his
vehicle he stepped forward and onto the kerb, and from there onto the start of
the walkway/ramp, and then proceeded up it to where it met Main Road, and
round the corner to Sailor Sam. He had to wait for 20 -25 minutes while his
food order was processed. By the time he left Sailor Sam it was dark.
According to him there were no streetlights on at the time in Queen Street and
the parking area was not lit.
6. He returned down the walkway/ramp the same way he had come up it. But,
instead of stepping off the end of it at the parking bay just after the tree, where
his vehicle was par ked, he did so at the bay which was just before it. He said
that he did so because he mistook the vehicle that was parked in the bay just
before the tree (i.e. the bay to the left of the tree, where the vehicle is standing
on photo 9) , for his vehicle, as it was also white, and it was dark at the time.
He was expecting to take a small step down to the kerb and from there to the
parking area. But because he misjudged where he was the step down was
about twice the height he expected it to be . This caused him to fall forwards
towards the parking area, and to hit his head as he landed. Having regard for
the position of the vehicle on photo 9 he probably landed on the island which
housed the tree. After he regained his senses, he pulled himself into a sitting
position and tried to insert his key in the door of the vehicle next to which he
had fallen, but the key would not go in. He then realized it was not his vehicle
and crawled around the tree to where it was parked on the other side of it. He
was abl e to unlock it and to drive to his lodgings . His left ankle was very
painful. The following day he had it assessed at the local hospital where it was
determined that he had sustained a fracture of the malleolus . His ankle was
initially immobilized . A few weeks later he underwent an orthopaedic
procedure whereby the fracture was reduced, and a nail was inserted into the
ankle to fix it in place . He continued to experience pain in his ankle and had
difficulty walking. On undergoing a further medical ass essment some months
after the fall, it was ascertained that he had also torn his Achilles tendon, and
he had to undergo surgery to repair it.
7. In cross-examination the plaintiff admitted that the place where he had initially
stepped onto the walkway/ramp, following his arrival at the centre, was almost
level, and as he proceeded to walk up the walkway/ramp towards Sailor Sam
he had noted that it was ascending. He conceded that the fall occurred
because, on his return , he had wrongly stepped off the walkway/ramp at a
point where it was still descending and he conceded that, if he had paid
proper attention, he would have realised that he was stepping off the
pavement/ramp at a point which was higher than where he had first stepped
onto it. In this regard he est imated that at the point where he had stepped
onto the walkway/ramp it was approximately 30 cm above the level of the
tarred parking area, w hereas at the point where he stepped off it, on his
return, it was about double that height.
8. Although he conceded that there were several streetlights in the vicinity at the
time, one of which was situated diagonally opposite where he had parked (i.e.
on the other side of Queen Street ), he steadfastly maintained that none of
them were functional at the time a nd that the parking area was in darkness.
Although he sought to blame his misjudgement on the fact that it was dark he
effectively conceded that, given that he had been able to make out the tree
and the car that was parked in the bay before it, he should have realised he
was stepping off the ramp at a different point, which was higher. That then as
far as the evidence which was put up by the plaintiff.
9. The defendant likewise called a single witness, Mr Randolph Daames. He has
a degree in architect ural technology. He started working for the defendant in
its building control section in June 2017 , some 3 months after the plaintiff’s
fall. He was later promoted to the position of Manager: Building Control and
from there to the position of Acting Director of the Planning Department.
10. According to the municipality’s files the building plans for the centre were
approved by the municipality in July 1994. From an annotation on the Queen
Street elevation drawings (at trial bundle p 24) it is evident that the walkway,
which abuts the western side of the centre, is on municipal land , and as is
also visible from the photos it does not have a single ramp in it, but two (vide
trial bundle p 23 and photos 1 -2). The drawings of this elevation (at trial
bundle pp 2 4-25) made provision for balustrades on the upper level/stor ey of
the centre , as well as down the section of the walkway and ramp from the
intersection at Main Road and Queen Street, in a southerly direction in Queen
Street. If one correlates wh at is depicted on these drawings with what is
visible on photos 1 and 2, it appears that the balustrade was to extend along
the short, first section of the walkway and ramp as it sloped downwards from
Main Road towards the parking area in Queen Street , to the point where it
levelled out, just before a large blue a ccess/garage door which is visible on
photo 1. From the photographs it will be seen that there is a driveway in front
of the door which allow s access to vehicles for deliveries and parking inside
the centre (inside parking at the lower level is provided for on the drawings at
trial bundle pp 23-24). Were the balustrade to extend across th e driveway it
would not allow for vehicular or delivery access into the centre.
11. The plans seemingly did not make provision for another balustrade along the
much longer, further section of the walkway and the second ramp, which
starts at the tree in the parking area and runs towards the blue-coloured
doorway. As is evident from the plans and photographs, th is section of the
walkway/ramp has a n initial, gentle incline which rises northwards from the
tree, over a few metres, and then runs level over several metres, across the
face of most of the lower level/storey of the centre. In contrast to this the first ,
short section, for which the balustrade was required in the plans , extends
steeply upwards from the northern side of the blue-coloured doorway towards
the intersection with Main Road.
12. Daames said that where there is an encroachment (such as the walkway ) by
a private landowner onto municipal i.e. public land it is understood that the
landowner will be responsible for it and will be liable for any safety issues that
arise from it. Conditions which formed part of the approval which the
municipality gave for the centre were set regarding the balustrades, which
were to run along the veranda on the upper storey and down the first section
of the walkway/ramp (from Main Road to the blue -coloured door) as per the
building plans , and the owners of the centre were expected to comply with
these. Thus, as far as the municipality was concerned the owner s of the
centre w ere responsible for the safety of persons using the walkway/ramp,
and to this end were responsible for maintaining it and the balustrade that was
required to be erected to safeguard it. Whilst the municipality was responsible
for granting the initia l, regulatory approval i.e. for scrutinising and approving
the building plans for the centre and the walkway/ramp which abutted it, the
owners of the centre w ere responsible for any ongoing safety issues
pertaining to it and the buildings that comprised the centre.
13. As far as ensuring that conditions which are set by the municipality as part of
its terms of approval of building plans, are adhered to, Daames explained
that, due to its limited resources (it currently only has 4 buildin g inspectors to
service a large municipal area) and the volume of plans that it must consider
and approve, the municipality is unable to actively and continuously monitor
and inspect properties for which building plan approval is granted, and relies
to a large extent on the vigilance of the public as far as any non-compliance is
concerned. Consequently, the enforcement of such conditions by the
municipality commonly comes about after a complaint is received from a
member of the public, which is investigated.
14. During his evidence Daames reviewed correspondence which was on file in
relation to the walkway /ramp and the balustrades. On 29 November 1994 the
town engineer for Knysna addressed a letter to the builders (Millwood Homes)
in which he pointed out that from an on-site inspection that had been carried
out it appeared that safety glass had not been installed throughout the entire
length of the balustrade s, and building plans for the walkway/ramp w ere still
outstanding. The builders were accordingly requested to cl ose ‘the ramp ’ to
public access until these aspects had been attended to.
15. Building p lans were seemingly submitted by the architects on 2 December
1994, under cover of a letter in which they indicated that steps were being
taken to complete the installatio n of glass in the balustrades . On 24 January
1995 the town engineer noted , in a letter to the then owner of the centre (the
Goodwin Stable Trust), that despite this assurance the glass installation was
still incomplete, and the ‘incline’ of the walkway/ramp was also not in
accordance with building regulations in that it exceeded the maximum
permissible incline of 1:8 i.e. a maximum rise of 1 metre for every 8 metres .
This must clearly have been a reference to the first , steep section of the
walkway/ramp, and not the section near the tree where the plaintiff parked his
vehicle. The owner was directed to remedy these aspects urgently as the
safety of the public was at issue , as the re had already been 2 ‘incidents’.
Details of these were not provided in the letter.
16. In response, on 31 January 1995 the Trust indicated that the builders had
gone into liquidation at the end of 1994 and a new building contractor had
taken over the construction works on 26 January, and it had been ascertained
that during the builders’ holiday in December -January the glazier who had
been commissioned to install safety glass in the balustrade s had removed
sections of it, which had resulted in 2 ‘accidents’. No indication was given,
either in the letter from the town engineer of 24 January 1995 or the response
thereto by the owner of the centre a week later, as to where these ‘accidents’
occurred in relation to the areas along which a balustrade had been installed.
Thus, there is no indication whether they occurred on the upper level of the
centre or on the section of the walkway/ramp leading down from Main Road
towards the large garage door on the lower level in Queen Street , or the
section that extended beyond it towards the tree.
17. On 6 February 1995 the town eng ineer directed that before ‘temporary’
occupation of the building could occur several outstanding requirements had
to be complied with, including rebuilding the walkway/ramp to comply with the
incline requirements set by the National Building Regulations a nd Building
Standards Act (‘the NBRSA’).1 Once again, this must have been a reference
to the first , steep section of the walkway towards the intersection of the two
roads. Pending the rebuild, the walkway/ramp was to be closed to public use.
Nothing was said by Daames in his evidence which indicates that the first
section of the walkway/ramp was rebuilt in accordance with this directive and
from the photographs compared with the plans it does not appear that it was.
18. The only other correspondence that was referred to during Daames’ evidence
was a letter which was allegedly addressed to the owners of the centre (c/o LJ
de Swart & Partners in Knysna) by the Acting Municipal Manager on 1 April
2003, in which it was noted that a ‘further’ complaint had been received about
the condition of ‘the mended’ (sic) balustrade which had prompted an
additional inspection by a building inspector, at which time it was found that
‘the balustrade’ was still ‘unstable’ in places due to ‘wrotten’ (sic) pillars and
beading that was missing around the (safety) glass, which secured it to the
frame of the balustrade . The owners were called upon to ‘secure’ the
balustrade immediately and to then call for a follow -up inspection by the
building inspector. Whether this was done was not evident from the evidence
of Daames and there does not appear to have been any record of a follow -up
on this.
19. Once again, no indication was given in the evidence of where in the
balustrades these defects were present i.e. whether this was in the balustrade
on the upper level or in the balustrade along the first section of the
walkway/ramp. What is apparent is that at some stage after this letter was
written whatever balustrade there was alo ng the walkway/ramp, was
removed, and Daames testified that during an inspection which he carried out
before the trial he noted that the cut-off remains of the pillars of the balustrade
on the lower level , were still visible in the concrete walkway/ramp. These
remains are not visible on the photographs. Interestingly, the Google Maps
Street view photos of October 2014 (some 11 years later ), show that there
was a balustrade at that time along the second section of the walkway/ramp,
1 Act 103 of 1977.
which extended to the end of it, in line with the kerbstone of the parking bay to
the left of the tree i.e. the one at which the plaintiff stepped off when the
incident occurred in 2017. In all likelihood therefore this balustrade was
removed somewhere between 2014 and 2017 , as it was not there at the time
of the incident. Daames was of the view that this balustrade could not be the
one with ‘wrotten pillars’ that was referred to in the 2003 letter, as it was
unlikely to have lasted in that condition for 11 years until 2014 and it was
evident from the 2014 photos that the balustrade which was visible along the
second section of the walkway/ramp was seemingly in a good condition.
An evaluation
i) The legal principles applicable
20. It is common cause that , as the plaintiff’s action is founded on the actio legis
Aquilia, to succeed he bears the onus of establishing conduct on the part of
the municipality which was both unlawful (i.e. wrongful) and negligent.2
21. In his particulars of claim the plaintiff averred that the municipality had acted
unlawfully because it had breached a ‘duty of care’ which i t owed to the public
in general and to him in particular, by failing to take certain steps which such
duty obliged it to take in regard to the walkway/ramp , which t he plaintiff
referred to as a ‘pavement’ which had an incline in it in the form of a ramp,
and which fell under the ‘jurisdiction and control’ of the municipality.
22. The reference to the walkway as a ‘pavement’, which is commonly understood
to refer to a pav ed or tarred path at the side of a road , for public use by
pedestrians, was seemingly resorted to in order to bring the matter within the
ambit of the legion of cases that have dealt with the liability of municipalities
for injuries which have been sustain ed by p ersons while using pavements
alongside roads, in incidents caused inter alia by potholes or trenches, open
manholes, irregular, broken or dangerous surfaces or other hazards.
2 City of Cape Town v Mtyido [2020] ZASCA 163 para 3.
23. As for the plaintiff’s reference to a ‘duty of care’ , this is a concept in the
English law of tort ( our law of delict) which embraces both wrongfulness and
negligence, with which, as was pointed out by the SCA in Van Duivenboden3
English courts have had difficulties as to its ambit and scope . Our law does
not recognise such a concept. Instead, we speak of a ‘legal’ duty which a
defendant may be subject to , not ‘of care’ or to ‘take care’, but to take certain
steps which may reasonably have been required by the particular
circumstances. The evo lution of such a duty came about following the
decision in Ewels, 4 in which it was accepted that defendants may be held
liable not only for positive acts they commi t which result in harm or loss but
also for omissions which do so. Whether liability will ensue in such instances
will be determined by whether, according to the court, the ‘legal convictions’ of
the community require that the omission i.e. the failure to take certain steps, is
to be regarded as wrongful. If so, the defendant will be considered to have
had a legal duty to have taken such steps to prevent the harm from
occurring.5 Thus, unlike instances where loss or harm is the result of a
positive act or conduct by a defendant, which will be presumed to be wrongful,
where a defendant is sued on the basis of a failure to act i.e. an omission, it
will only be held to have acted wrongfully if it is considered to have been
under a legal duty to have taken certain steps, which it breached.6
Consequently, as wrongfulness is not presumed in such instances a plaintiff
who seeks to hold a defendant liable on this basis must plead and prove the
requisite facts necessary to support the imposition of such liability.7
24. As was pointed out in Van Duivenboden, the determination of what the legal
convictions of the community require is one that must be carried out with due
and proper regard for the Constitution. Thus, as it has been articulated by the
SCA8 and the CC 9, the imposition of liability in cases involving the alleged
3 Minister of Safety & Security v Van Duivenboden [2002] 3 All SA 741 (SCA) paras 14-17.
4 Minister van Polisie v Ewels 1975 (3) SA 590 (A).
5 Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) at 528; Bergrivier
Munisipaliteit v Van Ryn Beck 2019 (4) SA 127 (A) para 43.
6 Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) para 12.
7 SA Hang & Paragliding Assoc & Ano v Bewick 2015 (3) SA 449 (SCA) para 5.
8 Gouda n 6 para 12.
breach of a legal duty is a matter for judicial determination, according to
criteria of public and legal policy, in the light of constitutional values and rights.
25. Because the determination of wrong fulness essentially involves an
assessment of whether it would be reasonable 10 to impose liability on a
defendant for harm occasioned by an omission , or whether the ‘social,
economic and other costs’ of doing so are ‘too high’ , the CC has described it
as an element of delictual liability which acts as a ‘brake’11 and the SCA has
likened it to a ‘safety valve’. 12 Care should accordingly be taken to ensure
that, when developing the law in this regard , this is not an element that
becomes a gate through which floods of public liability flow.
26. Our law also requires that when conducting an enquiry into whether a
defendant should be held to have been subject to such a legal duty the
delictual elements of wrongfulness and negligence must not be conflated and
must be evaluated separately.13
27. Negligence is assessed according to a hypothetical standard which the
notional reasonable man would meet. It will be held to have been established
by a plaintiff if the court determines, on an assessment of all the facts and
circumstances before it, that a notional, reasonable man in the position of the
defendant would have foreseen the reasonable possibility of harm
materialising and would have taken reasonable steps to safeguard against it
occurring, and the defendant failed to take them. 14 Thus, as was pointed out
in ZA,15 whereas the test for wrongfulness is whether it is reasonable to have
expected the defendant to have taken certain measures, the test for
negligence is whether the reasonable person in the position of the defendant
would have done so. As it would obviously be reasonable to expect a
9 Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC)
paras 20-21.
10 Le Roux & Ors v Dey (Freedom of Expression Institute & Restorative Justice Centre as Amici
Curiae) 2011 (3) SA 274 (CC) para 122.
11 Country Cloud Trading n 9 para 20.
12 ZA v Smith & Ano 2015 (4) SA 574 (SCA) paras 16 and 19.
13 Id.
14 Kruger v Coetzee 1966 (2) SA 428 (A); Bergrivier n 5 para 48.
15 Note 12 para 19.
defendant to do what the reasonable person would have done, conduct which
is found to be negligent will inevitably also be held to be wrongful and vice
versa.16
28. In arriving at a determination of whether certain steps would have been taken
the court is required to assess the degree of risk of the harm occurring and its
potential extent, whether the measures proposed would have successfully
avoided the occurrence of the harm which eventuated , and what the costs
would have been of implementing the measures.17 Where certain steps were
taken by the defendant, whether they are to be regarded as reasonable or not
will depend on a consideration of all the relevant circumstances.18
29. Whilst i t has been recognized, at least since 1914 ,19 that a landowner
ordinarily has a duty to take all reasonable steps as may be required to
protect persons who come onto his /her land, from any danger s that may
manifest due to the condition of the ir property, this is not an absolute and
unqualified duty that applies inevitably, in each and every instance. Where the
land is under the control or in the possession of another party such a duty
may be held to rest on them. In the case of a private landowner it has been
held that society does not expect him/her to go beyond reasonable meas ures
to make their property safe as this would place an ‘unfair’ duty on them and
would discourage social interaction. 20 Likewise, the fact that the state is the
owner of public land does not automatically and necessarily place an
unqualified and inevitable duty on it to safeguard the public, in every instance,
from harm that may be occasioned by the use of such land. And the fact that
local authorities provide facilities for public use on public land, such as streets
and the pavements alongside them, also does not necessarily impose such a
duty on them.
16 Id.
17 Id, para 24.
18 Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA) at 1203.
19 Hirchman N.O. & Hirchman v Kroonstad Municipality 1914 OPD 37.
20 BS v MS & Ano 2015 (6) SA 356 (GP), which concerned whether the owners of a property had
taken sufficient and reasonable steps to safeguard a child from falling into a pool.
30. As Marais JA pointed out for the full court of the SCA in Bakkerud 21 whilst ‘it
may be tempting to construct such a duty on the strength of the sense of
security engendered by the mere provision of a street or pavement by a
municipality’ one should not generalise in that regard.
31. After reviewing the state of the law in so-called ‘municipality’ cases prior to the
decision in Ewels and those which followed it (which was against imposing
liability and consequently was seen to offer an immunity to claims for
damages), and the effect which Ewels and those decisions which followed it
had on this position, by broadening the scope of liability in cases of omissions,
Marais JA held that the court a quo’s introduction of what amounted to a
blanket imposition of a legal duty on municipalities to maintain and repair
roads and pavements, was wrong and could not be sustained. He held that in
each case the court was required to make a value judgement as to what the
legal convictions of the community demanded , on the particular facts which
were before it.22
32. Thus, a ‘minuscule and underfunded local authority with many other and more
pressing claims upon its shallow purse ’, which had not kept in repair a ‘little-
used lane’ in which small potholes had developed, which were easily visible to
and avoidable by anyone keep ing a reasonable look -out, might well be held
not to have been under a legal duty to have repaired them or to have warned
of their presence. In contrast to this , a large and well -funded municipality
which failed to keep in repair a pavement which was ‘habitually thronged with
pedestrians so densely concentrated’ that it would be extremely difficult to see
its surface or to take evasive action to avoid potholes in it ‘of substantial size
and depth’, might well be held to have been under such a duty.23 And, as it
was ‘axiomatic’ that streets and pavements would not always be in the pristine
condition in which they were when first constructed, and it would be ‘well-nigh
impossible’ for even the largest and most well -funded municipalities to keep
them all in that state, at all times, Marais JA was of the view that a ‘reasonable
21 Municipality of Cape Town v Bakkerud 2000 (3) SA 1049 (SCA); [2000] 3 All SA 171 (A) para 29.
22 Id, para 27.
23 Id, para 28.
sense of proportion’ was called for and the public was required to realise this,
and to have a care for its safety when using roads and pavements.24
(ii) The case pleaded by the plaintiff
33. In his particulars of claim the plaintiff alleged that the defendant had a duty to
take the following steps, which it failed to discharge: 1) to ‘construct’ the
‘pavement’ in such a manner that it did not constitute a danger to personal
safety or a threat of injury 2) to ‘ensure’ that the pavement ‘inclusive of all
fixtures‘ that form ed part of it , was properly maintained and repaired as
required from time to time, so that it did not constitute such a danger or threat
3) to fix a ‘guardrail’ to the inclining section of the pavement (i.e. the ramp(s))
and ensure that it was properly maintained or replaced 4) to provide adequate
lighting to the area/areas whether the pavement created a ‘dangerous
situation’ to persons traversing it , and 5) an omnibus duty to take the
‘necessary and required’ steps to ensure that any person using the pavement
could do so safely, without any danger to their personal safety or the threat of
injury.25
(iii) The principles applied
34. In my view, and for the reasons that follow, the combined weight of the
following facts and circumstances is against holding that the defendant was
under a legal duty, in one or more of the particular forms claimed by the
plaintiff, and the legal convictions of the community and public policy
considerations do not expect such a duty to be imposed on it.
35. In the first place, the walkway on which the incident occurred serves, primarily,
to afford access to the centre, by visitors to it, rather than to the broader,
24 Id, para 29.
25 In para 11 of the particulars of claim , which deals with the alleged breach of the aforesaid duties by
failing to comply with them in various ways, the plaintiff seemingly added a further duty to the list,
which was not pleaded in para 7.1 viz. a duty to place warning signs indicating the danger which was
created by the absence of a guardrail. This was not an aspect on which any evidence was led by the
plaintiff and was not put to the defendant ’s witness. It was also not raised during argument as an
incidence of the alleged duty and its breach.
general public, and is used by the owners of the centre to further their
commercial interests. It was built by the owne rs of the centre to serve the
building which they put up next to it (and the businesses housed therein) and
was designed to fit in with its aesthetics and requirements . Although it may
qualify as a ‘pavement’ in terms of the dictionary definition, because it is used
by pedestrians, it is not a general, public path or thoroughfare of the kind one
finds next to a public road or street, which is provided by a municipality for use
by pedestrians, and which is controlled by it . It feeds off , and is alongside, a
parking area which was laid out for visitors to the centre and is not directly off
and alongside a public road provided by the municipality . Access to and
control of it lies in the hands of the owners of the centre and the centre
manager, if its premises are leased out to individual tenants, as they probably
are, and not the municipality. In building it the owners encroached onto public
land and in doing so effectively expropriated it for their private use. As a
result, the walkway does not serve a public purpose in the same manner and
way that a pavement along a public road does.
36. Given these circumstances, on what possible basis c an it reasonably be
contended that the municipality , which had to relinqu ish its rights of control
and use for public purposes, had a duty to construct the walkway and/or to fix
a guardrail on it, and had a duty to maintain them? To place such duties on a
municipality would be to shift a considerable financial expense and ongoi ng
financial burden onto it which would serve the commercial interests of
business owners and private landowners, at the expense of ratepayers, many
of whom might never even come to the centre or use the walkway/ramp. Local
authorities are currently deeply stretched financially and struggle even to find
the funds and resources necessary to construct and maintain public roads
and pavements , let alone community facilities . In my view, it would not be
reasonable to place this kind of additional burden on them . It would effectively
result in municipalities subsidizing private developments and business es, at
the expense of the public they are required to serve , in return for which t hey
would incur a potential liability for any harm or loss which might be suffered on
land which is no longer in their control . In my view, public policy require s that
the plaintiff should have looked to the owners of the centre for possible
recompense, and not the municipality.
37. In the second place, in the building plans which the owners submitted (and for
which they requested approval ), provision was made for the erection of
balustrades along the upper level/storey and the first, steep section of the
walkway/ramp, which extended from the intersection of Ma in Road and
Queen Street to the garage door on the lower level , only. From the plans it
does not appear as if provision was made for a balustrade to be erected along
the second section of the walkway and the ramp, near the tree, where the
incident occurred, where the incline was gentle. Clearly therefore, although no
evidence was expressly elicited in this regard, the section of the walkway near
the tree and the ramp which was on it could not h ave constituted a potential
source of harm or danger to users thereof, unlike the first, steep section and
the ramp on it . If it did it would surely have required a balustrade and
provision would have been made for it in the building plans, as was done in
the case of the steep ramp in the first section of the walkway. It was not part
of the plaintiff’s case that the conditions of approval which were sought and
granted required the erection of a balustrade over th e section of the walkway
near the tree . It wa s not pleaded by the plaintiff, or even suggested to the
defendant’s witness when he gave evidence, that the defendant erred in
failing to require that a balustrade should be erected over the second section
of the walkway/ramp, where the incident occurred.
38. Although the 2014 Google Maps photos show that at some stage prior thereto
a balustrade was put up along that section, no evidence was tendered that
this was done because it was necessary , in order to secure the safety of
persons who were using that section, and no plans were seemingly ever
submitted and approved for t hat balustrade, nor was there any indication, let
alone evidence, that the municipality directed that it should be built. Thus, it is
possible that th e balustrade was extended in order to harmonize the visual
appearance of the western side of the centre. But even if one were to
assume, from the fact that a balustrade was put up along the second section
of the walkway and ramp, that it therefore constituted a possible danger to
users, the balustrade which was erected as per the 2014 photos did not
extend to the point where the plaintiff decided to step off the walkway/ramp.
From his evidence it is apparent t hat he probably stepped off the
walkway/ramp in line with the driver’s door of the vehicle he was approaching,
at a point where the balustrade would not have protected him, had it still been
in place at the time, as it did not extend that far. In this regard, it is evident
from photo 10 (which, from the annotation depicts an October 2014 street
view of the western side of the centre and the parking bay at the tree, in which
the vehicle which the plaintiff mistook for his was parked), that the balustrade
ended in line with the kerbstone which demarcates the end of the bay and the
start of the island on which the tree is located. Thus, the place where the
plaintiff stepped off the walkway/ramp would not have been protected by the
balustrade, had it still been there, because it was a part of the walkway that
was not considered to be a danger or hazard to ordinar y users , keeping a
proper look out, as it was very low i.e. almost at ground level.
39. In the third place, no evidence was led to show any nexus or connection
between the safety issues that were experienced with ‘the balustrade’ in 1994-
1995 (some 23 years earlier ), or in 2003 (some 14 years earlier ); and the
incident in 2017 which gave rise to the claim. As is apparent from the
correspondence, the 1994 -1995 issues had to do with missing panels of
safety glass either in the balustrade on the upper level/storey or the one along
the first, steep section of the walkway/ramp from Main Road towards the
lower level in Queen Street , and in 2003 the complaint was that the safety of
users of the walkway could be compromised because ‘pillars’ of ‘the
balustrade’ were ‘wrotten’ (sic). As was pointed out previously , n o evidence
was given as to which of the balustrades were involved in any of the se
incidents. If there was any connection between these earlier incidents and the
incident in 2017 which gave rise to the claim, it was for the plaintiff to produce
the necessary evidence in this regard. One would have expected that, if there
was some causal or related connection or nexus to the incident, this would
have been elicited in evidence.
40. Given the deficiencies in the case that was put up by the plaintiff, on whom
the onus re sted, a s was said in Bergrivier 26 ‘where the circumstances
presented are as vague as described’ in the evidence and ‘where the
municipality is restricted by budgetary and sociological concerns…one would
rightly ask how a court can hold that the legal convictions of the community
compel a conclusion that the municipality should be held liable’.
41. On the evidence as a whole it is apparent that the incident occurred because
the plaintiff failed to keep a proper look -out and elected to step off the
walkway at a point that was higher than when he first stepped onto it, thereby
injuring himself (and not because he stepped off it at a place where it
constituted a danger from which he should have been protected by a
balustrade or ‘guardrail ), in the same way that any pedestrian who steps off
an ordi nary pavement at the side of the road because they fail to keep a
proper look -out, would injure themselves. In my view, the plaintiff failed to
place cogent and sufficient evidence before the court to show that he stepped
off the walkway and injured himsel f because of a failure by the defendant to
put up a balustrade or ‘guardrail ’ at that point. It seems to me that in such
circumstances, aside from the prior considerations which I referred to , as a
matter of public policy it would not be reasonable to impose a duty on the
municipality to have erect ed a balustrade or ‘guardrail’ , just as it would be
considered obviously unreasonable, given the costs involved, to expect
municipalities to erect a balust rade or ‘guardrail’ on the edge of every
pavement, to prevent pedestrians from stepping off their kerbs because they
fail to keep a proper look-out.
42. As for the remaining grounds of the alleged breach of duty, the plaintiff’s own
evidence belies his claim that the incident occurred because the area was not
properly lit. There was no suggestion that the incident happened during a bout
of load-shedding and his contention that not a single streetlamp in the road
was working at the time was highly improbable. On his own version there was
enough light for him to navigate his way down the walkway and ramps, f rom
26 Note 5 para 51.
the intersection at Main Road to the vehicle which was parked in the bay
before the tree, which he said he mistook for his because i t was white. So he
was able to make out where he was walking , and the tree and the vehicle in
the parking bay to which he was heading . That the area where the incident
occurred was not in total darkness is further borne out by the fact that after he
came to, the plaintiff was able to see well enough to attempt to insert his key
in the driver’s door, and then, upon realizing that his vehicle was parked on
the other side of the tree, to crawl around the tree to it. In any event, I did not
understand him to contend that the incident happened because it was so dark
that he was unable to see where he was going, and as a result he
inadvertently stepped off the walkway/ramp. It happened in the course of a
deliberate step off the walkway/ramp towards the vehicle which was parked in
the bay before the tree.
43. As far as the requirement of negligence is concerned, in my view the plaintiff
also failed to discharge the onus in this regard. For the reasons previously
referred to, he failed to show that the notional, reasonable man in the position
of the defendant would have foreseen the reasonable possibility that a failure
to have a balustrade or ‘guardrail’ at the point where the incident occurred,
would result in harm or injury. The reasonable man would not expect a person
using the walkway to deliberately step off it , at that point, without keeping a
proper look -out. But, even were this to be the case, the reasonable man
would not have expected the municipality to have put up a balustrade or
‘guardrail’ which extended to that point, where the walkway/ramp was almost
level, in the same way that the reasonable man would not expect a
municipality to put up a balustrade or ‘guardrail’ at the edge of a pavement,
alongside a road , to protect a person who stepped off it, f rom their failure to
keep a proper look out.
(iv) Section 23 of the NBRSA
44. Aside from placing in issue that it owed a ‘duty of care’ (i.e. more properly a
legal duty to take certain steps) and that it was negligent, the municipality also
contended that the action could not succeed because it was exempt from
liability, by virtue of the provisions of s 23 of the NBRSA. Given the conclusion
to which I arrived that legal and public policy does not require that liability
should be imposed on the defendant, strictly speaking it is not necessary to
rule on this aspect, but for the sake of completeness and as there appear to
be no reported cases that deal with the section , I propose doing so in the
briefest of terms.
45. Shorn of verbiage which is not relevant to these proceedings the applicable
part of the section27 provides that ‘no approval , permission, report, certificate
or act granted, issued or performed’ in terms of the Act, by or on behalf of an y
local authority, in connection with a ‘building’ or the design, erection or
alteration thereof, shall have the effect that the local authority ‘shall be liable
for any loss, damage, injury or death resulting from or arising out of or in any
way connected with the manner in which such building was designed,
erected… or altered or the material used ’ in such process es. The section
further provides 28 that, on the other hand, no such ‘approval, permission or
act’ by a local authority shall have the effect that the owner of such a building
is exempted from the ‘duty of care’ (sic) and (the duty) to ensure that such
building is designed, erected, complete d, occupied and used or altered , in
accordance with the provisions of the Act and any other applicable law. Lastly,
and i n similar vein , the section also provides that no such approval,
permission or act by a local authority shall have the effect of exempt ing ‘any
person’ from the provisions of ‘any other law ’ which may be applicable in the
area of jurisdiction of the local authority.29
46. It is trite that when interpreting the provisions of the section, regard must be
had for their ordinary, grammatical meani ng, in the context in which they
appear, and with due regard for the purpose which the Act in which they
appear seeks to achieve, and a sensible and business-like meaning should be
afforded to them and not one that will render their application nonsensical or
nugatory. It is further trite that when interpreting exemption clauses a
27 Section 23(a).
28 In subsection 23(b).
29 Section 23(c).
restrictive interpretation is called for, which least affects a claimant’s rights. 30
Equally, If the language of a disclaimer or exemption clause is such that it
exempts the proferens from liability in express and unambiguous terms, effect
must ordinarily be given to that meaning. 31 If there is ambiguity, the language
must be construed against the proferens.. An alternative meaning upon which
reliance is placed to illustrate an ambiguity must be one to which the language
is fairly susceptible and must not be fanciful or remote.32
47. As far as the NBRSA is concerned, its preamble provides tha t it is aimed at
promoting uniformity in the law relating to the erection of buildings in the areas
of jurisdiction of local authorities , and the prescribing of building standards.
Section 4(1) provides that no person shall, without the prior approval in w riting
of the local authority in question, erect any ‘building’ in respect of which plans
and specifications are to be drawn and submitted in terms of the Act. A
‘building’ is defined33 in wide terms and includes any ‘structure’, whether of a
temporary or permanent nature and irrespective of the materials used in the
erection thereof , which is to be used for or in connection with the
‘accommodation or convenience of human beings or animals’ or the rendering
of any ‘service’ , as well as any ‘part’ of a build ing. It was common cause
between the parties that the walkway/ramp which features in this matter falls
within the definition of a building, insofar as it provides for the convenience of
persons, and is used ‘in connection with ’ their accommodation, in the centre
adjacent to it. Thus, it was common cause that building plans for the
walkway/ramp were required to be submitted and approved, before the
erection thereof, and this was done.
48. Section 7(1)(b)(ii)(bb) provides that if the local authority to whom building
plans are submitted is satisfied that the building to which the application in
question relates will ‘probably or in fact’ be dangerous to life or property it
shall refuse to grant its approval in respect thereof. Section 1 2(1) provides
30 Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) ; Fujitsu Services Core (Pty Ltd v Schenker
SA (Pty Ltd 2023 (6) SA 327 para 56 (which dealt with an indemnity clause); Hutchinson & Pretorius
Law of Contract (3rd ed) at 283.
31 Durban’s Water Wonderland (Pty) Ltd v Botha & Ano 1999 (1) SA 982 (SCA) at 989G-I.
32 Schenker SA (Pty Ltd v Fujitsu Services Core (Pty Ltd [2022] ZASCA 7 para 13.
33 In section 1.
that if a local authority is of the opinion that any building (or the land on which
it was , or is being , erected) is dangerous, or is showing signs of becoming
dangerous to life or property, it may, by notice in writing , order the owner of
such building or land to demolish, alter or secure it in such a manner that it
will no longer be dangerous to life or property.
49. Section 14 provides that a certificate of occupancy may be granted by a local
authority on completion of a building, and a certificate allowing for its use
before the certificate of occupancy is issued may be granted to the owner or
any other person having an interest therein. Finally, s ection 18 contain s
provisions dealing with the grant of exemptions and deviations from an y
applicable building regulation.
50. In my view, having regard for the applicable principles , on a proper
interpretation the provisions of section 23 do not serve to exempt a
municipality from omissions i.e. a failure to take certain steps, which may
result in harm or loss. Section 23(a) only purports to afford an exemption in
certain defined instances, where harm or loss has been sustained pursuant to
a positive act by a municipality viz the grant of ap proval (of building plans) or
permission (which would include the grant of an exemption or deviation from a
requirement in terms of building regulations), the issue of a report or
certificate (such as occupancy or use certificates) , or the ‘performance of an
act’ in terms of the NBRSA.
51. In my view, the section aims primarily to provide an indemnity from liability to
a municipality, in instances where loss or harm is sustained because of the
bona fide approval of a building plan or the grant of a right of us e or
occupancy, which should not have been granted , or because of the bona fide
performance of other acts by municipal officials in relation to those matters
which are dealt with by the Act, pertaining to the erection of buildings and the
enforcement of building standards, prescribed by the Act and the regulations.
It cannot be interpreted to afford a municipality an exemption from liability
where it was under a legal duty, at common law, to take certain steps in order
to prevent harm or loss from occurring and failed to do so. That the section
was not intended to oust liability for an omission (i.e. a failure to act), in terms
of the common law, is supported by the wording of section 23(c), which
expressly states that the performance of such (positive) acts shall not have
‘the effect’ that ‘any person’ shall be exempted from the provisions of any
‘other’ law, which would include the common law, and section 23( b), which
provides that the owner of a building shall not be exempted from the ‘duty of
care’ (i.e. a legal duty to take certain steps to prevent harm or loss) and the
duty to ensure that a building is designed, erected, occupied or used in
accordance, not only with the NBRSA, but ‘any other applicable law’ (such as
the common law).
Conclusion
52. In the result, and for the reasons set out above, the action must fail. As far as
liability for costs is concerned it was not contended that in the event the action
was to be dismissed the ordinary principle that costs should follow the event,
should not apply. It was also not contended that this is a matter where a costs
order should not be made against the plaintiff because he was seeking to
vindicate his constitutional rights or was raising a novel point of law that
impacted on constitutional rights. Both parti es were ad idem that the
applicable scale of costs that should apply, should be scale B.
53. In the result I make the following order:
The action is dismissed with costs, including the costs of counsel, on scale B.
M SHER
Judge of the High Court
(Signature appended digitally)
Appearances:
Plaintiff’s counsel: Adv DL Van der Merwe
Plaintiff’s attorneys: Dercksens Inc (Knysna)
Defendant’s counsel: Advs M Titus
Defendant’s attorneys: Mosdell, Pama & Cox Inc (Knysna)