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[2020] ZASCA 117
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City of Cape Town v Carelse and Others (296/2019) [2020] ZASCA 117; [2020] 4 All SA 613 (SCA); 2021 (1) SA 355 (SCA) (1 October 2020)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 296/2019
In
the matter between:
CITY
OF CAPE
TOWN APPELLANT
and
FATIEMA
CARELSE FIRST
RESPONDENT
QUINTON
EKSTEEN SECOND
RESPONDENT
DYLAN
ADRIAN
EKSTEEN THIRD
RESPONDENT
Neutral
citation:
City of Cape Town v
Carelse and Others
(Case no 296/2019)
[2020] ZASCA 117
(1 October 2020)
Coram:
Navsa, Mocumie and Dlodlo JJA and
Eksteen and Poyo-Dlwati AJJA
Heard:
4 September 2020
Delivered:
01 October 2020
Summary:
Application for leave to appeal
referred for oral argument in terms of s 17(2)
(d)
of the Superior Courts Act 19 of 1959 – whether reasonable
prospects of success or other compelling reason for appeal to
be
heard – visitor to resort under control of Municipality –
attacked by dog brought onto premises against Municipality’s
By-Laws and in the face of prominent signage prohibiting dogs –
handler avoided main entrance access control – entered
through
an unsupervised entry point – court below holding that
Municipality acted wrongfully and negligently and held Municipality
liable – discussion of relevant principles and case law –
no prospect of success and no compelling reason for appeal
to be
heard.
ORDER
On
appeal from
:
Western
Cape Division of the High Court, Cape Town (Vos AJ, sitting as court
of first instance): judgment reported
sub
nom Carelse v City of Cape Town
[2018]
ZAWCHC 173
;
[2019] 2 All SA 125
(WCC)
The
application for leave to appeal is dismissed with costs, including
the costs of two counsel where so employed.
JUDGMENT
Navsa
JA (Mocumie and Dlodlo JJA and Eksteen and Poyo-Dlwati AJJA
concurring):
[1]
Little did the first respondent, Ms Fatiema Carelse (Fatiema), know,
when she set out with friends and family on a bus trip
from the Cape
Flats to a seaside resort, that what promised to be an enjoyable and
social weekend event, would turn into an attack
on her by a Pitbull
dog, while she and others were frolicking in one of the tidal
swimming pools. This event occurred
during the lunch hour
on Saturday, 7 December 2013, at the Harmony Park Resort, a day camp
(the Day Camp) situated at Strand in
the Western Cape. The Day Camp
is a public facility under the control of the appellant, the City of
Cape Town (the City), a Municipality
constituted in terms of the
Local Government: Municipal Structures Act 117 of 1998
. The dog was
owned by the second respondent, Mr Quinton Eksteen (Quinton), and
brought to the camp by the third respondent, Mr
Dylan Eksteen
(Dylan). The dog bit Fatiema, allegedly causing her to sustain
serious physical injuries and as a result of which
she developed
post-traumatic stress disorder. Fatiema instituted action against the
City in the Western Cape Division of the High
Court, Cape Town, in
which she claimed damages sustained as a result of the attack by the
dog. The action was based on the alleged
negligent breach of a legal
duty to ensure the safety of visitors to the Day Camp.
[2]
The City defended the action instituted by Fatiema in the court below
and served Third Party Notices, in terms of Rule 13 of
the Uniform
Rules of Court, on Quinton and Dylan, claiming an indemnity or
contribution from them in relation to any damages that
may be awarded
against it. Neither of them defended the City’s claim. Dylan
did, however, testify at the trial as a witness
for Fatiema.
[3]
In its plea the City admitted that it owed the public utilising the
facility a ‘duty of care’, but denied liability
to
Fatiema, stating that it had complied with its duty by taking
reasonable precautionary steps to keep the facility safe and to
ensure the safety of the public. Furthermore, the City pointed to the
fact that the dog was brought onto the premises unlawfully
by a third
party, in contravention of the City’s By-Laws, and in the face
of appropriate notice boards at various points
of the facility, which
indicated that dogs were prohibited entry. It is common cause that
the City’s By-Laws prohibit dogs
at a facility such as the Day
Camp, on pain of a fine, and that there are prominent notices at the
facility as asserted by the
City.
[4]
The matter proceeded to trial to determine whether the City should be
held liable for the damages sustained by Fatiema. The
parties agreed
and the court below ordered, in terms of Uniform Rule 33, that there
be a separation of issues and that the issue
of liability be
determined first, with quantum, if necessary, to be determined later.
The court below (Vos AJ), after hearing evidence,
made the following
order:
‘
[1] It is
declared that the City of Cape Town is liable for such damages as Ms
Fatiema Carelse may prove, arising out of a dog attack
on 7 December
2013 at the Harmony Park Day Camp;
[2] Mr Quinton Eksteen is liable to
contribute 50% of the aforementioned proven damages, to the City of
Cape Town;
[3] The City of Cape Town shall pay
the costs of Ms Fatiema Carelse;
[4] Mr Quinton
Eksteen is liable to pay the costs of the City of Cape Town only
involving the third-party notice proceedings against
him on an
undefended basis.’
[5]
The court subsequently dismissed the City’s application for
leave to appeal against that order. An application for
leave to
appeal to this court was referred for oral argument in terms of s
17(2)
(d)
of the
Superior Courts Act 10 of 2013
and the parties were directed
to be prepared, if called upon to do so, to present argument on the
merits. We heard argument on
both the application and the merits. The
primary question to be addressed is whether there would be reasonable
prospects of success.
In order to make that determination it is
necessary to have regard to the evidence adduced and to consider the
conclusions reached
by the court below. The relevant parts of the
evidence are set out hereafter.
[6]
Fatiema was 23 years old at the time of the incident in question. She
was the first witness to testify. Her version of events
appears
hereafter. At approximately 09h00 on the day of the incident she
arrived at the Day Camp with friends and family by bus
from Hanover
Park, Cape Town, where she lives. She and others made their way to
the main entrance, pictured hereunder:
[See
PDF for image]
[7]
As can be seen, the main entrance is set up so as to ensure access
control. At the extreme left-hand side of the photograph
is a board
indicating that dogs are not allowed. There are also two prominent
circular signs at the entrance indicating that cycling
and dogs are
not allowed within the resort. The photograph that appears hereafter
shows the signs more clearly:
[See
PDF for image]
The
second image is a part of the photograph (appearing immediately
before it) that was entered into evidence. It has been cropped
and
zoomed to show more clearly the two signs prohibiting dogs at the
facility.
[8]
Fatiema and her companions were searched by the City’s security
officials at the main entrance. The security personnel
searched their
bags for alcohol and firearms. Alcohol and firearms, as indicated on
the board depicted on the photos above, are
also prohibited at the
facility. On that particular day, there were many more officials on
duty than is usually the case because
there were so many visitors.
Security officials had inspected Fatiema’s bag a second time
while she was within the facility.
At around lunchtime, Fatiema made
her way to one of the tidal pools located within the Day Camp. While
she was in the pool she
saw people scattering. Suddenly a dog was
attacking and biting her. She attempted to fight off the dog. Before
the attack occurred
she had seen a fairly large contingent of
security personnel patrolling the area, continuing to inspect bags
within the resort.
Fatiema was playing with a ball in the pool when
the dog came towards her. She let go of the ball, thinking that the
dog wanted
to play with it, but this did not avert the attack.
[9]
Security officials at the resort came to Fatiema immediately after
the dog had attacked her. They summoned an ambulance and
questioned
her about the attack. They informed her that dogs entered the
facility on a daily basis. One of the officials informed
her that the
dogs usually gained entry through a hole in the railings. Shortly
thereafter Fatiema was transported to hospital.
[10]
With reference to a photograph presented to her, Fatiema testified
that there was an unsecured area near the tidal pool, close
to the
jetty, which allowed access to people and dogs. The dog had
come from that direction.
[11]
The next witness to testify was Ms Zulfa Carelse (Zulfa), a relative
of Fatiema, who had accompanied her on the visit to the
Day Camp.
Zulfa confirmed that they were searched by security officials before
they were afforded entry. Zulfa witnessed the dog
attacking Fatiema.
She and Fatiema were both in the pool at that time. Zulfa had seen
Dylan approach with the dog on a leash. As
he came closer, he
unleashed the dog. The dog entered the pool and attacked
Fatiema, causing people to scatter. Zulfa heard
Fatiema scream and
saw the dog attacking her. She later heard City officials say that
the dog had entered through a hole in the
fence. Zulfa also saw the
dog bite Dylan after he had entered the tidal pool and attempted to
bring it under control. Dylan was
subsequently also attacked in the
pool by other visitors at the facility, who were angered by the dog
having been brought to the
facility.
[12]
Fatiema had testified about the incident without drawing a
distinction between the City’s law enforcement officials and
private security officials employed by the City. Zulfa was more
specific. She testified that immediately after the incident the
City’s law enforcement officials were on the scene. She also
testified that the people who had searched them at the entrance
were
the City’s law enforcement officials. According to her, the
City’s law enforcement officials comprised males and
females
who wore uniforms. Some patrolled the area with quad bikes.
[13]
The ‘hole’ in the railings or the fence, referred to in
the evidence of the first two witnesses and also testified
about
later by others, is best depicted on the photograph that appears
hereunder:
[See
PDF for image]
As
can be seen, there is an unfenced area to the right of the first blue
pillar, at the end of the railing. In that area there are
pillars,
apart from each other, so as to prevent vehicular entry. It is those
gaps between the pillars that are referred to as
a ‘hole’
in the railings.
[14]
The next witness to testify was Mr Emilio Nelson (Emilio), who was
part of the group, including Fatiema and Zulfa, that travelled
to the
Day Camp. He confirmed that there was entrance control at the main
entrance and that they were all searched before entry.
He testified
that the people exercising entrance control were the City’s law
enforcement officials.
[15]
Emilio testified that he had seen the dog that attacked Fatiema
approximately thirty minutes before the incident. The dog was
led by
Dylan across the overhead pier within the Day Camp. He confirmed that
on the day of the incident in question, the City’s
law
enforcement officers patrolled the Day Camp on motorcycles and on
foot.
[16]
Dylan was the last witness to testify in support of Fatiema’s
case. He testified that he had visited the Day Camp on
other
occasions, prior to the day on which the incident in question
occurred. This was the first time he had brought the dog.
[17]
According to Dylan he had gained entry at the spot between the
pillars, shown in the photograph at para 13. It was a ‘free
entry’ spot. After he gained entry he walked on the pier with
the dog on a leash. Intending to make his way home, Dylan thought
it
a good idea to wash the dog at the base of the pier before leaving
the Day Camp. The next thing he knew, the dog chased after
a ball
while people were playing with in the pool. The dog bit the ball,
causing Fatiema and her friends to move to the edge of
the pool.
Fatiema screamed for her ball and this caused the dog to become
aggressive. The dog attacked and bit Fatiema and then
Dylan. It is
necessary to record that, under cross-examination, Dylan testified
that he had let the dog off the leash and held
it before it broke
loose and entered the pool.
[18]
According to Dylan he had been at the Day Camp for approximately
thirty minutes before the incident occurred. He had seen no
law
enforcement officials and was stopped by no-one and was not told that
dogs were not permitted at the resort.
[19]
Under cross-examination, Dylan described how he had visited the Day
Camp very often, already from his childhood days. On the
day of the
incident he had been in the vicinity of the pool for no longer than
10 minutes. If the law enforcement officials had
not arrived, fellow
Day Camp visitors at the pool would have hurt him. He was instructed
by the City’s law enforcement officials
to fetch the dog. He
did so and put the leash back on the dog. The law enforcement
people were dressed in uniforms.
[20]
Dylan testified that he knew he was not permitted to take a dog into
the Day Camp. There is a prominent sign at the main entrance
that
made that clear. He had seen people with dogs at the Day Camp on a
number of prior occasions, but mostly, though not exclusively,
on
weekdays. That then was the end of the evidence adduced in support of
Fatiema’s case.
[21]
The first witness to testify on behalf of the City was Mr Lourens
Fourie, a First Inspector with the City’s Law Enforcement
Division, responsible for the Helderberg Region which includes
Gordon’s Bay, Somerset West, Lwandle, Macassar and Strand.
At
the time of the incident in question, Mr Fourie held the rank of
Senior Inspector and was stationed at the Day Camp. He was
second-in-command of the entire Helderberg area. At the time he
testified he was approaching twenty-nine years of service with
the
City, seventeen of which had been spent at the Day Camp.
[22]
Mr Fourie described the layout of the Day Camp. One is unable to see
the pier from the main entrance. At the time of the incident
lifesavers were stationed on the pier because they enjoyed a better
view from there and were there to prevent children from diving
into
the pool or the sea.
[23]
At the time of the incident there were eight law enforcement officers
employed by the City for the entire Helderberg area.
The enforcement
officers at the Day Camp are also responsible for the extended area
referred to in para 21 above. At the time of
the incident the biggest
problem experienced at the Day Camp was alcohol abuse, which gave
rise to unpleasant consequences. In
all of the years of Mr Fourie’s
tenure at the Day Camp, the only incident involving an attack by a
dog was the one involving
Fatiema.
[24]
In addition to the City’s law enforcement officials there were
also private security personnel on duty at the Day Camp.
They were
there at the instance of the City. There were also lifeguards in
attendance at the facility. The principal concern of
the lifeguards
was to prevent swimming incidents especially in relation to the pier.
The private security personnel were concerned
with safeguarding
buildings and property. Where necessary, they would engage the law
enforcement officials and/or the Metro Police.
The law enforcement
officials have a close working relationship with the Metro Police and
share an office with them at the Day
Camp.
[25]
According to Mr Fourie, as soon as someone attempted to bring a dog
onto any City facility which prohibits dogs, they are directed
away.
If they do not heed the instruction they are fined. If they
persisted, the dog was impounded. This occurred on a daily
basis
during periods such as the month of December.
[26]
The facility has a capacity of 3500. On busy days the Day Camp
welcomes approximately 1000 visitors. Visitors to the Day Camp
are
concentrated in and around the tidal pools and the adjacent braai
areas. The pier is not easily visible from the security area
because
of the crowd. The dog that bit Fatiema would not have been visible to
security officials while it was on the pier.
[27]
Mr Fourie testified that, although private security personnel have no
instructions from the City in relation to prohibiting
dogs from
entering the facility, they do, on occasion, report the presence of
dogs to the City’s law enforcement officials,
who then respond
immediately.
[28]
Under cross-examination, Mr Fourie accepted that the primary
responsibility for ensuring that dogs do not have access to the
Day
Camp rested on the City’s Law Enforcement Division. The private
security personnel were ever-present at the facility.
At the time of
the incident there had been no First Inspector for the facility. That
is usually the person in charge of the facility
and the extended
area.
[29]
The board at the main entrance indicated what was prohibited at the
facility. Prohibited items included alcohol, firearms and
other
dangerous weapons. These were prohibited in terms of the City’s
By-Laws. It is normal procedure to search people before
entry, as
testified to by Fatiema and others. Additionally, spot-checks are
conducted within the Day Camp by the City’s law
enforcement
officials. People have, on occasion, depending on nature of their
transgressions, been evicted from the Day Camp.
[30]
Mr Fourie testified that on the day of the incident there were only
two law enforcement officials on duty at the Day Camp,
placed at the
main entrance. That number was inadequate to deal with the large
crowd. Other than the main entrance and the
‘free
entrance’ referred to by Dylan, there was also a short run of
beach on the south side from which access could
be obtained. There
was no access control at entrances other than the main one. It is
important to note that Mr Fourie testified
that at one stage there
had been a fence in the vicinity of the ‘free entrance’
which extended into the sea. That is
the area beyond the pillar on
the extreme right-hand side of the pillar as shown in the photograph
in para 13 above. With
the passage of time the fence that
extended into the sea fell into disrepair and is no longer in
existence. Mr Fourie could not
say whether the lack of fencing there
was within the knowledge of the City.
[31]
In the past, according to Mr Fourie, one had to pay an entrance fee
to enter the Day Camp and it had been properly and adequately
fenced.
Presently, ninety percent of people entering the facility use the
main entrance. Significantly, Mr Fourie testified that
people who
used the ‘free entrance’ were usually those who sought to
avoid being searched.
[32]
The next witness to testify on behalf of the City was Mr Willem Le
Roux, the manager at the Day Camp. In the seven years he
has been at
the facility there had not been one incident involving a dog attack.
He is in charge of all the personnel, including
the lifeguards and
security details. He confirmed that ninety percent of people who
gained entry to the Day Camp used the main
entrance. Unlike Mr
Fourie, Mr Le Roux testified that the private security personnel were
responsible for ensuring that alcohol
was not brought in and that
dogs did not gain entry. He insisted that this was part of the
contract the City had concluded with
the security firm. Law
Enforcement was responsible for entry at the main entrance. They also
inspected the facility. Metro Police
were also jointly responsible
for law enforcement and controlling the premises. Alcohol abuse was
the main cause of incidents at
the facility.
[33]
Mr Le Roux confirmed that visibility from the security office to the
pier was impaired, due to crowd size. Although he was
at the Day Camp
at the time of the incident he only learnt of it afterwards. He
testified that there were no boards in the
vicinity of the ‘free
entrance’ indicating that dogs were not permitted in the Day
Camp. The City was aware that people
gained entrance at that point.
At the time of the incident there were between four to six law
enforcement officials at the facility.
Additionally, there was one
person from the private security firm and one from the Metro Police.
[34]
The last witness to testify in support of the City’s case was
Ms Lauren-Lee Rodrigues who is employed in the Disaster
Management
Division of the City. At the time of the incident she was stationed
at the Day Camp and had been working there for two
years. On the day
in question she was employed by Law Enforcement. There were
eight of them during the morning. This grew
during the course of the
day to 12. Ms Rodrigues was at her post at the main entrance. Their
main focus was on people who attempted
to bring alcohol onto the
premises. Two out of ten people sought to do this. People are
searched before entry. When a dog is seen
the owner is requested to
remove the dog. If the instruction is not heeded the dog may be
impounded.
[35]
On the day of the incident Ms Rodrigues was at the gate when she was
informed by a member of the public that a woman had been
bitten by a
dog. She saw Fatiema approaching with a towel bound across her hand.
Ms Rodrigues called for an ambulance. Fatiema
described the dog that
bit her as a brown and white Pitbull. A search was launched to find
the dog. Ms Rodrigues took Fatiema to
the Law Enforcement office at
the Day Camp to wait for the ambulance. They then encountered Dylan
and the dog. The dog was subsequently
impounded.
[36]
In Ms Rodrigues’ experience a dog has never been allowed to run
free within the Day Camp. If security had become
aware of the
dog they would have taken immediate steps to remove it.
[37]
What appears above are the relevant parts of the evidence on which
the court below based its conclusions. With reference to
decisions of
this court dealing with omissions to take precautionary steps to
prevent harm, the high court had regard to the fundamental
principle
that allegedly negligent conduct in the form of an omission is not
prima facie wrongful. Wrongfulness depended
on the existence of
a legal duty. The high court had regard to the following dictum from
this court’s decision in
Hawekwa
Youth Camp and Another v Byrne
:
[1]
‘
The
imposition of this legal duty is a matter for judicial determination,
involving criteria of public and legal policy consistent
with
constitutional norms. In the result, a negligent omission causing
loss will only be regarded as wrongful and therefore actionable
if
public or legal policy considerations require that such omission, if
negligent, should attract legal liability for the resulting
damages.
’
[38]
The high court also considered, in relation to wrongfulness and
culpa, the decisions of this court in
Van
Vuuren v Ethekwini Municipality
,
[2]
Pro Tempo
Akademie CC v Van Der Merwe
,
[3]
Minister
of Safety and Security v Van Duivenboden
,
[4]
Cape Town
Metropolitan Council v Graham
[5]
and
ZA
v Smith and Another.
[6]
Vos AJ, in
having regard to the dictum in the preceding paragraph, took into
account that the Day Camp had three entrances and that
the City knew
that 10-20 per cent of people gained entry through the two entrances
that had no access control. The court
found that the City knew
that dogs were a significant problem because they were removed or
impounded on a number of prior occasions.
[39]
The following parts of the judgment of the court below bear
repeating:
‘
(a)
In general, where the public gain access to a public facility via all
the entrances of such a facility, it would be irrational
and
ineffectual to manage, supervise and conduct strict access control at
only one entrance, while conducting no supervision or
access control
at the other entrances.
(b)
When access control must be done in order to prevent dogs from
entering a public facility, such as the Day Camp, it should be
done
in a reasonable and comprehensive manner. There would be no point in
only selecting one entrance area to conduct supervision
and access
control.
(c)
The City could quite easily have put up signboards at the side
entrances, thereby warning visitors not to bring dogs onto the
premises. The evidence is that there are no signboards at the
northern entrance where Mr Dylan Esksteen and the dog entered.
Effective
and prominent signboards would probably have contributed
towards stemming the influx of visitors through the side entrances.
(d)
The placing of law enforcement officers at the two side entrances
would in all likelihood not have caused financial hardship
for the
City. If there was only one law enforcement officer at the northern
entrance, it is likely that such officer would have
prevented the dog
from entering the Day Camp, and the attack on the plaintiff.
(e)
In any event, the City did not present any evidence in the regard to
claim that the cost of extra law enforcement officials
would have
involved an intolerable financial burden on the City or, would have
been disproportionate to the benefit gained thereby.
(f)
The City knew that visitors and dogs entered the Day Camp through the
two unmanned entrance areas. It took no reasonable steps
to prevent
it.
(g)
I accordingly find that by failing to provide signboards and access
control at the two side entrance areas, the City breached
its legal
duty in a wrongful manner.
’
[7]
[40]
In relation to negligence, the court below had regard to the
oft-cited case of
Kruger
v Coetzee
[8]
and the test
for negligence postulated there. It reads as follows:
‘
For
the purposes of liability culpa arises if –
(a)
a
diligens paterfamilias
in the position of the defendant
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
’
[41]
The court below, in dealing with foreseeability, noted that the City
had taken the trouble to enact a By-Law, dealing with
the dangers of
dogs. It had placed two signboards at the main entrance prohibiting
entrance by dogs. The impounding or turning
away of dogs were regular
occurrences. Vos AJ concluded as follows:
‘
(a)
Given the significant number of dogs and visitors that regularly
frequented the Day Camp during December and the summer season,
the
City should have foreseen the reasonable possibility that it was only
a question of time before an attack would take place.
(b)
I therefore find that a reasonable person, in the position of the
City, would have foreseen the reasonable possibility that
a dog
attack could occur inside the Day Camp.
’
[9]
[42]
The court below went on to consider the question of ‘reasonable
steps’ that could have been taken by the City.
It reasoned as
follows:
‘
(a)
Despite the City’s knowledge that there were so many dogs
frequenting the Day Camp, it had no signboard on the northern
and
southern side to warn people not to bring dogs onto the premises. It
also had no law enforcement officer at the northern and
southern
entrance. If it had an appropriate signboard and a law enforcement
officer at the northern entrance (as illustrated above),
it would
probably have prevented Mr Dylan Eksteen and the dog from entering
the Day Camp, because they entered the Day Camp through
the northern
entrance. In that case, the plaintiff would not have been injured.
Such steps would have been reasonable, effective,
affordable and
sustainable. As stated in
Van
Vuuren
“. . .
ensuring
access control [is] relatively simple and would not place an
intolerable financial burden on the Municipality
”.
[10]
(b)
In my view, the City’s failure to erect an appropriate sign
board at the northern and southern entrances, and the failure
to
provide supervision and access control at the northern and southern
entrances, was unreasonable and negligent. It is unreasonable
to only
apply access control and supervision in respect of the majority of
the visitors to the Day Camp, and in respect of between
10 to 20%, no
supervision and access control is undertaken. That conduct, in my
view, falls short of what a reasonable and sensible
person, in the
position of a municipality, should do
.’
[11]
[43]
Insofar as third party liability was concerned, the court below held
the owner, Quinton, liable to make a contribution to the
City in
respect of the damages Fatiema might prove on the basis of the
actio
de
pauperie
.
Vos AJ considered a 50 percent contribution to be reasonable. It did
not hold Dylan liable to make any contribution to the City.
[44]
Before us it was submitted on behalf of the City, in relation to the
tests for granting leave to appeal in terms of
s 17(1)
(a)
(ii)
of the
Superior Courts Act, namely
, whether in the opinion of the
judge or judges concerned the appeal would have a reasonable prospect
of success, or whether there
is some other compelling reason why the
appeal should be heard, first, that the court below erred in
determining both wrongfulness
and negligence against it and that in
regard thereto there would be a reasonable prospect of success.
Second, that the case raised
pertinent questions in relation to
liability of a Municipality for the unlawful conduct of third
parties. It is to those questions
that I now turn.
[45]
First, the question of wrongfulness. In
Country
Cloud Trading CC v MEC Department of Infrastructure Development
[12]
,
the
Constitutional Court said the following:
‘
Wrongfulness
is an element of delictual liability. It functions to determine
whether the infliction of culpably caused harm demands
the imposition
of liability or conversely, whether the “social, economic and
other costs are just too high to justify the
use of the law of delict
for the resolution of the particular issue”. Wrongfulness
typically acts as a brake on liability,
particularly in areas of the
law of delict where it is undesirable or overly burdensome to impose
liability.
The
statement that harm-causing conduct is wrongful expresses the
conclusion that public or legal policy considerations require
that
the conduct,
if
paired with fault
,
is actionable. And if conduct is not wrongful, the intention is to
convey the converse: “that public or legal considerations
determine that there should be no liability; that the potential
defendant should not be subjected to a claim for damages”
notwithstanding his or her fault.’ (Footnotes omitted; emphasis
my own.)
[46]
In
Le
Roux and Others v Dey
[13]
the
Constitutional Court spoke thus:
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict: (a) the criterion
for
wrongfulness ultimately depends on a judicial determination of
whether-
assuming
all the other elements of delict to be present
-
it would be reasonable to impose liability on a defendant for the
damages flowing from specific conduct; and (b) that the judicial
determination of that reasonableness would in turn depend on
considerations of public and legal policy in accordance with
constitutional
norms. Incidentally, to avoid confusion it should be
borne in mind that, what is meant by reasonableness in the context of
wrongfulness
has nothing to do with reasonableness of the conduct of
the defendant’s conduct but it concerns the reasonableness of
imposing
liability on the defendant for the harm resulting from the
conduct.’
[47]
I pause to consider the repeated statements by this court that
wrongfulness should be considered distinctly from the question
of
negligence. In this regard see
Gouda
Boerdery BK v Transnet
,
[14]
Hawekwa
,
[15]
Van
Vuuren
[16]
and the
highlighted parts in the dicta form the judgments of the
Constitutional Court set out in the preceding paragraphs.
[48]
In
Gouda
[17]
and
Hawekwa
[18]
this court
pointed out that, depending on the circumstances, it might be
appropriate to enquire first, into the question of wrongfulness
and
for that purpose to assume negligence. Of course, in the event of the
absence of negligence – in some cases that might
be clear –
the question of wrongfulness does not arise
[19]
.
[49]
Before us it was accepted that the first enquiry should be into the
question of wrongfulness. Counsel on behalf of the City
was right to
submit that as a starting point one should recognise that Fatiema’s
claim was based on the City’s negligent
failure to take
adequate steps which would have prevented the attack on her by the
dog - an omission. It is also correct as repeatedly
stated by this
court that in the case of a positive act that causes physical harm,
it is presumed to be unlawful. However, in the
case of a negligent
omission it is only unlawful if in the circumstances the law regards
it as sufficient to give rise to a legal
duty to avoid negligently
causing harm
[20]
.
This, as referred to in para 37 above, was appreciated by the court
below.
[50]
The court below criticised the parties for their inaccurate use of
the expression’ duty of care, when they clearly meant
‘legal
duty’. The latter is associated with wrongfulness. The concept
‘duty of care’ derived from English
law and is associated
there with the question of negligence.
[21]
[51]
The attack on Fatiema occurred at a resort under the control of the
City, which saw fit to implement admission controls and
to provide
security oversight to ensure public safety. It put up signs in
relation to items and dogs that were prohibited. It did
this against
the backdrop of its By-Laws, in terms of which the City recognised
the dangers attendant on what was prohibited. The
City set up an
impressive main entrance, which clearly was designed as part of the
City’s efforts to ensure the safety of
the public. It conducted
ongoing searches of bags within the facility to ensure that what was
prohibited was not being concealed
and brought into the resort
unlawfully. Dogs are more visible and not easily given to concealment
and are at least notionally more
easily policed in relation to entry.
They have in the past been turned away and their owners or handlers
taken to task. On occasion
they have been impounded.
[52]
The ‘hole’ in the fence was a weak-spot through which
people who were intent on avoiding searches gained entry
and through
which dogs, in the past, had admittedly gained entry. Furthermore,
there had been a fence at the ‘free entry’
point that had
fallen into disrepair and was not replaced. The officials who
testified in support of the City’s case were
uncertain whether
the people they reported to within a hierarchy were aware of the
‘hole’. There was no explanation
on behalf of the City as
to why the fence had not been reinstated. There was no explanation as
to why a single guard placed at
the free entry point would not be
adequate to prevent entry of dogs and prohibited items. It is
important to reiterate that the
vast majority of people who visit the
resort gain entry through the main entrance. The access control at
that point is, at first
blush, impressive. This must be reassuring to
a visitor. If one were to ask a member of the public whether they
would expect to
receive adequate protection at the resort controlled
by the City, within means and reason, the answer would be
self-evident. Moreover,
the constitutional right to safety of the
person and the right to dignity, while visiting the resort are,
amongst others, implicated.
It is also proper to take into account
that the Municipality is part of the State and that it should be
concerned with public safety
at a resort conducted by it.
[53]
In the City’s heads of argument there is reference to s 13 of
the National Environment Management: Integrated Management
Act 24 of
2008, which provides that any natural person has a right of
reasonable access to coastal public property and to its use
and
enjoyment. Section 13(2) does not prevent restrictions in the public
interest. Although Mr Le Roux stated that the side entrances,
as
distinct from the main entrance, could not be blocked off as the
beach had to be open to the public at all times, he made no
reference
to the abovementioned legislation and did not say why access could be
restricted at the main entrance but not at other
entrances. Be that
as it may, even if a fence could not be permanently erected as before
– in the past at common law the
public would have had a right
of access – it was not suggested that the placing of a security
official at each of the two
side entrances would be unduly
burdensome, either financially or otherwise. Imposing liability
would not be unreasonable.
[54]
Having regard to what is set out above I am of the view that
wrongfulness was established. There is no substance to the submission
on behalf of the City that wrongfulness was not pleaded by Fatiema
and that the claim therefore ought not to have been entertained
by
the court below. The heading above para 8 of her particulars of
claim reads as follows: ‘Causal Negligence and/or
Wrongful
and/or Negligent Omission’. Even though both parties were
confused in their use of ‘duty of care’, wrongfulness
was
asserted by Fatiema. Additionally, it is clear from the City’s
plea and the manner in which the case was conducted, argued
and dealt
with by the court below that wrongfulness was in issue between the
parties. Wrongfulness having been disposed of,
it is to
negligence that I now turn.
[55]
The Court below, in applying the test set out in
Kruger
v Coetzee
referred to in para 40 above,
concluded that a Municipality in the position of the City would have
foreseen the possibility of
a dog attack and would have taken
reasonable steps to prevent the occurrence and that it failed to do
so and was consequently liable
to Fatiema.
[56]
The City recognised the potential dangers that dogs presented, by
enactment of the By-Laws referred to. This acknowledgment
is
reinforced by the signs prominently displayed at the main entrance.
It is further substantiated by the officials who have, on
numerous
occasion prior to the incident, fined persons who brought dogs to the
resort, or warned them or impounded dogs. The City’s
officials
were aware that dogs entered the facility, either on their own or led
by owners or controllers at the ‘free entry’
point. They
recognised that persons who wanted to avoid detection or being
searched used that entry point. They could have taken
the reasonable
step of employing access control measures at that point. It was clear
from Mr Fourie’s evidence that they
were understaffed and
consequently that security arrangements relative to crowd size was
inadequate. One must either employ sufficient
staff to ensure public
safety, or not conduct a resort at all. A fence that extends
into the sea, does not appear to me,
in the light of the legislation
referred to by counsel, to be an option that can be discounted. In
any event the placing of a guard
at that point would on the day in
question probably have prevented Dylan from bringing the dog to the
resort and the attack on
Fatiema would not have occurred. I can
see no reason to fault the conclusion of the court below.
[57]
Consequent upon the conclusions reached it follows that there are no
prospects of success in relation to an appeal. It was
submitted that
the City’s liability in relation to wrongful conduct on the
part of third parties called for clarity and a
pronouncement by this
court, and that this met the requirement of a compelling reason for
the appeal to be heard in terms of s
17(1)
(a)
(ii)
of the
Superior Courts Act. At
the end of last year this court
confirmed a decision, also by the Western Cape Division of the High
Court, holding a Municipality
liable for the consequences that
followed on the act of a rapist who made his way into a residential
resort controlled by it. This
court took into account that there had
been prior breaches of security at that resort, even though of a less
serious nature. There
had also been a prior complaint of an assault
at that resort. In that case this court took into account that the
resort had been
left woefully understaffed due to a staff meeting and
concluded, with regard to the vulnerability of women and disabled
people
in our society, that the Municipality in question had rightly
been held liable.
[22]
In
Van
Vuuren
,
a child visiting a public pool pushed the child on whose behalf a
claim for damages was brought.
[23]
Of course,
our courts will be astute to consider each case on its own merits but
there is no compelling reason requiring an appeal
to be heard.
[58]
One final brief remark. It is incongruous for Quinton to have been
held partially liable as a joint wrongdoer on the basis
of the
actio
de pauperie
but not Dylan, who unlawfully brought the dog to the resort, which
led to the attack.
[24]
Counsel were
agreed, that for present purposes, this was an aspect that did not
deserve any further attention.
[59]
The following order is made:
The
application for leave to appeal is dismissed with costs, including
the costs of two counsel where so employed.
_____________________
M
S Navsa
Judge of Appeal
APPEARANCES
For
Appellant: R Stelzner SC (with him A du Toit)
Instructed
by: MHI Attorneys, Cape Town
Webbers,
Bloemfontein
For
Respondent: A du Toit
Instructed
by: Simpsons Attorneys Inc, Cape Town
Rosendorff
Reitz Barry Attorneys, Bloemfontein
[1]
Hawekwa
Youth Camp and Another v Byrne
[2009]
ZASCA 156
; 2010(6) SA 83 (SCA) para 22.
[2]
Van
Vuuren v Ethekwini Municipality
[2017]
ZASCA 124
; 2018(1) SA 189 (SCA) paras 24-32.
[3]
Pro
Tempo Akademie CC v Van Der Merwe
[2016]
ZASCA 39; 2018 (1) SA 181 (SCA).
[4]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 12.
[5]
Cape
Metropolitan Council v Graham
[2001]
1 All SA 215
(A) paras 14-15.
[6]
ZA v
Smith and Another
[2015]
ZASCA 75
;
2015 (4) SA 574
(SCA) para 24.
[7]
Carelse
v City of Cape Town
[2018] ZAWCHC 173
;
[2019] 2 All SA 125
paras 55-61.
[8]
Kruger v
Coetzee
1966
(2) SA 428
(A) at 430 E-F.
[9]
Carelse
op
cit fn 7 para 67.
[10]
Van
Vuuren
op
cit fn 2 para 29.
[11]
Carelse
op cit fn 7 para 74.
[12]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
[2014] ZACC 28
;
2015
(1) SA 1(CC)
paras 20 and 21.
[13]
Le Roux
and Others v Dey
[2011]
ZACC 4
;
2011 (3) SA 274
(CC) para 122.
[14]
Gouda
Boerdery BK v Transnet
[2004]
ZASCA 85
;
2005 (5) SA 490
(SCA) paras 12 and 13.
[15]
Hawekwa
op cit fn 1
paras 21-23.
[16]
Van
Vuuren
op cit fn 2 para 18.
[17]
Gouda
op cit fn 14
para 12.
[18]
Hawekwa
op
cit fn 1 para 24.
[19]
Gouda
op
cit fn 14 para 12.
[20]
Van
Duivenboden
op cit fn 4
para 12 and
the cases there cited.
[21]
Hawekwa
op cit fn 1 para 21.
[22]
See
Witzenberg Municipality
v Bridgman NO and Others
[2019] ZASCA 186
; 2019 JDR 2393 (SCA).
[23]
Van Vuuren
op
cit fn 2.
[24]
See
Van Meyeren v Cloete
[2020] ZASCA 100.