THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No : 501/2023
In the matter between:
KRISTINE KALMER APPELLANT
and
GAIRONISA DAVIDS NO FIRST RESPONDENT
(IN HER CAPACITY AS THE EXECUTOR
IN THE ESTATE: LATE YASMIN SALIE)
WESTERN PROVINCE ATHLETICS SECOND RESPONDENT
Neutral citation: Kristine Kalmer v Gaironisa Davids NO (in her capacity as
the Executor in the Estate: late Yasmin Salie) and Another
(Case no 501/2023 ) [2025] ZASCA 26 (28 March 2025)
Coram: SCHIPPERS , MEYER and SMITH JJA and VALLY and
NORMAN AJJA
Heard: 18 February 2025
Delivered: 28 March 2025
Summary: Delict – negligence – runner colliding with member of public during
race – route on promenade not cordoned off – runner negligent in failing to keep
a proper lookout .
2
____________________________________________ ____________________
ORDER
________________________________________________________________
On appeal from: Western Cape Division of the High Court , Cape Town
(Gamble , Baartman and Mangcu -Lockwood J J, sitting as court of appeal ):
1 The appeal is dismissed with costs.
2 There is no order as to costs in relation to the second respondent’s
participation in the appeal.
________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA (Meyer and Smith JJA and Vally and Norman AJJA
concurring )
[1] This appeal arises from an incident which occurred during a ladies’ race in
Cape Town in 2014 , on a part of the course that was open to the public. The
appellant , an elite runner competing for points and prizes in the race, collided
with Ms Yasmin Salie (Ms Salie ), a member of the public . As a result of injuries
sustained in the collision, Ms Salie instituted an action for damages in the
Western Cape Division of the High Court , Cape Town (the High Court) , against
the appellant and the second respondent, Western Provin ce Athletics (WPA), the
race organiser .
[2] The High Court dismissed Ms Salie’s claim with costs. An appeal to a full
bench of the High Court succeeded. It held the appellant liable for 30 % of the
damages that Ms Salie may prove against her, and dismissed the claim against
WPA with costs . The respondent’s application for special leave to appeal th e
dismissal of her claim against WPA was refused by this Court , which granted the
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appell ant special leave to appeal . Ms Gaironisa Davids NO, the executrix of
Ms Salie’s estate, has been substituted as the first respondent in the appeal .
The f acts and proceedings below
[3] The basic facts are uncontroversial and can be briefly stated . It is common
ground that the incident occurred whilst the race was in progress on the
promenade (or pavement) in Mouille Point, Cape Town , that was not closed off
to the public . In fact, during the race a person pushing a pram emerged from a
parking lot onto the pave ment , which was open to pedestrians and people walk ing
their dogs . So, Ms Salie was entitled to be at the place that she was when the
incident occurred . It was also not disputed that the re were race marshals on
bicycles , in front of the first group of elite runners who were leading the race .
There were no cyclists marshalling the runners further back.
[4] Ms Salie did not testify and called Ms Leonie Olckers (Ms Olckers) as a
witness. The latter was a participant who had not yet started the race. Ms Olckers
said that while the elite athletes were running , she handed her came ra to Ms Salie
(probably a cell phone) and asked her to take a photo of Ms Olckers and her
family . Ms Salie took the photo from the opposite side of the Olckers group on
the pavement , with the ocean in the background.
[5] After the photo was taken , the first group of elite runners had passed and
Ms Olckers and Ms Salie walked towards each other so that the camera could be
returned. They met in the middle of the p avement and were standing still .
Ms Olckers noticed a runner (the appellant) coming from her right who shouted :
‘Get out of my way !’ Next thing the appellant collide d with Ms Salie , who fell to
the ground. Ms Ol ckers said that the appellant had ‘pushed Ms Sa lie’. The
pavement is six metres wide. The unchallenged evidence was that the appellant
was the only runner in the vicinity of Ms Salie and Ms Olckers immediately
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before the collision ; and that there was enough space for her to pass them on
either side. However, as Ms Olckers put it , ‘she did not, she was just focused on
the direction that she was going ’.
[6] This statement accords with the appellant’s own evidence. She testified as
follows:
‘COUNSEL : As you ran you saw pedestrians .
MS KALMER : As I race a 10-kilometre race I’m focused on myself and on the ground in front
of me and the athlete in front of me. I don’t look at pedestrians or things that I’m running past.’
[7] The appellant confirmed that she runs every race in this manner . When
asked whether she would have changed the way she approached her running if
there were pedestrians along the same route she was running, she replied ‘no’.
Her answer is telling:
‘COUNSEL : You would stil l have continued to just look on the ground in front of you and at
the other runners without focusing on other users of the sidewalk. Do I understand you
correctly?
MS KALMER : Correct .
[8] That the appellant’s focus was main ly on herself and the race, is
underscored by the fact that she failed to stop after the collision and continued
running , despite the fact that the Olckers group shouted at her to stop because
Ms Salie had been injured. The appellant herself said that she did not stop but
continued with her race, because there were other people who could help
Ms Salie . It was also not disputed that the appellant had shouted at Ms Salie and
Ms Olckers to get out of the way. The appellant however said: ‘I might have
shouted something in the line of watch’.
[9] As stated, t he High Court (Cloete J) dismissed the first respondent’s claim .
It said that the evidence established that Ms Salie , a spectator, must have been
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aware that a race was underway; that the athletes were running at speed ; and that
she must reasonably have anticipated that other runners would soon be
approaching at similar speed. In these circumstances both WPA and the appellant
could also reasonably have anticipated that Ms Salie would keep a proper lookout
and not disregard her own safety and that of the race participants, by stepping into
the path of athletes running in the middle of the pavement .
[10] The fact that Ms Salie and Ms Olckers were stationary when the collision
occurred, the court said, was a ‘red herring’ , since on Ms Olckers’ evidence , they
had ‘connected for a moment’ before the collision. It found that Ms Olckers had
not kept a proper lookout ; and that there was no evidence to refute the appellant’s
version that she first noticed Ms Salie moving into her path roughly one-and-a
half seconds before the collision. The appellant had shouted a warning to which
Ms Salie apparently did not respond , which , according to the court, lent support
to the appellant’s version that by then it was too late to avoid the collision. The
court stated that it made no sense that one or both would not have taken avoiding
action ; and that the urgency of the moment was such that the appellant ‘did not
even recall seeing Olckers on the pavement as well’.
[11] The High Court concluded that Ms Salie failed to prove negligence against
both WPA and the appellant . It held that the appellant had run the race as she was
entitled to do ; that she could not reasonably have been expected to foresee that
Ms Salie would ignore a participant approaching at speed and move into the
‘danger zone’ of which she must have been aware ; and that the appellant tried to
avoid the collision by shouting out ‘watch ’, before it occurred.
[12] Before the Full Court the respondent’s counsel conceded that Ms Salie was
contributorily negligent in failing to keep a proper lookout and observing the
appellant running on the pavement. Concerning the appellant’s approach in
simply looking on the ground in front of her and not focusing on other users of
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the pavement, the Full Court said that ‘she was running as if in a bubble, oblivious
to what was happening around her and intent only on achieving her goal of
winning the race ’. Although she could not be criticised for this running style, the
court said, she was not running on a track but in a public space and all the
participants in the race had to take account of this , which was one of the race
conditions. The prospect of encountering non -runners, the Full Court held, was
entirely foreseeable and the appellant was duty-bound to keep a proper lookout.
[13] The Full Court found that a runner in the position of the appellant would
have foreseen the possibility that other users of the pavement might cross her path
and that she would be required to take evasive action while running. However,
she adopted a blinkered approach. Had she kept a proper lookout , it would have
taken little effort to avoid the collision by moving to the left or right of Ms Salie .
The court concluded that the appellant was negligent, which contributed to the
collision.
Submissions in this Court
[14] Counsel for the appellant submitted that the first respondent failed to prove
the incident or the ‘duty of care’ as pleaded . The particulars of claim read as
follows:
‘3. The Incident
3.1 On or about 6 April 2014 at about 07h20, the Plaintiff was a (stationary) pedestrian on
the pavement at the Promenade at Mouille Point, Cape Town, where she was pushed
out of the way by the Second Defendant, an athlete who participated in a race which
was organised by the First Defendant;
3.2 First Defendant as the organiser of the racing event, and the Second Defendant as an
athlete, who participated in the said event, owed the Plaintiff a duty of care and were
negligent in one or more of the following respects:
. . .
The Second Defendant , inter alia , had the following Duty of Care towards the Plaintiff
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3.2.4 The Second Defendant bore the duty to take effective and reasonable steps to safeguard
the Plaintiff from sustaining undue physical harm, b y not pushing the Plaintiff out of
the way, but failed to recognise such duty, pushed Plaintiff out of the way and uttered
the words “ get out of my way ” or words to similar effect, when by the exercise of
reasonable care she could and should have been able to exercise such duty.
3.2.5 The second Defendant bore the duty to take any or adequate and/or reasonable steps to
preserve and protect the bodily integrity and dignity of the Plaintiff, but failed to do so,
when by refraining from pushing the Plaintiff, she would have been able to do so.
Foreseeability
3.2.6 The First and Second Defendants should have foreseen the possibility of harm to the
Plaintiff, when acting as above, and should have acted in accordance with such
apprehension in the same way that a reasonable person would have done.
3.3 The First and Second Defendants’ failure to exercise their respective duties of care and
failure to act in accordance with the apprehension that the incident may occur, caused
Plaintiff to sustain injuries.’
[15] The appellant further submitted that the first respondent was precluded
from relying on a n allegation that the appellant failed to keep a proper lookout,
as this was not pleaded. Even though the appellant was not called upon to meet
such a case, so it was submitted, the first respondent failed to establish that the
appellant, in the circumstances, ‘was required to keep more of a lookout ’ than
what she testified to . If it is found that when keeping a lookout more was required
of the appellant , then her negligent failure to do so was not wrongful .
[16] The appellant’s counsel also submitted that Ms Salie’s negligence was the
sole cause of the collision. She had been warned of the passing of the first group
of runners and should reasonably have foreseen that she would be an obstruction
to further oncoming runners (including the appellant) , by being in the middle of
the pavement , which could result in injury if a runner collided with her.
[17] Finally, it was submitted that the Full Court failed to consider the principles
governing the duty of care owed by a race participant to a spectator and the risk
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taken by the latter , based on English authorities referred to in Clark .1 These
include the following : the nature of , and rules applicable to , the event; the matter
has to be considered from the perspective of the reasonable spectator as well as
the reasonable participant , which takes into account that the former knows that
the latter will concentrate her attention on winning , particularly if the competition
is a fast moving one ; and a person attending a game or competition takes the risk
of any damage caused to her by an act of a participant done in the course of the
game or competition.
[18] The first respondent sought to argue that the race officials were negligent
in failing to keep a proper lookout or sounding a warning that Ms Salie was in the
middle of the pavement, and consequently that WPA was vicariously liable for
their conduct; that the appellant was the sole cause of the collision; and that the
Full Court erred in holding that Ms Salie was contributorily negligent. However,
this is impermissible since the first respondent’s application for leave to appeal
these findings was refused. This Court lacks jurisdiction to entertain an appeal in
the absence of leave being granted.2
[19] The first respondent submitted that the appellant was negligent. She knew
that she was running on a pavement where she was likely to encounter members
of the public ; accepted that she should have kept a proper lookout ; and knew that
a collision with someone would be potentially calamitous. Despite this , she ran
the race , looking on the ground five metres in front of her and occasionally at
other competitors , regardless of the circumstances on the route.
[20] Clark , it was submitted on behalf of the first respondent , is distinguishable.
Ms Salie was not a participant in an event at a sportsground ; nor did she purchase
1 Clark and Another v Welsh 1975 (4) SA 469 (W) at 478A.
2 Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd [2015] ZASCA 25; 2015 (4) SA 34 (SCA) ;
[2015] 2 All SA 322 (SCA) paras 12 -14.
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a ticket containing a disclaimer or similar clause excluding liability. Rather, when
the collision occurred , she was on a pavement to which the public had access , that
formed part of the course on which the race was run.
[21] WPA’s argument is confined to costs , on the basis that it was compelled to
participate in the appeal and file heads of argument to oppose the first
respondent’s attempt to hold WPA liable for the harm suffered by Ms Salie . It
submitted that this Court had refused the first respondent leave to appeal the
judgment of the Full Court; and that the scope of the appeal is limited to the
appellant’s notice of appeal in which she seeks an order that the first respondent’s
claim be dismissed with costs.
The pleaded case and negligence
[22] There are essentially only two straightforward issues raised by this appeal.
The first is whether the p articulars of claim sustain a cause of action that the
appellant was negligent in failing to keep a proper lookout; and the second,
whether she was negligent. The appellant’s reliance on English authorities
concerning the duties of participants and spectators at sporting events is
misplaced. The race was not held at a stadium or similar venue where the
organisers are responsible for the safety and security of spectators , and where
their attendance and ri sks are regulated through ticketing .
[23] The particulars of claim are not a model of clarity. This is largely because
this pleading confusingly refers to the English ‘duty of care’ doctrine . In terms of
this doctrine , one must first establish whether the defendant owed the plaintiff a
duty of care (the duty issue) and then determine whether there was a breach of
this duty (the negligen ce issue ). As Van der Walt and Midgley state,3 ‘negligence
simpliciter is not sufficient to found liability; the defendant must have had a duty
3 J C Van der Walt and J R Midgley Principles of Delict 4 ed (2016) at 118.
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to conform to reasonable standards of care’. If both questions are answered in the
affirmative, negligence is said to be present.4
[24] In deciding whether a duty of care was owed, the criterion traditionally was
whether a reasonable person in the position of the defendant would foresee that
her conduct might cause damage to the plaintiff . This was a policy -based decision
‘in which foreseeability play s no role as to whether interests should be protecte d
against negligent conduct ’.5 In determining whether there was a breach of the
duty of care, the court considers whether the defendant exercised the standard of
care that the reasonable person would have exercised to prevent damage. Stated
differently, would the reasonable person , in contrast to the defendant, have
prevented the damage?6
[25] There is much to be said for the view of Neethling and Potgieter that the
duty of care doctrine is foreign to the principles of Roman Dutch law – the basis
of our law of delict . The authors say that the doctrine ‘is an unnecessary and
roundabout way of establishing what may be established directly by means of the
reasonable person test for negligence, ie, whether the reasonable person would
have foreseen and guarded against damage ’.7 It is however not necessary to
decide this issue, in the absence of argument.
[26] What is more, the duty of care doctrine has created confusion between the
test for wrongfulness (breach of a legal duty) with the test for negligence. The
test for wrongfulness is whether the policy and legal convictions of the
community, constitutionally understood, regard the harm -causing conduct as
acceptable . It is based on the duty not to cause harm.8 This must not be confused
4 J Neethling and J M Potgieter Law of Delict 8 ed (2020) at 188.
5 Ibid; J C Van der Walt and J R Midgley Principles of Delict 4 ed (2016) at 11 8-120.
6 Neethling and Potgieter fn 4 at 188; Van der Walt and Midgley fn 3 at 118.
7 Neethling and Potgieter fn 4 at 188 .
8 Loureiro and Others v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) ; 2014 (5) BCLR 511 (CC) ;
[2014] ZACC 4 para 53.
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with the duty to take steps to guard against damage in the case where a reasonable
person in the position of the defendant would foresee such damage , would take
steps to guard against it , and the defendant fail ed to take such steps.9 As Scott JA
observed in McIntosh:
‘[T]he “duty”, and sometimes even the expression “legal duty ”, in this context, must not be
confused with the concept of “legal duty ” in the context of wrongfulness which, as has been
indicated, is distinct from the issue of negligence. I mention this because this confusion was
not only apparent in the arguments presented to us in this case but is frequently encountered in
reported case s. The use of the expression “duty of care ” is similarly a source of confusion. In
English law “duty of care ” is used to denote both what in South African law would be the
second leg o f the inquiry into negligence and legal duty in the context of wrongfulness. As
Brand JA observed in Trustees, Two Oceans Aquarium Trust at 144F, “duty of care ” in English
law “straddles both elements of wrongfulness and negligence ”.’10
[27] I return to the pleadings in the present case. A combined summons must
contain a clear and concise statement of the material facts on which the p leader
relies for her claim with sufficient particularity to enable the opposite party to
reply thereto.11
[28] The appellant’s counsel rightly conceded that there is no allegation in the
particulars of claim that, in push ing Ms Salie out of the way , the appellant acted
intentionally. Likewise, the appellant’s defence was not that she did not
deliberately push Ms Salie. Rather, the particulars of claim, properly construed,
state that the appellant pushed over, r an over , or collided with Ms Salie whilst
running ; and that she was negligent in doing so and in failing to avoid the
collis ion, when by the exercise of reasonable care, she could and should have
done so. One of the ways to avoid the collision was to keep a proper lookout. Put
9 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E -F.
10 McIntosh v Premier, KwaZulu -Natal and Another [2008] ZASCA 62; 2008 (6) SA 1 (SCA) ; [2008] 4 All SA
72 (SCA) at 8A -9B.
11 Moaki v Reckitt and Colman (Africa) Ltd and Another 1968 (3) SA 98 (A) at 102 A.
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differently, a reasonable person in the appellant’s position would have foreseen
the possibility of harm to Ms Salie, and would have taken steps to guard against
it (by keeping a proper lookout ). And it was alleged that the appellant failed to
take such steps.
[29] The particulars further state that the appellant had a duty to take reasonable
steps to protect Ms Salie’s bodily integrity ; that she failed to do so ; and that she
would have been able to do so had she not collided with Ms Salie. Her failure to
act in accordance with an apprehension that the incident may occur (by keeping
a proper lookout) , caused Ms Salie to sustain injury.
[30] That it was Ms Salie’s case that the appellant had not intentionally pushed
her, is confirmed in the plea. In amplification of her denial of paragraph 3.2.4 and
3.2.5 of the particulars of claim , the appellant pleaded that Ms Salie had stepped
in front of her; and that prior to the impact the appellant had raised both her arms
and shouted at Ms Salie, ‘watch !’ Then it is said that after colliding with the
plaintiff , the appellant continued her participation in the event. For the above
reasons, the submission that Ms Salie failed to prove the incident as pleaded, is
unsound.
[31] That leaves negligence. On her own version, the appellant was negligent.
Contrary to her defence , this is not a case where Ms Salie suddenly stepped into
the appellant’s path . In any event , her evidence that Ms Salie had stepped into the
middle of the pavement , was elicited through a leading question by her counsel .
She conceded that there was nothing that impeded her view ; that where she
focused was entirely up to her ; and that she must have realised that if she collided
with any person, the consequences might be calamitous . After these concessions ,
the following statement was put to the appellant:
‘COUNSEL : And I say for those reasons you should have looke d to see where you were going.
Am I right?
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MS KALMER : You are correct. ’
[32] It is beyond doubt that had the appellant looked to see where she was going,
she would have seen Ms Salie and Ms Olckers . On this score , the record speaks
for itself:
‘COUN SEL: . . . We know that at some stage she was standing against the railings and at some
stage she moved into the centre of the sidewalk, where she was speaking to Ms Olckers. Now,
if you saw her moving and you knew the speed at which you were running, you could easily
have shouted out when you were a distance away so that she would be aware of you coming.
Am I right?
MS KALMER : I didn’t see her.
COUNCIL : That’s the point.’
[33] The unchallenged evidence is that Ms Salie and Ms Olckers were stationary
in the middle of the pavement when the collision occurred . It was never put to
Ms Olckers that it was unsafe for her to walk across the pavement when she did.
The appellant was running in the middle of the pavement , which is six metres
wide. She could simply have slowed down or run past Ms Salie and Ms Olckers
on either side, and the collision would not have occurred. This part of the course
was known to the appellant: she had run the race many times before.
[34] In addition, t he collision is explicable on the appellant’s own approach to
every race she runs – focusing on herself , the ground in front of her and her
competitor s, with no regard for other users of the pavement and oblivious to what
is happening around her. And Ms Olckers – a complete stranger to the appellant
– could never have known of th is approach , unless she had witnessed the
appellant’s conduct which showed that she was focused on the race and nothing
else. This explains why the appellant continued running and why it was necessary
for the Olckers group to shout at her to stop. It also explains why she did not see
that she had run past a child on a bicycle . The evidence showed that this child
14
was on the pavement as women were running at pace; and it would have been
catastrophic if that child had moved her bicycle in front of the runners.
[35] Even on the appellant’s own version , she was negligent. If one accepts that
she saw Ms Salie moving across her path from right to left when the appellant
was five to eight metres from her, a reasonable person in the position of the
appellant would have been alert to the real possibility that Ms Salie would move
into her path . That person would have adjusted her running accordingly by
slowing down or taking steps to avoid a collision. But the appellant failed to do
so because of her uncompromising approach , quoted above .
[36] What remains is the costs order sought by WPA . It submits that it has
incurred unnecessary costs in this Court in seeking to avert an adverse order that
might be granted against it. However, WPA is mistaken. It was aware that this
Court had dismissed the first respondent’s application for special leave to appeal
the order dismissing Ms Salie’s claim against WPA with costs. Consequently ,
there was no basis for the first respondent to obtain such an order . The appearance
of WPA in this Court was unnecessary. There is no reason why it could not
enforce the costs order granted in its favour by the Full Court . Accordingly , there
will be no order as to costs in relation to the WPA.
[37] The following order is made:
1 The appeal is dismissed with costs.
2 There is no order as to costs in relation to the second respondent ’s
participation in the appeal.
_______ ___________
A SCHIPPERS
JUDGE OF APPEAL
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Appearances:
For appellant s: P J Combrinck SC
Instructed by: Cliffe Dekker Hofmeyr, Cape Town
Claude Reid Attorneys , Bloemfontein
For first respondent: P J Tredoux
Instructed by: JG Swart Attorneys Inc, Cape Town
EG Cooper Majiedt Inc , Bloemfo ntein
For second respondent: J H Loots SC
Instructed by: Norton Rose Fulbright South Africa Inc, Cape Town
Webbers Attorneys, Bloemfontein