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JUDGMENT
TWALA J
Introduction
[1] The plaintiff, Mr Sultan Zeberga Shirbeza, sued the defendant, Tobitrix Pty Ltd, out
of this Court for damages arising out of an incident that is alleged to have occurred
in front of the building owned by the defendant on the 10 February 2021 in
Johannesburg. The defendant is defending th e claim of the plaintiff. The plaintiff
called two witnesses to testify on its behalf and the defendant called two of its
employees to testify .
[2] At the commencement of the trial, the parties informed the court that they have
agreed to have the issue o f the merits to be determined first and that the issue of
quantum be postponed sine die in terms of Rule 33(4) of the Uniform Rules of Court.
Therefore, the matter proceeded only on the merits of the case.
Plaintiff’s case
[3] The plaintiff testified tha t on the 10 February 2021 while he was walking on the
pavement in front of the building known as Medical One Shopping Centre at 209
Rahima Moosa Street, Johannesburg, he was struck by a glass window on his left
forearm that fell from the defendant’s building. As a result of the glass window
falling on him, he sustained a huge cut wound on his left forearm which necessitate d
that he immediately be taken to hospital for medical treatment. His fellow Ethopian
country men assisted him and took him to the L ister Medical Centre where he
received medical attention on his injury and or wound.
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[4] At the time of the incident, he was a shopkeeper and was on his way to his shop
when it occurred . After he was injured and received treatment at the Lister Medical
Centre, he stayed at home for over a month whilst having further follow up
consultations with the doctor . He did not report the matter to the owners of the
building at that time but only approached them later and spoke to the manager of the
building who advised him to write a letter and state everything that happened and
the damages he has suffered so that he, th e manager, can present to his bosses.
[5] On 30 April 2021 he prepared the letter in Amhari c language and handed it to the
building manager. When he did not receive a response to his letter, on the 18 May
2021 he wrote another letter to the defendant ple ading for assistance. He discussed
the matter with the manager of the building on four occasions. Then the defendant
offered to compensate him with a total sum of R50 000 which he refused as it was
insufficient to meet and compensate for his damages – hence he instituted this action.
[6] Under cross examination , he stated that h is shop was at the other side of Medical
One Centre, but he did not recall the name of the street. He had been trading there
for about two years . He went to hospital the same day at around 16H00. It was his
first time to attend the hospital, and he did not remember the name of the doctor who
treated him though he consulted him more than once. When shown the medical
report from Lister Medical Centre dated 10 Ma rch 2021 , he agreed that it bears his
name though it was spelt incorrectly . He stated that he went to Lister Medical Centre
on three occasions to consult the doctor.
[7] He has been operating in the area where the incident occurred for a period of six
years but only operated his own shop for two years. He was familiar with the area
and the building from which the window glass fell has a balcony above the
pedestrian pathway.
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[8] In a nutshell, Mr Shamsu Shafi Ahmed ’s evidence was that he did not witness the
incident but attended the scene later and took the plaintiff to the hospital where he
also took the photographs on the injuries of the plaintiff . This occurred on 10
February 2021 , at approximately 17H00 . He kn ew the plaintiff who is his
countryman for over ten years, and they were living together at 26 – 7th Avenue
Mayfair, Johannesburg. Plaintiff was running his own clothing shop at the time of
the incident .
[9] Mr Ahmed Dalil testified that he is a street vend or in front of the Medical One
Shopping Centre building and was at his stand on 10 February 2021. He saw the
plaintiff, who is his countryman, walking along the pathway in front of the Medical
One Shopping Centre building and he saw a window glass fall on his left forearm
and a second one fell but did not hit the plaintiff. As the plaintiff was injured, he
assisted him to his feet and the people around took him to the Lister Medical Centre.
He did not accompany him because he is working alone and had nob ody to leave at
his shop.
[10] Under cross examination he stated that he did not see the window glass fall but he
saw it when it struck the plaintiff on his left forearm. He knows the plaintiff, but he
is not related to him. He has been running his busine ss in front of this building for
about twelve years . He testified that the building has a balcony and that there are
security personnel that guard the building.
Defendant’s case
[11] Mr Amanuel Hailu was employed as the manager of the Medical One Shopping
Centre building for nine years before he resigned in November 2024. His duties
included, amongst others , manag ing, administ ration and maint enance of the
building . His office was on the twelfth Floor , and no incident was reported to him
on 10 February 2021 ; it was business as usual . The procedure is that, when an
incident occurs, it is reported to security and security would report it to him. There
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is security inside the building, at the entrance and o utside in front of the building.
There are thirty -two cameras monitoring the movement in and aroun d the building.
[12] He testified that the re were screens in his office where he watched what was going
on in front of and inside the building. On the 10 February 2021 he did not not ice
anything unusual, and nothing was reported to him. The building has a balcony and
a window glass breaking from the building would fall onto the balcony. However,
he conceded under cross examination that the window glass may be carried by the
wind to fall beyond the balcony . He denied that the plaintiff was injured at the
building and stated that there is no evidence to that effect. He also testified that he
has never worked with window glasses , and the recording of the monitoring system
of the cameras is deleted every thirty days.
[13] Ms Nqobile Ndlovu, the supervisor of security in the Medical One Shopping Centre
building, testified that she has been working as such at the building for sixteen years
to date and her office is on the twel fth floor. She keeps an occurrence book for
recording all incidents that may occur inside and around the building. The security
officers on the ground report all incidents directly to her and she proceed and report
such incidences to the manager of the building.
[14] There are eight security officers posted at the building at any given time, two outs ide
the entrance on the pavement ; two at the entrance ; three inside and one at the
basement gate to the building. The security officers are equipped with two -way
radios, and she routinely check s them twice a day. No incident was reported to her
on 10 February 2021 , and there is no such incident noted on the occurrence book.
The building has shops from the ground floor up to the eighth floor, the nineth to
eleventh floors being used as storage and the twelfth floor being the offices and
security.
[15] She conceded u nder cross examination that she is not an expert on glass windows
but stated that it is impossible for a window glass to fall from the upper floors of the
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building and land beyond the balcony of the building. She stated that if the incident
occurred as described, the security officers patrolling at the ground level would have
known about it and reported it for they patrol the whole area to protect customers of
the shops on the ground floor. She has never seen a broken glass in the area of the
building in her sixteen years as a security supervisor of the building.
Legal Framework
[16] It is trite that for the plaintiff to succeed with its claim against the defendant in a
case where it is alleged that the defendant was negligen t in doing something or failed
to do something , it must prove that there was a duty of care owed to it by the
defendant which the defendant has breached and that the breach has caused harm to
occur which resulted in damages. Thus - the onus rest on the plaintiff to prove all the
elements of the delict in order for its claim to prevail.
[17] Put differently, the elements a plaintiff must establish, on a balance of probabilities,
to hold a defendant liable for delictual damages are trite. Our law recognises five
elements and if a pl aintiff fails to establish one of these the claim cannot succeed.
The five elements a plaintiff, seeking to succeed with a claim in delict must
establish are: (1) the conduct (either act or omission ); (2) wrongfulness; (3) fault
(negligence); (4) causation; and (5) that harm was suffered. Without the
convergence of all these elements delictual liability will not ensue .
[18] In Kruger v Coetzee1 the Supreme Court of Appeal stated the following:
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.
1 1966 (2) SA (A) 430
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[19] In Le Roux and Others v Dey2 the Constitutional Court stated the following:
“In the more recent past our courts have come to recognise, however, that in the context of
the law of delict: (a) the criterion of wrongfulness ultimately depends on a judicial
determination of whether – assuming all the other elements of delictual liabil ity 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 the
reasonableness of the defendant’s conduct, but it concerns th e reasonableness of imposing
liability on the defendant for the harm resulting from that conduct.”
[20] In Country Cloud Trading cc v MEC Department of Infrastructure Development3
the Constitutional Court sated the following:
“Wrongfulness is an element o f 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 and overly
burdensome to impose liability.”
Discussion
[21] As indicated above, the onus is on the plaintiff to prove all the elements of the delict
complained of. Further, in determining whether the plaintiff has discharge d the onus
placed upon it, the court must consider all the facts and the circumstances of thi s
case since the plaintiff must prove its case on a balance of probabilities .
2[2011] (3) ZACC SA 274 (CC) at para 122.
3 [2014] ZACC 28; 2015 (1) SA 1 (CC) at para 20.
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[25] It is undisputed that the defendant is the owner of the building known as Medical
One Shoppi ng Centre and that there are hawkers trading in front of the building. It
is further not in dispute that there is a pathway between the front of the building and
the tree which is depicted on the photograph admitted in evidence as ‘exhibit D1’.
It is further not in dispute that the building has a balcony over and which covers the
pathway that runs in front of the building . The plaintiff alleges that he was walking
on the pathway and was about to pass through between the entrance of the building
and a tree which is depicted on exhibit D1.
[26] It was debated between the defendant’s witnesses and counsel for the plaintiff
whether i t was possible for the window gla ss to fall from the upper floors and land
beyond the balcony of the building and onto the parking area or on to the road in
front of the building. The witnesses disputed that the window glass could fall and
land beyond the balcony of the building and onto the street. However, the witnesses
accepted that they have no experience or expertise of working with window glasses
and cannot testify with certainty that the window glass can or cannot fall beyond the
balcony.
[27] The question that arises is whether the defendant has acted or omitted to act in a
particular manner in this case and whether such conduct was wrongful and whether
it caused the plaintiff to suffer damages. The test to be applied in this case is what a
reasonable owner of the building of the same kind would have done in the
circumstances to prevent an injury of this k ind to the plaintiff. Furthermore, would
a reasonable owner of the building of this nature have foreseen a window glass
falling from the upper floors and landing beyond the balcony of the building and
causing injury to people and in particular the plaintif f.
[28] The defendant owns the building which has a balcony over the pathway of
pedestrians who walk in front of the building. The purpose of the balcony is to
protect the people on the ground from being exposed to injury from any objects that
may fall or be thrown out of the windows from the upper floors of the building.
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[29] In The Memorable Order of Tin Hats v Kenneth Paul Els6 the Supreme Court of
Appeal , upsetting the judgment of this Court and the Full Court of this division
stated the following:
“It is well established that negligence arises from positive conduct which causes physical
harm which raises a presumption of wrongfulness. However, with an omission as opposed
to positive conduct, wrongfulness is not presumed, and for wrong fulness to be established
reliance falls upon a legal duty. This duty arises from public and legal policy considerations.
This case rests on the liability attracted for an omission on the part of the M.O.T.H. In these
circumstances, a different approach th an that of positive conduct is applicable, in
addressing wrongfulness for the omission or failure to do something.
An omission per se is not wrongful unless it is considered to go against legal policy or
public considerations, which dictate that a plaintiff be compensated for the loss suffered
as a result of such omission. Thus, the approach alluded to above, involves a further
enquiry, that being whether there was a legal duty that gave rise to delictual liability. Put
differently an omission do es not necessarily attract liability, only if it was culpable would
it do so. ”
[30] It would be far-fetched t o suggest that the defendant should have foreseen that a
window glass would fall from the upper floors of the buildi ng and cause injury to
people on the ground and in particular , the plaintiff , who was walking on the
pathway in front of the building and under the balcony. The balcony is there to
protect the people from objects that may fall from the upper floors of the building
and the defendant has erected same for that purpose. There is nothing that suggests
nor did the plaintiff demonstrate that a reasonable owner of a building of the same
kind would have done more than what the defendant did to protect people on the
ground from being injured b y objects falling from the building including window
glasses.
6 (488/2021) [2022] ZASCA 99 (22 June 2022) para 17 and 18
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For the Plaintiff : Advocate AM Jardine
Instruc ted by: Burnett Attorney s & Notaries
Tel: 0 12 941 2260
emma@burnett -law.co.za
For the Defendant : Advocate T Ndaba
Instructed by: Sebola N chupe tsang Sebola Inc
Tel: 011 568 7100
londeka@snsinc.co.za
Date of Hearing: 10 – 12 February 2025
Date of Judgment: 27 February 2025
Delivered: This judgment and order was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to Parties
/ their legal representatives by email and by uploading it to the electronic file
of this matter on Case Line s. The date of the order is deemed to be the 27
February 2025.