2
[2] By agreement between the parties the matter proceeded in respect of the merits,
namely liability issues only , with quantum standing over for later determination in
terms of Rule 33(4) of the Uniform Court of Rules.
[3] During the trial, the parties relied on their respective trial bundles, that included
photographs that were marked as exhibits. The plaintiff was the only factual
witness. The defendants called only one witness Mr M Ngoveni a manager at the
Johannesburg Road Agency.
Requirements for liability
[4] The plaintiff’s action is founded on the Actio Legis Aquillia . The issue of liability
required the plaintiff to establish conduct, which was wrongful and negligent , on
the part of the defendants, which caused her to be injured. The plaintiff bears the
onus of proving these requirements.
[5] The defendants contend ed that t his Court in adjudicating the matter ought not to
apply a blanket imposition on the defendants, but to consider the m erits and
demerits of the respective cases and then make a value judgment. Counsel on
behalf of the defendants referre d the court to the Municipality of Cape Town v
Bakkerud1 case where the court stated the following:
“While the Court a quo’s conclusion that it was open to it to re -visit the general or relative
immunity of municipalities and, if justification existed, to jettison the notion, was therefore
correct, I think that, having done so, it was wrong to substitute for it what amounts to a
blanket imposition upon municipalities generally of a legal duty to repair roads and
pavements. In my view, it has to be recognised that in applying the test of what the legal
convictions of community demand and reaching a particu lar conclusion, the Courts are
not laying down the principles of law intended to be generally applicable. They are
making value judgments ad hoc .”
Allegations advanced by the plaintiff
[6] The defendants cause d the construction of the manhole and accordingly had a
legal way to keep it closed at all times.
1 [2000] ZASCA 174; [2000 ] 3 AII SA 171 (A) at para 27.
3
[7] The pertinent allegations advance d by the plaintiff are that the incident was
caused by the sole negligence of the defendants who were negligent in the
following :
7.1 It failed to maintain the manhole appropriately or at all .
7.2 It failed to put a notice or a sign to notify road users of the existence of
the open manhole .
7.3 It failed to keep the street and its pavements in a safe condition as per
its constitutional mandate and duty.
Defendant’s defence on the pleadings
[8] The defendants defence on the pleadings was to put the plaintiff to the proof
thereof that she indeed fell into the manhole . The existence of a legal duty
towards the plaintiff was denied . The defendants denied they were responsible
for the development, maintenance and upgrades of all roads, sewage drainage
systems and general development of the area within its jurisdiction in Gauteng
and mo re particularly in an around Soweto. The defendants in the alternative
pleaded that if such a duty exist ed, that such duty was subject to the availability
of manpower and resources. In the a lternative, the defendants also pleaded
contributory negligence on the part of the plaintiff.
Plaintiff’s evidence
[9] The plaintiff gave evidence that on 1 February 2020 she was on her way home
from Maponya Mall in Soweto where she had bought groceries for her business
as a baker . She lives and was born in Soweto. She testified that she decided to
catch a taxi at Chris Han i Road, as the taxis inside the mall were slow and she
was in a hurry to get home. The plaintiff testified that while walking on the
pavement , she was walking fast and was looking out for a taxi. While walking she
fell in an open manhole and injured her right ankle . The plaintiff’s right leg entered
the manhole and she fell, the manhole she fell into was open, square shaped
and it was dark.
4
[10] The plaintiff gave evidence that the manhole was situated on top of the pavement
where she was walking, it was not closed and there were no signs next to the
manhole. She only noticed the manhole when her leg entered the edge of the
manhole. She fell on her right -hand side, she felt pain and she was helped out
of the manhole by people who were passing by.
[11] The plaintiff indicated that the inciden t occurred between 12h00 and 1 3h00 in the
afternoon, the sun was out, and it was visible at the time when the incident
occurred. However, she testified that she did not see the open manhole. S he is
not familiar with area as it was her first time walking in the area.
[12] The plaintiff testified that after she fell, she called her husband who then fetched
her from the scene of the incident and took her home. When she arrived at home,
she thought she ha d a small injury, but the pain increased, and her husband then
took her to Chris Hani Baragwaneth Hospital .
[13] The plaintiff testified that she was admitted at the hospital from the 1 February
till the 26 February 2020 , during which time she underwent an operation on her
right ankle and a pin was inserted into her ankle. Her ankle bone was broken at
three places and a screw, and 2 plates were inserted in her ankle.
[14] During cross -examination, a proposition was made to the plaintiff, that at the time
that the plaintiff alleges the incident occurred, and the time that she was taken
home up until the time she was attended to at the hospital , the timelines do not
correspond . The plaintiff alleges that the incident took place between 12h00 -
13h00 however, the time that she was admitted at hospital indicates 12h50 on
the hospital admission form . The plaintiff indicated that she did not know why the
times do not correlate as it was her husband who provided the hospital admissio n
with her information. The plaintiff then conceded that the time periods do not add
up.
[15] Another proposition made to the plaintiff was that according to the hospital
records she was referred from a clinic, whereas in her evidence she did not
indicate that she was taken to a clinic . The plaintiff stated that she never went to
a clinic , and it was her husband who provided the information to the hospital staff.
5
[16] During cross -examination, the plaintiff conceded that the paving where the
alleged incident occurred was visible and made with bricks and she agreed that
the paving around the manhole was not made with bricks but concrete. She
conceded that the concrete section was much close r to the tarred road and
conceded that the pavement was visible despite the weed on the pavement.
[17] During cross -examination, the plaintiff conceded that she was multitasking as
she was walking and looking for a taxi at the same time. The plaintiff stated that
she was looking where she was going and looking out for a taxi. She disagreed
with the defendants ’ averment that she contributed to her own negligence , as
she did not see the manhole and there were no signs that there was an open
manhole. The plaintiff conceded that the weed on the pavement did not affect
her visibility on the day of the incident.
[18] The location of the manhole was also identified by the plaintiff with a photograph
introduced. The photo showed a manhole without a cover. No objection was
raised to the photograph , thus entitling the plaintiff to produce the photograph .
During cross -examination, the plaintiff testified that a lady who was working with
her attorney took the photograph after the plaintiff’s discharge from hospital. The
plaintiff testified that the photograph depicted the area and how it looked during
the period of the incident .
[19] The plaintiff under cross -examination conceded that the stormwater drain (the
manhole) area is different from the rest of the pavement and agreed that a person
should walk on the side of the storm water drain.
[20] The plaintiff stated under cross -examination that there were other people
passing, if the hole was closed, she would not have falle n, she further admitted
that she was indeed in a hurry.
Defendants evidence
[21] The defendants called one witness, Mr M Ngoveni .
6
[22] Mr Ngoveni testified that he works for the Johannesburg Road Agency
(hereinafter referred to as the “JRA”) in Dobsonville depot in Soweto and he is
the manger of Region D which have 38 wards.
[23] He testified that the J RA has a maintenance plan, and th e plan include d a
proactive and reactive plan. He stated that the J RA has limited resources, as in
Region D there are only six inspectors, and the J RA rely on members of the
public to report any defects on their structures.
[24] Mr Ngoveni identified the manhole in this matter as a stormwater drain. He
indicated that the turnaround time for fixing a defective stormwater drain is four
days and the J RA will usually barricade the defective structure . In total he said
that the J RA has about approximately 2500 stormwater drains. Mr Ngoveni
testified that the JRA has a website for social media for reporting any defects and
they use this platform to remind the public to report defects. He testified that
when the JRA receives calls or noti ces they attend to the defects in their
infrastructure. The lids /covers of the stormwater drains are inspected twice a
year in preparation of the rainy season. Mr Ngoveni further testified that the JRA
does not have the resources to inspect more tha n twice a year and ideally, he
ought to have 38 inspectors as he has 38 wards in region D and at the time of
the incident, he had 6 inspectors and now he only has 4 inspectors.
[25] Mr Ngoveni testified that the plaintiff was supposed to have walked on the
pavement as the stormwater drain is not part of the pavement . He noted that the
sidewalk (pavement) is paved, and it was designated for pedestrians to walk on
the pavement. He further testified that the manhole in the photograph presented
to him is big and hard to miss if you are walking towards that direction ; and the
sidewalk (pavement) was clearly visible.
[26] During cross -examination, Mr Ngoveni indicated that he manages region D,
except for facilities , he knows what is happening on the ground as he has
assistant mangers and there is an internal system that generates reports
monthly .
[27] He was referred to the manhole photograph discovered by the plaintiff and he
conceded that there was no lid /cover on the manhole . He stated that when a lid
7
is missing it can be reported by inspectors and/or members of the public. Mr
Ngoveni conceded that the manhole was only covered on 5 August 2020 after
receipt of a work order . The manhole was repaired after the plaintiff ha d fallen
into the manhole . He noted that he only became aware of the plaintiff’s case on
the 7 February 2024. Mr Ngoveni indicated that the JRA investigated the case of
the plaintiff, and an inspection of the manhole was done on 22 February 2024.
He testified that the JRA was not aware that the lid/cover of the storm water drain
was open at the time of the incident.
[28] During cross -examination, t he defendants witness testified that th e manhole was
constructed and maintained by the JRA. Mr Ngoveni testified that m aintenance
entailed monitoring the state of the grass and whether there were any weeds on
the pavement. He testified that the JRA also ensure s that manholes are well kept
and that they are closed at all times in order to keep members of the public safe.
Mr Ngoveni further testified that the manhole lid is used for enabling the opening
of the manhole so that the de fendants ’ staff can gain access and go inside the
manhole for purposes of cleaning it . Once cleaning is done, “ they close it for
safety .” At the time of the incident, Mr Ngoveni conceded that the defendants
failed to barricade the open manhole , and he testified that this should have been
done.
[29] Mr Ngoveni testified that the plaintiff ought to have walked on the pavement made
up of bricks and if there were other people, she ought to have yielded for them
as that is what is expected of a normal human being as that process would not
have taken more than a second.
[30] He further testified that any person who chooses to walk over a manhole is a t
risk whether the manhole is open or not, as the structure might be unstable and
defects can be developed depending on various factors . He maintained during
cross -examination that the plaintiff was not supposed to walk over the
stormwater drain as it might be unstable but should walk on the designated
pavement.
The Law
8
[31] It is common cause that for plaintiff to succeed she bears the onus of establishing
the five elements of a delict. The five elements the plaintiff must establish to
succeed are: (1) conduct (either act or omission) ; (2) wrongfulness; (3)
negligence (fault); (4) causation; and (5) that harm was suffered.
[32] Herewith a brief summary of the five elements. Firstly, c onduct can take the form
of an act or omission. An omission can be committed where the defendant was
under a legal duty, by virtue of its ownership or control of the property to take
preventative action but failed to do so.2 Second ly, a wrongfulness inquiry
depends on the considerations of legal and public policy . In this particular matter
the legal position that is a negligent omission, is only wrongful if it occurs in
circumstances that the law regards as sufficient to give rise to a legal duty to
avoid negligently causing h arm3 Thirdly in regard to negligence; the legal
questions to be asked is first, whether the reasonable person would reasonably
have foreseen the harm in question and would have taken reasonable steps to
guard against such harm and second, whether the defendants failed to take the
required steps.4 Fourthly, there is causation. This requires a consideration of
factual and legal causation. Factual causation : the “but -for” test, expressed as
“but for” the defendants omission. Legal causation is concerned with the
consideration whether, in law, the defendant’s negligence is linked closely
enough to the harm suffered .5 The fifth element, is “harm or damages that
requires the plaintiff to prove that personal injuries were suffered and this is
related to losses in the form of example medical expenses, loss of earning
capacity, or general damages for pain and suffering.”6
[33] In Muncipality of Cape Town v Bakkerud7 the Supreme Court of Appeal stated :
“A minuscule and underfunded local authority with many other and more pressing claims
upon its shallow purse, and which has not kept in repair a little used lane in which small
potholes have developed which are easily visible to and avoidable by anyone keeping a
reasonable look -out, may well be thought to be under no legal duty to repair them or
2 Schaefer v City of Cape Town (4204/2019) [2025] ZAWCHC 46 (17 February 2025) at para 18.
3 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
4 See Kruger v Coetzee 1996 (2) SA (A) 430 E -G.
5 Supra note 2 above at para 22.
6 Supra at para 23.
7 Supra note 1 above at paras 28,29 and 30.
9
even to warn of their presence. A large and well -funded municipality which has failed to
keep in repair a pavement habitually thronged with pedestrians so densely concentrated
that it is extremely difficult to see the surface of the pavement, or to take ev asive action
to avoid potholes of a substantial size and depth, may well be under a legal duty to repair
such potholes or to barricade or otherwise warn of them. There can be no principle of
law that all municipalities have at all times a legal duty to rep air or to warn the public
whenever and whatever potholes may occur in whatever pavements or streets may be
vested in them.
It is tempting to construct such a legal duty on the strength of a sense of security
engendered by the mere provision of a street or pavement by a municipality but I do not
think one can generalise in that regard. It is axiomatic that man -made streets and
pavements will not always be in the pristine condition in which they were when first
constructed and that 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. A reasonable se nse of
proportion is called for. The public must be taken to realise that and to have a care for
its own safety when using roads and pavements.
It is not necessary, no r would it be possible, to provide a catalogue of the circumstances
in which it would be right to impose a legal duty to repair or to warn upon a municipality.
Obvious cases would be those in which difficult to see holes develop in a much used
street or pavement which is frequently so crowded that the holes are upon one before
one has had sufficient opportunity to see and to negotiate them. Another example,
admittedly extreme, would be a crevice caused by an earth or tremor and spanni ng a
road entirely. The variety of conceivable situations which could arise is infinite.”
[34] From the above case it is clear that a municipality’s liability in delict is not
automatic as it must be considered on a case -by case basis, and a plaintiff bears
the onus, on a balance of probabilities, to establi sh all of the elements of a
delictual claim.8
Discussion and Evaluation
[35] Having regard to the law the plaintiff must prove on a balance of probabilities that
there was no cover on the manhole, and it was this defect that caused her fall
and injury. The plaintiff must also prove that the defendants w ere responsib le for
8 Supra note 2 above see para 28.
10
that manhole (stormwater drain ) on that pavement and either knew or should
reasonably have known that there was no cover on the manhole (stormwater
drain ).9 In applying the test established in Kruger v Coetzee10 the plaintiff must
establish firstly, whether the defendants would reasonably have foreseen the
harm in question and would have taken reasonable steps to guard against such
harm and secondly, whether the defendant’s failed to take the required steps.
This matter only deals with the merits of the case; therefore, I will not deal with
the damages enquiry. Fina lly, the plaintiff must establish factual causation that
but for the defendant’s failure to cover the manhole , barricade the manhole area
or warn of the defect, she would not have i njured herself . In respect of legal
causation the plaintiff must establish that the type of harm must be within the
realm of what is reasonably foreseeable . 11
[36] The plaintiff is the only factual witness in this matter . The defendants only witness
conceded that he was not in a position to dispute and/or place doubt on the
plaintiff’s version that she fell into the manhole and sustained injuries.
[37] While there is no contradict ory evidence that the plaintiff fell in the manhole . From
the evidence deduced I cannot reach a conclusion that the plaintiff fractured her
leg in three places . I can only conclude from the hospital records provided that
the plaintiff had an injured leg, this is according to the hospital admission form
completed on the day of the incident. The plaintiff testified that she was in hospital
for a month and that she underwent surgery on her ankle. The plaintiff has not
produced any m edical records of her stay in hospital or discharge records from
the hospital. She has not produced any medical records of her surgery or any
medical records of the extent of her injuries as adduced from her testimony.
[38] In regard to the issue of the timeline raised by the defendants, from the time the
incident occurred to the admission at the hospital the plaintiff conceded that the
timeline does not align with her evidence that the inci dent took place between
12h00 and 13h00. However, she does state that her husband is the one that
completed the admissions forms. It must be noted that the plaintiff’s husband has
9 Supra at para 29.
10 Supra note 4 above.
11 Supra note 2 above at para 29.
11
not been called as a witness and no corroborating affidavit by the husband has
been filed by the plaintiff.
[39] The time of arrival at the hospital is indicated on the admissions form as 12h50,
however, the hospital admission registration form does have an overall time
stamp which reflects 14h52. While I am wary of the non -alignment of the time,
this application deals with the merits of the matter only and not quantum, at this
stage I can only conclude that the plaintiff fell into the manhole and injured her
right leg as per the admission registration form.
a) Wrongfulness
[40] The defendants sole witness testified that the manhole was constructed and
maintained b y the JRA. Mr Ngoveni stated that the defendants failed to barricade
the manhole and that it should have been done . He contended that the manhole
was only covered after the plaintiff's incident on the 5 August 2020 , this was done
in response to a created work order. It is not clear from the records who reported
the matter of the defective manhole to the JRA. The defendants, therefore,
concede d that they had a duty to cover and barricade the manhole . Thus, the
defendants ’ concession of its omission to cover and barricade the manhole
amounts to wrongful conduct on the part of the defendants , on that basis the next
issue to be addressed is the defendants ’ negligence.
b) Negligence and causation
[41] In the case of Cape Town Municipality v Bakker ud12 the court stated that the
same evidentiary evidence can be used to establish wrongfulness and
negligence :
“It is so that some (but not all) of the facts relevant to the first enquiry [to establish
wrongfulness ] will also be relevant to the send enquiry [to establish negligence ] (if it is
to be reached ), but that does not mean that they must be excluded from the first enquiry.
Having to discharge the onus of proving both the existence of the legal duty and
12 Supra note 1 above at para 31.
12
blameworthiness in failing to fulfil it wil l, I think, go a long way to prevent the opening of
the floodgates to claim s of this type of which municipalities are so fearful .”
[42] In applying the principles espoused in the case above and the first part of the
negligence test , one can easily conclude that that the defendants wrongful
omission , had been negligent: a reasonable person in the shoes of the JRA
would have had no difficulty in being instrumental in the taking of reasonable
preventative steps.13 Furthermore, the defendants witness testified that manhole
covers are being stolen and vandalised resulting in open manholes , therefore the
JRA proactively inspects areas . This means that it could be reasonably
foreseeable by the JRA that someone could be injured by falling into an
uncovered manhole.
[43] Furthermore, in respect of foreseeability, the JRA worked on the alleged manhole
on the 5 August 202 0 in response to a work created order. However, the
defendant’s witness testified that he only became aware of this case by the
defendants' legal team on the 7 February 2024. On the 22 February 2024, a team
was dispatched to the area of the alleged manhole for inspection. At the time of
inspection, photographs were taken which was introduced by the defendants as
exhibits, which shows the manh ole covered and r epaired. Chris Hani Road in
Soweto is high foot traffic road, like the plaintiff in this case, pedestrians use this
road to catch taxis . Thus, after the incident of the plaintiff, there was a work order
created which meant notice of the defective manhole was reported by someone
other than the plaintiff . The foreseeability of real risk in this case was high .
[44] In regard to the defendants failure to take reasonable steps , Mr Ngoveni, the
defendants sole witness testified that the defendants have both a reactive and
proactive plan, they inspect stormwater drains twice a year in preparation of the
rainy season and they have a 24/7 team that responds to reports from the public.
The 24/7 team would go out to inspect the manhole, will barricade the area to
make it safe and will then assess the situation to determine whether they have
the necessary materials to deal wit h the matter of fixing the problem. The
defendants submit th at these duties are subject to the availability of manpower
13 See Johan Scott “How safe should a sidewalk be? The evergreen question of a municipality’s
liability for negligent omissions” in TSAR (2013) 164 -177.
13
and resources. As indicated by Mr Ngoveni at the time of the incident he only
had 6 inspectors, presently he only has 4 inspectors but ideally, he would like 38
inspectors as he oversees 38 wards.
[45] It is submitted by the defendants that their legal duty was subject to the
availability of manpower and resources. During cross -examination of the plaintiff,
Counsel on behalf of the defendant s did not put the defendants ’ version of the
availability of manpower and resources to the plaintiff.
[46] Counsel for the plaintiff submitted that where a version is not put, it cannot be
used . To support this assertion, Counsel referred the Court to the case of
Masilela v Leonard Dingler (Pty) Ltd.14 the court stated:
“It is trite that if a party wishes to lead evidence to contradict an opposing witness, he
should first cross -examine him upon the facts that he intends to prove in contradiction,
to give the witness and opportunity for explanation. Similarly, if the court is to be asked
to disbelieve a witness, he should be cross -examined upon the matters that it will be
alleged make his evidence unworthy of credit.”
[47] Further in Small v Smith15 the court stated:
“It is, in my opinion, elementary and standard practice for a party to put to each opposing
witness so much of his own case or defence as concerns that witness, and if need be,
to inform him, if he has not been given notice thereof, that other witnesses will contradict
him, so as to give him fair warning and an opportunity of expla ining the contradiction
and defending his own character. It is grossly unfair and improper to let a witness’s
evidence go unchallenged in cross -examination and afterwards argue th at he must be
disbelieved.”
[48] The plaintiff’s counsel submit ted correctly that a party is obliged to put to the
witness of his opponent a version of events as will be adduced by him. The
rationale of this rule is that the other party should be forewarned of what the
14 (2004) 25 ILJ 544 (LC) at para 28.
15 1954 (3) SA 434 (SWA) at 438.
14
version of the other party will be so as to afford him an opportunity to deal with
it.16
[49] In regard to the resources and capacity defence of the defendant s, the plaintiff’s
counsel further averred that no discovery was filed of record to evidence and/or
support the submissions made by the defendants regarding their capacity and
financial resources. The object of discovery is to ensure that before the trial both
parties are made aware of all the documentary evidence at the disposal of the
parties which in turn assist not only the litigating parties but also the court to
discover the truth.17
[50] In the majority of cases dealing with municipality negligence the facts relating to
the municipality’s capacity and resources would lie particularly within the
municipality’s knowledge and that in such circumstances a small amount of
evidence on the plaintiff’s part would justify an inference of causation, barring
evidence to the contrary.18
[51] In the present matter, if the JRA could substantiate its proactive and reactive
policy on the basis of it s financial and Human Resources capacity and had been
able to supply this court with detailed documentary evidence on those aspects,
the defendants may have been able to dispel the primary inference of negligence,
as well as causation on its part.
Contributory Negligence
[52] The defendants pleaded that the incident if any, was caused solely by the
negligence of the plaintiff who was negligent in one or more or all of the following
respects:
52.1 the plaintiff failed to keep a proper lookout;
16 Supra at 438 F. See also President of the Republic of South Africa and Others v South African
Rugby Football Union and Others 2000 (1) SA 1 (CC); 1999 (10) SA BCLR 1059; [1999] ZACC
(11) at para 61.
17 See Durba ch v Fairway Hotel Ltd. 1949 (3) SA 1081 (SR) at 1083.
18 See Supra note 13 above.
15
52.2 the plaintiff failed to take adequate or any cognisance of the area at or
near the location where the plaintiff walked;
52.3 the plaintiff failed to pay attention to where she was walking;
52.4 the plaintiff fai led to pay attention to the conditions of the ground in the
area where the incident a llegedly occurred;
52.5 the plaintiff failed to exhibit the degree of care expected of her in the
circumstances; and
52.6 the plaintiff failed to avoid the alle ged incident when, by the exercise of
reasonable care, she could and should have done so.
[53] In the alterna tive, the defendants contend for a 50% -50% apportionment based
on contributory negligence.
[54] Section 1 of the Apportionment of Damages Act19 states:
“Where an y person suffers damage which is caused partly by his own fault and partly by
the fault of any other person , a claim in respect of that damage shall not be defeated by
reason of the fault of the claimant but the damages recoverable in respect thereof shall
be reduced by the court to such extent as the court may deem just and equitable having
regard to the degree in which the clai mant was at fault in relation to the damage.”
[55] Counsel for the defendants referred the court to the case of Hammerstrand v
Pretoria Mun icipality20 where the court state d:
“The mere fac t that a person having fallen into an excavation which has been lawfully
dug by another raises no manner of presumption of negligence on the part of the latter;
for, in spite of the defendant having taken all reas onable precautions the plaintiff may
have fallen into the excavation through gross carelessness on her own part. T here is,
therefore, no reason to depart from the ordinary rule of law that he who alleges
negligen ce must prove it.
But the law does not set impossible demands in such cases; it does not make any
extravaga nt demands upon a person. It is entitled to assume that others will also take
19 Section 1(a ) of Act 34 of 1956.
20 1913 TPD 374 at 376-377.
16
reasonable care of themselves, will ke ep their eyes open, and will not take risks of which
they are or ought to be aware.”
[56] Having regard to the to tality of evidence in this matter, I am of the opinion that
there is contributory negligence on the part of the plaintiff. The plaintiff was
consistent in her testimony that the incident took place during the day, it was
sunny, she was walking fast, was multitasking between walking, and trying to
catch a taxi. The p hotograph that was discovered by the plaintiff co rroborates the
fact that there was no obstruction that might have impeded the plaintiff’s visibility
of the manhole as the manhole was not covered for example by grass or sand .
Furthermore, the incident did not take place late at night where the visibility of
the plaintiff may have been impeded. The plaintiff in her testimony and in her
particular of claims did not provide this court with an explanatio n as to how and
why she was not able to see the open manhole . It was only during cross -
examination that the plaintiff mentioned there were other people walking on the
pavement, however, she d id not say whether there were p eople walking behind
her or on the side of her . Neither did she explain how exactly the people in fr ont
of her impacted her negotiation in not seeing the open manhole . A reasonable
sense of proportion is called for he re taking into account the totality of evidence
presented in this matter .21 I am of the opinion that contributory negligence is
present , as the plaintiff did not keep a reasonable proper look -out of the
pavement area while walking .
Order
[57] In the circumstances, I make the following order :
57.1 The defe ndants, jointly and severally, are liable for
50% of the plaintiff’s proven or agreed damages.
57.2 The defendants, jointly and severally, are ordered
to pay 50% of the plaintiff’s costs on Scale B, with
the one paying and the other absolved.
21 See Munic ipality of Cape Town v Bakkerud case supra note 1 above at para 28.
18