IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 4204/2019
In the action between:
MAGDALENA MARIA SCHAEFER
Plaintiff
and
THE CITY OF CAPE TOWN
Defendant
Before: The Hon. Mr Acting Justice Montzinger
Hearing : 21 and 22 August and 24 September 2024
Judgment delivered electronically: 17 February 2025
JUDGMENT
Montzinger AJ
Summary Introduction
1. The plaintiff instituted action against the City of Cape Town (the “City”) claiming
delictual damages . The plaintiff’s particulars of claim alleg ed that on 27 October
2017 she sustained injuries to her knee due to a fall caused by her tripping on an
uneven surface of the sidewalk along Victoria Road in Camps Bay, Cape Town.
2. It was further alleged that since the sidewalk was uneven on its surface it was
unsafe and posed a danger to pedestrians and that the City, as the municipality ,
was in control of the sidewalk in Victoria Road and therefore responsible for the
proper construction, maintenance , repair and upkeep thereof. The plaintiff also
alleged that the City, including its employees and officials, knew or should have
known that the uneven surface of the sidewalk could cause pedestrians to trip,
fall and injure themselves.
3. Furthermore , in support of holding the City delictual ly liable it was pleaded that
the City owed the plaintiff , as a member of the public, a legal duty to take
reasonable steps to ensure the surface of the sidewalk was safe and free of
hazards . In addition it was pleaded that since the sidewalk was hazard ous the
City was required to erect warning signs to alert pedestrians , like the plaintiff, of
the hazard and also to implement measures to prevent trips and falls on the
sidewalk.
4. The City’s defence on the pleadings was to disput e that the incident in fact
occurred and that its employees acted negligently or within the scope of their
employment. The existence of a legal duty toward the plaintiff was also denied.
The City alternatively pleaded that if such a duty existed, it had not been
negligently breached. Furthermore, while the City did not dispute its general
responsibility to ensure the safety of sidewalks or to erect warnings about
potential hazards it denied any negligence in the specific circumstances of the
case.
5. Moreover, the City pleaded no knowledge by its employees or officials of the
condition of the sidewalk or that they could reasonably have been aware of any
defect or an uneven surface on the sidewalk at the time the incident occurred.
The City also maintained that its employees took reasonable steps, within the
City’s means, to maintain the sidewalk and to make sure it was safe for
pedestrians to use. In the alternative the City pleaded contributory negligence,
alleging that the plaintiff failed to act as a reasonable pedestrian by not keeping
a proper lookout, neglecting to take care of her own safety, and failing to avoid
the incident despite being able to do so and that any damages should be
apportioned between the parties.
6. By agreement, the issues of liability and damages were separated, and the trial
proceeded before me only on the issue of the City’s liability.
7. During the trial the parties relied on their respective trial bundles , that were
marked as exhibits . The plaintiff’s case consisted of her own testimony and that
of her friend, Ms. Daleen Botha, who was present when the incident occurred
and also took photographs immediately after the incident. These photographs
were also marked a s exhibit s. The City in turn called two witnesses: Mr. Step hen
Floris, a senior professional officer in civil engineering responsible for
infrastructure within the road reserve, including pavements, and Mr. Branden
Abrahams , Head of Roads and Stormwater for District 5, that includes Victoria
Road.
The incident
8. While the City initially denied that the incident happened , the evidence
overwhelmingly supported the plaintiff’s account. The oral, documentary and
photographic evidence presented during the trial left no room for dispute that the
events that caused the pla intiff's injury , occurred . Further, that on the
probabilities it occurred in the manner the plaintiff described. At the c losure of
the plaintiff’s case the City could no longer persist with its denial of the incident .
In light thereof, it is unnecessary to undertake a detailed analysis of the evidence
to determine whether the incident occurred. A summary of what the evidence
established will suffice .
9. On the day in question, the plaintiff collected her friend, Ms. Daleen Botha, from
Cape Town International Airport. Ms. Botha had travelled to Cape Town from
Pretoria, Gauteng to assist the plaintiff in preparing for her 50th birthday
celebration that was due to take place the following day, 28 October 2017.
10. As it was Ms. Botha’s first visit to Cape Town, the plaintiff decided to give her a
brief tour of the city by taking a Red Bus tour. This tour is a well -known Cape
Town City tourist attraction that allows tourists to experience the City by making
use of Hop on -Hopp off loops. They parked the plaintiff’s car at the V&A
Waterfront and embarked on the tour that included stops at the Central Business
District, Table Mountain, and Camps Bay.
11. Around 17:30 the plaintiff and Ms Botha disembarked at Victoria Road in Camps
Bay. They enjoyed a short stroll along the beach, took photographs, and visited
a nearby restaurant for a drink with the intention to catch the last Red Bus back
to the V&A Waterfront . The last bus was scheduled to de part at approximately
18:00 from Victoria Road . They therefore had about 30 minutes to complete their
activities.
12. As mentioned, at the restaurant the plaintiff and Ms Botha both consumed a
single alcoholic drink . When they were done, they settled the bill and were
descending the stairs from the restaurant almost directly opposite the pedestrian
crossing when they saw the Red Bus , that they were about to take, driving past
them in the direction of the Victoria Street bus stop. As this was the last bus to
make it back to the ir car that was parked at the V&A W aterfront , they
accelerated their walk, crossed the pedestrian crossing and continued to walk
toward the Red Bus stop . Although walking briskly, they did not break into a run .
13. After having crossed the pedestrian crossing and approximately some 30 metres
in the direction of the Red Bus stop, as they walked along the sidewalk, the
plaintiff’s left foot caught on the raised edge of a paving brick, causing her to trip,
lose her balan ce, and fall forward onto her hands and left knee . The plaintiff’s left
knee hit the corner of another raised paving brick. The plaintiff testified that she
knew immediately that she had been seriously injured and that she had possibly
broken her kneecap b ecause afterwards she could push her finger right through
it. The pictures that were taken of her knee immediately after the fall and also
during and after surgery left no doubt that the plaintiff was seriously injured as a
result of the fall. The plaintif f subsequently learned that the injury caused her to
sustain a comminuted patella fracture to her left knee. This meant the patella
was shattered into three or more pieces. Ms. Botha corroborated the plaintiff’s
account of the incident .
14. The plaintiff described herself as a prudent and cautious pedestrian. As a
resident of Stellenbosch she frequently walk ed and exercise d, by running on
pavements in that town that had exposed roots and broken paving. She was
therefore accustomed to identify ing and avoiding hazards on sidewalks . She
testified that she had no reason to expect the sidewalk along Victoria Road to be
uneven or dangerous.
15. Having found that the plaintiff’s evidence had established that the incident had in
fact occurred in the mann er as testified by the plaintiff, the next step is to
determine whether the plaintiff has established the other requirements of a delict.
In doing so I will first provide a summary of the law applicable to a delictual
claim , and the legal position with regards to a local municipality’s duty to repair
roads and sidewalks.
The Law: Establishing delictual liability
16. 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 plaintiff fails to establish one of these the claim cannot succeed1.
17. The five elements a plaintiff , seeking to succeed with a claim in delict must
establish2 are: (1) the conduct (either act or omission ); (2) wrongfulness; ( 3) fault
(typically negligence) ; (4) causation ; and (5) that harm was suffered . Without the
convergence of all these elements deli ctual liability will not ensue3. I will briefly
expand on each of these requirements without providing an exhaustive analysis.
1 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
2 MTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 76 (SCA) [12].
3 F D J Brand ‘Aspects of wrongfulness: A series of lectures’ (2014) 25 Stellenbosch LR 451 at 455 ;
Ibid at 451
18. First, conduct can take the form of a commission, e.g. where the defendant
actively did something like starting a fire or an omission4, e.g. the failure to do
something like the failure to exercise proper control over a fire5. An omission can
also 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
so6.
19. Second, the wrongfulness enquiry depends on considerations of legal and public
policy and focuses on ‘the duty not to cause harm – indeed to respect rights –
and questions the reasonableness of imposing liability’7. Wrongf ulness typically
acts as a brake on liability, particularly in areas of the law of delict where it is
undesirable or overly burdensome to impose liability8. In this particular instance
the legal position is that a negligent omission , as in this case, 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 harm9.
20. On how a court should consider the issue of wrongfulness Schippers J in Kruger
v MEC10, after having considered earlier judgments on the issue, concluded that
when a court considers the issue of wrongfulness, the question is always
whether the defendant ou ght reasonably and practically to have prevented harm
to the plaintiff11. Schippers J also emphasised that in every case a court must
consider and balance inter alia the following factors: the foreseeability and
possible extent of harm; the degree of risk that the harm will materialise;
constitutional obligations; the breach of a statutory duty; the interests of the
defendant and the community; who has control over the situation; the availability
of practical preventative measures and their prospects of suc cess; whether the
4 Steenberg v De Kaap Timber (Pty ) Ltd 1992 (2) SA 169 (A)
5 Simon’s Town Municipality v Dews and Another [1992] ZASCA 165 ; 1993 (1) SA 191 (A) 194C -E)
6 Minister of Forestry v Quathlamba ( Pty) Ltd 1973 (3) SA 69 (A)
7 Loureiro & others v Imvula Quality Protection (Pty) Ltd [2014] ZACC 4 ; 2014 (3) SA 394 (CC) para
53;
8 Country Cloud Trading CC v MEC, Department of Infrastructure Development [2014] ZACC
28; 2015 (1) SA 1 (CC) paras 20 -21.
9 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12
10 Kruger v MEC, Transport & Public Works for the Western Cape and Another (10067/2011) [2015]
ZAWCHC 158 (29 October 2015) (“ Kruger v MEC”)
11 Referring to: Administrateur, Transvaal v Van Der Merwe [1994] ZASCA 83 ; 1994 (4) SA 347 (A) at
361G -H; Carmichele v Minister of Safety and Security and Another [2000] ZASCA 149 ; 2001 (1) SA
489 (SCA) para 7
cost of preventing the harm is reasonably proportional to the harm; and whether
or not there are other practical and effective remedies available12.
21. Third, the issue of fault ( negligence ). As paraphrased in Butise13 this element of
delict ual liability normally resolves itself by embarking on a threefold enquiry.
The first is whether the harm was reasonably foreseeable. The second is
whether the diligens paterfamilias would have taken reasonable steps to guard
against such occurrence. The t hird is whether the diligens paterfamilias failed to
take those steps. The answer to the second enquiry is frequently expressed in
terms of a legal duty14. Furthermore, i n respect of th e element of negligence a
plaintiff must also establish that the negligent conduct was such that the law
recognises it as wrongful15.
22. Fourth, there is causation . This requires a consideration of two further enquiries.
First, factual causation: the “but -for” test that express itself in the form of a
question would the h arm have occurred “but for ” the municipality’s omission? If,
for instance in the context of this matter, the sidewalk was in disrepair for a long
period and no warning signs were present, it may be shown that had there been
a repair or warning, the plainti ff would not have been injured. Legal causatio n is
concern ed with the consideration whether, in law, the municipality’s negligence
is linked closely enough to the harm suffered16.
23. Fifth, is h arm or damages that requires t he plaintiff to prove that personal injuries
were suffered and this related into losses in form of example medical expenses,
loss of earning capacity, or general damages for pain and suffering .
12 Kruger v MEC par 43; Schipper J relied on the academic writings of: Van der Walt and
Midgley Principles of Delict (3rd ed 2005) 85 and the authorities they relied on to compile the factors to
be considered.
13 Butise v City of Johannesburg and Others 2011 (6) SA 196 (GSJ) ( “Butise”) par 11
14 A restatement of what was articulated in Kruger v Coetzee 1966 (2) SA 428 (A) and 430E -G
15 Trustees, Two Oceans Aquarium Trust v Kantey and Templer (Pty) Ltd 2006 (3) SA 138 (SCA)
para 10; Loureiro and Others v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) para
54. Also: Kruger v MEC, Transport & Public Works for the Western Cape and Another (10067/2011)
[2015] ZAWCHC 158 (29 O ctober 2015) par 38 (“Kruger v MEC”)
16 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700 E -I; Joubert et al (eds) The
Law of South Africa (2nd ed 2005) Vol 8 Part 1 p 234 para 129.
24. A significant amount of case law suggest that I am not bound by any logical
progression to consider the elements and a court is at liberty to address an y
element out of sequence if that element (once found wanting) is dispositive of
the dispute . Hence, there is no absolute requirement that the court strictly move
from conduct, to wrongfulness , to fault, etc. The court may determine an “easier”
or “obvious” element first. The essential point is that all elements must be
satisfied to grant the plaintiff relie f. If any single element is not established, that
ends the inquiry.
25. Considering the context of this case I will briefly expand on a municipality’s duty
to repair roads and sidewalks.
A Municipality’s duty to repair roads and sidewalks
26. The case law17 confirms that there was a time that a doctrine of immunity was
accepted in our law that municipalities were not liable for mere omissions on
their part to construct, maintain or repair roads and streets, unless they have
introduced a new source of danger into the roadway concerned18. However,
such doctrine has been abolished in various judgments and the position now is
that the same principles of the common law of delict apply to municipalities as
apply to individuals19.
27. Therefore, the legal position now is , as confirmed in judgments like Meik el20, that
regarding a local municipality’s duty to maintain and repair roads or sidewalks
that a local authority has no general duty to maintain and repair these , nor does
it have immunity from liability if it fails to do so. In respect of a municipality’s duty
to warn of defects in a pavement or sidewalk our courts have also persistently
recognised that a municipality, as a local authority tasked with managing public
17 Cape Town Municipality v Bu tters 1996 (1) SA 473 at 477 B - E
18 See for example: Moulang v Port Elizabeth Municipality 1958 (2) SA 518 (A)
19 See decisions such as: Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 596H -597C, Fourie v
Munisipaliteit van Malmesbury 1983 (2) SA 748 (C) at 753 G -H, Van der Merwe Burger v
Munisipaliteit van Warrenton 1987 (1) SA 899 (NC) at 906J -908E and Rabie v Kimberley
Munisipaliteit and an Ander 1991 (4) SA 243 (NC) at 258H
20 Municipality of the City of PE v Meikle [2002] JOL 9525 (A) (“Meikle” )
roads and sidewalks, generally bears a legal duty to ensure that infrastructure
under its does not pose an unreasonable risk of harm to pedestrians21.
28. Still, liability in delict is not automatic as it must be considered on a case -by-case
basis, and a plaintiff always attracts the onus , on the probabilities, to establish all
the elements of a delictual claim22.
Conclusion on the law
29. Having regard to the law the plaintiff must prove on a balance of probabilities
that there was a defect in the sidewalk of Victoria Street and that it was t he
specific nature of the defect caused her fall and injury. The plaintiff must also
prove that the City was responsible for that stretch of sidewalk and either knew
or should reasonably have known of the hazard . In res pect of w rongfulness and
negligence and applying Kruger v Coetzee the plaintiff must establish the answer
to the question: Would a reasonable municipality, like the City, have foreseen the
risk of harm and taken steps to avert it ? Lastly, since I’m not con cerned with the
damages inquiry, the plaintiff must establish f actual causation by providing
evidence that but for the municipality’s failure to fix or warn of the defect, she
would not have been injured and that in respect of l egal causation that t he type
of harm must be within the realm of what is reasonably foreseeable or differently
stated that the omission was closely linked to the injury .
Evaluation of the law and the evidence
30. Having considered the evidence, I am satisfied that the plaintiff esta blished, on a
balance of probabilities, that the incident occurred in the manner she described.
Her testimony, corroborated by that of Ms. Botha , present ed a coherent and
credible account of the events leading to her fall. I am also satisfied that the
injury to the plaintiff’s knee was directly caused by the incident as described.
21 Mouton v Municipal Council of Beaufort West 1977 (4) SA 589 (C) (“ Mouton ”); Vergottini v City
Council of Cape Town 1983 (1) SA 287 (C) ( “Vergottini” ); and Cape Town Municipality v Bakkerud
2000 (3) SA 1049 (SCA) (“Bakkerud”)
22 The Nationa l Employers' General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440D - 441A
Accordingly, the plaintiff has discharged the burden of proving that she fell and
that her injury resulted from the fall on the sidewalk in Victoria street.
31. Mr Eia , who appeared for the plaintiff and Mr de Wet who appeared for the City
agree d that up to this point that the element of conduct in the form of an
omission has been established. Although there also seem to be agreement that
causation was not in issue, I will not determine the element of causation having
regard to my conclusion on the elements of wrongfulness and negligence. These
two elements are where the parties significantly depart from each othe r.
Wrongfulness
32. To establish this element the plaintiff relied mostly on case law. Although there
was some attempt to challenge the City’s witnesses to extract evidence to
support the plaintiff’s case , it did not yield the desired resu lt. In fact, Mr Eia’s
heads of argument contain mostly an exposition on the law and very little
references to evidence lead at the trial that established this element. Strong
reliance was placed on jurisprudence suggesting that municipalities, in control o f
sidewalks, owe a legal duty23 to keep them safe or to warn pedestrians about
potential hazards. As I have stated, the legal position is now well established on
that issue.
33. The plaintiff did try to rely on a conclusion that pedestrians in a busy tourist area
like Victoria Street, Camps Bay justifiably expect the sidewalk to be in a
reasonably safe condition and that the City’s failure to remove or warn of the
protruding brick is wrongful in light of its statutory and common -law obligations.
34. Having regard to the legal position in cases of omission , as the case before me,
liability arises only if the municipality has a legal duty to act positively to prevent
the harm. This is a public -policy determination aimed at preventing “limitless
liability.”
23 The word ‘duty of care’ was used in the heads of argument on behalf of the plaintiff.
35. I will now do an analysis of wrongfulness under the framework described by
Schippers J in Kruger v MEC having regards to the evidence in this matter.
35.1 I am satisfied that t he evidence showed that the protruding brick or
bricks were minor and d id not appear to have posed a significant or
unusual threat (unli ke, for example, an open manhole or large pothole).
There was no evidence that the City was informed or otherwise on notice
of the defect. A sidewalk defect that had not been previously reported ,
and that has not resulted in other incidents , suggests the risk
of serious harm was relatively low. The plaintiff’s own account indicates
that this was a single instance of harm occurring after protruding paver
caught her foot while walking briskly; no pattern of incidents or
complaints suggests a chr onic danger. Although some minor harm might
be “foreseeable” in the abstract , since any sidewalk irregularity can
cause a stumble , there is no indication that a significant or serious harm
was likely enough to demand an immediate response from the City ,
especially in the absence of prior reports. A small, visible irregularity is
often not wrongful if it can be easily avoided by a pedestrian taking a
normal degree of care , as in this case. This diminishes
the wrongfulness of the City’s omission.
35.2 I am also s atisfied that having regard to t he evidence I can conclude
that the sidewalk was reasonably wide. T he plaintiff testified that on the
day it was generally busy with pedestrian s. The witnesses for the City
also confirmed that generally the sidewalk of Vict oria Road is relatively
busy with pedestrians on a daily basis. Notwithstanding the high foot
traffic, the City’s evidence was unchallenged that o ver a lengthy
period, no other complaints or accidents were reported. The photographs
indicate d the protrusion of the pavers was visible in the form of a raised
edge rather than a hidden pit. A pedestrian exercising ordinary caution
could have noticed or avoided it. With no evidence of previous incidents
although the protrusion was visible the risk of harm was modest rather
than imminent or unavoidable. Consequently, the degree of risk
was not so high that the municipality’s failure to intervene at once is
regarded as wrongful .
35.3 The City’s broader duties certainly include ensuring safe and reliable
infrastructure while balancing resource allocation for myriad public
needs. The Constitution does place an obligation on local government to
provide services in a sustainable manner. However, our courts have
repeatedly held that these obligations do not make the municipality
an insurer of absolute safety on every road or sidewalk. The City must
also pursue other constitutional mandates (housing, sanitation, water,
electricity, policing, etc.). Courts have acknowledge d from time to time
that municipalities can not achieve a state of perpetual “pristine”
infrastructure at all times. While the City is constitutionally required to
maintain sidewalks, it is also entitled , indeed, required , to manage its
finite resources. A single, minor protrusion neither unreasonab ly violates
its constitutional obligations nor automatically means its conduct is
wrongful.
35.4 As articulated in Bakkerud and subsequent case law , that while the City
must take reasonable steps to repair defects n o specific statute imposes
a strict obligation on it to keep sidewalks in perfect repair at all times.
Instead, the obligation is to maintain reasonably safe sidewalks, subject
to its resource and operational constraints .
35.5 Mr Abrahams testified on behalf of the City and confirmed that every
year there is a budget allocation for resurfacing of roads, which would
include the sidewalks of the specific road being resurfaced . There was
nothing more that the City could have done with its available resources.
He testified that the City is responsibl e for over 1500 kilometres of
sidewalk in district 5 alone , the area that include Victoria Road. The total
kilometres of sidewalk within its jurisdiction amount to approximately 18
690 kilometres . Mr Abrahams ’ evidence was further that it would cost the
City approximately R 2.1 million, per year, to appoint someone to inspect
just district five’s sidewalk s and road surfaces. This exceeds district
five’s annual budget for footways, verges and cycleways, which is
R 1, 129, 000.00.
35.6 With regard to whether the broader community interest require the court
to impos e liability in this instance, I am not persuaded on the evidence
that it does. Imposing a duty to fix every stretch of sidewalk, especially
those never reported to the City , could divert public resources from more
pressing infrastructure or social services. The them e of the City’s
witnesses were that while t he City aims to maintain a safe environment it
must also manage its budget responsibly. Coupled with the
aforementioned is the consideration that pedestrians also share a
responsibility to keep a reasonable lookout for ordinary sidewalk
irregularities. On balance, forcing the City to maintain an impractically
high standard (i.e., “billiard -table” sidewalks) or to face liability for every
minor defect would be neither reasonable nor in the best interest of the
broader community.
35.7 While it so that the City exercise d control over the Victoria Road
sidewalk at the time of the incident and continuing to do so, the control
does not impose an absolute duty. It was not in dispute that the City
exercises control over the sidewalk since it owns and manages the
infrastructure . However, c ontrol alone, does not impose automatic
liability . This is especially so, where the City had no reason to know
about th e localised defect.
35.8 Could the City have readily prevented this incident by either warning or
repairing the protruding brick? Probably, y es, if the City had known
about, it could have replaced or levelled the brick at minimal cost. In fact,
the evidence was th at the City did fix the sidewalk soon after the incident
that involved the plaintiff. However, the fixing of the sidewalk was done
as soon as the incident involving the plaintiff came to the City’s
knowledge. I am satisfied that this indicate to me that ha d the City knew
about the defective sidewalk it would have implemented its processes to
rectify it. However, on the evidence the City’ did not have prior
knowledge. Could the City have done more to discover the hazard ?
Given the scale of the City’s infrast ructure I cannot find that in this
instance the City had a duty to patrol constantly for every minor sidewalk
defect. Prior notice, would have been the catalyst for the City to act. In
this instance there was none.
35.9 Having regard to the issue of proportiona lity. The City possibly
implementing a system of large -scale sidewalk inspection s vis-à-vis the
need to prevent a single incident, is evidently disproportionate. The
evidence was not challenge that the City is resp onsible for thousands of
kilometres of sidewalks. To proactively maintain every stretch at near -
perfect levels would entail exorbitant costs. The plaintiff did not lead
evidence to persuade me that o ne protruding brick in one location , if
never reported , justify major citywide daily inspections at a potentially
unsustainable expense.
36. This is one of those cases where wrongfulness operates as a brake on liability
as I am of the view that having regard to the facts of this case that it is
undesirable and overl y burdensome to impose liability on the City in this
instance”24.
37. Hence, the plaintiff failed to establish the element of wrongfulness on the
criterion that it must be reasonable (in a policy sense) to hold the City liable. I
therefore find that t he City’s conduct in this instance is thus not wrongful. While
this should be the end of the matter I will also consider, in any event, whether the
element of negligence has been established .
Negligence
38. It is under the negligence element where the plaintiff ’s case really never leaves
the starting blocks. To establish this element the plaintiff had to present evidence
to establish that a reasonable municipality in the City’s position (i)
24 Country Cloud para 20
would foresee the risk of injury from the defect (the protruding paver) ; and (ii)
would take reasonable steps (repair or warn) to prevent it; but (iii) that t he
City failed to take such steps.
39. Doing a Kruger v Coetzee analysis of the evidence I find that the plaintiff could
not succeed in proving negligence . I will address each of the Kruger v Coetzee
requirements in turn.
Could the City foresee the risk of injury from the defect (the protruding paver)
40. As foreshadowed, the City was unaware of the protruding pav ers.
41. In respect of foreseeability I could not find on the probabilities that there were
prior complaints about the sidewalk and that the City had actual or constructive
notice of the defect. If the hazard was small and had not existed for a long time
(as the plaintiff c ould not show otherwise), the C ity also could hardly foresee a
real risk. The high foot traffic with no evidence of other incidents strongly
suggests that on the probabilities the risk of harm was minimal or sporadic.
42. Mr Floris , who testified on behalf of the City, further explained that there are
various avenues through which the public can notify the City of any potential
dangers or defects in sidewalk or roads . These include, a telephone number, e -
mail address, WhatsApp number and physical walk -in service centres. Mr Flor is
explained further that the Rate Payers’ Association and Ward Councillors
informs him daily of any defects or dangers in the Camps Bay vicinity. Mr Floris
testified further that in addition to reactive maintenance, the City also does
proactive maintenanc e within its available resources. The evidence was that the
City had planned programs to inspect its infrastructure to ensure that everything
is functioning, especially before the festive season of every year. I could not find
a basis to reject this eviden ce tendered on behalf of the City.
43. The evidence of Mr Floris was further that as the superintendent of district five,
that covers the Victoria Road sidewalk, he would have been the responsible
person to receive notifications regarding any defects in the si dewalk. He
confirmed that the City was not aware of any defects in Victoria Road sidewalk
prior to the plaintiff’s incident. This was also confirmed by the City’s notification
log system . This evidence could not be disputed by the plaintiff.
44. Given the evid ence of a lack of prior complaints, the minor nature of the
protrusion, and the absence of similar incidents prior to the plaintiff’s fall ,
a reasonable municipality in the City’s position would not have foreseen
a realistic (and thus actionable) possibili ty of a serious fall. The plaintiff
thus failed to prove the first requirement of negligence .
Did the City take reasonable steps to prevent (repair or warn) the injury
45. I have already found that there was no realistic possibility that the sidewalk in
Victoria Road would cause a pedestrian to experience a serious fall. I therefore
do not have to venture any further and speculate whether the City would have
acted diligently had it known about the condition of the sidewalk prior to the
plaintiff’s fall.
46. Although the City’s evidence revealed multiple channels through which hazards
could be reported to it and how once reported, the City conducts repairs or
provides warnings to the public , it does not mean that the City would actually
have been prudent in this instance. The plaintiff having failed to establish the first
leg of the Kruger v Coetzee test could therefore not convince me that the second
leg of the test was present.
Did the City failed to take such steps
47. The third leg of the test for negligence is also problematic. The plaintiff did not
present evidence in this instance that the City’s conduct was unreasonable in the
manner in which its managed the potential risk associated with the sidewalks
under its control. Apart from the evidence that was led by the City of the
measures it took and still takes to manage the ri sks of defective sidewalks that
may cause harm, the plaintiff did not lead evidence to suggest any additional
and practical measures that the City should have adopted to prevent the risk and
that would have been proportionate to the risk in question.
48. Had the City received a complaint or discovered a plainly dangerous defect prior
to the plaintiff’s fall and failed to rectify it , the situation would have been different.
But here, the plaintiff did not prove the existence of a mechanism by which the
City could have known or lead evidence to convince me that the City could have
implemented other measures beyond universal, constant sidewalk checks . The
plaintiff did not establish that a reasonable municipality would necessarily have
discovered or repaired the protrusion sooner. The evidence rather established
that t he municipality took steps proportionate to its budget and resource
constraints.
49. The plaintiff’s own acceptance that sidewalks can have minor irregularities
supports the notion that the municipality could not foresee a serious accident
from such a minor defect.
50. Therefore, the plaintiff has not shown , on a balance of probabilities, that the
protruding paving brick was present for such duration or that it was so
conspicuous that the City would, as a reasonable municipality , have repaired or
warned pedestrian s of it.
Conclusion
51. It follows that the plaintiff’s claim should be dismissed. I find no reason why
costs should not follow the result.
52. In the circumstances I make the following order:
“The plaintiff’s claim is dismissed with costs , with counsel’s fees to
be taxed on scale B”
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicant’s counsel: Mr. P Eia
Applicant’s attorney: Batchelor & Associates
Respondent’s counsel: Mr. M De Wet
Respondent’s attorney: Regal Brown Inc