In the High Court of South Africa
(Western Cape Division, Cape Town)

Case No: 16561/20

In the matter between:

MAXINE WILLIAMS Plaintiff

and

BEYERSKLOOF WINE BAR (PTY) LTD Defendant

Matter Heard: 27 March 2025
Judgment Delivered: 29 May 2025

JUDGMENT


MANTAME, J

Introduction

[1] The plaintiff claims delictual damages against the defendant pursuant to
harm suffered on 3 October 2020 , when she ingested a needle – like foreign object
while dining at the defendant’s restaurant. The action was defended and served
before this Court only on merits. OFFICE OF THE CHIEF JUSTICE
REPUBLI C OF SOUTH AFRICA

[2] Both parties are ad idem that the five elements of delict must be established
for liability to exist. Those elements are (a) an act or omission; (b) wrongfulness, (c)
fault (negligence), (d) causation and (e) harm.

Pleadings

[3] In her particulars of claim, the plaintiff alleged that the defendant owed the
public and the plaintiff in particular a duty of care to ensure that the restaurant was in
a safe condition ; it did not constitute a source of danger ; served food that was safe
for human consumption ; the plaintiff was informed of the presence of such dangers ,
and the defendant should have taken all the necessary precautions to protect the
plaintiff from danger.

[4] Due to the defendant’s negligence and wrongful conduct it failed to ensure the
safety of the food . It failed to prevent the plaintiff from consuming hazardous and
unsafe consumable s and/or food prepared, served , and sold by the defendant from
being consumed by the plaintiff. The defendant failed to caution the plaintiff
regarding the potential risk of the consumable s and/or food that was prepared,
served or sold by the defendant and th at such was dangerous and unsafe for
consumption. The defendant should have foreseen the reasonable possibility that
the plaintiff could suffer severe bodily injury as a result of the defendant's failure to
take reasonable precautions to prevent the incide nt.

[5] In its plea, t he defendant disputed that it was the cause of any danger. The
object that was allegedly ingest ed by the plaintiff did not come from consumables
sold and/or prepared by the defendant. Alternatively, in the event the Court find tha t
the object swallowed by the plaintiff comes from food prepared by the defendant, the
defendant denies liability for any alleged damages for the following reasons:

5.1 the defendant purchased its raw products for preparation of the
food from reputable source s that provide raw food products free
from any potentially harmful objects that can cause damages;
5.2 the object allegedly swallowed by the plaintiff is not an object
ordinarily present in food products purchased by the defendant;
5.3 the defendant when preparing food, use generally accepted
methods for preparation of its food;
5.4 the object that was allegedly swallowed by the plaintiff is not an
object used for purposes of preparation of defendant’s food and is
not an object that can be found either in defendant’s k itchen or
tables where food is served ; and
5.5 the presence of the type of object allegedly swallowed by the
plaintiff is not foreseeable by the defendant in the process of
preparing and serving food.

Evidence

[6] The defendant ran the Beyersklo of Wine Bar, a restaurant in Stellenbosch,
according to the facts that gave rise to this claim. On the evening of 3 October 2020,
the plaintiff and her husband, Jeremy Derick Williams (Mr. Williams ), visited the
defendant’s restaurant , their favourite in t he area , and which they frequented as
guests for dinner. The plaintiff testified that she ordered a bottle of wine, some water ,
and a hamburger with sides for each of them.

[7] The food was served , and they both continued to indulge. Halfway through
her meal, she experienced a sensation of discomfort , as though something was
lodged in her throat. She immediately tried to get it down but struggled profusely.
The plaintiff decided to go to the restroom as she started to cough and in a state of
panic . As she continued coughing , she attempted to insert her finger into he r throat
to dislodge the object quicker . However, upon noticing some blood in the bathroom
basin, she began to cry . This all happened during the COVID 19 period , and people
started looking at h er in a strange manner.

[8] After some time , she returned to her husband at the table and informed him
that she was unable to discharge the object from her throat. At that point, she was
overwhelmed with stress and anxiety. At this juncture she was cryin g and had been
to the bathroom on two separate occasions and failed to discharge the object from
her throat. She informed her husband that they should leave immediately , as she
had wet herself. This situation to her was extremely humiliating and embarrassi ng.
The plaintiff informed her husband that she needs to consult a doc tor. Her husband
settled the bill, and they proceeded to Emergency Rooms at Stellenbosch Medi clinic.

[9] The plaintiff was immediately admitted and x - rays were taken on instruction
of Dr De Villiers, the ENT specialist. The x - rays revealed that a needle - like object
was stuck in her throat. The ENT specialist attempted to remove or extract this
object manually but could not succeed. S he could not be operated either that
evening as she ate food and drank wine. However, she was kept in hospital
overnight for a constant monitoring. The plaintiff underwent an operation after 7
hours which was unsuccessful.

[10] To monitor the location of the foreign object, the plaintiff was hospital ised and
the x – rays were performed twice daily i.e. morning and evening to track the location
of the foreign object. Additionally, the plaintiff was administered medication to
facilitate its elimination from her body The plaintiff was hospital ised for fiv e (5) days
and released or discharged on the fifth day when the foreign object was no longer
visible on the x – rays.

[11] The plaintiff testified on the extent of pain, discomfort, anxiety and panic she
experienced during this incident. It was exacerbate d in her psyche when she realised
that it had not been successfully removed. She recounted her humiliation and
embarrassment when she wet herself and her recollection of a family friend who
passed away after swallowing a fish bone that punctured his intest ines. In reality,
she was apprehensive about the possibility of experiencing a comparable
circumstance.

[12] She was adamant i n her testimony, that there is absolutely no possibility that
a foreign object came from her clothing, as she did not wear hair clips or pins and so
on. She also maintained that the object did not originate from her husband. The only
way the needle – like foreign object could have entered her body was through the
food that was served at the restaurant.

[13] During cross -examinati on, the plaintiff asserted that she was unaware of the
foreign object on the food prior to ingesting it . The Court should accept that it was
hidden inside the food. Despite the fact that she was served a hamburger and chips
on her plate , she was certain th at the foreign object was on the hamburger , because
that is what she consum ed at that time. She was uncertain as to whether it was on
the bun, patty, or garnish, or how it had been introduced to the hamburger.

[14] Mr. Williams, the husband of the plaint iff corroborated the evidence of the
plaintiff, and the plaintiff closed her case.

[15] The defendant only called Mr Jacque Barnard Van Straaten ( Mr Van Straaten )
in its defence. Mr. Van Straaten stated that he co – founded the defendant and held
a posi tion of General Manager. The business of the defendant opened on 1 February
2019 and temporarily closed on 26 March 2020 due to the COVID -19 pandemic. It
re-opened in mid -August 2020. In April 2024, it ultimately ceased operations.

[16] He testified tha t the defendant had never experienced an incident of this
nature, either before or after the 3 October 2020 incident. The defendant was
responsible for the procurement of ingredients for food that was sold at the
restaurant. The defendant procured all the ingredients from third party suppliers. The
patties were sourced from Eikeboom Butchery and has been in business
approximately since 1960 . The buns were sourced from Espresso Bakery in Paarden
Eiland and the relish from Alex Fruit and Veg, Stellenbosch and they supplied the
hotels and restaurants in the area . For instance, the Red Leaf Bistro on the farm
highly recommended Eikenboom for texture and flavour in their patties . At no stage
did the defendant make its own patties. During the period 3 October 2020 the
defendant ordered its patties from Eikenboom Butchery. The patties were normally
delivered to the restaurant, but on some occasions, he would collect the order from
the butchery. On the night in question, there were no signs that the plaintiff would
swallow a needle - like foreign object on her food.

[17] During cross – examination he confirmed that he was not on duty during the
time of the incident. However, he had two managers, that is a kitchen manager who
supervised food preparation and a front manager. Nevertheless, he was responsible
for overseeing the operations of the business. The administration of the kitchen was
his responsibility after the kitchen manager departed during the COVID -19 outbreak
and did not return. He ensured that the staff was trained in health and safety
protocols to guarantee food safety. The kitchen's configuration was delineated by Mr.
Straaten. For instance, there were two food stations where food is prepared.
Working in these stations were four (4) staff members, i.e. one individual in the
scullery, two individuals were employed on the grill and one person on the chips and
pizza station. They provided assistance to each other at different stations based on
their workload.

[18] Mr. Straaten was informed by his s taff that the night of the incident was quite
busy. The hamburger s were the defendant’s speciality. The spicing of the patties
was done by the butchery. During the preparation the patties are basted with a
plastic brush on the grill. The grill can be stubb orn dirty at times. However, no
hazardous tool was used to clean the grill. He assisted with cleaning the kitchen if
the kitchen staff are late. He could not give account on the state of the kitchen that
evening because he was not present. However, he agre ed that there were some
appliances, implements and utensils in the kitchen. In order for these items to
operate, they needed maintenance .

[19] He continued to explain that t he “pass”, which is where food is delivered to the
waitstaff is situated above o ne of these stations. Above the “pass” there is a fan , the
magnetic rails where the order slips are kept and the printer for printing orders.
These would not have caused any hazard. To ensure food safety, Mr. Straaten’s
testimony was that he would get del iveries of ordered items from his suppliers and
would check the stock to ensure that the correct quantity was delivered and the food
was of the highest standard.

[20] On the night in question, the defendant was managed by the head waitress.
The plaintif f’s experience was not put to issue. Since the defendant’s staff was
trained in quality control, if the needle - like object was seen by any of them, they
would have removed it. There is a possibility that the staff did not foresee the
circumstances happen ing that evening. None of the staff members was called to
testify during trial.

Discussion

[21] The defendant did not dispute the experience of the plaintiff at the defendant’s
restaurant. Nevertheless , the defendant submitted that whether one app lies the res
ipsa loquitur doctrine, the evidence led cannot be used to establish a conclusion
other than that the defendant did not act negligently regarding the manner in which
the foreign object was introduced to the food.

[22] The plaintiff contended that th is assertion is incredulous as the defendant was
unable to explain the origins of the foreign object. Mr. Straaten merely speculated
that “there must have been unforeseen circumstances for this to happen”.

[23] The thrust of the defendant’s submission was that the test for negligence is
trite.1 The inquiry is two –fold. It was contended that (i) negligence is not established
by demonstrating that the occurrence occurred or, after it occurred, by demonstrating
how it can be prevented.2, and (ii) the greater the possibility that damage will occur,
the easier it will be for a court to find that damage was reasonably foreseeable, while
the smaller the possibility of damage, the more difficult it will be a court to find that
damage was reasonably foreseeable.3 The following principles were argued to be
applicable with respect to the question of preventability:

23.1 The mere fact that foreseeable damage materialised does not
necessarily mean that steps actually taken by a defendant were
unreasonable.4
23.2 Relevant to the enquiry in this matter is the fourth of the four basic
considerations or factors taken into account on the preventability
question, namely, the burden of eliminating the risk or harm5, and
23.3 The costs and difficulty of taking precautiona ry measures play a crucial
part in

1 Kruger v Coetzee 1966 (2) SA 428 (A) at pg. 430
2 Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA) at 326
3 McCarthy Ltd v Sunset Beach Trading 300 CC 2012 (6) SA 551 (GNP) at 567; Oliphant v RAF
[2008] 4 All SA 239 (SCA) at 243
4 Shabalala v Metrorail 2008 (3) SA 1 42 (SCA) at 145
5 Herschel v Mrupe 1954 (3) SA 464 A at 477
the inquiry. The principle is that, where the costs and difficulty of taking
precautionary measures are greater than the gravity of the risk
involved, a reasonable person would not take such steps to minimise
or reduce th e risk.6

[24] In countering the defendant’s submission, the plaintiff asserted that the two-
stage inquiry was unnecessary in establishing negligence in this instance, as the
facts are self-evident . It was argued that although res ipsa loquitur is not a legal
principle however, it is employed to describe the proof of fact which are sufficient to
support an inference that a defendant was negligent and thereby to establish a prima
facie case against the defendant ; it is a form of inferential reasoning whi ch is invoked
where the occurrence or the incident itself is the only known fact from which a
conclusion of negligence can be drawn and the incident does not ordinarily occur in
the absence of negligent conduct; the conclusion is self – evident from the fa cts, and
the maxim is only invoked if the facts suggest that the defendant m ay have been
negligent.7

[25] As the plaintiff has stated, the defendant has not provided an explanation of
the origins of the foreign object on the food, it merely stated that it had safety and
health protocols in place to ensure food safety. Such protocols were not
deconstructed to demonstrate what they entailed. The Court was unaware of the
restaurant's layout and, more significantly, the kitchen's layout on the day in
questio n, as Mr. Straaten was not present that evening and only received a briefing
from his staff that the evening was bustling . Mr. Straaten could not tell in his
examination who and / or how many staff members were working that evening, what
health and safety protocols were put in place. What was the process undertaken by
which staff member to prepare the plaintiff’s hamburger. Given the fact that it was
quite busy that evening, how big was the space that was utilized to create the
plaintiff’s hamburger ; how of ten was it cleaned ; what type of clothing was put on by
the kitchen staff and waitresses? For example, d id it require to be secured by pins
and needles? Were the staff wearing headgears, tops and so on that were secured

6 Khupa v SA Transport Services 1990 (2) SA 627 (W); Ngubane v South African Transport Services
1991 (1) SA 756 (A) at 778
7 Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA) para 10
by pins and /or needles. Did Mr. Van Straaten interview the staff that worked that
evening to ascertain if one of them did not put the need le - like object carelessly with
food as it was busy? As stated above, the comment by Mr Straaten that “there
must have been unforeseen circumstances for this to happen” remains speculative.

[26] In my analysis, Mr. Van Straaten is unaware of the origin of the needle – like
object . In addition, he ruled out the possibility that the foreign object might have
come from the suppliers. In his plea an d testimony, it was stated that the defendant
purchased raw products from reliable and/or reputable sources and upon delivery,
they would inspect it for quality control. Also, it was not elaborated what that process
of inspection entailed.

[27] The doctrine of res ipsa liquitur allows the Court to infer negligence from the
circumstances of an accident when there is no direct evidence. Similarly, there is no
direct evidence regarding the manner in which the foreign object was introduced to
the plaintiff’s hamburger. She became aware that she had consumed a hazardous
substance when the foreign object was unable to pass down her oesophagus after
she had consumed a hamburger.

[28] For the Court to infer negligence base d on res ipsa loquitur , the following
should be established:

28.1 The nature of the incident – The plaintiff would not have swallowed a
needle like foreign object if a specified or a required set of health and
safety protocols in the kitchen staff and waiters was in place. The fact
that Mr. V an Straaten testified during cross - examination that food
quality is checked when it is delivered and they used plastic brushes
and not metal brushes to baste and clean the grill gave credence to the
fact that they had a duty of care towards the plaintiff. The defendant
had a duty to ensure that patties are prepared on clean surfaces, albeit
using plastic brushes. Even if this Court were to employ the two – stage
inquiry on negligence, it follows that they foresaw harm happening for
instance in the kitchen that may result into some food contamination
should they clean the grill with metal brushes but refrained from doing
so. Instead, they prevented the harm from happening by using the
plastic brushes. However, we do not know whether that indeed
happened prec eding this incident. Either way, the defendant is at fault
for their failure to serve the plaintiff safe food.
28.2 Caused by an instrument in the defendant’s control - The defendant at
all times was in control of the preparations, service and sa le of food.
Meaning, as it sourced raw products, it was responsible for preparing
(creating) the hamburger from its raw state until it was consumable.
The defendant was in control of the appliances, instruments and/ or
implements that prepared a hamburger that turn ed out to have a
foreign object upon being swallowed.
28.3 No other explanation - The defendant proffered no plausible
explanation for the accident that the plaintiff encountered at its
establishment. This therefore shifts the burden of providing a
reason able explanation to the defendant . The defendants’ submissions
that the fact s of the case do not suggest an element of negligence on
its part is totally flawed . Be that as it may, i t should be noted that the
burden of reasonable explanation does not shift the onus or burden of
proof to the defendant. The onus rests with the plaintiff.8

[29] In this instance, the inference is only permissible while the cause of the
incident remains unknown. The Court will therefore , infer that such an unknown
event occur red if a certain party was negligent. There is therefore , an obligation from
the defendant to rebut the inference by proffering an explanation for the occurrence
of the incident .

[30] In Arthur v Bezuidenhout and Mieny9, the Court held that ‘once the plainti ff
proves the occurrence giving rise to the inference of negligence on the part of the
defendant, the latter must adduce evidence to the contrary. The term "must" imply
that the defendant is obligated to provide the remaining portion of the narrative or
risk being found guilty ’.


8 Sardi and Others v Standard and General Insurance Co Ltd. 1977 (3) SA 776 (A)
9 1962 (2) SA 566 (A) at 574E -H
[31] Undoubtedly , in this regard, the defendant was obligated to act positively to
prevent the harm that was suffered by the plaintiff. The c onsequent failure b y the
defendant to take positive action was unlawful, as it is reasonable to anticipate that
the defendant would have implemented positive measures to prevent the injury. In
Van Eeden v Minister of Safety and Security10, the SCA acknowledged that:

‘Our common law employs the element of wrongfulness (in addition to the
requiremen ts of fault causation and harm) to determine liability for delictual
damages caused by an omission. The appropriate test for determining
wrongfulness has been settled in a long line of decisions of this Court. An
omission is wrongful if the defendant is un der legal duty to act positively to
prevent the harm suffered by the plaintiff. The test is one of reasonableness.
A defendant is under a legal duty to act positively to prevent harm to the
plaintiff if it is reasonable to expect of the defendant to have t aken positive
measures to prevent the harm. The court determines whether it is reasonable
to have expected of the defendant to have done so by making a value
judgment based inter alia upon its perception of the legal convictions of the
community and or con siderations of policy. ’

[32] Lastly, causation should be established for the Court to consider whether all
aspects of delictual claim have been discharged. The two – stage inquiry has to be
undertaken, i.e. factual causation and legal causation. The first inqui ry would be
whether the negligent act or omission caused or materially contributed to the harm
giving rise to the claim.11 If regard is had to the facts and the circumstances of this
matter , has the plaintiff show n that the defendant’s negligent conduct was the direct
cause of the plaintiff’s harm; but for the defendant’s conduct, the plaintiff would not
have been served food containing foreign object (unsafe food) and thus would not
have suffered the harm. This is known as the “but – for” test.12 In my view, factual
causation has been satisfied.


10 2003 (1) SA 389 (SCA) at para [9]
11 Minister of Police v Skosana 1977 (1) SA 31 (A)
12 International Shipping Co (Pty) Ltd v Bent
[33] With regard to the second inquiry, that is, legal causation, has the plaintiff
established that the defendant’s conduct was the legal cause of the plaintiff’s harm.
In my view, there was a sufficiently adequate connec tion that existed between the
conduct and the factual consequence, taking into account the policy considerations
and concepts such as reasonableness, fairness and justice.

[34] It is my considered view that the plaintiff has established all the elements of
delict. The defendant is therefore liable for the claim for delictual damages.

[35] In the result, the following order is made:

35.1 The plaintiff’s claim on merits succeeds ;
35.2 The defendant is liable for such damages as the plaintiff may pro ve in
due course to have suffered arising from the needle – like foreign object that
was contained in the food that was served to the plaintiff by the defendant ;
35.3 The defendant is ordered to pay costs on Scale B.


_______________ ____
MANTAME J
WESTERN CAPE HIGH COURT


COUNSEL FOR THE PLAINTIFF: ADV SUNE VAN DER MERWE
INSTRUCTED BY: HATSONE LAWYERS

COUNSEL FOR THE DEFENDANT: ADV DIRK COETSEE
INSTTRUCTED BY: MACGREGOR STANFORD KRUFER INC