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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2019- 21688
(1 REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
26/05/2025
In the matter between: -
A[…] B[...] Plaintiff
and
EMERALD SAFARI RESORT (PTY) LTD Defendant
JUDGMENT
Mfenyana J
[1] The plaintiff instituted proceedings against the defendant, (the Resort) for
damages arising from injuries she sustained at the defendant’s premises on 26
December 2018. The plaintiff alleges that she tripped over an uneven wooden beam, causing injuries to her right foot. The plaintiff thus contends that the defendant was
negligent in that it did not ensure that the premises were safe for its patrons.
[2] The parties agreed that the issue of liability be determined separately from
quantum , with the issue of quantum postponed sine die.
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[3] The defendant has defended the action and denies that it was negligent in
any way, claiming that the plaintiff’s own negligence is the sole cause of the incident,
and the injuries she sustained. [4] In her particulars of claim, the plaintiff alleges that on 26 December 2018, she
tripped over an uneven wooden beam at the resort, resulting in severe injuries to her left foot and a broken right ankle. It is common cause that the plaintiff was admitted to hospital and underwent surgery on 27 December 2018. She was discharged from
hospital on 28 December 2018 but required a plaster of Paris (cast) for a period of 6
weeks, and physiotherapy. The plaintiff claims an amount of R378 902.77, made up as follows:
4.1. Past hospital medical expenses: R40,859.34
4.2. Future hospital medical expenses: R50,000.00
4.3. Past and future loss of earnings: R73,043.43
4.4. Domestic assistance costs: R15,000.00
4.5. General damages for pain and suffering: R200,000.00
Plaintiff’s case
[5] Two witnesses testified for the plaintiff; the plaintiff herself and her husband,
V[…] R[…] B[...] (Mr B[...]).
[6] In essence, the evidence is that on 26 December 2018 at approximately
11h00, the plaintiff, h er husband and their 7 year old son were on a family outing at
the Resort, generally known as Aqua Dome. The main purpose of the outing was to
take their son there, as the Resort has various activities for children. Further
evidence reveals that on the day in question, a lot of people attended the resort for
entertainment.
[7] Having paid the required entrance fee the B[...]s entered the Aqua Dome and
found a spot to settle in, whereafter they placed their valuables in a locker. They thereafter got into the pool and swam for a short while. They allowed their son to
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swim in the lazy pool as they could see him from where they were seated. They then
moved to sit at a bench that had become available.
[8] Both Mr. and Mrs. Ms B[...] testified that they did not notice any warning signs
when they entered. Mr. B[...], however, further testified that he saw the warning signs
when he returned to the resort about a week later and has no doubt that the warning
signs were always there.
[9] When lunchtime was approaching, M rs. B[...] left to buy lunch from the food
stalls. She had to go around the bend, down three long stairs. She testified that it
was so congested that she had to ask, “excuse me, excuse me” , all the way to get
through the people who were standing there. She tripped on ‘something’ on the
second step and staggered ahead trying to cling to the rails . She broke her right
ankle when she fell on the third step. She tumbled forward, landing on the patch of grass by the GUN barrel. She used her arm to support her leg so it wouldn’t break entirely. When her son showed up, she requested him to go and call his father,
which he did.
[10] Mr. B[...] arrived shortly thereafter, whereafter a lifeguard arrived. Thereafter,
a paramedic from the Aqua Dome emergency services arrived. Mr. B[...] was asked
to write a report. He testified that he wrote the report even though his wife did not tell
him what happened as she was in pain, and being attended to.
[11] The plaintiff was thereafter taken to hospital where she received medical
attention, including an operation. The plaintiff’s testified that on her arrival at
Emfuleni hospital, before being transferred to Sunward Park hospital, she was seen by an orthopaedic surgeon who pushed her ankle into position. She further testified
that she was under a lot of pain. The doctors fitted her with a plaster of Paris (cast) in her right foot. She remained in hospital until 28 December 2018, whereafter she went for follow up visits at which the doctor put in a plate and six screws. She had the cast until March 2019.
[12] During cross examination, the plaintiff conceded that she does not know what
caused her to stumble and fall .
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[13] With regard to the incident, Mr B[...] testified that he found the plaintiff lying in
an awkward position on the grass between the barrel and the bench and table. She
was holding her own head and leg up and was i n shock and in a lot of pain. Her feet
were close to the wooden beam. He does not know what happened to her or what caused her to fall .
[14] He testified that the plaintiff’s ankle was completely dislocated. Notably, Mr
B[...] testified that he did not see the plaintiff fall, but figured out what could have
happened. He assessed the situation and realised that there were a lot of people around him. He also noticed that there was a lot of items lying around on the grass and next to the tables all around him, including shoes, handbags and other items. He stated that he explained that the plaintiff stumbled over clothing / towel when she was approaching the stairs. It is on this basis that he concluded that his wife
stumbled over clothing / towels when she was approaching the stairs. On the same assumption, he completed the incident questionnaire and recorded his assumptions, He conceded under cross examination that his conclusion was based on
speculation.
[15] It is common cause that Mr B[...] returned to the resort after the incident and
took photographs of specific areas . He testified that this was with a view of showing
what he saw as an unsafe environment and an unsafe walkway at the resort.
Absolution
[16] At the close of the plaintiff’s case, the defendant applied for absolution. The
defendant contends that the essence of the difficulty facing the plaintiff is that she does not know what caused her fall. The defendant relied on the decision of the erstwhile Appellate Division in Claude Neon Lights
1 for the proposition that what the
court is required to establish at this stage of the proceedings is not whether the evidence establishes what would finally be established, but whether there is evidence upon which a court, applying its mind reasonably could or might (not
1 Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) .
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should nor ought to) find for the plaintiff.
[17] Mr De Beer argued on behalf of the defendant that there is no evidence for
this court to apply its mind to, on the basis that the plaintiff has failed to discharge
the onus which rests on her , to prove all the elements of a delictual claim , being (i )
an act/ omission, (ii) which is wrongful, (iii) negligence (iv) causation and (v) damages. In other words there must be a wrongful and negligent act or omission
which caused the plaintiff to fall and suffered damages.
[18] He further submitted that for purposes of liabil ity, culpa would only arise if a
reasonable person in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property , and causing him
patrimonial loss, and would take such steps to guard against such occurrence, but fails to take such steps.
2 Mr De Beer further submitted that in the present case the
evidence is simply that ‘the plaintiff was walking, there were a lot of people, she
tripped and she fell.’ E ven though one might argue that the minimum evidence of the
plaintiff is required, in this case the plaintiff does not know what caused her to fall and conceded as much, including that that she might have tripped over someone
else’s foot , counsel further submitted.
[19] He argued that the plaintiff wants this court to draw an inference that she fell
over something that was left on the ground when she has not provided any evidence to that effect, and thus requires the court to speculate. Counsel cited S v Cooper
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where the court held that inferential reasoning requires facts and cannot amount to
speculation. He pointed out that in the present case there are no facts, and that the
case is exacerbated by the fact that the plaintiff’s letter of demand and her
particulars of claim do not speak to each other .
[20] With reference to evidence of something on the floor, counsel referred to the
decisi on in Monteoli v Woolworths (Pty) Ltd 4 where the court noted that:
2 Kruger v Coetzee 1966 (2) All SA 490 (A).
3 S v Cooper and Others [1976] 3 All SA 253 (T).
4 (A5042/99) [2000] ZAGPHC 4 (21 August 2000).
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“[37] It seems to me that in the context of a supermarket or something
similar, before the presence of produce such as green beans on the floor can
give rise to an inference of negligence, there must be some evidence of either
a direct or circumstantial nature that the defendant at the time of the accident:
(i) ought to have taken steps to prevent the presence of beans on the
floor from occurring; alternatively, (ii) knew; or
(iii) ought to have been aware of their presence; and
(iv) failed to take reasonable steps to remove the offending items forthwith.
[21] Mr. De Beer stated, correctly in my view that ther e is no evidence of
something that was on the floor, causing the plaintiff to trip, and consequently, there is no prima facie case to shift the evidentiary burden to the defendant.
[22] As stated in Prinsloo v Barn yard
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“People negotiate all kinds of stairs and obstacles in ever yday life without
falling. Sometimes they stumble and fall where there are no obstacles, even in
their own homes . It cannot be expected of owners of property to protect the
public against their own inattentiveness or possible clumsiness.6
[23] Counsel further relied on the above extract, stating t hat while Mr. B[...]
navigated through the same path in a hurry, he did not suffer the same fate as his
wife, and that Mrs. B[...] cannot explain what caused her injury or what she tripped or
slipped on.
[24] Lastly, counsel submitted that “where a plaintiff does not prove the cause of
her injury she cannot succeed in an action against the defendants for negligently
causing her loss. ”7 He drew similarities between Ramafamba and the present case
that the plaintiff did not discharge the onus of proving that the defendants had
5 (27705/06) [2009] ZAGPPHC 105 (4 September 2009).
6 Para 16.
7 (517/2012) [2012] ZASCA 162 (19 November 2012).
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caused her injury .
[25] In the absence of any evidence as to what the plaintiff fell over, the defendant
submitted that there can be no basis for alleging that the defendant ought to have
guarded against it , he added. There is no inference to draw as Ms B[...] might have
fallen over a towel, a rucksack, someone else’s feet, a bench or a block, because it could have been anything. [26] On these grounds, he submitted that absolution should be granted with costs
on Scale B.
[27] Mr Motala agreed on the test to be applied in considering whether or not the
court should grant absolution. He however argued that it is not correct to suggest that there is no evidence on which this court could or might find for the plaintiff. He
conceded that the particulars of claim as they stand do not tie in with the evidence of the plaintiff as to what caused her to fall . He submitted that the plaintiff was candid
that she does not know what caused her to fall but was adamant that she fell over an
item on the floor.
[28] He challenged the fact that nobody else fell there, the question is whether
there ought to have been items on the floor in the first place. That the defendant should provide evidence as to what steps it took to avoid harm. I do not agree with
this proposition. What the plaintiff suggests is that the defendant should have foreseen the possibility of someone leaving an item on the ground that would cause another to trip and fall. Moreover, the plaintiff’s own evidence is that she did not see what caused her to fall.
[29] Mr Motala argued that it could not be expected of the plaintiff having stated
that there were various items on the ground to specify what specific item she tripped over. It would be sufficient for to state that there were items left there which should
not have been there in the first place. The difficulty with this contention is what case
should the defendant prepare for? [30] In this regard, it was submitted on behalf of the plaintiff that the defendant
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pleaded specifically in amplification of its denial and cannot aver that they have no
case to answer to, or do not know what to plead to. They have pleaded specifically
as to what caused the plaintiff to fall. The plaintiff has identified an obligation for the
defendant to ensure that the area was kept in a safe condition, and that the defendant failed to do so. Her case is that she tripped and fell over an item she did
not see. With regard to the walkways, the answer is that the benches were protruding onto the walkway causing it to narrow down. Although the particulars of
claim state that the plaintiff fell over a wooden beam this should be considered holistically , counsel further submitt ed.
[31] There is no dispute that the plaintiff tendered two contradictory versions, first
in the particulars of claim, and secondly in her evidence before this Court. The two
versions are irreconcilable, for the plaintiff could have either tripped and f allen over
an item that was on the floor, or a wooden beam that was protruding. Having pleaded to the particulars of claim, the defendant was faced with a different version at the trial. That the defendant had pleaded to the particulars of claim, in my view,
does not assist the plaintiff.
[32] Relying on the judgment of the Appellate Division in Regal v Superslate
8, Mr
Motala submitted that control over the maintenance of a building is an important
consideration in establishing whether the defendant’s omission amounts to unlawful
conduct.
[33] The real question is whether in these circumstances, it could be said that the
defendant is the cause of the plaintiff’s injuries . What did the defendant leave or
allow to be left on the floor which caused the plaintiff to fall? This is the question to
be answered by the plaintiff. She did not. To the contrary, Mr B[...] testified that to
this day, there is still confusion as to what caused the plaintiff to fall. [34] As Mr De Beer argued, correctly in my view, the plaintiff could have tripped
over her own foot, someone else’s foot , and perhaps due to her own inattentiveness,
did not notice it. The danger with this kind of approach is that it leaves the court to
8 1962 (3) SA 18 (A) .
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speculate as to what caused the plaintiff’s fall. If it was some one else’s foot, was the
defendant required to guard against that occurrence? If it was a bag, a towel or any
other i tem, was the defendant expect to prevent such occurrence? It appears to me
that the observation by Mr B[...] of various items lying on the ground was in any
event, after the fact, while trying to piece together the events which might have led to
his wife’s fall. The truth of the matter is that no one knows what caused the plaintiff’s
fall. Not even the plaintiff herself. This is not sufficient to discharge the onus which
rests on the plaintiff. Consequently, the report provided by Mr. B[...] is without basis
and by his own admi ssion, mere speculation.
[35] Was there evidence led on behalf of the plaintiff, assuming it were true, upon
which a court acting reasonably, might give judgment against the defendant. In other
words, “whether a court, if no further evidence was led, after reasonable application of its mind, might find in favour of the plaintiff”
9. I think not.
[36] It follows therefore that the appli cation should succeed, and absolution
granted. I am not oblivious to the fact that absolution is a stringent remedy and
should be granted sparingly , as it goes against the principle of audi alteram partem . I
do not make light of this. However , in the fact s of this case and the evidence
adduced by the plaintiff’s witnesses , there is no evidence upon which this Court
could or might find for the plaintiff.
[37] In the result, I make the following order:
a. Merits and quantum are separated, and the issue of quantum is
postponed sine die.
b. Absolution from the instance is granted with costs on scale B.
S MFENYANA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
9 De Klerk v ABSA Ltd and Others 2003 (4) SA 315 (SCA)
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APPEARANCES
For the plaintiff : N Motala instructed by Clark Attorneys
paula@clarkattorneys.co.za
For the defendant : WA de Beer instructed by Whalley & Van der Lith Inc.
barry@wvl.co.za / leigh@wvl.co.za
Date of hearing. : 17 - 20 February 2025
Date of judgment : 26 May 2025