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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 239/2024

In the matter between:

JOHANNES DIEDERIK LE ROUX N O FIRST APPELLANT
(CURATOR AD LITEM FOR N[…]
P[…] O[...])
JOHANNES DIEDERIK LE ROUX N O SECOND APPELLANT
(CURATOR AD LITEM FOR J[...] B[...])

and

THE NELSON MANDELA BAY MUNICIPALITY RESPONDENT

Neutral citation: Johannes Diederik Le Roux NO and Another v The Nelson
Mandela Bay Municipality (Case no 239/2024) [2025] ZASCA
122 (2 September 2025)
Coram: HUGHES and MATOJANE JJA and STEYN, VALLY and MODIBA
AJJA
Heard: 9 May 2025
Delivered: 2 September 2025 at 09h45.
Summary: Delict – claim for damages – whether the municipality is delictually
liable for damages of appellants as a result of the drowning of their minor child that

had fallen into an uncovered drain – wrongfulness and causation considered – duty
of care – circumstances when an appeal court should interfere in credibility findings
made by the trial court, especially where there are mutually destructive versions.



ORDER


On appeal from: Eastern Cape Division of the High Court, Makhanda (Bloem, Zilwa
and Potgieter JJ, sitting as court of appeal):
1 The appeal is upheld with costs, such costs to include the costs of two
counsel, where so employed.
2 The order of the full court is set aside and replaced as follows:
‘The appeal is dismissed with costs.’


JUDGMENT


Steyn AJA (Hughes and Matojane JJA and Vally and Modiba AJJA concurring):
Introduction
[1] This appeal concerns the tragic drowning of a minor child, J[...] H[...] O[...]
("J[...]"), in a stormwater drain arising from a tragic incident that occurred in
Uitenhage on 13 September 2014, and the subsequent claims for damages instituted
by her parents, the appellants, against the Nelson Mandela Metropolitan Municipality
(the municipality). The matter comes before us following a decision of the Full Court
of the Eastern Cape Division of the High Court, Makhanda (the full court) , which
overturned the finding of liability against the municipality, made by Eastern Cape
Division of the High Court, Makhanda (the trial court ). The full court's decision
centered on its assessment of the evidence regarding the reporting of the open drain
and its application of the legal principles of wrongfulness, negligence and causation.
Background

[2] The parents of J[...], are represented by Mr Johannes Diederik Le Roux (Mr
Le Roux) , in his representative capacity as the curator ad litem for Ms N[...] P[...]
O[...] (Ms O[...]) and Mr J[...] B[...] (Mr B[...]).1 They instituted separate actions
against the Municipality, seeking damages for the emotional and psychological
trauma caused by their daughter's death. These actions were later consolidated.
[3] The trial court, having heard evidence from both parties, found the
municipality liable for the damages claimed. The full court, however, upheld the
municipality's appeal, finding that the appellants had failed to adequately establish
the elements of wrongfulness and causation, which are essential for a successful
delictual claim. The appellants, aggrieved by this decision, now appeal to this Court ,
with special leave granted by this Court.
[4] On the fateful day J[...], the 17 -month-old daughter of the appellants, fell into
an open drain in Grootboom Street, Greenfields, Uitenhage. This incident resulted in
her death. The y claimed that the municipality was responsible for, inter alia, the
maintenance, upkeep, and inspection of the drains in the area. It was also alleged
that the municipality had previously been warned of the danger that the open drain
posed. The municipality accordingly had a legal duty to ensure that all drains within
its area were covered so as not to pose a hazard to the residents. The appellants
relied on ss 152 and 156 of the Constitution ,2 as well as the municipality’s relevant
by-laws in support of the damages claim. It was further claimed that the
municipality’s employees were in breached of their legal duties and that such breach
was negligent, wrongful, and causally linked to the death of J[...].

[5] The municipality denied that the precautions it took were unreasonable or
insufficient. It pleaded that it was entitled to assume that J[...] was at all relevant
times in Ms O[...]’s custody and under her control, alternatively in the custody and

times in Ms O[...]’s custody and under her control, alternatively in the custody and
under the control of an adult person responsible for the care of J[...] on the day in
question. In addition , the municipality pleaded that an adult ought to have been
reasonably aware of any uncovered drain in the area and should properly have

1 I will refer to the parents as the appellants throughout. It has to be stated that there is technically
only one appellant, namely Mr J D le Roux , the curator ad litem , who acted in a representative
capacity for both of the parents . Both parents required the assistance of a curator ad litem due to the
psychiatric consequences they had suffered when J[...] died.
2 The Constitution of the Republic of South Africa, 1996.

observed and prevented J[...] from suffering harm as a result of such an open drain.
It was further pleaded that if it was found that the drain was uncovered, it should
have been visible to any adult and that such an adult had a duty to ensure that J[...]
was not left unattended, vulnerable, and exposed to possible harm due to the
uncovered drain. In the event that the high court found that the municipality was
delictually liable for J[...]’s death, it averred that Ms O[...]’s conduct contributed to the
harm suffered; she had a responsibility to ensure that J[...], by virtue of her tender
age, was under the supervision of an adult at all times ; and that she ought not to
have been left in the care of a 15-year-old child.

[6] At the trial, before Gxarisa AJ, the issue of liability was separated for
determination before all other issues . The trial court found that the municipality’s
employees acted wrongfully and negligently , as they had failed to take steps to
ensure that the drain was not left open. This resulted in J[...]’s death. It found that the
municipality was liable for damages arising from the death of J[...] and directed the
municipality to pay the appellants’ costs.

[7] The municipality was successful in its appeal to the full court. The full court
concluded that the appellants had failed to establish liability and that the trial court
erred in holding the municipality liable for damages arising from J[...]’s death. The
trial court’s order was set aside and replaced with an order dismissing the appellants’
claims for damages, with costs. I shall return to the findings of the full court later in
the judgment.

Requirements for liability
[8] The appellants’ action is based on the actio legis Aquiliae . For their claim to
succeed, they had to establish that the municipality’s employees’ conduct, albeit by
omission, was wrongful and negligent. This would, among other things, entail proving

omission, was wrongful and negligent. This would, among other things, entail proving
that they failed to act in accordance with the obligations imposed on them by s s 152
and 156 of the Constitution, thereby causing J[...]’s death. The appellants bore the
onus of proving all these requirements.

Evidence before the trial court

[9] The following material facts emerge from the evidence led before the trial
court. Five witnesses testified in support of the appellants’ claim . They were : Ms
O[...], Mr Linden Godol o (Mr Godolo) , Pastor Eben Windvogel (Pastor Windvogel),
Ms M[...] L[...] (Ms L[...]), and Mr B[...]. Their evidence supported and strengthened
the appellants ’ case, as pleaded, namely that the municipality left the drain in
Grootboom Street uncovered and unsecured over a very long period, despite being
repeatedly informed, by a number of the witnesses, of the danger it posed. On the
day of the tragic incident, Ms O[...] left her daughter with a member of the household,
Mr R[...] L[...] (R[...]), whilst she went to fetch money from a family member in the
area. Mr B[...] was home earlier in the day, but he had left to watch rugby elsewhere.
To the best of the knowledge of Ms O[...] and Mr B[...], the yard was fully fenced .
One could move from the back of the house to the front garden only by going
through the house itself. The front door of the house was a stable -style door, and
J[...] was too young to open it.

[10] Ms O[...] testified that the drain had been left open since 2012/2013. There
had been a burst pipe in Grootboom Street before, which caused water to pool in the
drain. She reported the danger posed by the uncovered drain to the call centre three
or four times since 2013. She had made these reports because she was concerned
about the safety of the children in the area. The number she dialled was the one
printed on the back of the municipal statement of account, which was delivered to
their house. After the tragic inc ident and while they were cleaning the yard for the
funeral, both parents noticed that there was a hole in the fence.

[11] Pastor Windvogel, who stays near the open drain, gave evidence that he had
lodged numerous complaints with the municipality about the open drain in
Grootboom Street. He even complained to the ward councillor. Ms L[...], who resided

Grootboom Street. He even complained to the ward councillor. Ms L[...], who resided
in the same house as the appellants, testified and confirmed that she too reported
the uncovered drain by calling the call centre on more than one occasion. Mr
Godolo, who resided in Grootboom Street, also confirmed that the said drain
remained uncovered for many years. He often witnessed children playing near the
drain and would chase them away out of concern for their safety. On the day of the
incident, one of the children informed him that a child had fallen into the drain. When

he investigated this report, he found J[...]’s body floating in the drain and he retrieved
her body from the drain.

[12] The municipality, in seeking to rebut the evidence led by the appellants, called
one witness, Ms Nokonwab a April (Ms April) . She was employed as the
municipality’s Acting Senior Superintendent for Roads and Waterworks. She stated
that the drain was indeed open during an inspection on the day of J[...]’s drowning.
According to her, she was called to the scene on the day of the incident and upon
her arrival, she observed that there were four open drains in the nearby vicinity. She
noticed that water had pooled in the drain in which J[...] drowned.

[13] Ms April testified that the municipality never received any complaints about
the open drain, as alleged by the appellants’ witnesses. She referred to a record
compiled by the call centre, documenting complaints logged for the period from 1
January 2014 to 30 September 2014. Significantly, this record was limited to a
different street, Mielies Street, and not Grootboom Street, where the drowning
occurred.

[14] During cross -examination, Ms April was confronted with the fact that the
drowning of J[...] was not even recorded as a complaint in the September 2014
record. She explained that they believed that she had drowned in the Mielies Street
drain, and that is why they concentrated on Mielies Street, because the drain is
opposite the house where the child was living. She reluctantly conceded that the
incident had actually occurred in Grootboom Street and not Mielies Street.

[15] The trial court concluded that Ms O[...] and Mr B[...] and their witnesses were
credible witnesses, who corroborated each other to the extent that the drain in
Grootboom Street had been left open and unrepaired for an extended period of time
before the tragic incident. It conluded, based on the aforesaid evidence, that the
appellants had discharged the onus of proving that the municipality was delictually

appellants had discharged the onus of proving that the municipality was delictually
liable for the damages arising from the death of J[...].3

3 The following order was issued:
‘1. That the defendant is held liable for damages arising from the death of J[...] H[...], the
deceased.

The full court
[16] The full court, however, concluded on the very same evidence that the
appellants had failed to prove the delictual elements of wrongfulness and legal
causation. Much reliance was placed by the municipality on the fact that R[...] was
not called as a witness and that Ms O[...] conceded that she could have taken her
daughter with her when she left their home. Without dismissing the trial court’s
credibility findings or making any adverse findings of its own, regarding the credibility
of the appellants’ witnesses, the full court disregarded the evidence of the appellants’
witnesses and relied on the documentary evidence produced by the municipality as
sufficient to refute the evidence of the appellants’ witnesses. The full court held in
part:
‘It was during cross -examination that Ms April testified, based on the computer -generated
document, that the municipality did not receive complaints about the uncovered drain. Since
the plaintiffs and their witnesses had no proof of their calls to the municipality about the
uncovered drain and since the municipality produced documentary evidence which did not
support the evidence that calls were made to the municipality about an uncovered drain, I
am unable to find that the calls were made. The evidence is in favour of a finding that the
calls were probably not made.’ (Emphasis added.)

Submissions before this Court
[17] Before this Court, the appellants argued that the full court misinterpreted the
evidence of the municipality’s witness and the legal principles relating to the delictual
elements of wrongfulness, negligence and causation. It was argued on behalf of the
appellants that the record produced by the municipality related to complaints lodged
with the municipality in relation to Mielies Street and not Grootboom Street where the
incident occurred. Furthermore, they contended that the document covered a 9 -
month peri od, starting on 1 January 2014 and ending on 30 September 2014. In

month peri od, starting on 1 January 2014 and ending on 30 September 2014. In
addition, it is contended that the full court was mistaken in its finding that the
municipality produced documentary proof that no complaints had been lodged,
especially in circumstances where the trial court made no adverse findings
concerning the credibility of the appellants’ witnesses. Thus, they contended the full

2. That the defendant is to pay the costs of the trial, including costs of two Counsel, as well as
reserved costs.’

court erred in rejecting the evidence of the appellants’ witnesses and in finding that
complaints regarding the uncovered drain were in all probability not made to the
municipality.

Wrongfulness
[18] The appellants argued that the municipality had knowledge of the open drain
and omitted to repair it over an extended period of time. Whether it had a legal duty
to take preventative action is to be determined by the established facts. Brand JA in
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd ,4 defined the
criterion of wrongfulness as follows:
‘It is sometimes said that the criterion for the determination of wrongfulness is “a general
criterion of reasonableness”, ie whether it would be reasonable to impose a legal duty on the
defendant (see eg Government of the Republic of South Africa v Basdeo and Another 1996
(1) SA 355 (A) at 367E - G; Gouda Boerdery BK (supra ) in para [12]). Where that
terminology is employed, however, it is to be borne in mind that what is meant by
reasonableness in the context of wrongfulness is something different from the
reasonableness of the conduct itself which is an element of negligence. It concerns the
reasonableness of imposing liability on the defendant (see eg Anton Fagan 'Rethinking
wrongfulness in the law of delict' (2005) 122 SALJ 90 at 109). Likewise, the “legal duty”
referred to in this context must not be confused with the “duty of care” in English law which
straddles both elements of wrongfulness and negligence (see eg Knop v Johannesburg City
Council 1995 (2) SA 1 (A) at 27B - G; Local Transitional Council of Delmas v Boshoff 2005
(5) SA 514 (SCA) in para [20]).’ (Emphasis added.)

[19] Municipal immunity is irrelevant; the municipality’s liability turns on ordinary
delictual principles. Accordingly, I do not consider it necessary to deal with the
doctrine of ‘municipal immunity’ since it is trite that the doctrine no longer forms part
of our law. 5 Whether a breach of a legal duty arises, which would constitute

of our law. 5 Whether a breach of a legal duty arises, which would constitute
wrongfulness, depends on the legal convictions of the community, as articulated
in Le Roux and Others v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae ) (Le Roux v Dey )6 and Minister of Polisie v Ewels

4 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) para
11.
5 Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) para 26.
6 Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici
curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) (Le Roux v Dey).

(Ewels).7 The municipality’s statutory and common law duty to maintain public
infrastructure is uncontroversial; its failure to act would be wrongful if the legal
convictions of the community deem it so. Simply put, if the municipality failed to
ensure that the drain was properly covered and failed to prevent injury, then such
failure would be wrongful.


[20] In Minister of Safety and Security v Van Duivenboden (Van Duivenboden )8
Nugent JA said:
‘When determining whether the law should recognise the existence of a legal duty in any
particular circumstances what is called for is not an intuitive reacti on to a collection of
arbitrary factors but rather a balancing against on e another of identifiable norms . Where the
conduct of the State, as represented by the persons who perform functions on its behalf , is
in conflict with its constitutional duty to protect rights in the Bill of Rights, in my view, the
norm of accountability must necessarily assume an important role in determining whether a
legal duty ought to be recognised in any particular case.’ (Emphasis added.)
In Za v Smith and Another,9 Brand JA comprehensively defined the approach to
adopt in determining wrongfulness in a case of an omission and this Court would
accordingly give due consideration to public and legal policy considerations in its
determination of wrongfulness.10

[21] The question of whether there is a legal duty to avoid the risk or harm
eventuating in our law was affirmatively answered in Halliwell v Johannesburg
Municipal Council as follows:11
‘For the decision of the present dispute it is sufficient to say that where, in consequence of
some positive act, a duty is created to do some other act or exercise some special care so
as to avoid injury to others , then the person concerned is under Roman Dutch law liable for
damage caused to those to whom he owes such duty by an omission to discharge
it.’(Emphasis, added)


7 Minister van Polisie v Ewels 1975 (3) SA 590 (A) (Ewels).

it.’(Emphasis, added)


7 Minister van Polisie v Ewels 1975 (3) SA 590 (A) (Ewels).
8 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 21.
9 Za v Smith and Another [2015] ZASCA 75; 2015 (4) SA 574 (SCA) para 15.
10 The ‘policy and legal convictions of the community’ referred to by Brand JA are those stated in
Loureiro v Imvula Quality Protection (Pty) Ltd [2014] ZACC 4; 2014 (3) SA 394 (CC) para 53.
11 Halliwell v Johannesburg Municipal Council 1912 AD 659 at 672.

[22] I am mindful of this Court’s dictum in MTO Forestry (Pty) Ltd v Swart NO
(MTO Forestry), where the importance of making a distinction between wrongfulness
and negligence was emphasised:12
‘Despite a number of judgments of this court pointing out that wrongfulness and negligence
are indeed separate elements of a delict , there has been a debate in academic circles as to
whether it is important in the determination of liability for the two elements to be kept apart.
This commenced in 2006 with an article written by Professor Johan Neethling, a respected
academic, who expressed the view that certain factors such as foreseeability and
preventability of harm are relevant for the determination of both wrongfulness and
negligence, so that a degree of conflation of these two elements is inevitable – and that if a
degree of overlap can be accepted ‘without negating the distinctive functions of
wrongfulness and negligence as separate elements of delict’ it would not be a bad thing. A
riposte by R W Nugent to the effect that conflation of the two elements is always a bad thing,
was swift. F D J Brand, also entered this academic duel, and the debate continued for some
years. However, the cases that I have already mentioned, and further decisions both in this
court – such as Steenkamp, Fourway, Roux v Hattingh and Za v Smith – as well as in the
Constitutional Court – such as Le Roux v Dey – (this list is not meant to be exhaustive) led
me to comment in Pauw v Du Preez “(t)hat wrongfulness and negligence are two separate
and discreet elements of delictual liability which, importantly, should not be confused, can
now be accepted as well established in our law, academic criticism from certain quarters
notwithstanding”. Subsequently the Constitutional Court’s judgment in Country Cloud
essentially re-affirmed what I had said and justified the comment of F D J Brand, that the
debate on the issue was “rather sterile".’ (Emphasis added and footnotes omitted.)

Negligence and foreseeability

Negligence and foreseeability
[23] On behalf of the municipality it has been submitted that the trial court
conflated negligence with wrongfulness and causation. The municipality’s
submission on this aspect is flawed and it shows a misunderstanding of the interplay
between wrongfulness and negligence. Foreseeability (a negligence element)
informs whether a legal duty exists (wrongfulness), particularly where the risk is as
obvious, as here. It is however necessary to analyse the failure of the municipality to
have taken preventative steps by covering the drain or cordoning it off, and to
determine whether the harm was foreseeable and whether the municipality ought to

12 MTO Forestry (Pty) Ltd v Swart NO [2017] ZASCA 57; [2017] 3 All SA 502 (SCA); 2017 (5) SA 76
(SCA) (MTO Forestry) para 17.

have acted and prevent the harm caused. The test for negligence as defined in
Kruger v Coetzee13 is:
‘For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
This has been constantly stated by this Court for some 50 years. Requirement (a)(ii) is
sometimes overlooked. Whether a diligens paterfamilias in the position of the person
concerned would take any guarding steps at all and, if so, what steps would be reasonable,
must always depend upon the particular circumstances of each case.’
The test for negligence is therefore well established. However, in omission cases,
some overlap between wrongfulness and negligence is inevitable. For instance,
foreseeability – a negligence concept – may inform whether a legal duty exists
(wrongfulness), particularly where the risk is obvious (such as an open drain in a
residential area). This overlap does not conflate the elements but reflects the
practical reality that policy considerations (wrongfulness) and reasonable conduct
(negligence) are interdependent in omissions.

[24] Given the grave risk posed by the open drain, it is not unreasonable to have
expected the municipality to take preventative steps to either repair the drain or to
secure the site to no longer pose a risk to the members of the community. The
municipality failed to do so.

[25] The legal convictions of the community require that where the municipality
had knowledge of the open drain, a failure to attend to and cover it would be
wrongful. Such knowledge of the danger posed, coupled with the failure to take
appropriate remedial action, constitutes negligence and gives rise to delictual
liability.14


13 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-H.

liability.14


13 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-H.
14 Van Vuuren v eThekwini Municipality [2017] ZASCA 124; 2018 (1) SA 189 (SCA) ( Van Vuuren)
paras 21 and 24.

[26] A careful analysis of the evidence led at the trial reveals two mutually
conflicting versions: the version of the appellants and their witnesses that the drain
was uncovered and that reports were made to the municipality over a period of time
that it posed a danger to the residents in the area, and the version of the municipality
that it had no knowledge of the uncovered drain in Grootboom Street which could be
potentially harmful, or that it had received any reports of the uncovered drains.

[27] Neither the trial court nor the full court made any adverse credibility findings
against the appellants’ witnesses. Accordingly, the only factual finding that could
have been made by the full court, based on the facts, was that reports regarding the
open drain were made and that the municipality had knowledge of the danger posed
by the open drain in Grootboom Street. The full court was misdirected in its
evaluation of the evidence presented at the trial, it did not have the benefit of seeing
and hearing the witnesses testifying and should have accepted the factual findings
that were made by the trial court in the absence of identifying a clear misdirection by
the trial court. It furthermore erred on the facts when it regarded the documentary
evidence presented by the municipality as sufficient to refute the evidence presented
by the appellants.

[28] The municipality was highly critical in its submissions to us of the fact that the
appellants’ witnesses did not keep a record of their complaints over the years . It is
difficult to comprehend why there would be a need for anyone to keep generally a
reference for such an excessively long period. Once a complaint has been made, the
duty to act shifts to the party to whom the complaint was made , in this instance the
municipality. There is no basis for this criticism of the appellants’ witnesses , given
the facts of this case. There was equally no evidence led by the municipality that as

the facts of this case. There was equally no evidence led by the municipality that as
a practice , they ask members of the public to keep reference numbers until the
complaint has been attended to.

Causation
[29] It was submitted on behalf of the municipality that the full court correctly
overturned the decision of the trial court since the municipality was not the cause

(legally or factually) of J[...]’s drowning. In Minister of Pensions v Chennell15 Denning
J stated the following:
‘. . . the test of causation is to be found by recognising that causes are different from the
circumstances in or on which they operate. The line between the two depends on the facts of
each case.’ (Emphasis added)
On the facts and the probabilities , as accepted in this matter , the most reasonable
inference is that J[...]’s death could have been prevented if the municipality had
acted timeously and in accordance with their dut y to repair or attend to the open
drain.
[30] It is trite that causation involves two distinct enquiries: factual causation,
which is present if the wrongful act caused the harm; and legal causation, which is
whether the act or omission is linked to the harm suffered and is not too remote. The
established facts overwhelmingly show that the open drain was the direct cause of
the harm that ensued, resulting in a direct nexus between the municipality’s failure to
fulfil its legal duty by covering the open drain timeously and the death of J[...] from
drowning in the drain. In my view, the aforesaid findings constitute factual causation.
Nugent JA in Van Duivenboden made it clear:16
‘A plaintiff is not required to establish the causal link with certainty, but only to establish that
the wrongful conduct was probably a cause of the loss , which calls for a sensible
retrospective analysis of what would probably have occurred, based upon the evidence and
what can be expected to occur in the ordinary course of human affairs rather than an
exercise in metaphysics.’ (Emphasis added.)

[31] The full court did not engage in a detailed analysis of the element s of
causation nor did it engage in an analysis of the applicable criteria of factual and
legal causation. It relied on its finding on wrongfulness as a basis for the finding that
causation was not proved. In doing so it was misdirected. I can find no policy

causation was not proved. In doing so it was misdirected. I can find no policy
consideration, nor were we referred to any, that would allow for the municipality to
escape liability for the harm it caused given the facts of this case.


15 Minister of Pensions v Chennell [1946] 2 All ER 719 (KB) at 721; also see Minister of Police v
Skosana 1977 (1) SA 31 (A) at 34 -35 defining causation and more recently being confirmed in De
Klerk v Minister of Police 2021 (4) SA 585 (CC) para 77.
16 Van Duivenboden above fn 8 para 25.

[32] Legal causation is determined by considering the omission and whether the
omission is the legal cause of the harm suffered as a result of the death of J[...]. Her
death was directly connected to the municipality’s wrongful and negligent conduct.
Thus, legal causation was proved.

Contributory negligence
[33] The municipality, in argument before this Court, persisted in claiming that if
this Court finds that it is liable, then this Court should find that the parents of J[...]
were also negligent. It was submitted that they had a responsibility to take care of
her and leaving her in the care of a 15-year-old child contributed to the harm caused.
Reliance was placed on Stedall and another v Aspeling and another (Stedall)17 in
support of this contention. In my view, Stedall is distinguishable. The facts are
remarkably different : the Stedalls were private homeowners when a child , visiting
their home with her mother, fell into the pool at their private residence , moreover
wrongfulness was never established. In this case , the evidence shows that the
municipality failed in its legal duty to ensure public safety in securing the drains
under their control.

[34] It is not unreasonable in many lower income households to have a n older
child being entrusted with the care of younger children . The full court erred in its
finding that nothing was known about R[...], the evidence of Ms O[...] was clear that
she had previously left J[...] in the care of R[...] without any problems. Thus, the
municipality has failed to establish contributory negligence on the part of Ms O[...], by
her in leaving J[...] in the care of a 15 -year-old child, who was staying with them, for
a short while.

Conclusion
[35] Since the municipality had a complaints system in place to deal with
complaints, it is clear that the municipality could not solely rely on the public to draw
their attention to hazardous drains: it has employees working in the area, attending

their attention to hazardous drains: it has employees working in the area, attending
to water leaks, electricity, sanitation or the like, and they are obligated to report any
open drains or any other hazardous items for these to be attended to. In fact, the

17 Stedall and another v Aspeling and another [2017] ZASCA 172; 2018 (2) SA 75 (SCA).

four open drains in Mielies and Grootboom Street on the day in question are
indicative that the employees had failed in their duty to report these drains . It is
inescapable that a legal duty was owed by the municipality to avoid negligently
causing harm to persons in the same position as J[...] on the day of her demise.18

[36] It is trite that the powers of an appeal court to overturn factual findings by a
trial court are restricted. 19 A court of appeal will not likely interfere with credibility
findings of the trial court in the absence of an irregularity or a misdirection. 20 The full
court, in the absence of any adverse findings made against the appellants’ witnesses
or any misdirection by the trial court in evaluating the evidence of the said witnesses ,
ought to have accepted the credibility findings of the trial court.

[37] The full court erred in its findings that the appellant s had not established
wrongfulness, negligence and causation. Its findings rested on a flawed re -
assessment of the evidence presented at the trial and an unjustified dismissal of the
municipality’s statutory duties, considering the facts of this case. The appeal against
the judgment of the full court accordingly succeeds . There is no reason why the
costs of the appeal should not follow the result.

Order
[38] In the result, I make the following order:
1 The appeal is upheld with costs, such costs to include the costs of two
counsel where so employed.
2 The order of the full court is set aside and replaced as follows:
‘The appeal is dismissed with costs.’



_________________________________
E J S STEYN
ACTING JUDGE OF APPEAL

18 Van Vuuren fn14 at para 29.
19 Beukes v Smith [2019] ZASCA 48; 2020 (4) SA 51 (SCA) para 22.
20 S v Livanje [2019] ZASCA 126; 2020 (2) SACR 451 (SCA) paras 18-25.

Appearances

For the Appellants: H J van der Linde SC with N Barnard
Instructed by: Lessing, Heyns & Van der Bank Attorneys Inc, Kariega
Webbers Attorneys, Bloemfontein

For the Respondent: A Byleveld SC with V Madokwe
Instructed by: McWilliams & Elliot Inc, Gqeberha
Honey Attorneys Inc, Bloemfontein.