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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO.: 2044/2023
In the matter between:
BADEN BRENTON SCHOEMAN Plaintiff
and
NELSON MANDELA BAY MUNICIPALITY Defendant
JUDGMENT
GQAMANA J
Introduction
[1] In this matter the plaintiff instituted damages claim against the defendant as a result
of injuries he sustained when he allegedly fell in a hole on the sidewalk at 3 rd Avenue
Windvogel, Gqeberha on 26 March 2023. As a result of the fall, he sustained a tibial
plateau fracture in his right knee and was treated at Livingstone Hospital. The hole was
excavated by the defendant’s employees on 24 December 2021.
[2] The plaintiff attributed negligence to the defendant on the basis that its employees
failed to fill the hole, alternatively to cover the hole, further alternatively to cordon off the
hole, which was not visible to him due to the presence of overgrowth and litter.
[3] The defendant has denied that the plaintiff fell in the hole. Further i t also denied
negligence, and in amplification thereof, it pleaded that the hole upon completion of the
excavation work was adequately cordon -off in a manner that would have sufficiently
warned any person approaching that vicinity, which was in any event o utside the usual
pedestrian path and was not part of any designated walkway. As an alternative, the
defendant also pleaded contributory negligence in that the plaintiff failed to keep a
proper lookout where he was walking. The trial proceeded only in respe ct of liability with
the issue of quantum postponed sine die.
Issues
[4] The issues which I was called to determine were the following :
(a) whether the plaintiff fell into the hole as pleaded;
(b) whether the defendant discharged its legal duty by cordoning off the hole;
(c) whether plaintiff’s fall was caused by the negligence of the defendant’s
employees; and
(d) in the event negligence is determined in favour of the plaintiff, whether there
was contributory negligence.
Plaintiff’s evidence
[5] The plaintiff testified and also called Mr Roger Gysman in support of his claim. Below
herein is the summary of their evidence.
[6] The plaintiff’s narration of events under which the incident occurred was that: on the
date of the incident, he had visited his friend Mershine at his backroom flatlet at no:
2[...], [...] Avenue Windvogel, where they had spent the night socialising, smoking
hookah pipe and drinking beers . In the early hours of the morning at approximately
between 03h00 and 04h00a.m, on his way out to g et a hookah pipe coal, at a house
further up the street, he used the small gate, which I shall refer to as the pedestrian
gate. He took one or two steps and fell in the hole in a forward motion to the ground and
was unable to get up. It was dark and the s treetlights were off because they were
broken, hence he did not see the hole before he stepped into it. He screamed for help
and Mershine and another gentleman (whom he does not know his name), came to his
assistance. He was taken to the backroom flatlet. He felt immense pain and he
requested Mershine to take him home. His evidence was that he was sober although
his friends and him had drunk two or three beers throughout the night.
[7] On arrival at his home, he asked his father to take him to Livingstone hospital. He
was treated at hospital for a right knee injury.
[8] The cross-examination commenced with shots fired exposing internal contradictions
and inconsistencies on the case pleaded in the particulars of claim and the plaintiff’s
evidence in chief. In the particulars of claim it was pleaded that the hole was not visible
‘due to the presence of overgrowth and litter’. But in his evidence in chief, his version
was that he did not see the hole because it was dark. In desperation to rescue himself,
he testified that the hole was ‘closed’ with rubbish and litter and there was nothing that
prevented him from falling. At the end he said he did not see hole because of both the
darkness and overgrowth and litter.
[9] Further, the plaintiff was grilled about th e crucial omission on his original particulars
[9] Further, the plaintiff was grilled about th e crucial omission on his original particulars
of claim. It was pointed out to him that the exact place where he allegedly fell was not
pleaded. The case pleaded was that he was walking in [...] Avenue, Windvogel and he
stepped into an insufficiently demarc ated excavation site, as a result of which he
sustained injuries to his right leg. On both the original and the amended particulars of
claim, it was not mentioned that he fell in front of house no: 2 [...] [...] Avenue,
Windvogel. Plaintiff conceded that [...] Avenue is a big area.
[10] It was pointed to him that the case pleaded was that, he was walking on the
sidewalk when he fell into a hole. But in his evidence, he fell on the grass verge in front
of the pedestrian grate as depicted in photograph 2 of exhibit A, the photo album
depicting the scene of the incident. The hole was a meter and a half or a meter from the
pedestrian gate. He also mentioned that he used the main gate to enter his friend’s
premises, hence he was not aware of the presence of that hole. But on his way out to
get the hookah pipe coal he exited through the pedestrian gate which was closer.
[11] Plaintiff was also cross -examined at length about the information on his hospital
records. It was apparent that his evidence on how he sustained the in juries was
incongruous with the information contained in the hospital records. He was grilled about
the fact that in the hospital records he did not mention that he fell into a municipal hole.
The information on the hospital records indicated that on admis sion, the plaintiff
informed the doctor at casualty that he sustained the injuries when he fell in the morning
at home.
[12] Further it was drawn to the plaintiff that he informed Dr Grant that he missed the
step on pavement on the road and fell on his rig ht knee, contrary to the case pleaded
and his evidence in chief.
[13] Again he was shown the contradiction between his evidence and information
recorded by Ms Matiwane in the hospital record.
[14] To conclude the cross examination it was put to him his version was an
afterthought designed to align his case in law for the purpose of holding the defendant
liable. It was also the defendant’s line of cross examination that after the hole was
liable. It was also the defendant’s line of cross examination that after the hole was
excavated it was sufficiently cordoned off by a net which was put on top of the hole. The
plaintiff denied that and testified that the hole was not ‘closed’ and was no signage.
Furthermore, it was put to him that after the hole was dug, it was ‘half backfilled’, the
plaintiff denied that proposition.
[15] In re-examination the plaintiff was shown a memorandum dated 12 April 2023 from
Livingstone hospital where the doctor recorded the following that:
“His injury was as a result of Mr Schoeman falling into an insufficiently demarcated
excavation site”
[16] The second witness was Mr Roger Gysman, an adult male person who resides at
No. 2[...] [...] Avenue, Windvogel. Mr Gysman is the elder brother of Mershine Gysman,
the plaintiff’s friend. He did not see how the plaintiff fell but he was made aware of the
incident after it happened. On the morning in question, the plaintiff came and knocked at
the front door of the main house looking for the coal for a hookah pipe. He opened the
small door and informed the plaintiff that he did not have it, and he then closed the small
door. He went to the toilet and after a while he had the plaintiff screaming for help.
When he went to look, he saw Mershine and another guy carrying the plaintiff inside to
the back servant’s quarter. When he asked what had happened, plaintiff said he fell
inside the hole, but it was nothing major he was okay. He closed the small door and
went back to sleep.
[17] He also testified that he took the photographs in exhibit “A” a week or two after this
incident at plaintiff’s request. He testifi ed in detail about what is depicted each
photograph. He also confirmed that on the morning of the incident the streetlights were
physically broken and were not working and it was dark outside. Furthermore, the
outside light at his own house had a blown fus e and as such there was no light from the
house.
[18] He gave detailed evidence on how and when the hole was excavated by the
municipal employees. His version was that, on 24 December 2021, the municipal
employees were called to fix a burst water pipe. They came with a TLB to dig up the
hole in order to sort out the burst water pipe. It was during that process that the
underground power cable was damaged. The fixing of the problem continued until the
early hours of Christmas Day. After the work was finished, they left.
[19] At about 12o’clock midday on Christmas Day they came back to fix it properly. The
burst water pipe was fixed properly, but with the power cable they made a temporary
connection. The hole that was dug by the TLB was left ‘just like t hat’ and there was a
net that was thrown over the hole. The net was red and yellow or white.
[20] The hole was completely filled in 2023 or in 2024 after this incident.
[21] In cross examination he testified the hole that was dug by the TLB was ‘a big hole
and dangerous hole’ and it was closer to his property. Because of that he would often
advise and alert his visitors about the presence of that hole. He also mentioned that on
22 November 2022, he noticed sparks coming out the power cable from that ho le. He
often warned and shouted at the children not to kick the ball closer to that hole because
it was dangerous. The plaintiff was not warned not to use the pedestrian gate. It was
the big gate that the visitors would regularly use to enter and exit his premises because
it was always open.
[22] It was put to him that the hole was half backfilled and cordoned off, but he
disputed that. His version was that the hole was left like that with a net thrown over it.
[23] There was no re-examination and the plaintiff’s case was then closed.
Defendant’s case
[24] For the defendant’s case three witnesses were called. The first witness was Mr
Bukotso Segatle, an acting superintendent in the electricity and energy department of
the defendant. He is in char ge of investigations of all claims against the defendant that
originates from his department. Relevant hereto he investigated the underlying claim
made by the plaintiff that he fell in the hole that was not covered by the municipality and
sustained injurie s. Such investigation was conducted shortly before this trial
commenced.
[25] The first thing he did was to look on their internal system to see why the hole was
dug. He could not find anything on the system; there was no complaint registered about
power going off in that area at that time. There was never a complaint from the
neighbours of the uncovered hole. There was no information at all from their system
relating to this particular incident. There being no information from the system he
consulted and also visited the site with the senior superintendent in charge of the area
concerned.
[26] On the site, the superintendent mentioned that there is an underground voltage
(electrical) cable that carries about 400 volts running in that path about 500 m illimeters
from the wall. He could also see that there was work done by the municipality in that
area. Seemingly the employees from the electricity department attended to repair a
cable which was damaged by water section.
[27] He testified that , on information given to him temporary supply to fix the cable was
employed. He had no personal knowledge of this matter, but he testified that according
to the standard operation procedure, after finishing installing the temporary supply the
hole would b e backfilled to about 300 millimeters. The hole would be barricaded and
cordoned off. A visible nett would be put on top of the hole. They would try by all means
to come back as quickly as possible to do the permanent repair and complete backfill of
the hole. The cable pipe is about a half a meter underground. During his visit to the site
there was no hole, but he had no information on when it was backfilled completely.
[28] Under cross -examination he admitted that the hole was excavated by the
[28] Under cross -examination he admitted that the hole was excavated by the
defendant’s employees from water section in order to fix the burst water pipe and in the
process, the electrical cable was damaged.
[29] He also admitted that he had no personal knowledge whether or not the hole was
backfilled and the volume of work for that a rea which could have contributed to the
delay to backfill the hole completely. He could not dispute that the hole was fixed
completely only in 2023, although it was excavated on 24 December 2021. It was put to
him that 11 months after the municipality dug the hole and did the work, there were
flames coming out of the hole incongruous to his testimony that the hole was backfilled.
However, he stuck his guns that it was impossible to have sparks coming out of the
voltage cable once the hole is backfilled.
[30] He also conceded that the netting which was apparently used to cover the hole was
not stable in that, if a person stepped on it, he or she would still fall into the hole.
However, he capitulated and mentioned that the netting is there to alert members of the
public of the danger. The net was visible even if it’s dark if a pedestrian keeps a proper
lookout at the ground in front of him where he walks.
[31] The second witness was Mr Lauren Geswindt, an acting senior superintendent at
the department of water works. He testified that his department is responsible for fixing
burst water mains and service leaks covering the Windvogel area.
[32] His evidence was that on 24 December 2021, his department received a call
about the burst water main near hou se no 20, 3rd Avenue, Windvogel and he was
amongst those employees that attended to repair the water problem. On his arrival he
found that there was a burst water main and they needed to shut the water to do the
repairs. They had to use a TLB to excavate and to get to the burst water pipe. While the
TLB was digging it damaged the underground electrical cable. Because of that he called
the senior superintendent at the electricity department and informed him about the
damaged electrical cable. The energy and electricity department came to switch off the
damaged electrical cable. The energy and electricity department came to switch off the
electrical cable so that the water department could continue with their work to repair
burst water mains. After they finished with the burst water pipe, they backfilled the burst
water main underneath the elect rical cable. The water pipe was 1.5 meters deep
underground and the hole was backfilled up to a half a meter which was just underneath
the electrical cable. They left the employees from electricity department still working on
the electrical cable.
[33] In cross examination he admitted that when they left the site there was a half a
meter hole where the electrical department had to do their part of the job and then fill it.
Nothing much of controversy came out the cross examination of this witness.
[34] The third witness was Ms Nompumelelo Matiwane, a professional nurse working at
Livingstone hospital in the male orthopedic ward. She has eight years of working
experience as a nurse in the same ward. Her home languages are isiXhosa, Afrikaans
and English. Her evidence was that she received the plaintiff at her ward on 30 March
2023 based on the information from the hospital records. The hospital records were
handed in as exhibit D. Before that there were other medical staff who would have
attended t o him right from the casualty. When the plaintiff arrived at the orthopedic
ward, he was put on the bed, and she then asked him in English what had happened.
The plaintiff responded that he missed a step at home and fell on his right knee. The
plaintiff was well orientated and alert at the time. She recorded that information on the
plaintiff’s hospital file and she signed it. She also obtained the vitals and recorded same
in the file as well. The plaintiff had a right knee fracture. She disputed that the plaintiff
was confused and not orientated. She was adamant that she wrote down everything
said by the plaintiff because it is critical to know the history of the patient. At no stage
did the plaintiff mention to her that he sustained his knee injury by fal ling into a
municipal hole.
[35] In cross examination she repeated her evidence that everything the plaintiff said to
her was written down in the file. Again, she was clear that it was very important to know
her was written down in the file. Again, she was clear that it was very important to know
the patient’s history. With few questions in re- examination, the defendant’s case was
closed.
Discussion
[36] The plaintiff bears the onus to prove that the injury he sustained was attributed to
the negligence of the defendant. The plaintiff was a single witness on how he stepped
into the hole and fell. The plaintiff as the party who bears the onus, his evidence must
be credible to the extent that his uncorroborated evidence satisfies the court on
probabilities it is the truth 1. Even though a plaintiff’s evidence is uncontroverted, its
acceptability depends upon its quality 2. The court must consider its merits and demerits
and decide whether, despite any shortcomings or defects in the evidence, it is satisfied
that the truth has been told.
[37] The credibility of the witness and proba bility must still be considered. If the
evidence is vague or contradictory or highly improbable, a plaintiff in such a case would
not have discharged the onus.3
[38] Where there are contradictions on the disputed facts, the correct approach is that
set out in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and
others4.
[39] From the onset I must mention that there are different versions before me on how
the plaintiff sustained his injury. In the original particulars of claim the v ersion pleaded
was that: he stepped into an insufficiently demarcated excavation site whilst walking.
That version changed in his amended particulars of claim. The version pleaded is that:
he was a pedestrian at the time he fell into a hole on the sidewalk . In court he gave
another version. His evidence was that he took one or two steps, and he fell into a hole
in forward motion on the ground in front of ‘the small gate.’ These contradictions were
unearthed during his cross examination.
[40] Besides the ab ove versions, there is another different version given by him on
1 Botha v Kirk Attorneys (ECD 757/2016) [2019] ZAECELHC (22 January 2019).
2 Harding v Nelson Mandela Bay Municipality (2446/2022) [2023] ZAECQBHC 65 (5 December 2023)
para 21.
para 21.
3 Nelson v Marich 1952(3) SA 140 (A) at 149 A-D.
4 2003(1) SA 11 (SCA) para 5.
admission at the orthopedic ward at Livingstone hospital. That version is that he missed
a step and fell at home. A witness, Ms Matiwane, was called by the defendant to
confirm the notes that she had written on the plaintiff’s hospital file. Although the plaintiff
is Afrikaans speaking the conversation between him and Ms Matiwane was in English.
Ms Matiwane is also fluent in Afrikaans, her home languages are English, Afrikaans and
isiXhosa. Therefore, the issue of a language barrier does not come to the fore. There
was suggestion that the plaintiff had taken medication and was confused when he gave
that information, but Ms Matiwane refuted such suggestion and stuck to her evidence
that the plaintiff was well orientated and alert at the time.
[41] In attempt to salvage the plaintiff, Mr Niekerk referred me to an entry dated 12
April 2023 in the hospital re cord which indicates that the plaintiff’s injury was as a result
of him falling in an insufficiently demarcated excavation site. The person who made that
entry was not called by the plaintiff and there was no agreement on the correctness of
the content of such records. In light thereof not much weight can be attached to such
entry or information. In my view, the testimony of Ms Matiwane in relation to the
plaintiff’s history, that she was informed by the plaintiff that he missed a step and fell at
home is a credible version. Ms Matiwane has no interest in this matter, and she was a
completely independent witness. She impressed me as an honest and reliable witness.
[42] The plaintiff also gave three different versions of the reasons that he could not see
the hole before he stepped into it and fell. For instance, the case pleaded on his behalf
is that the hole was not visible because of ‘overgrowth and litter’. But his evidence in
chief was that, the invisibility of the hole was caused by darkness due to t he streetlights
not working. However, in cross examination he gave a third version. According to that
not working. However, in cross examination he gave a third version. According to that
version, his visibility was obstructed because of both overgrowth and litter and
darkness. Despite the opportunity given to him to explain these contradic tions, he was
unable to do so.
[43] The plaintiff was not a good witness. I am alive to the fact that he testified through
an interpreter. Indeed, the services of the first interpreter 5 had to be terminated in the
middle of the cross examination. But a second interpreter was procured again by his
own attorney. I do not agree with Mr Niekerk’s submission that the plaintiff’s credibility
was compromised because of the quality of interpreters. Throughout the evidence in
chief, the issue of the competency of the interpreter did not arise at all. It was through
the heat of cross examination that the interpretation came to the fore when the plaintiff
was unable to answer questions posed to him by the defendant’s counsel. When the
second interpreter was procured, the plaintiff still could not surf well on the rough waves
of questions exposing the internal and external contradictions in his version. In my
overall assessment the plaintiff was an unreliable and poor witness.
[44] The plaintiff’s evidence consi dered as a whole and objectively left me with the
impression that it was a fabricated version designed to align it to his cause of action and
claim with the purpose of holding the defendant. The material inconsistencies and
incongruities mentioned above re nder his version incredible and consequently it is
rejected.
[45] Accordingly, the plaintiff has failed to discharge the onus on the balance of
probability that his version is the truth and that his knee injury was as a result of a fall in
the hole which was left uncovered by the defendant’s employees.
[46] There is no reason for the costs not to follow the results.
Order
[47] In the circumstances, the following order shall be issued:
1. The plaintiff’s claim is dismissed.
2. The plaintiff is ordered to pay the defendant’s costs on a party and party
scale including the costs of Counsel on scale B.
5 He was arranged by the plaintiff’s attorney.
N GQAMANA
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Plaintiff : Adv D Niekerk
Instructed by : Swarts Attorneys
Gqeberha
Counsel for Defendant : Adv X Nogantshi
Instructed by : Rushmere Noach Inc.
Gqeberha
Heard on : 28–29 May and 23 July 2025
Judgment delivered on : 28 August 2025