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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NUMBER: 6934/2021P
In the matter between:
THAMSANQA WILSON MADUBANE PLAINTIFF

And

ETHEKWENI MUNICIPALITY DEFENDANT

JUDGMENT

P C BEZUIDENHOUT J:
[1] Plaintiff instituted an action against Defendant for damages resulting from
injuries he sustained after falling into a manhole at Ward 5[...] A[...], I[...], KwaZulu-
Natal 6 June 2019. As a result of a previous order that was granted the matter
proceeded only on the issue of liability. Defendant also raised a special plea that
there was non -compliance with the institution of legal proceedings against certain
organs of state Act 40 of 2002. This was however cured when an order was granted
that the notice provided by Plaintiff complied with the Act.

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[2] It is common cause between the parties that Plaintiff fell into the manhole and
that he was injured and that Defendant had a duty of care to ensure that the
manhole was safe and not hazardous. Defendant admitted a set of photographs
produced by Plaintiff and it was handed in as exhibit “A”.

[3] Plaintiff testified that on 6 June 2019 at 19h45 in Ward 5[...] A[...], I[...] there
was loadshedding and the area was in total darkness. He then went to a shop
nearby to purchase a candle. He walks this route about 3 to 4 times a week to go to
the shop. It is a pavement along which he walks. As he was walking he f ell into in a
manhole and his whole body went into the manhole and a steel iron on the inside of
the manhole penetrated his leg. He had to be pulled out of the manhole. In exhibit
“A” the open manhole into which he fell can be seen. He took the photographs the
next morning 7 June 2019 when he was on his way to the doctor. There are various
photographs of the manhole as well as all the garbage that was inside the open
manhole which is on the pavement and close to a fence.

[4] He testified that previously red tape had been placed across the manhole but
on the evening when he went to the shop it was no longer there. The red tape was
used to alert the people about the open manhole. On photograph 5 red tape can be
seen on the side of the manhole where there is a steel rod and also against a fence
which is next to the manhole on photograph 6. He stated that he was in a hurry
because it is dangerous in the area, it was dark and he had to get to the shop to
purchase a candle due to the loadshedding. It has been reported to Defendant that
the manhole is open. After he was pulled out he went to the shop and purchased a
candle and returned home.

[5] During cross examination he admitted that he knew where the manhole was
but that it previously had red tape around it to indicate the open manhole. He was

but that it previously had red tape around it to indicate the open manhole. He was
not sure who had placed the red tape there but was sure that it was members of the
authorities because people in the area would not have such tape. He stated that
although he was in a hurry he was not able to know where exactly the manhole was

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as it was not demarcated and it was dark. Photographs of his injuries were handed
in as exhibit “C”. These photographs were taken when he returned from the shop. It
was put to him that as soon as Defendant became aware of the manhole, they
attended to it and repaired it. He stated that it had been open for months before and
that it was reported and no notice was taken of it. He personally did not report it. He
stated that the only person who knew about his injury is the councilor who stated it
had been reported.

[6] The next witness for Plaintiff was Mrs. Madubane, the wife of Plaintiff, who
recalled the incident and the injury sustained by Plaintiff. She knew where the
manhole was and that the manhole cover was missing. It had been left open for
some time . At one stage the manhole was cordoned off with red and white tape.
When Plaintiff returned home he was limping and she then treated his wounds and
bandaged it. That was the case for Plaintiff.

[7] Bharatary Govender, employed by Defendant as a senior manager in the
engineering and storm water maintenance departments testified that he was
responsible for the northern region which includes 5 depots, such as the greater
Inanda, Verulam, Tongaat and Phoenix areas. He knows about the claim. The area
where the incident happened was within his area of responsibility. The depots have
workers in the area to attend to defects includ ing repairs to storm water drains.
There was pro active and reactive work which was done and the proactive is when
they as a department identify any defects and reactive when they react to report
which are received. Staff report to him and there are road inspectors wh o inspect
the areas. I n rural areas such as this area they are inspected about once every six
months.

[8] There was a call centre to which public complaints were sent . Manhole
complaints came to his department. They normally receive such complainants within

complaints came to his department. They normally receive such complainants within
24 hours. It is sent through by the site inspection officer. Once it has been reported
it is repaired within ten days. There was no complaint received about this manhole

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and he had no record thereof. He however did not produce any records of reporting
etc. to indicate that it had not been reported. At the end of January 2019 an
inspection was done in ward 5[...]. No defect was reported. The next inspection was
on 13 June 20 19 when it was found that the lid was removed. This was after the
said incident and was repaired within a week. He confirmed, under cross
examination, that the proto col was from 2024 and although there were specific
processes in place during 2019 he could not state exactly what they were and how
they were different from the present policy. The reporting process has been the
same since 2010.

[9] If an open manhole was found then it would be barricaded. Something would
be put around it. He stated that tape would have required poles and was not
generally used to cordoned off. They work with the councilors in the area and have
meetings with them and also receive telephone calls from them. It was possible that
it could have been reported to his department. It should then have been recorded
under public complaints which are all captured.

[10] The next witness was Siyanda Ngwenya who is employed as a technician
with Defendant and was employed as such during 2019. He we nt to investigate the
damage seven months after the incident. This was because of the insurance claim.
He checked the system but could not find that it was reported. He noticed that it was
then covered with a lid. They only became aware of it on 13 June 2019 and it was
repaired by 19 June 2019. The road inspector inspected it and he had to determine
the damage. He had pictures but did not know where it was. It was explained to him
that it was not far from the tavern. He could not say if a report was made but did not
find such. He only went there months after it was covered. They rely mostly on the
public to report. That was the case for Defendant.

[11] It was submitted on behalf of Plaintiff that the evidence of Plaintiff was largely

[11] It was submitted on behalf of Plaintiff that the evidence of Plaintiff was largely
uncontested and the fact that that the manhole was left open for months and had
been cordoned off with tape at some stage. This was also visible on the

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photographs. Plaintiff did not exaggerate his evidence and his evidence was also
corroborated by Ms. Madubane. The evidence of Plaintiff was truthful and should be
accepted.

[12] The witnesses of Defendant had no personal knowledge of the incident and
they relied on protocol that was established in 2024 and had no direct evidence as to
what the position was in 2019. They denied that they had any knowledge of the
uncovered manhole and did not have any report from a councilor. Mr. Govender
could not explain the red tape which was visible on the photographs indicating that it
must have been cordoned off at some stage and claimed that the manhole was
discovered by them. It was submitted that the only defence is that they had no
knowledge of the manhole being open. There was no documentary evidence
produced by any of the two witnesses who did not have personal knowledge of this
manhole.

[13] It had to be accepted that it was dark, the manhole had previously been
cordoned off, there was a high crime rate, there was loadshedding and that
Defendant was responsible to cover the manhole and further that Defendant did not
discharge the onus of proving any contributory negligence on the part of Plaintiff.

[14] It was submitted on behalf of Defendant that it was not a blanket liability for
municipalities but that it had to be considered case by case and Plaintiff bears the
onus on a balance of probabilities to establish his claim. Plaintiff had to prove that
there was conduct, either an act or an omission, wrongfulness, negligence,
causation and that harm was suffered. Defendant was not aware of it and therefore
no negligence can be attributed to it. It has a vast network of roads with limited
resources to attend to. Its proactive approach is that road inspectors do inspect the
roads and manholes at times. It also relies on the public to report. The single
inspector had to cover a road network of about 1 500km and Defendant could not

inspector had to cover a road network of about 1 500km and Defendant could not
have foreseen the harm in question. There was thus no negligence on its part.

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[15] It was further submitted that if it was found that Defendant was negligent
Plaintiff was contributory negligent, that he knew about the manhole and the danger
it posed and went past it three to four times a week. He should have taken action to
avoid the manhole. It was therefore submitted in the circumstances that Plaintiff was
also negligent and that there should be an apportionment between the parties on an
equal basis.

[16] As Plaintiff’s action is based on actio legis aquiliae he had to prove that
Defendant’s employees conduct albeit by omission was wrongful and negligent. It is
therefore wrongfulness, negligence, causation and contributory negligence. I was
referred to the decision in Minister of Safety and Security v Van Duivenboden 2002
(6) SA 431 SCA that legal causation is determined by considering the omission and
whether the omission is the legal cause of the harm suffered. It was further the
contention that Defendant had to prove contributory negligence.

[17] The evidence which is uncontested is that the manhole was left open for
some months. It is also not disputed that Plaintiff fell into the manhole and sustained
certain injuries. Defendant also admits it had a duty of care. The defence of
Defendants is mainly that they were unaware that the manhole was open and that
they inspected it every six months and had inspected it six months before the
incident occurred. The evidence of Plaintiff that he reported it to the councilor who
stated that he had previously reported the open manhole was also not disputed. The
persons who conducted the inspections on behalf of Defendant were not called as
witnesses. Nor was any documentary evidence produced as to the reporting
indicating that no report was made in respect of this open manhole. The defence of
Defendant was basically that as it inspected it at intervals, received no report about
the open manhole. It has limited resources. This was only raised in argument. I f it

the open manhole. It has limited resources. This was only raised in argument. I f it
knew about the open manhole it would have done something about it.

[18] In the case of Johannes Diederick Le Rloux NO v The Nelson Mandela
Municipality [2025] ZASCA 122 it was held that municipal employees conduct albeit

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by omission could be wrongful and negligent. In that case a manhole was also left
open for a long period of time. Despite being informed of it, it was not repaired which
led to the death of a young child. The municipality therein also raised the defence
that it never received complaints and that there was no record thereof. They did
produce certain records to indicate that it was never reported. It was held in
paragraph 19 of the judgment that if the municipality failed to ensure that the drain
was properly covered and failed to prevent injury then such failure would be
wrongful. It had a duty to do some act or exercise some special care to avoid injury,
otherwise it would be liable for damages caused when it owes such duty caused by
an omission.

[19] In the present matter it is therefore uncontested that Defendant, has a duty to
ensure that the manhole is covered but it failed to do so. It is uncontested that it was
open for some time which was a danger to the community . The photographs also
indicate that there was danger tape over it at some stage. B y failing in its duties it
was accordingly negligent and therefore liable for any damages which any person
would have suffered due to being injured as a result of the open manhole. The fact
that Defendant may have limited resources which was not the evidence led by
Defendant but was submitted is not a defence to its duty to ensure that the manholes
are covered.

[20] Plaintiff was a good witness whose demeanour was good and he gave his
evidence straight forward and conceded issues at times. I accept his evidence.

[21] Defendant’s witnesses were also truthful but they had no personal knowledge
of the manhole. They also produced no documents that it was not reported. The
fact that it had been inspected during January 2019 was also hearsay. They were
therefore unable to testify about the manhole and conceded that it may have been
reported.

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[22] On the issue of contributory negligence it is clear that Plaintiff was aware of
the open manhole as it has been there for some time. He however stated that it was
previously covered with danger tape and was therefore visible. However on the
evening in question due to loadshedding it was very dark and he was unable to see it
as the tape had been removed. It would accordingly appear to me that in these
circumstances it cannot be found that Plaintiff was also negligent in the
circumstances. It was never during cross examination clarified with Plaintiff as to
why he did not walk in the road and not on the pavement if he knew that the manhole
was open. He did testify that it was dangerous in the area, that he was scared as it
was pitch dark and wanted to obtain a candle. In the circumstances taking into
account the evidence and the conditions that evening it cannot be found that there
was contributory negligence by Plaintiff.

Accordingly the following order is made:
Order:
1. Defendant is to compensate Plaintiff 100 per cent for any proven or agreed
damages.
2. Defendant is to pay the costs of the action.



____________________
P C BEZUIDENHOUT J.

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JUDGMENT RESERVED ON: 28 OCTOBER 2025
JUDGMENT HANDED DOWN ON: 5 NOVEMBER 2025

COUNSEL FOR PLAINTIFF: Z RASOOL
Instructed by: A C De Sousa Attorneys
Umhlanga
Tel: 031 880 1309
Email: lungelo@acdsattorneys.co.za
Ref: AS/LM/SB/OM/MAD21/0001
c/o: Viv Greene Attorneys
Pietermaritzburg

COUNSEL FOR DEFENDANT: V V LUBELWA
Instructed by: Luthuli Sithole Attorneys
Durban
Tel: 031 312 2327
Email: mpendulo@luthulisithole.co.za
Ref: E00669/GM/CJ
c/o TMJ Attorneys

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Pietermaritzburg