IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between:
VERNA MERSHALL MANUEL
And
SUPERCARE SERVICES GROUP (PTY) LTD
Coram:
Heard:
Da Silva-Salie et Slingers JJ et Njokweni AJ
29 August 2025
Delivered: 18 November 2025
Not reportable
Case no: A221/2024
Court a quo: 16349/2017
Appellant
Respondent
Summary: Delictual claim for damages - slip and fall - shopping Mall liability for
undetected spillages - quiescence - deeming provisions - legal duty - liability of
cleaning contractor expressly excluded - res ipsa loquitur - chartaprops principle
considered - negligence - public policy considerations - appeal dismissed.
ORDER
1 The appeal is dismissed.
2 Appellant shall pay the respondent's costs of the appeal (which shall include
costs of the application for leave to appeal), with counsel costs to be on
scale B.
Page 2 of 13
JUDGMENT
Njokweni AJ:
INTRODUCTION
[1] This is an appeal against the whole of the judgment and order of the Court a
qua of 18 March 2014, per Maher AJ dismissing appellant's delictual claim. The appeal
is w ith leave of the court a qua.
RELEVANT FACTS
[2] On 9 November 2016, Ms. Verna Mershall Manuel (the appellant) visited
Zevenwacht Mall, Kuilsriver, Cape Town ("the Mall") when she slipped and fell on
(what is believed to be) a chip in a walkway fracturing her wrist ("the incident").
[3] The Mall is owned by Investec Properties (Pty) Ltd ("Investec"). Broll Property
Group (Pty) Ltd ("Broll") was contracted by Investec to manage the Mall, including
cleaning and maintenance. In turn, Broll appointed Services Group (Pty) Ltd
("Supercare") as an independent cleaning contractor to provide cleaning services at
the Mall.
The appellant's pleaded case
[4] Appellant alleged that Broll and Supercare had a legal duty to her to ensure,
inter alia, that the Mall surfaces were kept dry and free of slippery substances and that
adequate measures were taken to prevent harm arising to anyone (in particular the
appellant). The appellant further averred that Broll and Supercare could and should
have prevented the incident by exercising reasonable care and/or skill and/or diligence
by timeously spotting the "slap" chip on the floor of the Mall and remove it. Broll's and
Supercare's failure to do so was wrongful and unlawful.
Page 3 of 13
[5] Appe llant pleaded further that Broll and Supercare negligently failed to exercise
reasonable care and/or skill and/or diligence by not timeously spotting the "slap" chip
on the floor of the Mall and removing it. As a result, she slipped on the spilled chip and
fell thereby injuring her wrist.
[6] The appellant contends that because the incident is admitted by both Broll and
Supercare the inference or evidentiary principle of res ipsa loquitur principle is
applicable to this matter and thus negligence against Broll and Supercare should be
inferred. Broadly stated, res ipsa loquitur (the facts speak for itself) is a convenient
Latin phrase used to describe the proof of facts wh ich are sufficient to support an
inference that a defendant was negligent and thereby to establish a prima facie case
against him. It is not a presumption of law, but merely a permissible inference which
the court may emp loy if upon all the facts, it appears to be justified.1
[7] Appe llant further averred that Broll and Supercare did not have an adequate
cleaning system in place to promptly detect the chip spillage and attend to it within a
reasonable time and if they had (as they should) could and should have prevented the
incident from happening.
The Defendant's pleaded case
Bro/I's defence
[8] In Chartaprops v Silberman 2009 (1) SA 265 (SCA)2 it was held that it is
permissible for property owners or managing agents to delegate responsibilities like
cleaning or maintenance to competent independent contractors. If the delegation is
reasonable and the contractor is qualified, the owner or agent can avoid liability for
harm caused by the contractor's negligence. In essence, Broll's defence is this: if it is
established that Broll has a legal duty to the appellant (which it denied) it fulfilled its
legal duty to the appellant by appointing Supercare, a qualified independent
1
(Zeffertt & Paizes The South African Law of Evidence 2 ed at 219).
2 At paras 44-48.
Page 4 of 13
contractor, to handle cleaning and related services at the Mall, to ensure that the floor
at the Ma ll was safe and free of hazards.
[9] Supercare submitted a proposal to Broll on 2 June 2015 to provide cleaning
services at the Mall, which Broll accepted on 8 June 2015. In terms of the said
proposal, Broll contended, Supercare is solely responsible for detection and cleaning
of spillages at the Mall. Broll, contended that the relationship between the parties
apropos the provision of cleaning services at the Mall is regulated only by the terms
and conditions contained in the abovementioned cleaning proposal from Supercare,
which it accepted on 8 June 2015. It denied that there is any other agreement (whether
oral or in writing) that governs the parties' relationship apropos the provision of
cleaning services at the Ma ll. Accordingly, Broll denied that it acted negligently as
alleged or at all. It contended that its legal duty was ex contractu3 passed on to
Supercare. To the extent that Supercare negligently and wrongfully caused harm to
the appellant by breach of that legal duty, then Supercare was liable to compensate
appellant.
Supercare's defence
[1 0] Supercare denied it had a legal duty to the appellant as alleged or at all. It
pleaded that its duty to detect and clean up spillages was expressly excluded in terms
of the unsigned written Master Service Agreement concluded between it and Broll.
After Broll accepted Supercare's cleaning proposal on 8 June 2015, Supercare sent
to Broll a copy of the Maste~ Service Agreement (MSA) and Transaction Schedule
under a cover letter 8 July 2015. The aforementioned letter contained deeming
provisions to the effect that: "should the cleaning services commence before the MSA and
Transaction Schedule is signed all the terms and conditions of the accepted cleaning proposal
(as amplified by the terms of the MSA and the Transaction Schedule) will be deemed to be
binding on both parties."
binding on both parties."
3 According to Broll , this contract refers to the Supercare's cleaning proposal to Broll (referred to in para
[8] supra} for the provision of cleaning services at the Mall dated 2 June 2015 and which Broll accepted on
8 June 2015. Broll contended that agreement is the only document that contain the terms and conditions
that regulate the obligations of Supercare as an independent cleaning contractor at the Mall.
Page 5 of 13
[11] In the said letter Supercare requested Broll to sign the MSA and Transaction
Schedule and to return same to Supercare. It further invited Broll to contact Supercare
should the latter wish to discuss any of the issues contained therein. Broll never signed
the MSA and the Transaction Schedule. It is common cause that Supercare
commenced cleaning services at the Mall without a signed MSA and Transaction
Schedule. In the result, Supercare contended, that the deeming provision therein
came into immediate effect and as such thereafter the terms of the MSA regulated the
relationship between the parties, apropos provision of cleaning services at the Mall.
[12] In relevant part, the MSA 4 expressly stated that Supercare's cleaning services
would not include detection of spillages and/or continuous monitoring of the premises
for spillages. According to Supercare, this meant the MSA explicitly excluded
Supercare's responsibility for detecting spillages or continuously mon itoring the
premises. Supercare contended that its role was limited to the provision of cleaning
services at the Mall and addressing spillages only when notified by Broll or its
employees. Absent the existence of that legal duty, Supercare denied wrongfulness
and negligence and thus liability. In the alternative, Supercare pleaded contributory
negligence on the part of the appellant and prayed for apportionment of the appellant's
proven damages, if any, in accordance with the provisions of s1 of the Apportionment
of Damage Act 34 of 1996.
[13] On 10 August 2021, the appellant withdrew its case against Broll.
Evidence of CCTV footage
[14] The Mall has Closed Circuit Television Cameras (CCTV) which continuously
monitor the Mall corridors. The incident in casu was recorded by the CCTV. The
footage showed that the chip fell just 15 seconds before the appellant slipped, and
Supercare cleaners responded promptly thereafter.
Findings of the Court a quo
4 "Appendix 3: Service Levels" of the MSA.
Page 6 of 13
[15] The court a qua found that pending the conclusion and signature of the Master
Service Level Agreement between the parties, the MSA served as a transitional
arrangement and regulated their relationship apropos the provision of cleaning
services at the Mall. This responsibility was explicitly excluded under the terms of the
MSA 5. That being so, it concluded that Supercare did not have a legal duty to detect
or monitor spillages in the mall.
[16] The Court a qua further reasoned that in the circumstances, Supercare could
not be held liable for failing to perform a duty it was not contractually obligated to
undertake. The Court further found that Supercare cleaners responded reasonably
promptly after the incident and could not have detected or cleaned the chip in the short
timeframe before the fall. It therefore found that Supercare was not negligent.
[17] The court found on the Master Service Agreement, that the responsibility for
monitoring and addressing spillages lay with Broll, not Supercare.
Grounds of appeal
[18] The appellant has advanced various grounds of appeal. The crux of this appeal
turns on whether the MSA was the binding agreement between Broll and Supercare.
If I so found, that will be dispositive of this appeal.
[19) I now turn to deal with the issues for determination on this appeal.
Issues for Determination in this Appeal
[20] Having summarised the factual background, the evidence, submissions,
decision of the court below and its reasons, the issues for determination in this appeal
have crystallised to be:
5 fn2 supra.
Page 7 of 13
a. Was the MSA binding between Broll and Supercare?
b. Did Supercare owe a legal duty to the appellant?
The applicable law
[21] In Probst v Pick n Pay Retailers (Pty) Ltd6, the court held:
' ... that it is the owner of the entity in control of a shopping Mall that has the legal duty to take
reasonable steps to ensure that a Mall is reasonably safe for its patrons and such a person or
entity could be held liable where steps are not taken to ensure the safety of its patrons. The
Court further held that, although the owners or management of a Mall may obtain the services
of a cleaning company the former still remains liable for any negligent failure on the part of the
cleaning company to perform its duties with due care and in the event of a failure of its cleaning
system. The ultimate responsibility accordingly lies with the owner or the managing agent and
liability for harm can only be avoided if the appointment of an independent contractor is done
in a manner where it would be reasonable and not offend public policy to hold the latter liable
in the place of the owner/manager. If the appointment was unreasonable i.e. inadequate, then
the owner/manager is properly considered to be liable.'
[22] In Langley Fox Building Partnership (Pty) Ltd v De Valence7 the Court
acknowledged the general rule of no liability of a principal for the civil wrongs of an
independent contractor except where the principal was personally at fault. The Court
further held that the duty on the keeper of the supermarket to take reasonable steps
is not so onerous as to require that every spillage must be discovered and cleaned up
as soon as it occurs. Nevertheless, it does require a system which w ill ensure that
spillages are not allowed to create potential hazards for any material length of time,
and that they will be discovered, and the floor made safe, with reasonable
promptitude. 8
[23] In Langley the test for negligence in a case such as this, consonant with the
[23] In Langley the test for negligence in a case such as this, consonant with the
classic test for culpa laid down in Kruger v Coetzee, 9 was set out as follows:
6 1998 (2) All SA 186 (W).
7 Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A) ("Langley").
8 Fn8 above.
9 Holmes JA formulated the test for negligence Kruger and Coetzee 1966 (2) SA 428 at 430E- Gas follows:
Page 8 of 13
'(a) would a reasonable man have foreseen the risk of danger in consequence of the work he
employed the contractor to perform? If so,
(b) would a reasonable man have taken steps to guard against the danger? If so,
(c) were such steps duly taken in the case in question?'
[24] In determining the answer to the second enquiry into negligence, Pon nan JA 10
again referred to Langley where Goldstone AJA held that it was foreseeable to a
reasonable person in the position of Langley Fox that the workmen erecting the ceiling
would require some form of construction to raise it above the level of the sidewalk, as
an obstruction of such a nature would necessarily constitute a source of serious
potential danger to pedestrians using the sidewalk. Accordingly, '[T]o place it there,
and no more, was an inherently dangerous act.'11
[25] In Chartaprops12, Ponnan JA further held:
"It is not easy to see why an exception should be specifically carved out allowing a person
injured to recover from a principal in addition to the normal rights that the person enjoys against
the independent contractor posited as the effective cause of the wrong. In particular, it is
difficult to see why the general policy of the law that the economic cost of the wrong should
be borne by the legal entity immediately responsible for it, should not be enforced in this case.
Furthermore, to shift the economic cost of negligent acts and omissions from Advanced
Cleaning, the independent contractor with primary responsibility, to Chartaprops, because of
the legal fiction of non-delegability, appears to me to be undesirable. There are few operations
entrusted to an independent contractor by a principal that are not capable, if due precautions
are not observed, of being sources of danger to others. If a principal were to be held liable for
that reason alone the distinction between 'employee' and 'independent contractor' will all but
disappear from our law ... , Neither the terms of Advanced Cleaning's engagement, nor the
disappear from our law ... , Neither the terms of Advanced Cleaning's engagement, nor the
terms of its contract with Chartaprops, can operate to discharge it from a legal duty to persons
who are strangers to those contracts. Nor can they directly determine what it must do to satisfy
its duty to such persons. That duty is cast upon it by law, not because it made a contract, but
"a reasonable person in the position of the defendant would have foreseen the reasonable possibility of harm and
would have taken reasonable steps to prevent it happening, and the person in question did not do so, negligence is
established."
1° Chartaprops at para 43.
11 Langley at 121.
12 Chartaprops at paras 43 to 46.
Page 9 of 13
because it entered upon the work. Nevertheless, its contract with the building owner is not an
irrelevant circumstance, for it determines the task entered upon."
[My underlining]
[26] In respect of negligent omissions our courts stated the follow ing in Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd13:
"In these instances, it is said, wrongfulness depends on the existence of a legal duty not to
act negligently. The imposition of such a legal duty is a matter for judicial determination
involving criteria of public or legal policy C consistent with constitutional norms."
Application of law to the facts and analysis
Is MSA the binding agreement between the parties?
[27] It is common cause that on 2 June 2015, Supercare submitted to Broll a written
"proposal to provide cleaning services at the Mall ("the proposal") via email under a
covering letter ("the covering letter"). The proposal was subject to certain conditions
which were stipulated in the covering letter. In relevant parts the covering letter reads:
'in the event that Supercare 's proposal is accepted, the terms and conditions of any agreement
or contract to be entered into between the parties shall be negotiated and agreed between
them.
No contract shall come into effect between the parties until and unless a written agreement is
concluded by the parties pursuant to the finalisation or negotiations taking place.'
[28] Broll clearly accepted the proposal together with conditions attached to it on 8
June 2015. Since no written agreement was concluded thereafter, Supercare sent
Broll a copy of the Master Service Agreement (MSA) and Transaction Schedule under
cover of a letter 8 July 2015. The aforementioned letter contained deeming provisions
to the effect that should the cleaning services commence before the MSA and Transaction
Schedule is signed all the terms and conditions of the accepted cleaning proposal (as
Schedule is signed all the terms and conditions of the accepted cleaning proposal (as
amplified by the terms of the MSA and the Transaction Schedule) will be deemed to be binding
on both parties. Broll did not reply to this letter and did not disagree with proposed
deeming provisions.
13 2006 (3) SA 138 (SCA) at par 10.
Page 10 of 13
[29] Supe rcare commenced with the provision of cleaning services at the Ma ll on 1
July 2015, as a result the deeming provisions came into effect. Broll also paid their
agreed monthly fee of R61 ,900 without fail from 31 July 2015 until 25 February 2018.
Notwithstanding the wording of the second paragraph of the deem ing provisions it
cannot be gainsaid that the first and second defendant concluded the binding
provisional agreement. In McWilliams v First Consolidated Holdings (Pty) Ltd14, the
Appe llate Division (now the SCA) said:
' ... and that a party's failure to reply to a letter asserting the existence of an obligation owed
by such party to the writer does not always justify an inference that the assertion was accepted
as the truth. But in general, when according to ordinary commercial practice and human
expectation, firm reputation of such an assertion will be the norm if it was not accepted as
correct, such silence and inaction, unless satisfactorily explained, may be taken to constitute
an admission by him of the truth of the assertion ... ,.'
[30] Broll did not dispute receipt of the covering letter of 18 July 2015 and the
attached MSA and Transaction Schedule. Prior to the commencement of the cleaning
services by Supercare, Broll had an opportunity to reject the deeming provisions. It
simply elected not to do so. In the result the deeming provisions came into effect and
bound the parties. The deeming provisions are incorporated in the MSA , and they
expressly excluded Supercare's responsibility for detection of spillages and
continuous monitoring thereof15. Accordingly, Broll's silence or inaction amounted to
quiescence and constitutes an admission by Broll of the truth of assertion that the MSA
excluded detection spillages by Supercare. Co nsequently, the MSA was binding and
excluded any duty on Supercare to detect spillages.
Considerations of public and legal policy
[31] Broll was the responsible agent appointed by Investec to manage the Mall and
[31] Broll was the responsible agent appointed by Investec to manage the Mall and
to detect spillages. As a result of that appointment the Ma ll's safety duty lay primarily
with Broll, not Supercare. This duty cast on Broll by law and public policy to take steps
14 McWilliams v first Consolidated H oldings (Pty) Ltd 1982 (2) 1 (A) 1 OE-H ("McWilliams").
15 The relevant part of MSA is to be found at "Appendix 3: Service Levels", which provides that the services
shall not include detection of spillages and continuous monitoring of Premises for spillages.
Page 11 of 13
to guard against harm is one that is capable of being discharged only if the steps that
are required to guard against the harm are taken. This duty has been expressed on
another occasion as "a duty not merely to take care, but a duty to provide that care is
taken "so that if care is not taken the duty is breached".16 Whether such precautions
were to be taken by Broll or Supercare is a matter depending on their contract.
[32] In Minister of Safety and Security v Van Duivenboden17, the following principle
was stated:
'[12] Negligence, as it is understood in our law, is not inherently unlawful -it is unlawful, and
thus actionable, only if it occurs in circumstances that the law recognises as making it
unlawful. l11 Where the negligence manifests itself in a positive act that causes physical harm it is
presumed to be unlawful, but that is not so in the case of a negligent omission. A negligent omission
is unlawful only if it occurs in circumstances that the law regards as sufficient to give rise to a legal
duty to avoid negligently causing harm.'
[33] In casu by contracting Supercare out of the work to detect spillages and
continuous monitoring of the Mall, Broll retained that duty. In the circumstances, it
would be against public policy to hold Supercare negligent and thus liable.
[34] Even if Broll may have been negligent, the appellant withdrew her claim against
Broll. We therefore do not make any finding in this regard because this issue was not
before the Court a quo and is certainly not before us.
Analysis of video evidence on appeal
[35] The video evidence was part of the record which the appeal court had to
consider. Furthermore, the court was invited to view the footage by the parties. The
video footage in my analysis shows a probable time of the chip falling and the appellant
slipping on it 15 seconds later. A Supercare cleaner responded promptly, arriving
within 10 seconds after the fall to clean the chip and the surrounding area. It was
within 10 seconds after the fall to clean the chip and the surrounding area. It was
determined that Supercare acted reasonably and could not have responded faster.
Legal wrongfulness of an omission requires a duty to act positively to prevent harm,
16 Clerk and Lindsell on Torts 19 ed para 6-53, citing Langton Jin The Pass of Ballater [1942] p 112 at 117.
17 2002 (6) SA 431 (SCA).
Page 12 of 13
which is assessed based on factors like foreseeability, statutory obligations, and
control over the situation. Not all accidents imply fault or liability, and in this case, a
reasonable defendant in Supercare's position would not have acted differently. In my
view, given the 15-second window, no reasonable cleaning system could respond
faster; thus, even if it had a legal duty, negligence cannot be inferred.
Conclusion
[36) To conclude, failure to prove a legal duty is dispositive; "from nothing, nothing
comes " (ex nihilo nihil fit).
(37] For the reasons set out above, I do not find there was any misdirection by the
court a quo which warrants interference. Accordingly, I would propose dismissing the
appeal with costs.
P NJOKWENI
Acting Judge of the High Court
Page 13 of 13
I agree
Appearances
For Appellant: Adv Patrick MacKenzie
Instructed by: Jonathan Cohen & Associates
For Respondent: Adv Jurgen J Rysbergen
Instructed by: MacGregor Erasmus Attorneys