IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A108/2025
In the matter between:
GAMLAM INVESTMENTS (PTY) LTD Plaintiff
and
VIRGINIA BERNADETTE COETZEE Defendant
Heard on: 24 October 2025
Delivered electronically on: 25 November 2025
Summary: Delict - Negligence is a legal conclusion reached by the court based
on an objective analysis of the facts, and it cannot be established merely through
a litigant's self -admission. - It is the court's responsibility to apply established
legal standards to the evidence presented to determine whether negligence
occurred.
A finding of negligence is not negated by a reliance on routine inspections and
maintenance schedules. The fact that a defect remained undetected until the
incident occurred, - and subsequently required immediate repair, demonstrates
that the defect was discoverable and should have been identified prior to the
event.
Contributory negligence - The law does not require indi viduals to exercise an
extreme or excessive level of vigilance. Pedestrians, or patr ons, are not
obligated to constantly scan the ground for defects that should not reasonably be
present in areas accessible to the public.
Causation - A party cannot escape liability by claiming a lack of knowledge if
that ignorance is a direct result of their own failure to conduct adequate
a a
inspections. - Ignorance is not a valid defense when it arises from a negligent
omission of duty.
ORDER
Appeal dismissed.
JUDGEMENT
ADAMS AJ
Introduction
[1]. This is an appeal against the judgment of the Regional Magistrate,
who held the appellant liable for the respondent’s injuries sustained when
she stepped into an indentation within the appellant’s parking -area
roadway. The appellant challenges both the factual and legal findings on
negligence, as well as the court’s refusal to apportion fault.
[2]. The appeal was lodged after judgment on quantum was delivered
by the Magistrate in March 2025 pursuant, to the separation of merits and
quantum. Notice of appeal in terms of Rule 51 of the Magistrate’s Court
Rules was lodged on 22 April 2025.
Grounds of appeal
[3]. The appellant seeks to assail the judgment on numerous grounds
which are set out in the notice at length and in some detail. For present
purposes, those grounds are succinctly summarised in the following
terms:
The appeal is directed at the Magistrate’s factual and legal finding s
relating to the condition of the premises, the adequacy of the
appellant’s maintenance measures, and the conclusion that the
respondent’s fall was caused by the appellant’s conduct rather than
her own negligence. It is submitted that, on a proper assessm ent of
the evidence, the Magistrate’s findings on negligence and
contributory negligence cannot be sustained.
[4]. In summary therefore, the appellant’s case on appeal is that the
Magistrate misdirected himself in his assessment of the evidence,
credibility findings, and legal conclusions on negligence and contributory
negligence, and that on a proper evaluation, the respondent’s own conduct
was the cause of her fall.
The proceedings in the court a quo
The witnesses
[5]. The plaintiff, Ms. Virginia Bernadette Coetzee, together with her
friend and eyewitness, Ms. Kirsten Mongie, testified on behalf of the
plaintiff. The defendant called a single witness, Ms. Elzette Oosthuizen,
who was at all material times employed by the defendant as a legal
administrator.
The evidence
[6]. The factual background is clearly and usefully detailed in the lower
court's judgment, which fully set out the events that occurred both before
and after the incident involving the respondent . As such, it is not
necessary to repeat them in this judgment, save for the salient points.
[7]. The central facts required to decide this appeal are largely
undisputed and are recorded below. There is no dispute that on 3 August
2017, the defendant owned and managed the property in -house. It was
also not disputed that t he plaintiff visited the defendant’s premises in the
company of two friends. It is further common cause that the plaintiff
walked in the middle of her companions. After walking to and from the
Spar store, she carried two plastic bags containing wine bottles.
[8]. The plaintiff testified that after descending the ramp, crossing the
speed hump, and proceeding a few meters, she fell. She recalled that at
the time of the fall , she “felt nothing under [her]”, her body lunged
forward, and she fell. It was later determine d that she had stepped into a
sunken area in the tarred surface. Ms. Mongie, an eyewitness who also
took the photographs contained in the trial bundle, confirmed this version
of events. The indentation was located in the lane she was crossing
toward her vehicle.
[9]. Ms. Oosthuizen testified that she is employed by Gamlam
Investment Properties, the owner of Brighton Square Mall, as a legal
administrator. She became aware of both the plaintiff’s claim and the
indented road surface upon service of summons during March 2018. She
testified that she convenes weekly meetings with all centre managers and
did not consider the area in question to be a hazard.
[10]. According to her, general maintenance of the properties is carried
out twice yearly, while repairs during the rainy season are attended to by
a contractor on an ad hoc basis. The area in question was repaired
subsequent to the accident of the respondent to prevent future incidents.
Under cross-examination, she conceded that the defendant bears a legal
duty to ensu re the reasonable safety of patrons and to warn them of
hazards when necessary.
[11]. The parties agreed during the testimony of Ms. Mongie, that the
affected area measured approximately 2.5 square meters. It was
established that a shallow pothole or depression existed in the parking
surface. The respondent testified that the defect was not readily visible
because its colour blended with the surrounding tar and it was covered by
dust. The appellant maintained that the depression was minor, clearly
visible, and not a hazard. After receipt of the summons, the appellant
repaired the affected area, although denying that the repair constituted
any admission of liability.
Findings of the ourt a quo
[12]. The Court a quo held Ms. Oosthuizen to have been a defensive and
biased witness, reluctant to make necessary concessions. Her evidence
was found to be neither candid nor credible. Her late admission that
repairs were undertaken to prevent future incidents underscores the
defendant’s prior neglect.
[13]. The plaintiff and Ms. Mongie, on the other hand, were held to be
credible and consistent. Both testified that the indentation was not visible,
that there were no warning signs to alert patrons to the defect , and that it
blended with the surrounding tar surface. Their evidence was
corroborated by the photographs contained in the trial bundle.
[14]. The Magistrate found that the appellant, as o wner, owed a duty of
care to members of the public using the parking area, including the
respondent. The court a quo held that a reasonable o wner would have
foreseen the risk of harm arising from such a surface defect and would
have taken steps to repair or cordon off the affected area. The court a quo
held that the appellant was thus negligent in fai ling to maintain the
parking surface in a reasonably safe condition.
[15]. The court rejected the contention that the respondent was
negligent, finding that she was entitled to assume the surface would be
reasonably safe for pedestrian use. It further found th at the respondent
was not contributorily negligent and accordingly held the appellant liable
for the respondent’s proven damages. Judgment was accordingly granted
in favour of the respondent on the merits.
[16]. The court a quo determined the issues after hearing and
considering the evidence and concluded that the defendant was liable for
the plaintiff’s proven damages and for the costs of suit, including the
costs of counsel. It is this judgment that the appellant (defendant a quo)
seeks to assail in these proceedings, contending that the court a quo erred
both on the facts and in the application of the legal principles governing
negligence.
Submissions before this Court
[17]. The appellant submits that the Magistrate erred in finding
negligence where the shall ow indentation was neither a pothole nor an
obvious hazard, had caused no prior incidents, and was reasonably
maintained through routine inspections and scheduled roadwork. The
further submissions are that the post-incident repair was consistent with
existing maintenance practices and does not justify an adverse inference.
On the evidence, so the appellant contends, it could not reasonably have
foreseen or prevented harm.
[18]. Conversely, the appellant contends that the respondent’s own
evidence establishes that she failed to keep a proper lookout and that she
admitted negligence in that had she looked down , she would have
avoided the incident. It is submitted that t he respondent walked in the
middle of the road at dusk, carrying items in both han ds, conversing with
friends, unfamiliar with the premises, and failed to observe even a
marked speed bump. The appellant submitted that the Magistrate failed to
properly consider this decisive evidence or address apportionment.
Should any liability attach, so the appellant contends, established
authority supports a finding of at least 50% contributory negligence.
[19]. The respondent supports the reasoning and conclusions of the court
a quo, contending that the appeal is devoid of merit and should be
dismissed with costs.
Issues for determination
[20]. The central issues for determination by this Court may be
formulated tersely as follows:
The primary issue for determination is whether the plaintiff’s fall on the
date in question was caused by a defect or indentation in the surface of
the parking area. Closely related to this is the question of the nature and
extent of the legal duty owed by the defendant, as occupier, to patrons of
the premises. In particular, the Court must consider whether the defendant
failed to maintain the parking area in a condition that was reasonably
safe, and whether any such failure constitutes negligence.
[21]. This co urt must also consider w hether the respondent’s fall was
brought about by a negligent breach of a ny duty by th e appellant or
whether it was entirely the fault of the respondent. If the fall was not
entirely attributable to the respondent, consideration mu st be given to
whether contributory negligence on her part played a role in the incident.
Finally, the Court must consider whether the findings of the court a quo in
relation to these questions reveal any misdirection that would warrant
appellate interference.
Applicable legal principles
[22]. It is well established that an appellate court will be slow to disturb
a trial court’s factual findings, save where they are demonstrably wrong
or tainted by a mate rial misdirection. This deference arises from the trial
court’s distinct advantage in observing the witnesses first -hand and
evaluating their demeanour and credibility. Accordingly, interference with
the trial court’s assessment of oral evidence is warrant ed only in
exceptional circumstances.
[23]. In S v Francis1, it was held that:
"The powers of a court of appeal to interfere with the findings of
fact of a trial court are limited. In the absence of any misdirection
the trial court's conclusion, including its acceptance of a witness'
evidence, is presumed to be correct. In order to succeed on appeal,
the appellant must therefore convince the court of appeal on
adequate grounds that the trial court was wrong in accepting the
witness' evidence – a reasonable doubt will not suffice to justify
interference with its findings. Bearing in mind the advantage which
a trial court has of seeing, hearing and appraising a witness, it is
only in exceptional circumstances that the court of appeal will be
entitled to interfere with a trial court's evaluation of oral
testimony."
1 1991 (1) SACR 198 (A) at 198j-199a. See also Bee v Road Accident Fund (093/2017) [2018] ZASCA 52;
2018 (4) SA 366 (SCA) at paragraph 46.
[24]. In appeals involving damages, the factual findings of the trial court
are generally accepted as correct , unless cle ar error is shown. It is
therefore for the appellant to demonstrate that those findings cannot be
sustained.
[25]. The law of delict concerns the circumstances in which one person
may claim compensation from another for harm suffered. The essential
elements of a delict, as listed by Boberg 2 and confirmed by subsequent
authority, are:
(1) Harm sustained by the plaintiff;
(2) Conduct by the defendant;
(3) Wrongfulness;
(4) Causation; and
(5) Fault or blameworthiness.3
[26]. It is trite that while the wrongfulness of a positive injurious act is
presumed, an omission is prima facie lawful, unless circumstances dictate
otherwise.
[27]. Conduct may manifest either as a positive act or as an omission. An
omission is wrongful where the defendant, by virtue of ownership or
control of the property, bore a legal duty to take reasonable preventative
2 Boberg, P.Q.R., The Law of Delict, 1984 at page 24 – 25.
3 In Yende v City of Johannesburg Metropolitan Municipality and Another (53968/2021) [2025] ZAGPJHC 392
(22 April 2025), the Court stated that for a plaintiff to succeed, she bears the onus of establishing the five
elements of a delict: (1) conduct (either act or omission); (2) wrongfulness; (3) negligence (fault); (4) causation;
and (5) harm suffered.
measures and failed to do so. Whether conduct is wrongful is determined
by considerations of legal and public policy.
[28]. Negligence entails an enquiry into whether a reasonable person in
the defendant’s position would have foreseen the reasonable possibility of
harm and taken steps to prevent it, and whether the defendant’s failure to
act accordingly constitutes a deviation from the standard of the
reasonable person.
[29]. Causation comprises both factual causation, ordinarily assessed by
the “but -for” test, and legal causation, which limits liability to
consequences sufficiently closely linked to the wrongful and negligent
conduct. Harm requires proof of personal injury and demonstrable loss
flowing therefrom.
[30]. The well -known test for negligence was articulated in Kruger v
Coetzee4.
“For the purposes of liability, culpa arises if—
(a) a diligens paterfamilias in the position of the
defendant would foresee the reasonable possibility of
his conduct injuring another and causing him
patrimonial loss, and would take reasonable steps to
guard against such occurrence, and
(b) the defendant failed to take such steps.”
4 1966 (2) SA 428 (A) at 430E–F:
[31]. The principle is settled that an owner of premises owes a legal duty
to take reasonable precautions to prevent foreseeable injury to patrons .5
Such owners of premises a re enjoined to take reasonable care to ensure
that the premises are safe for ordinary use. The duty is not absolute, but
one of reasonableness assessed in the light of the circumstances.6
[32]. Contributory negligence is governed by the Apportionment of
Damages Act 34 of 1956. Where both parties are negligent, the court
must apportion damages according to their respective degrees of fault.
[33]. Negligence is ultimately a legal conclusion, not a matter of self -
admission. The court must determine it objectively on the facts.
[34]. South African courts have long recognised the right of patrons to
be protected from injury arisi ng from hazards on commercial premises
where no reasonable steps were taken by the owner to prevent such
injury.7
[35]. Similarly, in Chartaprops 16 (Pty) Ltd v Silberman 8, it was held
that liability may arise from a failure to adhere to one’s own maintenance
system, as reasonable foreseeability of injury imposes a corresponding
duty to act.
5 Holtzhausen v Cenprop Real Estate (Pty) Ltd 2021 (4) SA 221 (WCC).
6 Probst v Pick ‘n Pay Retailers (Pty) Ltd 1998 (2) SA 192 (W), the Court emphasized that while a property
owner’s duty is not absolute, it does require a system ensuring that hazards are detected and rectified with
reasonable promptitude.
7 Probst supra.
8 2009 (1) SA 265 (SCA).
[36]. In Checkers Supermarket v Lindsay 9 the SCA set out what the
applicable test is, namely:
‘In our law liability for negligence arises if it is foreseen that there is a reasonable
possibility of conduct causing harm to an innocent third party, and where there is an
omission or failure to take reasonable steps to guard against such occurrence. The
duty of a supermarket owner/keeper to persons entering its s upermarket at all times
during trading hours is aptly espoused by Stegmann J as follows:
“The duty on the keeper of a 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 o ccurs.
Nevertheless, it does require a system which will 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.”.’
Evaluation of the merits of the appeal
[37]. Whether there was negligence on the part of the appellant
The appellant’s central submission is that the indentation was minor,
neither a pothole nor an obvious hazard, and therefore, not reasonably
foreseeable to give rise to harm. This characterisation is not borne out by
the record. The indentation extended ov er a discernible area in a zone
routinely traversed by pedestrians, particularly during peak trading hours.
The test in Kruger v Coetzee, supra requires only that a reasonable person
would foresee the possibility of harm and take steps to prevent it. The
magistrate found, on the evidence, that the defect was visible,
longstanding, and readily detectable upon proper inspection.
9 Checkers Supermarket v Lindsay [2009] ZASCA 26; 2009 (4) 459 (SCA) para 5.
[38]. The appellant exercised full control over the premises and bore the
responsibility for ensuring that common areas were reasonably safe. Its
failure to detect and remedy a hazard that ought to have been identified
through reasonable inspection satisfies the requirement of w rongfulness.
On this basis, he concluded that the appellant failed to exercise the degree
of care expected of a reasonable property controller. There is no basis to
interfere with that conclusion. A reasonable person would have conducted
regular inspections and remedied the hazard. The appellant’s failure to do
so constitutes a deviation from the standard of the reasonable person.
[39]. The magistrate was therefore correct in concluding that a property
controller or ow ner inviting the public onto its premises mu st anticipate
that pedestrians will utilise the roadway and must ensure that the surface
is free of avoidable hazards. The owner bears a legal duty to take
reasonable measures to ensure their safety. This duty exists independent
of proven subjective knowle dge of the defect. It encompasses the
obligation to conduct regular inspections and to identify hazards that a
reasonable person in the controller’s position would detect.
[40]. The appellant’s reliance on routine inspections and scheduled
maintenance does not undermine the finding of negligence. That the
defect persisted and required prompt repair immediately after the incident
demonstrates that it was both remediable and should have been detected
earlier. The magistrate’s inference that the appellant failed to take
reasonable measures falls within the bounds of the evidence and discloses
no misdirection. The presence of the depression in a pedestrian area
created a foreseeable risk of harm. A reasonable occupier [in the position
of te appellant] would have fore seen that a member of the public might
trip and/or fall and would have taken minimal and inexpensive steps to
repair or cordon off the area. The appellant’s failure to do so constitutes
negligence within the Kruger v Coetzee framework.
Whether the respondent was negligent or contributory negligent
[41]. The appellant’s further submission, namely that the respondent was
the author of her own misfortune and failed to keep a proper lookout, also
cannot succeed. Whether conduct is negligent is a conclusion to be drawn
by the court and not determined by the respondent’s subjective
description of her own conduct in cross -examination. The existence of a
hazardous defect in a busy common area, combined with the appellant’s
failure to detect or repair it, was the primary cause of the incident.
[42]. The respondent’s evidence was that she walked at a normal pace
and did not see the depression before falling. She denied being distracted
or careless. Her version was consistent and unshaken in cross -
examination. A patron vi siting a shopping mall is entitled to expect that
the parking surface will be even and maintained. It is unreasonable to
expect patrons to look down at their feet when walking on such premises.
[43]. The Magistrate considered this evidence and, in my view, correctly
declined to find contributory negligence. Pedestrians in a busy parking
area cannot be expected to split their attention between moving vehicles
and every irregularity on the road surface. The respondent walked at a
normal pace, in daylight transitioning to dusk, and was entitled to assume
that the premises were reasonably safe. The law does not demand
hypervigilance, nor does it impose on pedestrians a duty to scan the
ground continuously for defects that ought not to exist on premises held
open to the public. Her conduct does not rise to negligence in law.
[44]. The respondent’s conduct similarly does not establish contributory
negligence. Members of the public are entitled to assume that the
premises they are invited to use are reasonably safe. I stress again. the
law does not require pedestrians to scrutinise ev ery step while traversing
a parking surface that appears level and unobstructed.
[45]. The appellant’s contention that the respondent was the sole cause
of her injuries is therefore unsustainable. The appellant’s argument that
the respondent “admitted negligenc e” is misplaced. A witness’s lay
concession does not bind the court, nor does it displace the objective test
of the reasonable pedestrian. Negligence is a legal conclusion, not a
factual one, and must be determined objectively. The magistrate weighed
the r elevant circumstances and, having evaluated the credibility of the
witnesses, concluded that the respondent’s conduct fell within the range
of reasonableness. There is no basis for appellate interference with these
factual findings. The magistrate was corr ect in rejecting any suggestion
that the respondent’s conduct broke the chain of causation or diminished
the appellant’s responsibility.
Causation
[46]. The appellant maintains that the respondent failed to establish
causation. The magistrate applied the “but-for” test and found that but for
the unrepaired defect, the respondent would not have fallen. That finding
is supported by the evidence and cannot be faulted.
[47]. The causal link between the appellant’s omission and the
respondent’s injury was correctly established. But for the existence of the
unrepaired depression, the respondent would not have fallen. The harm
was a direct and reasonably foreseeable result of the appellant’s failure to
maintain the surface. It was contended that the defect only came to its
attention after the fact of the accident and some nine months later with no
incidents other than that involving the respondent reported. The appellant
cannot avoid liability by asserting a lack of knowledge where that lack of
knowledge itself stems from the negligent omission to conduct adequate
inspections.
Remedial steps and inferences
[48]. The appellant’s maintenance manager testified that inspections
were carrie d out periodically, but no record of any inspection
immediately prior to the incident was produced. She conceded that
defects could develop between inspections and that the depression might
have existed for some time. Ms. Oosthuizen’s evidence revealed tha t she
became aware of the defective road surface only upon receipt of the
summons, approximately nine months after the incident.
[49]. During that period, no inspection or repair had taken place. Despite
her claim of regular maintenance, her evidence failed to disclose a
proactive system addressing such hazards. The area was under the
defendant’s control, and its failure to ensure that the parking surface was
maintained in a reasonably safe condition exposed patrons to foreseeable
danger.
[50]. The appella nt’s post -incident repair of the defect, while not
conclusive proof of negligence, is consistent with an acknowledgment
that the area was unsafe. The timing of the repair, shortly after service of
summons, supports the inference that the defect was conside red
problematic. Photographs taken shortly after the incident depict a
discernible defective road surface of irregular shape. The inference that it
posed a tripping hazard is reasonable. The court a quo’s finding in this
regard cannot be said to be plainly wrong.
Whether the Magistrate erred in finding negligence
[51]. The Magistrate correctly found that the appellant, as an o wner
inviting members of the public onto its premises, bore a heightened duty
to maintain safe walkways, including areas where pedestrian and
vehicular movement intersect.
[52]. The appellant’s reliance on its maintenance regime does not
displace the finding of neg ligence. Weekly , visual inspections and
biannual road repairs do not absolve an occupier where a defect is plainly
present, persistent, and situated in a well -traversed area. The fact that the
appellant repaired the indentation once the incident was reported
supports, rat her than undermines, the inference that it was capable of
being remedied with minimal effort.
[53]. The Magistrate committed no misdirection on the facts or the law.
The defect was foreseeable and preventable; the appellant failed to take
reasonable steps to r emedy it; and the respondent’s conduct did not
warrant apportionment. The magistrate correctly applied the legal
principles governing foreseeability and preventability, and h is findings
are supported by the evidentiary record. The appellant has failed to
demonstrate any misdirection or error warranting appellate interference.
The appeal must accordingly be dismissed.
Order
In the result, I propose the following order :
1. The appeal is dismissed with costs.
________________________________
ACTING JUDGE OF THE HIGH COURT
M F ADAMS
I agree and it is so ordered
____________________________
CN NZIWENI
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant : Adv. G Slingers
Instructed by : C&A Friedlander Inc Cape Town
For the Defendant : Adv. E Benade
Instructed by : Visagie Vos Inc. Cape Town