THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 238/2024

In the matter between:

PICK 'N PAY RETAILERS (PTY) LTD APPLICANT

and

MARIA WILIAMS FIRST RESPONDENT

TRADESOON 1020 (PTY) LTD t/a BLUEDOT SECOND RESPONDENT

Neutral citation: Pick 'n Pay Retailers (Pty) Ltd v Williams and Another (238/2024)
[2026] ZASCA 07 (26 January 2026)
Coram: PETSE, MBHA and DLODLO AJJA
Heard: 19 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The date and time for hand-down of the judgment is deemed
to be 26 January 2026 at11h00.
Summary: Practice and procedure – application for reconsideration in terms of
s 17(2)(f) of the Superior Courts Act 10 of 2013 – whether grave failure of justice would
result or administration of justice brought into disrepute if leave to appeal not granted
– amendment of pleadings – requirements therefor – no circumstances warranting
intervention.

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Delict – customer slipping and falling on shop floor – liability of shop owner –
negligence – liability for omission – whether applicant therefor discharged onus to
ensure premises reasonably safe – owner having engaged independent contractor for
cleaning shop floor – onus not discharged – owner of premises held liable to pay
damages for its failure to take reasonable steps to guard against the harm.

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___________________________________________________________________
ORDER
___________________________________________________________________

On application for reconsideration: referred to court in terms of s 17(2) (f) of the
Superior Courts Act 10 of 2013:
The application for reconsideration in terms of s 17(2)(f) of the Superior Courts Act is
dismissed with costs.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Dlodlo AJA (Petse and Mbha AJJA concurring):

[1] This matter concerns a claim in delict, specifically in relation to the liability of
the owner of premises to third parties, instituted in the Western Cape Division of the
High Court, Cape Town (the high court). The applicant in the proceedings before thi s
Court is Pick 'n Pay Retailers (Pty) Ltd (Pick 'n Pay), against whom the first respondent,
Mrs Maria Williams (Mrs Williams), seeks relief for damages arising from personal
injuries sustained on the applicant’s premises. The second respondent, Tradeso on
(Pty) Ltd t/a Bluedot (Bluedot), a third-party service provider contracted to Pick ‘n Pay
under a Cleaning Service Agreement between the parties.1 Bluedot was joined to the
proceeding as a third party at the instance of Pick ‘n Pay, but substantive relief against
it was conditional upon Pick ‘n Pay being held delictually liable to Mrs Williams.

[2] The cause of action arose on 13 November 2017 at a Pick 'n Pay store located
within the N1 City Mall, Goodwood, Cape Town. On the date in question, Mrs Williams
was shopping with her sister. Upon approaching the till point, she recalled that she
had forgo tten to collect a specific item, namely an electric fly repellent. While
proceeding at a brisk walking pace (but not running) to retrieve the said item,
Mrs Williams slipped and fell to the floor. She noticed that the sole of her shoe had an

1 Cleaning Service Agreement –

1 Cleaning Service Agreement –
‘12.1 The Service Provider hereby indemnifies and holds harmless Pick n Pay, its customers,
employees and workmen, against any loss, damage or injury caused or sustained by any wilful or
negligent act or omission on the part of the Service Provider or any of its Staff in the course and scope
of their employment by the Service Provider, whether in the execution of its duties in terms of the
Agreement or otherwise.’

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oily-orange substance, which was cleaned by Ms Deliwe Sitsholwane. She testified
that she did not see any cleaning staff in the immediate vicinity of where she fell.
However, she could not dispute that they were not present or on the premises. It is her
evidence that the size of the spillage was approximately equal to an A3 piece of paper,
and disputed that it was the size of a two-rand coin as was asserted on behalf of Pick
‘n Pay.

[3] As a result of the fall, Mrs Williams sustained the following injuries: (a) soft
tissue injury to her left hip; and (b) injury to the left acromio-clavicular joint. Immediate
assistance was rendered to her by Ms Sitsholwane, a customer services manager
employed by Pick 'n Pay when the incident occurred. Ms Sitsholwane, arranged for
Mrs Williams to be transported to a nearby hospital for medical treatment.

[4] It was alleged that Pick 'n Pay undertook to bear the costs of Mrs Williams’
medical treatment. Notwithstanding these assurances, Pick 'n Pay failed to honour its
undertaking, prompting Mrs Williams to institute legal proceedings against Pick 'n Pay
in the high court. Mrs Williams sought the following relief from Pick 'n Pay: payment of
damages for: (a) past and future hospital, medical and related expenses; (b) past and
future loss of earnings; as well as (c) general damages for pain and suffering. Bluedot
did not take part in the application before this Court.

[5] On 1 September 2023, the high court (per Gamble J) delivered judgment in
favour of Mrs Williams. The court held that Pick 'n Pay had failed to discharge the
evidentiary burden required to rebut the prima facie case of negligence established by
her. In particular, the court found that Pick 'n Pay had not adduced sufficient evidence
to negate the inference of negligence arising from the circumstances of Mrs Williams’
fall.

[6] The court further held that the injuries sustained by Mrs Williams were directly

fall.

[6] The court further held that the injuries sustained by Mrs Williams were directly
attributable to the negligent conduct of Pick 'n Pay’s employees, acting within the
course and scope of their employment. Accordingly, Pick 'n Pay was found to be
delictually liable ‘to pay to [Mrs Wlliams] 100% of such damages as she may establish
in due course arising out of the incident’.

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[7] In addition, the court granted a declaratory order to the effect that Bluedot is
liable to indemnify Pick 'n Pay in respect of any loss or damages incurred as a result
of its employees’ negligent acts or omissions committed in the execution of their
contractual duties.

[8] Aggrieved by the high court’s findings, Pick 'n Pay sought leave to appeal the
decision to the full court of the same division on the grounds that the high court had
misdirected itself. On 31 October 2023, the high court dismissed the application for
leave to appeal on the basis that Pick 'n Pay had failed to show that there was a
reasonable prospect of success on appeal or ‘that there is some other compelling
reason why the appeal should be heard. . .’.

[9] Undeterred by the high court’s dismissal of its application for leave to appeal,
Pick 'n Pay petitioned the Supreme Court of Appeal (SCA) for leave to appeal on the
same grounds as in the high court. On 21 February 2024 the SCA, per Mokgohloa and
Hughes JJA, dismissed Pick 'n Pay’s petition for leave to appeal, with costs, on the
basis that the proposed appeal lacked reasonable prospects of success and that no
other compelling reason existed to justify the matter being entertained on appeal.

[10] On 14 March 2024 Pick ‘n Pay, aggrieved by the decision refusing it leave to
appeal, filed a reconsideration application. On 30 April 2024, the Deputy President of
this Court ordered that the application be referred for reconsideration and possible
variation in terms of s 17(2)(f) of the Superior Courts Act2 (SC Act) and that the parties
must be prepared to address the court on the merits, if called upon to do so.

Issues to be determined
[11] Whether the decision of the two Judges of this court refusing leave to appeal
should be varied; and if so, whether the high court erred in holding Pick ‘n Pay liable,
in delict, to compensate the first respondent for such damages as she may prove in
due course.



2 Superior Courts Act 10 of 2013.

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Pick 'n Pay’s contentions
Duty of Care and Denial of Liability.
[12] Pick 'n Pay concedes that it owed a general duty of care to all patrons entering
its premises, including Mrs Williams, to ensure that the store was reasonably safe for
shopping activities. Notwithstanding this acknowledgement, Pick 'n Pay denies liability
for the injuries sustained by Mrs Williams. It asserts that the main cause of the incident
was the sole negligence of Mrs Williams herself, who allegedly failed to maintain a
proper lookout, neglected to take reasonable precautions to avoid the hazard , and
thereby failed to prevent her own injury.

Alternative plea: Contributory negligence
[13] In the alternative, Pick 'n Pay pleaded contributory negligence on the part of
Mrs Williams. It contends that, should the court find any negligence attributable to Pick
'n Pay, the quantum of damages ought to be apportioned between the parties in
accordance with the provisions of the Apportionment of Damages Act.3

Delegation of cleaning duties to independent contractor
[14] Pick 'n Pay further avers that it discharged its duty of care to its customers by
engaging the services of Bluedot. In terms of the said agreement, Bluedot undertook
responsibility for the cleaning and maintenance of the store premises and assumed
liability for any injuries arising from its failure to properly fulfil its contractual obligations.
Pick 'n Pay maintains that it acted reasonably in outsourcing these functions and
cannot be held liable for any alleged negligence on the part of Bluedot.

Duration of spillage and reasonableness of preventative measures
[15] With respect to the duration of the spillage that allegedly caused Mrs Williams’
fall, Pick 'n Pay disputes the high court’s finding that the substance remained on the
floor for a considerable period. It submitted that it has put adequate measures in place
including monitoring protocols to ensure the cleanliness and safety of the store aisles.

including monitoring protocols to ensure the cleanliness and safety of the store aisles.
Consequently, the failure of Bluedot’s personnel to detect the spillage and remove it
is solely attributed to the latter’s negligence, which, according to Pick 'n Pay, absolved
it from any delictual liability. Accordingly, Pick 'n Pay contends that it had take n all

3 Appointment of Damages Act 34, of 1956.

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reasonable steps to prevent such incidents and that liability cannot be imputed to it
under the circumstances.

Variance of Probst v Pick 'n Pay Retailers (Pty) Ltd (Probst) 4
[16] The case of Probst disagrees with the high court’s finding in that once a plaintiff
has shown that there was a slip and fall due to a spillage on the premises of the
defendant then an inference of negligence against the defendant can be drawn from
the nature of an accident itself, even when there is no direct evidence of the
defendant’s actions. It submits that the Probst judgment does not affect a reversal of
the legal onus resting upon the plaintiff. Rather, it imposes an evidentiary burden upon
the defendant to rebut the prima facie inference of negligence. Should the defendant
discharge this evidentiary burden by adduci ng sufficient countervailing evidence, the
so-called Chartaprops 16 (Pty) Ltd and Another v Silberman (Chartaprops) 5 defence
remains available and may be successfully invoked.

Chartaprops defence
[17] For this proposition, Pick 'n Pay heavily relied on the majority judgment of this
Court in Chartaprops,6 where the majority found that the costs of damage should be
against the party who is directly responsible for such damage, and holding the principal
liable in circumstances where the principal employed the independent contractor
based on the ‘legal fiction’ of the principle of non-delegability7 was inappropriate. The
judgment noted that if the principal were to be held liable for that reason alone, that
would nullify the distinction between an employee and an independent contractor
under the law. Accordingly, Pick 'n Pay’s reliance on Chartaprops is directed at
reinforcing the principle that liability should follow fault, and that principals ought not
be held liable for the acts or omissions of independent contractors in circumstances

4 Probst v Pick n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W).

4 Probst v Pick n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W).
5 Chartaprops 16 (Pty) Ltd and Another v Silberman 2009 (1) SA 265 (SCA); [2009] 1 All SA 197 (SCA);
(2009) 30 ILJ 497 (SCA) [2008] ZASCA 170; [2008] ZASCA 115.
6 Chartaprops paras 44-45.
7 The concept of non -delegable duty is explained as a ‘personal duty’. ‘A duty of this nature involves
what has been described as “a special responsibility or duty to see that care is taken”. Such a duty
enables a plaintiff to outflank the general principle that a defendant is not vicariously responsible for the
negligence of an independent contractor where the causative agent of the negligence relied on was not
an employee of the defendant but an independent contractor.’ See Chartaprops para 29.

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where no direct negligence or breach of duty on the part of the principal can be
established.
[18] In summary, Pick 'n Pay contended that the high court erred both in its
interpretation and application of the relevant legal principles, as well as in its
assessment of the facts underpinning the matter. The basis for this contention will be
discussed below.

Mrs Williams’ contentions
Delegation of Duties and Residual Responsibility.
[19] It was submitted on behalf of Mrs Williams that, notwithstanding the delegation
of cleaning responsibilities to Bluedot pursuant to a service agreement, Pick 'n Pay
retained a non-delegable duty to ensure that such services were executed in a manner
that upheld the requisite standard of care. The mere outsourcing of operational
functions does not of and in itself absolve Pick 'n Pay of its overarching obligation to
supervise the performance of its contractors and to take reasonable steps to ensure
that the premises remain safe for public use.

[20] The evidence adduced before the trial court indicates that Pick 'n Pay failed to
exercise adequate oversight over Bluedot’s performance, particularly in relation to the
maintenance of aisle 5, where the hazardous spillage occurred. It was asserted that
this failure constitutes a breach of the duty of care owed to patrons, including Mrs
Williams.

Breach of duty to ensure public safety
[21] Mrs Williams further contended that Pick 'n Pay failed to discharge its duty to
ensure the safety of members of the public lawfully present on its premises. It argued
that the delay in identifying and remedying the spillage in aisle 5 demonstrated a lack
of reasonable diligence on the part of both Bluedot and, more significantly, Pick 'n Pay.
The duration for which the hazard remained unattended was, according to Mrs
Williams, indicative of negligence and a failure to implement effective monitoring
protocols.

Relevance of contractual arrangements between Pick 'n Pay and Bluedot

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[22] It was further submitted that the contractual relationship between Pick 'n Pay
and Bluedot is immaterial to the present proceedings. The lis between Pick 'n Pay and
Mrs Williams is founded in delict, and any indemnity or allocation of risk agreed upon
between Pick 'n Pay and its contractor does not affect the rights of third parties who
suffer harm as a result of negligent conduct. Accordingly, the dispute between Pick 'n
Pay and Bluedot is distinguishable from the claim advanced by Mrs Williams.

[23] Counsel supported this argument by referencing Langley Fox Building
Partnership (Pty) Ltd v De Valence (Langley Fox)8 where this Court held that the party
who has the responsibility to take precautions as between the principal and contractor
is a contractual matter between the two parties (namely the principal and the
contractor). However, as it relates to the general pu blic making use of the principal’s
premises, the person who bears the responsibility is the principal.9 As a result, counsel
for Mrs Williams submitted that the high court was correct in holding Pick 'n Pay liable
for their client’s damages.

[24] In order to address the two issues that arise in this application, it will be
convenient to set out the sequence that this judgment will follow. First, I will examine
the findings of the high court, specifically assessing whether the court erred in holding
Pick 'n Pay liable for the damages sustained by Mrs Williams. Secondly, I will consider
s 17(2)(f) of the SC Act with particular reference to the criteria that must be satisfied
for an applicant to succeed in a reconsideration application.

Did the high court err in holding Pick ‘n Pay liable, in delict, to Mrs Willams?
Summary of the relevant evidence
[25] For purposes of the analysis set out in this part of the judgment, the most
important evidentiary material comprises the testimonies of the following individuals:
(a) Mrs Williams, the plaintiff in the proceedings before the high court, whose

(a) Mrs Williams, the plaintiff in the proceedings before the high court, whose
account forms the basis of the claim in delict;
(b) Ms Sitholwane, an employee and representative of Pick 'n Pay, whose evidence
pertains to the operational practices and response protocols of the defendant;

8 Langley Fox Building Partnership (Pty) Ltd v De Valence [1990] ZASCA 128; 1991 (1) SA 1 (A); [1991]
3 All SA 736 (AD) (Langley Fox).
9 Ibid at14D-F.

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(c) Ms Nozuko Naka (Ms Naka), an employee and representative of Bluedot, whose
testimony is relevant to the execution of the cleaning services and the delegation
of duties under the service agreement concluded with Pick 'n Pay.
These witnesses collectively provide the factual foundation upon which the court’s
findings on liability were made and are central to the assessment of whether the high
court erred in its determination on the issue of liability.

[26] On the day of the incident, Ms Sitsholwane was informed by a field marketer
that Mrs Williams had slipped and fell to the shop floor in aisle 5. She immediately
instructed that a cleaner should attend to aisle 5. The aisle in question generally
stocked condiments. She also examined the area where Mrs Williams had fallen. She
testified that at first, she was unable to see any spillage; however, upon a proper
examination of the area she noticed a small jam-like substance, the size of a two-rand
coin. It felt oily rather than sticky. She did not notice any broken item in the immediate
vicinity from which the spillage might have come. While still examining the area, a
cleaner arrived as well as other staff members. She then proceeded to clean the sole
of Mrs Williams’ shoe with a paper towel. The cleaners then cleaned up the spillage
and placed a wet floor sign. She completed an incident report in which she recorded
that the spillage had been there for a few minutes. She based her information on the
fact that the cleaners were in aisle 6 at the time before the incident and would have
naturally, according to their cleaning sequence, have come from aisle 5.

[27] For her part, Ms Naka testified that she was assigned to clean aisle 4-7. About
an hour before the slip and fall took place, she was called by a merchandiser while in
aisle 6 to come and clean aisle 5. There, she saw a small teaspoon -sized spill of
mayonnaise on the floor, which the merchandiser had covered with a cardboard. She

mayonnaise on the floor, which the merchandiser had covered with a cardboard. She
testified that she removed the cardboard and wiped the spill with a cloth and thereafter
placed a wet sign. She resumed her duties in aisle 6 and returned to aisle 5 about 15
minutes later to check if the floor was dry and, if so, to remove the signage. Satisfied
that the floor was dry, she continued to make her rounds when, about an hour later,
she was informed that someone had fallen. By the time she arrived at the scene in
question, the spill had already been attended to, and the floor was dry.

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[28] It is trite that ‘he who asserts must prove, and not he who denies’.10 Accordingly,
Mrs Williams, as the plaintiff, bore the onus to establish, on a balance of probabilities,
that Pick 'n Pay was negligent in failing to discharge its duty of care towards her while
she was lawfully present on its premises.

[29] This required Mrs Williams to adduce sufficient evidence demonstrating that
Pick 'n Pay, as the party in control of the premises, failed to take reasonable steps to
prevent foreseeable harm, and that such failure constituted a breach of the legal duty
owed to her. The mere occurrence of injury does not, in itself, give rise to liability;
rather, it must be shown that the harm suffered was a direct consequence of Pick 'n
Pay’s negligent act or omission.

[30] All that was required for Mrs Williams to discharge the onus, as set out by this
Court in Cenprop Real Estate (Pty) Ltd and Another v Holtzhauzen (Cenprop),11 with
reference to the earlier decision in Probst is the following:
‘When the plaintiff has testified to the circumstances in which he fell, and the apparent cause
of the fall, and has shown that he was taking proper care for his own safety, he has ordinarily
done as much as it is possible to do to prove that the cause of the fall was negligence on the
part of the defendant who, as a matter of aw, has the duty to take reasonable steps to keep
his premises reasonably safe at all times when members of the public may be using them. . .’
Once Mrs Williams has adduced the requisite evidence as set out above, such
evidence is sufficient to establish, on a balance of probabilities, that Pick 'n Pay, being
the shopkeeper, was negligent in the circumstances. Accordingly, Mrs Williams would
have discharged the onus of proof required to sustain a claim in delict for damages
arising from such negligence.

[31] Mrs Williams adduced sufficient evidence to establish the factual and legal

[31] Mrs Williams adduced sufficient evidence to establish the factual and legal
basis of her claim. The following material facts were not placed in dispute: Mrs Williams
sustained injuries as a result of a fall which occurred within the premises owned,
occupied, or under the control of Pick 'n Pay. During the course of her testimony, Mrs
Williams provided a clear and credible demonstration of the manner in which the fall

10 Pillay v Krishna 1964 AD 946 at 952.
11 Cenprop Real Estate (Pty) Ltd and Another v Holtzhauzen [2022] ZASCA 183; 2023 (3) SA 54 (SCA)
para 22.

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occurred. This account was not challenged or contradicted. It was further common
cause that the proximate cause of the fall was an oily or slippery substance present
on the floor of the premises, which had been negligently left unattended by Pick 'n Pay
and/or its cleaning contractor, Bluedot.

[32] Mrs Wiliams established, on a balance of probabilities, that at the material time
she exercised reasonable care for her own safety. Although she was walking briskly,
she successfully navigated aisle 4 without incident until she encountered the
hazardous s ubstance. The fall occurred solely as a result of her stepping on the
aforementioned oily substance, which by then had not been identified, removed, or
wiped off.

[33] In light of the above, it is evident that Pick 'n Pay failed in its duty of care owed
to lawful patrons of the premises. The presence of the hazardous substance, coupled
with the absence of any warning or remedial action, constituted negligence.
Accordingly, liability for the injuries sustained by Mrs Williams rests with Pick 'n Pay,
as was found by the high court.

The negligence test
[34] The doctrine of premises liability imposes a legal obligation upon individuals or
entities who exercise control over immovable property to uphold a duty of care towards
members of the public who lawfully enter or utilize such premises. This duty
encompasses the responsibility to take reasonable measures to prevent or mitigate
foreseeable risks of harm, thereby ensuring the safety and welfare of such persons
while on the premises.

[35] The well-known case of Kruger v Coetzee,12 which is the foundation for testing
negligence, has been referenced with support by this Court in recent cases such as
Chartaprops13 and Cenprop,14 both of which dealt with premises liability claims. The
test for negligence is set out as follows:
‘For the purposes of liability culpa arises if –

12 Kruger v Coetzee 1966 (2) SA 428 (A) (Kruger).
13 Chartaprops para 22.
14 Cenprop para 17.

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(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.’15
In order to answer the question whether Pick 'n Pay was liable or not, the above -
mentioned negligence test would have to be applied to the facts of this matter.

The test entails a two-stage inquiry:
First inquiry: Foreseeability of Harm
[36] The first leg of the inquiry entails an assessment of whether a reasonable
person in the position of the defendant would have foreseen the reasonable possibility
that their conduct might cause physical harm to another, resulting in patrimonial loss.
This foreseeability must be evaluated in light of the surrounding circumstances and
the nature of the defendant’s conduct.

[37] In Gordan v Shoprite Checkers (Pty) Ltd and Another,16 the court held that:
‘It is trite that negligent omissions on the part of a shop owner, to clear hazardous matter from
the shop floor is actionable. Moreover a reasonable person in control of a shopping mall would
clearly foresee that spillages might occur in the passages and cause harm if they are permitted
to remain, and would take reasonable steps to guard against harm occurring . . .’

[38] It is evident from the facts that Pick 'n Pay did, in fact, anticipate the potential
risk of harm arising from spillages on its premises. In response to this foreseeable risk,
it engaged the services of an independent contractor, Bluedot, to perform clean ing
duties. Hence its reliance on the Chartaprops defence, where this Court held that the
owner could not be held liable for the negligence of the independent contractor. 17
However, the principle does not absolve a property owner of liability in all instances of
delegation. As clearly stated in Kruger, ‘[w]hether a diligens paterfamilias in the

delegation. As clearly stated in Kruger, ‘[w]hether 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

15 Ibid.
16 Gordan v Shoprite Checkers (Pty) Ltd and Another 2015 JDR 2028 (GP); [2014] ZAGPPHC 773
para 20.
17 Chartaprops fn 3 para 28.

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each case. No hard and fast basis can be laid down. Hence the futility, in general, of
seeking guidance from the facts and results of other cases’.18

[39] Having regard to the specific factual circumstances of this matter, the question
arises as to whether the steps taken by Pick 'n Pay to mitigate foreseeable harm were
reasonable in the context of the second leg of the negligence inquiry. This leg of the
inquiry requires an assessment of whether a diligens paterfamilias in the position of
Pick 'n Pay would have taken steps to prevent the harm, and if so, whether the steps
actually taken were adequate in the circumstances. It is not sufficient merely to
demonstrate that some precautionary measures were adopted; the court must
determine whether those measures meet the standard of reasonableness expected
under the law of delict. Thus, the inquiry turns on whether Pick 'n Pay, having foreseen
the risk of spillages and potential injury, took reasonable steps – not only in appointing
Bluedot, but also in supervising, monitoring, or ensuring the efficacy of the cleaning
operations – to prevent such harm from occurring. This analysis is central to
determining whether Pick 'n Pay acted negligently in the circumstances.

Second inquiry: Failure to take reasonable preventative measures
[40] The second leg of the test considers whether the reasonable person, having
foreseen the potential harm, would have taken steps that are reasonably necessary to
prevent such harm from materialising. A failure to take such steps, where harm was
foreseeable, constitutes a breach of the duty of care and amounts to negligence.
Accordingly, if it is established that Pick 'n Pay foresaw the risk of harm and
nonetheless failed to implement reasonable safeguards to avert such harm, the
conclusion must follow that Pick 'n Pay acted negligently.

[41] The evidence emerging from the record reveals that, on the day in question,
Pick 'n Pay – represented by its employee, Ms Sitsholwane – was made aware of Mrs

Pick 'n Pay – represented by its employee, Ms Sitsholwane – was made aware of Mrs
Williams’ injury not by its own staff, but by a field marketer employed by a third party.
This fa ct is material in evaluating the adequacy of Pick 'n Pay’s internal safety

18 Kruger at 430G. See also P Q R Boberg The Law of Delict vol 1 (1984) at 333: it has been repeated
by numerous South African courts that the precautions taken by a reasonable man depend on the
circumstances and that there is no general rule set out.

15

protocols and its responsiveness to hazardous conditions on the premises as and
when they arose.

[42] Ms Sitsholwane testified that Pick 'n Pay had implemented a system referred to
as the “mule train”, which supposedly involved daily inspections of each aisle,
including:
(a) Walking the floors;
(b) Checking for cleanliness;
(c) Identifying expired goods; and
(d) Verifying price accuracy against promotional signage.
While this system was presented as a routine safeguard, it is notable that, at the time
of the incident, no Pick 'n Pay employee was present in aisle 5 to conduct such an
inspection. Mrs Williams’ undisputed testimony confirms that no cleaner was visible in
the aisle, and that the incident was only brought to the attention of Pick 'n Pay by
Severiano Jehoma, an external party. The absence of personnel undermines the
reliability of the mule train system and suggests a lapse in the execution of the store’s
safety procedures.

[43] Corroborating this deficiency is the testimony of Ms Naka, the cleaner assigned
to aisle 5, who stated that she had attended to a prior spillage in the same aisle but
only became aware of Mrs Williams’ fall approximately one hour after it occurred. This
delay in response, despite her designated responsibility for that area, suggests a lack
of real-time monitoring and inadequate communication between cleaning staff and the
store management.

[44] Moreover, the mule train system itself appears to be inherently flawed. As
described by Ms Sitsholwane, the system requires employees to simultaneously
perform multiple tasks – cleanliness checks, expiry monitoring, and price verification
– which may compromise their ability to detect small but hazardous spillages. Indeed,
Ms Sitsholwane conceded that the spillage in question was approximately the size of
a two-rand coin, a detail that underscores the ease with which such a hazard could be
overlooked amidst competing duties.

16

[45] Additionally, Ms Sitsholwane confirmed that Pick 'n Pay employees did not
review or audit the cleaning logbook maintained by Bluedot’s staff. The logbook
remained exclusively in the possession of Bluedot’s supervisor, Mr Ronald. While Ms
Sitsholwane described the relationship between Pick 'n Pay and Bluedot as ‘good’,
she acknowledged that Pick 'n Pay did not engage in any form of oversight or
verification of Bluedot’s cleaning activities. Instead, reliance was placed on the general
checks conducted through the mule train system, which, as demonstrated above, was
inadequate.

[46] Taken together, these facts suggest that Pick 'n Pay failed to implement a
sufficiently robust and reliable system to detect and respond to hazardous spillages.
The absence of aisle -specific monitoring at the time of the incident, the lack of
oversight ov er the contractor’s cleaning records, and the operational inefficiencies
inherent in the mule train system all point to a breach of the duty of care owed to
patrons. These shortcomings fall short of the standard expected of a diligens
paterfamilias and support a finding of negligence in the circumstances.

[47] In Chartaprops, Nugent JA stated the following:
‘A defendant might nonetheless be liable for harm that arises from negligent conduct on the
part of an independent contractor but where that occurs the liability … arises instead from the
breach of the defendant’s own duty (I use that term to mean the obligation that arises when
the reasonable possibility of injury ought to be foreseen in accordance with the classic test for
negligence articulated in Kruger v Coetzee). It will arise where that duty that is cast upon the
defendant to take steps 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 actually taken. The duty that is cast
upon a defendant in those circumstances has been described (in the context of English law)

upon a defendant in those circumstances has been described (in the context of English law)
as a duty that is not capable of being delegated : ‘the performance of the duties, but not the
responsibility for that performance, can be delegated to another. Or as it has been expressed
on another occasion, it is ‘a duty not merely to take care, but a duty to pro vide that care is
taken’ so that if care is not taken the duty is breached.’19



19 Chartaprops para 7.

17

[48] In the same judgment, Nuget JA also referred to Langley Fox which was also
another matter where the defendant had employed an independent contractor to do
work on its behalf. The majority held that ‘the defendant should have realized that the
work was inherently dangerous and was under a duty to take reasonable st eps to
guard against the danger. I think it is clear from the following passage that the majority
considered that duty to require the defendant to ensure that adequate precautions
were taken (and it held the defendant liable because they were not taken): ‘ whether
such precautions were to be taken by the [defendant] or the contractor, as between
them, is a matter depending on their contract. As far as the duty to the public in general
and the [plaintiff] in particular is concerned it matters not. That duty r ested upon the
[defendant]’.20

[49] Therefore, it was not enough, based on the circumstances of this case, for Pick
'n Pay to merely hire out the cleaning services of Bluedot. They also had a duty to do
more on their part, rather than passively relying on Bluedot to do their work. They, too,
had the responsibility of double -checking and supervising Bluedot by actively
reviewing its logbooks and implementing effective systems to ensure the safety of their
customers.

[50] According to Avonmore Supermarket CC v Venter21 ‘the owner of a store, had
a legal duty to ensure that its premises were safe for those who use them’ and must
have functional systems in place to safeguard the safety of shoppers. In Probst, the
court held that ‘[t]he 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 occurs. Nevertheless, it does require a system which will ensure t hat
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’.22



20 Ibid para 11.

promptitude’.22



20 Ibid para 11.
21 Avonmore Supermarket CC v Venter [2014] ZASCA 42; 2014 (5) SA SA 399 (SCA) para16.
22 Probst at 20.

18

[51] The absence of any Pick 'n Pay personnel in the immediate vicinity of the
spillage at the relevant time suggests that the prescribed safety protocol was not
adhered to. Moreover, this also indicates that the spill had been present for a
considerable amoun t of time, which supports the inference that the hazardous
condition was not promptly addressed.

[52] Such a failure to implement or enforce routine checks, particularly in a human
high-traffic retail environment where spillages are reasonably foreseeable, constitutes
a material breach of the duty of care owed to patrons. The prolonged presence of the
spill, coupled with lapses in procedural oversight, amounts to conduct that falls short
of the standard expected of a diligens paterfamilias. Accordingly, Pick 'n Pay’s
omission in this regard is indicative of negligence. It must be borne in mind that:
‘It is trite that a defendant is negligent if a reasonable person in this position would have acted
differently and if the unlawful act causing damage was reasonably foreseeable and
preventable.’23 Therefore ‘the true criterion for determining negligence is whether in the
particular circumstances the conduct complained of falls short of the standard of the
reasonable person.’24

[53] Accordingly, a reasonable person in the position of Pick 'n Pay would have
definitely acted differently under these circumstances. They would have ensured that
a Pick 'n Pay employee was immediately available to conduct spot floor checks/mule
train once t he cleaning staff from Bluedot had finished cleaning aisle 5. This would
have prevented Mrs Williams’ fall, as the said spillage would have been spotted
timeously. Pick 'n Pay, in my view, failed to take the reasonable steps required of it to
ensure that no harm was caused to any person, in particular Mrs Williams, and as
such Pick 'n Pay was correctly held liable by the high court.





23 Morrison v MSA Devco (Pty) Ltd 2025 JDR 0896 (WCC); [2025] ZAWCHC 21 para 29.

23 Morrison v MSA Devco (Pty) Ltd 2025 JDR 0896 (WCC); [2025] ZAWCHC 21 para 29.
24 Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another
[1999] ZASCA 87; [2000] 1 All SA 128 (A); 2000 (1) SA 827 (SCA) para 21. See also Minister of
Justice and Constitutional Development v X [2014] ZASCA 129; 2015 (1) SA 25 (SCA); 2015 (1)
SACR 187 (SCA); [2014] 4 All SA 586 para 21.

19

Whether leave to appeal in terms of s 17(2)(f) should be granted?
[54] It is trite that, once a court has made a final decision, such decision typically
remains in effect.25 But in very rare and special cases, there is a way to ask the court
to look at the decision again – especially if not doing so would result in a grave failure
of justice. Section 17(2)(f) was amended with effect from 3 April 2024 by the deletion
of the phrase ‘in exceptional circumstances’ and the substitution therefor with the
phrase ‘in circumstances where a grave failure of justice would otherwise result or the
administration of justice may be brought into disrepute’. 26 The test has stringent
requirements as the threshold is higher.27

[55] Pick 'n Pay submitted that should this application not be granted, a grave failure
of justice would result and the administration of justice may be brought into disrepute
on the following basis:
(a) The high court misdirected itself in its application of the law, in that it set a legal
precedent which attracted academic criticism;
(b) There appears to be relatively few reported cases on the application of Chartaprops
in the context of so-called slip and fall cases; and
(c) There were two fundamental misdirection’s of fact by the high court.

[56] Firstly, the high court’s finding that the spillage had been on the floor in aisle 5
for a considerable period of time is based on the reasoning that Pick 'n Pay did not call
Jehoma, who is the only person who witnessed Mrs Williams’ fall and would have been
able to tell how long the spillage had been present on the floor. This argument,
according to Pick 'n Pay cannot stand based on unfairness. They contend that Jehoma
was a third-party employee. Ms Sitsholwane had not seen him in a while, as explained
in her testimony, and other than the name of his employer, his contact details were not
known to Pick 'n Pay. Even if contact could have been made, Pick 'n Pay contended

known to Pick 'n Pay. Even if contact could have been made, Pick 'n Pay contended
that there was no evidence that Jehoma would have known how long the spillage was
present, nor was it evident that he, in fact, saw the said spillage. They contend that
they acted reasonably as set out in the Chartaprops defence. And if the spillage had

25 Cloete and Another v S 2019 (2) SACR 130 (CC) para 40.
26 Section 28 of the Judicial Matters Amendment Act 15 of 2023 (the 2023 amendment), effective 3
April 2024,
27 Notshokovu v S [2016] ZASCA 112; 2016 JDR 1647 (SCA) para 2.

20

been there for a longer period, as found by the high court, then that was a reflection
on Bluedot’s negligence and not Pick 'n Pay.

[57] Secondly, the high court erred in its finding in para 45 and 3 that Ms Naka’s
evidence added little value. Pick 'n Pay submitted that the cardboard could not have
been in place before the fall, because then a fall would not have occurred.
Furthermore, it also could not have occurred before the fall and have been the same
spillage on which Mrs Williams slipped, because Ms Naka said she had cleaned up
the spillage. Also, the fact that she only heard later about the fall was irrelevant to the
time for which the spillage was on the floor. These submissions, according to Pick 'n
Pay, are exceptional circumstances which justify the s 17(2) (f) referral for
reconsideration and variation of the order of the two Judges of this Court refusing leave
to appeal.

[58] The Constitutional Court remarked in Liesching and Others v S28 that ‘s 17(2)(f)
is not intended to afford disappointed litigants a further attempt to procure relief that
has already been refused. It is intended to enable the President to deal with a situation
where otherwise injustice might result and does not afford litigants a paral lel appeal
process in order to pursue additional bites at the proverbial appeal cherry’.

[59] The determination of ‘exceptional circumstances’ for the purpose of s 17(2) (f)
of the SC Act is a factual inquiry, rather than a matter of judicial discretion. The
existence of such circumstances must be assessed on a case -by-case basis, having
regard to the unique factual matrix of each matter. What may qualify as exceptional in
one instance may not necessarily be regarded as such in another. Crucially, the
applicant bears the onus of demonstrating with sufficient certainty that another court,
considering the same factual and evidentiary material, would reasonably arrive at a
different conclusion. Alternatively, the applicant must show that there exists

different conclusion. Alternatively, the applicant must show that there exists
information that is unusual, novel, or otherwise out of the ordinary, which would justify
reconsideration of the matter.


28 Liesching and Others v S [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC);
2019 (4) SA 219 (CC).

21

[60] In the present case, the applicant has failed to discharge this burden. No factual
or evidentiary basis has been advanced to suggest that another court would reach a
different outcome from that of the high court. The record reveals no extraordinary or
unusual circumstances warranting intervention by this Court. The applicant’s petition
amounts to a mere attempt to reargue the merits of its case which, as demonstrated
above, lacks substantive merit.

[61] In the result, I make the following order:
The application for reconsideration in terms of s 17(2)(f) of the Superior Courts Act is
dismissed with costs.


_________________________________
D V DLODLO
ACTING JUDGE OF APPEAL

22

Appearances

For the Appellant: J Butler SC with D Murote
Instructed by: Norton Rose Fulbright SA Inc.
Webbers Attorneys, Bloemfontein

For the Respondent: PC Eia
Instructed by: A Batchelor & Associates Inc.
McIntrye van der Post Attorneys, Bloemfontein