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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Reportable/Not Reportable
Case no: 12970/2018
In the matter between:
LIFA MEJE PLAINTIFF
and
MUNICIPALITY OF CAPE TOWN DEFENDANT
Coram: JANISCH AJ
Heard: 4 - 5 February 2026 and 16 February 2026
Delivered: 10 March 2026
ORDER
1. The court makes the following order:
a. The Plaintiff’s claim is dismissed with costs, including the costs of counsel
on Scale B.
b. There is no order as to the costs occasioned by the postponement of the
trial set down for 27 February 2024.
JUDGMENT
JANISCH AJ:
Introduction
[1] The Plaintiff, Mr L ifa Meje, is a 27 -year-old male who resides in Gugulethu,
Cape Town.
[2] The Plaintiff claims damages from the Defendant, being the City of Cape Town,
arising out of an incident which occurred in the early hours of 31 December
2017, very close to his home.
[3] More particularly, the Plaintiff pleads that he ‘was injured when he stepped on a
(sic) open manhole/drain on the pavement ’ at the corner of Ngambu Street
(previously known as ‘NY4’) and Gladstone Nqulwana Street (previously known
as ‘NY8’) in Gugulethu. He contends that he sustained fractures of his left tibia
and fibula as a result of the incident. As will be discussed below, he fell in the
course of chasing after thieves who had just stolen his friend’s cell phone.
[4] The Plaintiff seeks to hold the Defendant liable in delict for damage suffered as
a result of this incident on the basis that it was the result of a wrongful and
negligent omission (or omissions) on the part of the Defendant to take steps to
prevent the harm from occurring.
[5] The Defendant denies that it is liable for any such damages. In the alternative,
if it is held that the Defendant acted wrongfully and negligently and that the
negligence caused or contributed to the incident, then it is pleaded that the
Plaintiff’s fall a nd the results thereof were caused by his own negligence,
alternatively partly by his own negligence, and in the latter event that such
damages are to be apportioned in terms of the Apportionment of Damages Act
34 of 1956.
Separation of issues: Rule 33(4)
[6] At the commencement of the trial, I was advised that the parties had agreed
that there would be a separation of issues in terms of Rule 33(4) of the Uniform
Rules of Court. This was described , as is frequently the case, as a separation
of merits and quantum. What the parties had in mind was that the hearing
should determine the question of liability in principle, including (if it were to be
held that the Defendant had conducted itself wrongfully and negligently in
relation to what occurred that night ), the question of any contributory
negligence on the part of the Plaintiff . What stood over was the question of
proof of the amount of loss suffered arising from the incident (including the
causation of such loss). I made an order to that effect.
[7] In oral argument, both parties agreed that while determination of the causation
of loss (in the form of financial loss) was not part of the present proceedings, I
remained at large to make causal findings in relation to the incident itself, i.e. as
to what physically transpired on that street corner and any causal link between
those events and the alleged omission . More particularly, I c ould decide
whether the Plaintiff did indeed fall after stepping on or in an opening in the
pavement surface, as alleged. This would be a necessary part of any finding of
pavement surface, as alleged. This would be a necessary part of any finding of
liability on the merits, since for example if I were to find that the Plaintiff had
simply slipped and fallen while running on the pavement , with out the
intervention of any ‘open manhole/drain’, then there could be no liability on the
basis pleaded and the claim would fail.
[8] There was ultimately no real dispute that the Plaintiff had fallen as a result of
his foot being caught in an opening on the pavement while he was running. The
issues, as regards liability, were whether the Defendant’s conduct (in the form
of an alleged omission to cover the opening or otherwise to warn the public
about it) could be described as wrongful and negligent, and if so, to what extent
(if at all) the Plaintiff was contributorily negligent. These are the aspects that fall
to be decided at this stage of the proceedings.
The Material Evidence
[9] I heard the evidence of five witnesses. The Plaintiff himself testified, as did a
friend who had been present on the night of the incident, Mr Luzuko Timakwe.
The Defendant called three witnesses: Ms Anel De Bruyn (previously an
attorney for the Defendant), as well as two employees in the Defendant’s water
distribution department, Mr Granville van Harte and Mr Roger Williams.
[10] I set out below certain key aspects arising from the evidence of each of these
witnesses. I should state at the outset that I found all the witnesses to be
satisfactory and credible in relation to the evidence presented by them. There
were no significant or material disputes of fact, although of course the parties
adopted different views as to whether the facts that were proved through these
witnesses sufficed to discharge the onus in relation to wrongfulness and/or
negligence.
Evidence of the plaintiff
[11] The Plaintiff testified that he had been living with his mother at No. 2[… N[…]
Street, Gugulethu since 2000. Essentially, he had spent almost all of his life
there. From an aerial photograph of the suburb , I estimate that t his house is
situated some 30 to 40 metres from the street corner where the incident
occurred, on the same side of the road.
[12] When the incide nt occurred, the Plaintiff was 19 years old. He was on school
holiday, having just passed Grade 11.
[13] On the night of 30 December 2017 , the Plaintiff was socialising with a group of
friends at the house of one of them . He had arrived there at approximately
18h00. They were planning a braai to be held the following evening for New
Year’s Eve. He had consumed ‘a few beers’ (330ml bottles) during the evening.
He was however adamant that he was not inebriated.
[14] In the early hours of the next morning (i.e. 31 December 2017), the Plaintiff and
some friends walked to a nearby fuel station to purchase cooldrinks. On their
way back, they turned off Ngambu Street into Gladstone Nqulwana Street. The
Plaintiff was in the middle of the group which was walking away from the corner
where the incident was soon to occur.
[15] The Plaintiff saw t wo people coming in the other direction. As they passed the
group, they snatched a cell phone from one of the friends at the back of the
group. The y then fled down Gladstone Nqulwana Street , turning left at the
corner into Ngambu Street. The Plaintiff immediately turned and set off after the
culprits. He said he was sprinting as fast as he could. He testified that the y
‘went towards the drain that was opened, and that is when I went into the drain.
So, then I fell on the spot. ’ He said that his ‘foot was stuck ’. His friends came
back and pulled it out. They went to call his mother . He was later taken to
hospital where it was ascertained that he had broken his leg in the fall. His leg
was set in a cast, and he had to walk with crutches for more than two months.
[16] As the evidence later showed, what the Plaintiff called ‘the drain’ is in fact part
of something called a ‘belltoby’. Its purpose is to give municipal workers access
to valves in water distribution pipes running below the surface. It does not relate
to drainage in any way.
[17] The Defendant’s evidence was that municipal water pipes usually lie a metre or
so beneath the road or pavement surface . When leaks occur or pipe
maintenance is required, the Defendant must be able to cut off the flow of water
through the affected pipes, so as to isolate a section to work on. Valves or stop-
cocks are therefore installed at intervals along the pipeline, and are closed and
opened as required for these purposes.
[18] A belltoby is a cast iron structure enabling the Defendant to access an
underground valve. It is about 3 5cm to 40cm in height. It has a wide bell -
shaped pedestal which tapers upward into a vertical pipe. It is positioned on a
square brick wall built directly above the underground valve position. Its top (i.e.
the opening to the pipe) lies flush with the road or pavement surface. In other
words, most of the belltoby is underground and not visible.
[19] Viewed from above, the top of the belltoby has a metal frame of about 14cm
square. This frame surrounds the circular opening of the pipe, which is slightly
more than 11cm in diameter . The opening is designed to be closed off with a
circular removable ‘lid’, also made of cast iron . This lid is more like a plug ,
which fits snugly into the pipe opening and rests on a small lip in the pipe a few
centimetres below . The lid is turned to fix it in place. When it is in place, the
frame and lid create a finish flush with the road or pavement surface.
[20] When the lid is removed, there is a circular hole in the road or pavement
surface with a diameter of just more than 11cm. This gives the Defendant’s
officials direct access to the valve below, which they can close and open from
the surface using a metal rod.
[21] The belltoby lid is not ‘locked’ in place. Removing it requires a simple action of
twisting and lifting it. This exposes it to vandalism and theft, particularly given its
potential value as scrap metal.
[22] It was common cause that at the time of the incident , there was a belltob y
installed under the pavement at the corner of Ngambu and Gladstone
Nqulwana Streets. It was also common cause that this particular belltoby lacked
a lid at the time . Thus, there was an exposed circular hole in the pavement ,
some 11cm in diameter. In the absence of debris blocking the pipe (of which
there was no evidence at the time), the hole would have opened all the way to
the valve a metre or so below the surface.
[23] Returning to the Plaintiff’s evidence, he testified that his ho me was three
houses along from this corner. He was familiar with the area , and he knew of
the uncovered belltoby. He said that it had been uncovered for months , maybe
close to a year.
[24] He accepted that there were street lights on the other side of Ngambu Street.
He said that it is always bright on that side, but darker on the side where his
house (and the belltoby) is situated.
[25] The Plaintiff said that he was sprinting to get to the culprits. He had been a
sprinter in high school and was the fastest of his group of friends. His foot got
stuck and he fell forward. In the witness box, h e demonstrated himself coming
to an abrupt stop. He did not move further after falling.
[26] In cross-examination, the Plaintiff accepted that he was 1.76 metres tall. At the
time of the incident he was wearing size 6 Converse shoes. The parties agreed
that the measurement of his left foot was 25 cm in length and 9.5 to 10 cm at its
widest point.
[27] Two physical items were admitted as physical evidence : a specimen of a
belltoby and a size 5 Converse shoe. It was demonstrated in the witness box
that the shoe , if dropped vertically, not only fitted into the open hole but
disappeared entirely down it. Although the Plaintiff said that he wore a shoe
size higher than the exhibit, I have no doubt that the toe and forefoot of such a
shoe would fit into the exposed hole if inserted at the appropriate angle
(essentially with the toe pointing vertically downwards).
[28] The Plaintiff said that he did not see his foot go into the opening , because he
was running and looking at the person he was chasing. He however, felt what
happened. Since he was sprinting, he would have been landing on his forefeet
rather than striking the ground first with his heel. His toe and forefoot appear to
have entered the hole, causing him to fall forwards.
[29] The Plaintiff accepted that the incident occurred because he was sprinting. He
agreed that if he had ‘just stepped’, his foot would not have gone in. He also
agreed that his foot had to ‘perfectly land in the middle of that [hole] in order for
it to get stuck’.
[30] The Plaintiff admitted that he was generally aware of the open ‘drain’, but not in
the heat of the moment because he was sprinting. His evidence was as follows:
‘… if I was not chasing someone I think I would be aware. It is just that I wanted
to get to someone. So I wasn ’t aware of the drain, although I knew there is a
drain open on the corner, I knew it. I am not going to lie, sir. But it is just that I
was chasing someone. So, I wasn’t aware at the time. But if I was just … going
to the shop I would have been aware because I am not in a rush of anything’.
[31] The Plaintiff agreed that he had seen the ‘open drain’ multiple times, and that
he had walked past it ‘100 times’. He confirmed that he had never notified the
Defendant about the missing lid . He did not know whether the Defendant was
Defendant about the missing lid . He did not know whether the Defendant was
aware of it . He did not know of anyone else who had been injured in this way ,
nor could he refute the proposition that there had been no other claims against
the Defendant from people stepping into any belltoby.
[32] The following frank exchange then occurred:
‘MR DE WET: And would you agree with me if I said, because it is very unlike ly that
anyone would step into that?
MR MEJE: Yes, sir.
MR DE WET: You would agree with that?
MR MEJE: Yes, sir.
MR DE WET: Because of the size of the hole.
MR MEJE: Yes, sir.
MR DE WET: All right and if anyone is walking they wouldn’t be able to step into it as
we have explained earlier.
MR MEJE: Yes, yes sir.
MR DE WET: So you would agree with the statement that the chances of anyone
getting hurt by stepping into a belltoby are extremely slim?
Mr MEJE: Yes, sir.
MR DE WET: Thank you Mr Meje, because as you stated, it is only because you were
sprinting after a thief that your accident happened.
MR MEJE: Yes, sir.’
[33] The Plaintiff accepted that the pavement was about two to two and a half
metres wide at the point whe re the belltoby was situated , and that the re was
enough space for him to pass on both the left and the right of the belltoby.
Various photographs introduced into evidence confirmed this: the open hole
was situated in the middle of the pavement, with considerable space on both
sides of it for a pedestrian to get around it.
[34] The Plaintiff confirmed that the missing belltoby lid was replaced a few months
after the incident. By the time of the hearing, the lid had however again
disappeared. The Plaintiff volunteered that the reason for the absence of lids
was that they were made of metal , and that people who steal scrap metal take
them. As a result, he said, ‘most likely you will find them with no lids’.
Evidence of Mr L Timakwe
[35] The Plaintiff’s other witness was his friend, Mr Timakwe, who also lives in
Gugulethu. He gave very similar evidence in relation to what had happened
leading up to the incident, including the route that the group was walking when
one of them was robbed of his cell phone, and the direction that the Plaintiff ran
in pursuit after the cell phone was stolen.
[36] Mr Timakwe said that he saw the Plaintiff fall at the corner. He and the other
friends ran past him chasing the culprit s, and then came back to him later. He
confirmed that the hole in the pavement was the area where he saw the Plaintiff
fall.
[37] Asked where he had found the Plaintiff on his return, he said he found him
sitting on his buttocks and facing in the direction of the petrol station. The
Plaintiff’s foot was not in the belltoby at the time. He was in pain and did not get
up. Mr Timakwe said that he and his friends took the Plaintiff to his house, from
where he was transported to the hospital.
[38] In cross -examination, Mr Timakwe confirmed that he had not reported the
missing belltoby lid to the Defendant. He also said that although he had not
drunk beer that night, the Plaintiff had.
Evident of Ms A De Bruyn
[39] Ms De Bruyn is currently a manager at a forensic services company. In the
period from 2017 to 2018 she was an attorney working for the law firm that
represented the Defendant at the time in this matter.
[40] Ms De Bruyn was called to prove certain photographs contained in the trial
bundle. These were photographs taken by her on a site inspection on 24
October 2018 , almost 10 months after the incident . Present was Mr George
Boult, an investiga tor, who had subsequently passed away. The photographs
depict the general area and the belltoby in question, which at that time had a
lid. There were also photographs with a measuring tape to show the diameter
and depth of the hole, which was clogged with debris.
[41] Ms De Bruyn confirmed that she took these photographs with her mobile phone
and forwarded them to a file on her computer. She sent some of them to the
Plaintiff’s attorneys.
[42] In cross -examination, she was asked various questions about what was
depicted in the photographs. Some of the photographs included her foot and
the foot of Mr Bo ult placed over or around the bell toby hole . One of these
pictures shows Mr Bo ult’s toe and forefoot partially in the open hole, and some
show his heel depressed into the open hole. She could not say what Mr Boult’s
shoe size was, but accepted that he had ‘big feet ’. She accepted that the
relevance of the photographs was that they showed the size of the hole
compared to her foot size.
Evidence of Mr G van Harte
[43] The Defendant’s first witness, Mr Van Harte , is a senior superintendent at the
Hillstar Waterworks Depot, part of Region 4 of the Defendant’s services
network which includes Gugulethu. He has 30 years’ experience working for the
City, of which the last 10 have been in his current position.
[44] His resp onsibilities are to deal with burst pipes, water leaks , meter related
issues and generally the water infrastructure in his area. There are a number of
employees working from his depot in various capacities and levels of
responsibility, who deal with repairs and infrastructure-related incidents.
[45] He explained the nature, purpose, dimensions and installation of a belltoby, as
already set out above.
[46] Mr van Harte testified that the purpose of the belltoby lid is to protect the valve
that is in the hole, and to ensure that it does not get full of sand which would
make access difficult for response teams . He did not link the purpose of the lid
to removing a tripping or falling hazard.
[47] He confirmed that it was generally possible for persons to remove the lid with
their hands. Vandalism of the Defendant’s infrastructure had become prevalent
in the last 10 years , with people stealing lids to sell at the scrapyard. To
address this, the Defendant had started to use polymer/plastic lids to replace
missing metal lids.
[48] The Defendant also has fire hydrants linked to the water pipes , which are
accessed through larger covered holes in the road or pavement surface . These
are to be distinguished from m anholes, which are part of the stormwater
system.
[49] When asked how the Defendant becomes aware of any missing covers
(whether of a belltoby or a fire hydrant), Mr van Harte said that it relies on
reporting from the public. The Defendant was busy rolling out a mobile
application which allowed the public to report any service issues, but there was
also a toll-free number and an SMS line that the public could use . When a call
involving water distribution in his region is logged through that sys tem, it is
forwarded to the depot and a team is sent out to do the repair. The Defendant’s
targeted response time to attend to repairs is 29 days. There is however , a
prioritisation exercise: for example, a burst pipe will be attended to more quickly
than a missing cover.
[50] Mr van Harte heard about the present incident from the Defendant’s public
liability claims department. He requisitioned a SAP database search in respect
of incidents in the area of the incident for a five -year period from 2017. The
search results were put into evidence. They sho wed a number of calls in
relation to Ngambu Street , mostly in relation to leaks but also raising issues
with meters and interruption of water supply. N one of these entries related to
the missing belltob y lid – nor, indeed, to any other missing lids. He had not
been personally aware of the missing lid.
[51] Mr van Harte stated that in the 30 years that he had been working for the
Defendant, he had knowledge of various public liability claims, including people
falling in holes or hurting their feet in open hydrants. Such hydrant covers
measure 25cm by 30cm, or 30cm by 30cm. He had never come across anyone
being injured in a belltoby.
[52] He confirmed that a missing fire hydrant cover would get preference in relation
to repair over a missing belltoby lid. He explained this as follows:
‘We would rather do the hydrant first because they get injured in the hydrant
because it’s deep down and y ou can actually fall with your whole body in it but
not in a belltoby and that’s why we never had any injuries on the belltoby’.
[53] In cross-examination, Mr van Harte was unwilling to accept that the mere fact
that he had never seen a complaint of a person tripping or falling into a belltoby
does not mean that it was impossible that this occurred. He said he could only
answer for what he had received on his desk.
[54] He estimated that there are appro ximately 90,000 belltobys in the Defendant’s
network.
[55] Mr van Harte was unable to explain how it occurred that this particular bellto by
lid was replaced after the incident when there was no report of this on the SAP
spreadsheet that he drew. He suggested that a member of the community may
have removed a lid from another belltoby and placed it there. He later accepted
that it could have been one of the Defendant’s teams that replaced it.
[56] Questioned again about the purpose of a belltoby lid or cover, he co nfirmed
that it was to keep dirt from going into the hole, so that it was easily accessible.
He did not agree that it was to prevent people from injuring themselves. He did
however later accept that when a member of the public reported a n open
manhole, this would be for safety reasons.
[57] Mr van Harte made it clear that unless a missing belltoby lid was reported, the
Defendant would not know about it. The only source of such notifications was
the public.
[58] The SAP schedule evidenced the fact that repair or maintenance teams would
have been present in Ngambu Street on various occasions in the months prior
to the incident. Mr van Harte also accepted that water meter readers would
have walked the street to rea d meters monthly for the purpose of formulating
accounts. He also acknowledged that routine street cleaning occurs in the
Defendant’s areas of responsibility.
[59] He accepted that there was no proactive maintenance programme in respect of
the Defendant’s infrastructure. Everything operates by responding to reports
from members of the public . His depot met its service targets in responding to
such reports , and t he storeroom was always adequately stocked with
necessary equipment.
[60] Mr van Harte c onfirmed that maintenance teams do not drive around with a
spare supply of belltob y lids in case they happen to come upon a missing one
in the course of their duties . In each case, they must requisition a lid to perform
a particular replacement job.
[61] Finally, as regards the positioning of this equipment, Mr van Harte said that it
was usually more convenient to install belltobys on sidewalks to allow access to
the infrastructure, since it would be difficult if there were cars parked over the
cover in a road. However, ultimately a belltoby has to be installed wherever th e
pipe is laid, whether that is below the road or the pavement.
Evidence of Mr R Williams
[62] Mr Williams is the Regional Operations Manager for Region 4 within the
Defendant’s water distribution section. Mr Van Harte reports indirectly to him.
He has been in that position for 7 of his 12 years with the Defendant.
[63] He said that there are approximately 90 000 belltobys in the Defendant’s total
area of operation, of which approxima tely 32 000 are found in Region 4. As
regards to the extent of the water distribution infrastructure, there are
approximately 11 000 km of pipelines, of which 3 500 km are found in Region 4.
[64] Mr Willi ams testified that there is currently no job position or designation
dedicated to (physical and routine) inspection of the water infrastructure.
[65] Asked wh at hypothetically would be required to perform such a function , he
said that one would need a worker together with a person at a handyman level
who could act as a driver , together with a vehicle. At the Defendant’s current
rates, such a team would cost approximately R6 400 per day. The job
description would involve walking the pipelines to check for any non-
conformities. Assuming that the team was able to inspect 20 km of pipeline
every day, it would take 175 days to cover the full distance of the pipeline in
Region 4, at a total cost of approximately R1.2 million.
[66] Mr Williams said that this is not done because there is already a backlog of
service requests and that additional costs would have to be budgeted to create
these new positions.
[67] The biggest challenge s the Defendant faced in meeting its objectives,
particularly in Region 4, were the existence of ‘hot spots’ where law
enforcement was required to acco mpany te ams to enable them to perform
repairs without being attacked, as well as vandalism of infrastructure.
[68] Mr Williams said that the majority of public liability claims of which he became
aware in relation to water distribution were where a burst pipe had caused
flooding in a residential area. He was not aware of any claim involving a
belltoby. He stated as follows:
‘The Belltoby, it gives us access to the isolating valve and just the general size
of, if I look at the size and the hole is so small that, you know, causing damage.
It is normally installed in a road surface which is flat and the chances of
someone getting hurt in a Belltoby, it is very small.’
Requirements For A Delictual Claim
[69] The Plaintiff’s claim for compensation for loss suffered as a result of his fall is
made in delict.
[70] A delict is the act of a person that in a wrongful and culpable way causes harm
to another. Typically, a person’s personal loss lies where it falls . However,
liability for such loss can be attributed to another person where the following
requirements are established (cf. Telematrix (Pty) Limited t/a Matrix Vehicle
Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) in
paragraph 12):
(a) Conduct on the part of the Defendant (in the form either of an act or
an omission);
(b) Wrongfulness of that conduct on the part of the Defendant;
(c) Fault (intention or negligence) on the part of the Defendant in relation
to that conduct;
(d) The existence of loss or damage; and
(e) A causal connection between the conduct and the loss or damage.
Conduct / the omission
[71] The conduct of which the Plaintiff complains takes the form of omission s. This
is pleaded inter alia as the Defendant’s failure to warn members of the public
about the danger of the open belltoby lid, its failure to take reasonable steps to
ensure that members of the public (the Plaintiff in particular) are safe, and its
failure to take steps to ensure that the ‘manhole/drain’ (i.e. the belltoby) is not a
danger to the public (the Plaintiff in particular).
[72] In essence, the case for the Plaintiff is that the Defendant omitted to cover the
belltoby hole in the pavement, or to take steps to warn pedestrians (and the
Plaintiff in particular) of the danger of that hole.
[73] The evidence established the exis tence of such conduct. It was not disputed
that a t the time of the incident, there was an exposed hole in the pavement
which had not been covered by the Defendant . It was also apparent that the
Defendant in fact put no signs or other mechanisms in place to draw the
attention of users of the pavement to the existence of the hole and warn of any
danger arising from it.
Causation and loss
[74] Items (d) and (e) (causation and loss) stand over for future determination,
provided liability in principle is demonstrated. As stated, however, one causal
aspect does arise at the present stage , namely whether the Plaintiff fell as a
result of an encounter with the open belltoby hole.
[75] The Plaintiff’s evidence to this effect was not seriously challenged . It was
entirely possible, given the relative size of the shoe and the hole, that the toe
and forefoot of his shoe entered the open hole in the action of sprinting ,
causing the Plaintiff to trip and fall forwards , as he testified. No alternative
cause of th e fall was put to him by the Defendant. I found the Plaintiff’s
evidence on this point to be fair and reliable. In the circumstances, I consider
that the causal link between the open belltoby hole and the fall was
satisfactorily established.
Wrongfulness and negligence
[76] The judgment in the separated case turns on whether the proved omissions on
the part of the Defendant were wrongful, and if so, whether the Defendant was
culpable in this regard ( i.e. whether it was negligent – in which event the
question of contributory negligence also arises).
[77] I deal fully with these aspects below. At the outset, I point out that t he
wrongfulness enquiry is the sequential precursor to any fault enquiry (Cape
Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) in paragraph 9). Unless
it is found that a particular omission is wrongful, it is irrelevant whether the
Defendant acted with negligence in relation to the loss . The first question
therefore whether the situation is one in which the law of delict in principle
requires action (Bakkerud (supra) in paragraph 9 , relying on Administrateur,
Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 364G). As a matter of legal
policy and the legal convictions of the community, in the absence of
wrongfulness the law turn s its face against the use of a delictual action to
render the Defendant liable for any loss -causing conduct (see Country Cloud
Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015
(1) SA 1 (CC) in paragraph 21).
The law on wrongfulness in the context of an omission
[78] The basic question in establishing wrongfulness is whether , according to the
legal convictions of the community, and having regard to all relevant factors,
the Defendant infringed the Plaintiff’s rights in an unreasonable manner. Put
differently, w as the Defendant’s conduct vis-à-vis the Plaintiff reasonable
according to the legal convictions or feelings of the community? ( Coronation
Brick (Pty) Limited v Strachan Construction Co (Pty) Limited 1982 (4) SA 371
(D) at 380E).
[79] As stated in Country Cloud (supra in paragraph 20):
‘Wrongfulness … functions to determine whether the infliction of culpably
caused harm demands the imposition of liability or, conversely, whether 'the
social, economic and other costs are just too high to justify the use of the law of
delict for the resolution of the particular issue'. Wrongfulness typically acts as a
brake on liability, particularly in areas of the law of delict where it is undesirable
or overly burdensome to impose liability.’
[80] What is wrongful is a question of legal policy. This is informed by a wide range
of relevant factors, including the nature and possible extent of the harm; the
degree of risk that the harm may materialise; the extent to which such harm
was actually foreseen or reasonably foreseeable; the cost and effort required to
take steps to prevent the loss; the probability of success of preventative
measures; the nature of the relationship between the parties ; the interests of
the parties in relation to the relevant act or omission ; economic considerations
relating to t he prevention of the harm and the proportionality of such costs to
the harm ; and other policy issues, inc luding the values of the Constitution
(Neethling, Potgieter & Visser Law of Delict (6th edition) p. 38 and the cases
referred to in footnotes 25 to 29).
[81] A useful formulation of the import of the wrongfulness criterion is the following
dictum of Schippers J (as he then was) in Kruger v MEC, Tra nsport & Public
Works for the Western Cape [2015] ZAWCHC 158 in para 41 (relying on
Loureiro v Imvula Quality Protection (Pty) Limited 2014 (3) SA 394 (CC) in
paragraph 53)):
‘Reasonableness in the context of wrongfulness has nothing to do with the
reasonableness of the defendant’s conduct. Instead, it concerns the
reasonableness of imposing liability on the defendant for the harm resulting
from that conduct.’
[82] It follows from the above authorities that wrongfulness is determined by
[82] It follows from the above authorities that wrongfulness is determined by
reference to the facts of the actual matter in issue, rather than hypothetically .
As stated in Premier, Western Cape v Faircape Property Developers (Pty)
Limited 2003 (6) SA 13 (SCA) in paragraph 41:
‘… there cannot be wrongfulness (a breach of a legal duty) in the air: “it is as well to
remember that conduct which is lawful to one person may be unlawful towards another'
- per Harms JA in S M Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd and
Another [ 2000 (4) SA 1019 (SCA) at 1024F –G].The test for determining whether
conduct is wrongful in so far as a particular plaintiff is concerned, said Harms JA,
'involves a value judgme nt by applying in the light of all the circumstances the
general criterion of reasonableness. The criterion is based upon considerations of
morality and policy and the court's perception of the legal convictions of the
community.” [at 1024F-G]
See also BOE Bank Ltd v Ries [2002 (2) SA 39 (SCA) at 47A–B] where Schutz JA
stated that 'the Court has to be persuaded that the defendant owes a legal duty and
not only a moral duty to the plaintiff. T his involves forming a value judgment' (my
emphasis).’
[83] The same point was emphasised in Country Cloud (supra in paragraph 19) as
follows:
‘The issue is not whether the department's conduct was wrongful in some
general sense, or wrongful towards [the party with which the department
contracted]. It is whether its conduct was wrongful vis-à-vis [the plaintiff].’
[84] In relation to conduct taking th e form of an omission, the general rule is that a
failure to prevent harm arising from the omission is not wrongful. Wrongfulness
will only be present where , in the particular circumstances, there is a duty on a
person to act positively to prevent such harm, and this was not done. Whether
such a duty exists is, once again, a function of the legal convictions of the
community (Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515
(SCA) in paragraph 24 ), which in turn involves considerations o f
reasonableness. As stated in Van Eeden v Minister of Safety and Security
reasonableness. As stated in Van Eeden v Minister of Safety and Security
(Women’s Legal Centre Trust, as amicus curiae) 2003 (1) SA 389 (SCA) in
para 9:
‘A defendant is under a legal duty to act positively to prevent harm to the plaintiff if it is
reasonable to expect of the defendant to have taken positive measures to prevent the
harm. The Court determines whether it is reasonable to have expected of the
defendant to have done so by making a value judgment based, inter alia , upon its
perception of the legal convictions of the community and on considerations of policy.
The question whether a legal duty exists in a particular case is thus a conclusion of law
depending on a consideration of all the circumstances of the case and on the interplay
of the many factors which have to be considered.’
[85] The need for an evaluation of wrongfulness, particularly in the context of
omissions, is based on an aversion towards converting every perceived moral
or ethical obligation into a legal obligation and thereby creating a legal regime
that is more onerous than society is prepared to bear ( Bakkerud (supra) in
paragraph 10). Account must therefore always be taken of contemporary
community attitudes towards particular societal obligations and duties
(Bakkerud (supra) in paragraph 14).
[86] Delictual a ctions against local authorit ies based on an alleged omission to
remove or warn the public about a hazard in public infrastructure such as roads
or pavements are well -known to the courts. In this context, considerations of
wrongfulness play a central role.
[87] For a long time, the prevailing view was that municipalities enjoyed a degree of
immunity from liability , based on a failure to repair or warn about hazards in
public infrastructure, unless there was some statutory obligation to repair or the
hazard was caused by an active step (i.e. a commission) by the municipality. As
pointed out in Bakkerud (supra in parag raphs 25 to 27) , however, the courts
have move d away from this more rigid approach towards one which requires
the question of legal policy to be answered on the facts of each case , having
the question of legal policy to be answered on the facts of each case , having
regard to all relevant factors. Neither a general immunity for municipalities nor a
blanket obligation to repair exists, and the decision is an ad hoc one.
[88] This approach is aligns with the principle (as addressed above) that the
wrongfulness of conduct or an omission is not determined ‘in the air ’ but with
reference to the actual conduct and resultant harm.
[89] What this means, for the present case, is that the court must determine the
wrongfulness vis-à-vis the Plaintiff (and no -one else) of the Defendant’s
omission to repair or warn about the specific open belltoby hole on the
pavement where the Plaintiff fell . Put differently, is it reasonable to impose
liability on the Defendant for the harm to the Plaintiff arising from its conduct in
relation to that particular belltoby hole (cf. Kruger (supra) in paragraph 41)?
[90] The Court in Bakkerud (supra in paragraphs 28 to 31) addressed the
framework in which such decisions are made in the context of municipality
claims as follows:
‘[28] A minuscule and underfunded local authority with many other and more
pressing claims upon its shallow purse, and which has not kept in repair a little
used lane in which small potholes have developed which are easily visible to
and avoidable by anyone keeping a reasonable look -out, may well be thought
to be under no legal duty to repair them or even to warn of their presence. A
large and well -funded municipality which has failed to keep in repair a
pavement habitually thronged with pedestrians so densely concentrated that it
is extremely difficult to see the surface of the pavement, or to take evasive
action to avoid potholes of a substantial size and depth, may well be under a
legal duty to repair such potholes or to barricade or otherwise warn of them.
There can be no principle of law that all municipalities have at all times a legal
duty to repair or to warn the public whenever and whatever potholes may occur
in whatever pavements or streets may be vested in them.
[29] It is tempting to construct such a legal duty on the strength of a sense of
security engendered by the mere provision of a street or pavement by a
security engendered by the mere provision of a street or pavement by a
municipality but I do not think one can generalise in that regard. It is axio matic
that man -made streets and pavements will not always be in the pristine
condition in which they were when first constructed and that it would be well -
nigh impossible for even the largest and most well -funded municipalities to
keep them all in that sta te at all times. A reasonable sense of proportion is
called for. The public must be taken to realise that and to have a care for its
own safety when using the roads and pavements.
[30] It is not necessary, nor would it be possible, to provide a catalogue of the
circumstances in which it would be right to impose a legal duty to repair or to
warn upon a municipality. Obvious cases would be those in which difficult to
see holes develop in a much used street or pavement which is frequently so
crowded that the holes are upon one before one has had sufficient opportunity
to see and to negotiate them. Another example, admittedly extreme, would be
a crevice caused by an earth tremor and spanning a road entirely. The variety
of conceivable situations which could arise is infinite.
[31] Per contra, it would, I think, be going too far to impose a legal duty upon all
municipalities to maintain a billiard table -like surface upon all pavements, free
of any subsidences or other irregularities which might cause an unwary
pedestrian to stumble and possibly fall. It will be for a plaintiff to place before
the court in any given case sufficient evidence to enable it to conclude that a
legal duty to repair or to warn should be held to have existed. It will also be for
a plaint iff to prove that the failure to repair or to warn was blameworthy
(attributable to culpa). It is so that some (but not all) of the factors relevant to
the first enquiry will also be relevant to the second enquiry (if it be reached), but
that does not mean that they must be excluded from the first enquiry. Having to
discharge the onus of proving both the existence of the legal duty and
blameworthiness in failing to fulfil it will, I think, go a long way to prevent the
opening of the floodgates to claims of this type of which municipalities are so
fearful.’
[91] In that case, it was held that there was ‘just enough’ evidence to show that the
[91] In that case, it was held that there was ‘just enough’ evidence to show that the
municipality was under a legal duty either to repair certain holes in a n urban
pavement or to warn the public of their presence. The evidence was that the
pavement abutted on residences in a densely populated suburb and was in
constant use. There were two holes in close proximity to one another and they
were not shallow. There was also a near by pole with a wire cable that had the
effect of ‘shepherding a passer -by in the direction of the holes ’, and the
pavement was relatively narrow. The holes had been there for many months.
The municipality had not presented any evidence. These factors toget her
sufficed to establish a legal duty.
[92] On the other hand, in Municipality of the City of Port Elizabeth v Meikle [2002]
JOL 9525 (A), it was held that a failure on the part of the municipality to repair a
manhole cover that was not lying flush with the pavement surface (it protruded
by 1 cm), and on which the plaintiff had tripped, was not wrongful.
[93] The evidence was that the municipali ty had no particular measures in place to
ensure that manhole covers remained flush with the pavement. There were
teams that periodically swept the pavements and cleared the stormwater
system, but the protruding manhole cover was not seen as significant en ough
to report.
[94] The court had regard to the fact that the manhole was situated in a commercial
area where relatively large numbers of pedestrians could be expected. At the
same time, it was one of 200 000 such manholes under the municipality’s
control, and there was some evidence of constraints on the municipal finances.
[95] The court concluded as follows (in paragraphs 11 and 12):
‘Clearly there is a risk of harm occurring if a manhole cover on a pavement
protrudes above the level of the surrounding surface, but there is no evidence
to suggest that the risk is unduly high . Nor, in my view, would one expect that
to be so, for a one ce ntimetre impediment on a city pavement is by no means
unusual. The manhole cover was clearly visible to pedestrians on the
pavement who, while not being required to walk with their eyes glued to the
ground, can nevertheless be expected to keep a general lookout as they walk.
…
In my view the risk that the manhole cover presented was not sufficiently
significant to require that steps should have been taken to avoid it. It was but
one feature of city pavements that pedestrians ought reasonably to expect.
Albeit that the manhole was in the centre of the pavement it was clearly visible
from a considerable distance and did not present itself as a trap to the unwary.
In my view the risk of harm occurring was relatively slight and the appellant
was justified in not diverting limited public funds to eliminate the risk altogether.’
[96] In Meikle, reference was made to Wenborn v Cape Town Municipality 1976 (1)
SA 25 (C) . In that case, the local authority was found liable for loss suffered
after a pedestrian tripped over a protruding water meter cover on a pavement. It
was held that, although a ‘borderline case’, the projection ‘did constitute a real
danger, having regard to the fact that it was situated on a well made up busy
sidewalk outside a large department store’.
[97] It is apparent that the court in Meikle was prepared to adopt a less stringent
approach towards wrongfulness than in Wenborn, by placing a greater
emphasis on the ability of the public to see the impediment and the fact that
such hazards are ‘by no means unusual’. This is indicative of the fact that what
constitutes wrongful conduct may change with the passage of time, with the
legal convictions of the community having to be considered in the light of the
evidence led in the case before the court at the time.
[98] The Defendant also referred me to the recent judgment of this court in Schaefer
v City of Cape Town [2025] ZAWCHC 46 , also involving a fall on an uneven
surface in an urban pavement. This was not a case where the injury was
directly associated with infrast ructure installed in the sidewalk such as a
manhole cover , but it was caused by the raised edge of a paving brick
protruding above the rest of the pavement surface.
[99] The court held that there had not been wrongfulness by reference to the
following factors (paragraph 35):
(a) That the protrusion was minor and did not pose a significant or unusual
threat. This was supported by the fact that it had not been reported and
had not caused injury before . There was no pattern of incidents or
complaints suggesting a ‘chronic danger’. A ‘small, visible irregularity is
often not wrongful if it can be easily avoided by a pedestrian taking a
normal degree of care’;
(b) The local authority had a number of prioritie s and c ould not achieve a
state of pristine infrastructure at all times . Thus , although it ha d
constitutional obligations to provide services, it was entitled to manage
its finite resources. The evidence was that it would cost R2.1 million per
year to appoint a dedicated inspector of the sidewalks in the region
where the event occurred, which exceed ed the whole region’s budget
for pavements and cycleways;
(c) The fact that the authority controlled the sidewalk had to be viewed
against the fact that it had n o reason to know about the localised
defect; and
(d) The authority, given the scale of its infrastructure, could not be required
to patrol constantly for every minor pavement defect.
[100] On that basis, it was held that it would be un desirable and unduly burdensome
to impose liability on the local authority in this instance (i.e. the plaintiff did not
establish wrongfulness).
Analysis of wrongfulness in the present case
[101] Against this background, I turn to consider the evidence before me with a view
to determining whether the Defendant’s omission was wrongful, i.e. whether it is
reasonable to impose liability upon the Defendant for the harm caused to the
Plaintiff resulting from that omission.
[102] The following facts appear to me to be significant in relation to the wrongfulness
enquiry.
(a) The hole in the pavement as a result of the loss of the belltoby lid was
relatively small in size. It was a circle of just more than 11cm in
diameter. This is considerably smaller than the length of a typical
adult’s foot, although slightly wider than the width of the Plaintiff’s foot.
(b) The hole was flush with the pavement, i.e. nothing protruded above
pavement height. Therefore, the only way in which the hol e could
interfere with a pedestrian’s step would be if a part of that person’s foot
went into the hole and caused the person to stumble.
(c) Although it is possible (as the photographs admitted in evidence
showed) that in the course of taking an ordinary step during walking, a
part of a pedestrian’s foot (the heel or the forefoot) could go slightly into
the hole, that would require the foot to b e set down perfectly vis-à-vis
the hole. Most contact between a shoe and the hole would not result in
any part of the shoe going into the hole , although a smaller size shoe
would be more likely to go partly in.
(d) The hole was situated in the middle of the pavement, with a space of
approximately a metre on either side of it, giving a pedestrian plenty of
space to walk past it . A pedestrian would not be channelled or
shepherded in the direction of the hole by other street furniture.
(e) The hole was easily visible to the naked eye. There was also no
evidence that the pavement was one that was regularly thronged with
pedestrians, making it difficult for them to see it as they moved along. If
anything, the photo graphs suggested that the pavement was in a fairly
quiet suburban neighbourhood, with no commercial buildings or
premises nearby that would attract large crowds of pavement users.
The pavement was also adequately lit at night.
(f) The Defendant, a large municipality which clearly faces regular public
liability claims, had no record of any claim ever being made against it
arising out of a person falling at an open belltoby hole, despite having
approximately 90 000 of these installed across the municipal area. This
in circumstances where it was recognised that belltoby lids are regularly
in circumstances where it was recognised that belltoby lids are regularly
removed by vandals or scrap metal thieves, and having regard to the
Plaintiff’s own evidence that ‘most likely you will find them with no lids ’.
There was also no evidence of any other injury occurring at this specific
belltoby hole.
(g) The Defendant did not regard the risk of any harm arising to a member
of the public from any open belltoby hole as being significant. Its
concern in relation to lids on belltobys was , in anything, related to
protection of the infrastructure. It had no pro -active programme of
monitoring missing lids.
(h) Despite the existence of different channels to report municipal issues to
the Defendant, neither the Plaintiff nor any other member of the public
had reported this particular belltoby hole, despi te the fact that it had
been in that state for up to a year.
(i) The manner in which the injury occurred in the present case seems to
have been closely tied to the unusual and extreme behaviour of the
Plaintiff at the time . He accepted that , had he been walking on the
sidewalk, he would not have been affected by the hole . What led to a
fall in this case was that he was sprinting while pursuing the thieves,
and therefore adopting a gait that involved him landing on each stride
with his toe an d forefoot point ing vertically downwards. It was only
because of this, and the extremely unfortunate fact that he happened to
bring his toe and forefoot down perfectly on the open hole, that his foot
went deeply enough into the hole to cause him to fall.
[103] Applying the various factors identified in the authorities discussed above to the
facts of this case, the position in relation to wrongfulness is as follows.
[104] First, as regards the nature and possible extent of the harm , this amounted to
physical harm to the Plaintiff as a result of a fall caused by the open hole
(together with the sequelae of such harm). It would not be unreasonable in
principle to expect a person to take steps to prevent that type of harm.
[105] Second, as regards the degree of risk that the harm may materialise , the
evidence showed that this risk was very low. The harm was (as the Plaintiff
admitted) only caused because of how he was sprinting at the time, and
because his toe and forefoot (unusually coming down vertically towards the
ground rather than after landing on the heel and rolling forward, as would be
the case with a normal gait) landed perfectly in the hole. His unusually high
speed must also have been a factor in the fall.
[106] Third, as regards the foreseeability of harm, there was no evidence that harm to
a pavement user was in fact foreseen by the Defendant. Nor was it suggested
to any of the Defendant’s witnesses that such harm was in general foreseeable.
The fact that there was no evidence of any prior event of damage in respect of
any belltoby across the municipality supports the conclusion that it was not
foreseeable. But of course, since one is not considering wrongfulness ‘in th e
air’, the question is a more pointed one: was damage of the type actually
suffered by the Plaintiff, in those extreme circumstances, foreseeable? If
ordinary damage from a belltoby hole is not typically foreseeable, the possibility
of damage from a fall at a belltoby hole on a pavement as a result of a person
sprinting and landing on the forefoot is an a fortiori case.
[107] Associated with this factor is the clear evidence that the open hole had not
been reported by anyone (including the Plaintiff) to the Defendant for up to a
year. This suggests that the members of the community in that area who used
the pavement daily did not view the absence of a lid on the belltoby as a
significant source of risk to such users.
[108] Fourth, as regards the cost and effort required to guard against the loss , it is
questionable whether the Defendant is right that what would necessarily be
required is the hiring of dedicated staff to conduct standing pipeline inspections.
required is the hiring of dedicated staff to conduct standing pipeline inspections.
Checking whether belltoby lids are in place could possibly be included in the
routine duties of existing staff who are present in the area for other purposes .
Having said that, h owever, although the Defendant’s witnesses agreed that
there are water meter readers and street cleaners who work periodically in the
neighbourhood, there was no interrogation as to whether a belltoby inspection
could sensibly be added to their working duties. It is for the Plaintiff to establish
the factual basis of wrongfulness, not for the Defendant to disprove it.
[109] Fifth, as regards t he probability of success of such preventative measures , it
seems clear that if the Defenda nt were to implement a system of inspections
and pro -active lid replacements, such a system would be effective as the
replacement of a lid would remove the hole entirely. There was also no
suggestion that the cost of replacing covers was itself prohibitive.
[110] Sixth, as regards constitutional issues, it is so that in terms of section 152(2) of
the Constitution, a local authority must strive , within its financial and
administrative capacity, to achieve its mandated objectives set out in section
152(1). These include to ensure the provision of services t o communities in a
sustainable manner (sub -paragraph ( b)) and to promote a safe and healthy
environment (sub-paragraph (d)). While the Defendant acknowledged in its plea
a general legal duty to protect the community against harm caused by its
conduct in providing public roads, the constitutional objectives reflected above
cannot impose an absolute legal duty to prevent every kind of potential harm to
every member of the public , and the Plaintiff made no such submission . In my
view, the authorities referred to above relating to delictual liability of
municipalities adequately balance the respective risks and interests of the
parties. I do not think that the existence of the constitutional provisions referred
to above warrants the adjustment of the delictual balance in favour of members
of the public.
[111] Placing all these factors in the balance, I am of the view that the legal
convictions of the community would not be such as to find it reasonable to
convictions of the community would not be such as to find it reasonable to
impose liability on the Defendant for the harm actually cause d to the Plaintiff as
a res ult of its failure to replace the belltoby lid on that particular pavement
corner, or to provide some form of barricade or warning.
[112] It is highly significant in this regard that there was little to no evidence that the
open hole, which was small but clearly visible in the middle of a wide pavement
and did not protrude above the surface , presented a material tripping risk, even
to the anticipated typical user of the pavement. While the facts show that there
was indeed a risk to a person who was sprinting on the pavement, not looking
where he was placing his feet, even then the risk of loss was very low, because
the runner’s foot would have had to land perfectly in the hole at a vertical angle
to cause a fall – a highly improbab le event . The fact that there was no
precedent for damage as a result of a hazard of this nature, and the fact that
the community itself had not seen fit to raise the alarm and call for a repair, also
supports this conclusion. The passive approach of the affected community
towards the issue also provides a direct window into the legal convictions of the
community as regards omissions of this nature.
[113] The fact that the damage in the present case was caused as a result of the
Plaintiff engaging in what may be described as extreme or unusual behaviour
on the pavement plays a material role in a finding that the omission in this case
was not wrongful. If the loss had been caused as a result of the ordinary or
predictable use of the p avement, the legal convictions of the community would
be more likely to treat it as reasonable for the Defendant to compensate the
victim. But because wrongfulness is not determined “in the air ” but having
regard to the actual circumstances of the loss -causing event, that scenario is
not before me. Foreseeability of harm resulting from an unusual or extreme use
of the pavement is far lower, and the risk of such harm occurring is plainly also
very limited. The undesirability, as a matter of principle, of saddling a
municipality with the consequences of losses caused in this way is evident.
municipality with the consequences of losses caused in this way is evident.
[114] These factors, in my view, outweigh the fact that the damage caused was in the
nature of a personal injury and that it would have been possible to remove the
risk entirely if there had been a replacement of the lid.
[115] I therefore find that the Plaintiff has not established that the Defendant’s
omission was wrongful for purposes of the delictual claim.
[116] I should however stress that the value judgment in this matter that the omission
was not wrongful vis-à-vis the Plaintiff, in the context of the actual loss suffered
by him , does not establish a general principle that the Defendant can never
reasonably be held liable for loss caused as a result of a pavement user
making contact with an exposed belltoby hole. Each case will turn on its own
facts and on the specific evidence that is led. A scenario which I have not had
to consider, for example, involves the possible harm caused to small children
using or playing on the pavement, for whose small feet the open belltoby hole
may present a much greater hazard. It is apparent that the risk of such a loss -
causing event occurring may be more severe than that of an adult using the
pavement for walking , and that the legal con victions of the community may be
more inclined to permit the Defendant to bear liability for the harm resulting
from its omission in that context.
[117] Moreover, it may well be that an open belltoby cover of the same size would
present an enhanced risk capable of giving rise to a finding of wrongfulness
where, for example, it is situated on a narrow pavement or in a place where
there is such a large amoun t of foot traffic that ordinary users are unlikely to
notice it easily, and damage arises.
[118] My finding as to wrongfulness on the facts of this matter is therefore not to be
viewed as a licence for the Defendant to simply disregard the prevalence of
missing belltoby lids in its area of responsibility, and to consider itself immune
to claims in delict as a result of any damage caused by such holes , irrespective
of the circumstances.
Negligence
[119] Given the approach I have adopted above towards wrongfulness, it is
unnecessary for me to deal with the issues of negligence. For the sake of
completeness, however, I will briefly set out my views in this regard.
[120] Negligence refers to the blameworthy condu ct of someone who has acted
wrongfully. It is tested against the standard of the diligens paterfamilias or
reasonable person. It exists where a diligens paterfamilias in the position of the
defendant (i.e., in the present case, a reasonable organ of state) would foresee
the possibility of his conduct injuring another in his person or property and
causing him patrimonial loss, and would take reasonable steps to guard against
such occurrence; and where the defendant failed to take such steps ( Kruger v
Coetzee 1966 (2) SA 428 (A) at 430E-G).
[121] Foreseeability and the reasonable probability of harm , and the prospects of
guarding against or preventing such harm, are factors that play a role in both
the wrongfulness and negligence enquiries. The difference, as per the dictum of
Schippers J in Kruger v MEC , Transport and Public Works (supra), is that
negligence goes to the reasonableness of the defendant’s conduct , rather than
to the reasonableness of imposing liability on it per se.
[122] What must be foreseeable is a reasonable possibility of harm . In Standard
Chartered Bank of Canada v Nedperm Bank Limited 1994 (4) SA 747 (A) at
658G, the following was stated:
‘In delict, the reasonable foreseeability test does not require that the precise
nature or the exact extent of the loss suffered or the precise manner of the
harm occurring should have been reasonably foreseeable for liability to result.
It is sufficient if the general nature of the harm suffered by the plaintiff and the
general manner of the harm occurring was reasonably foreseeable. (See
Burchell Principles of Delict at 92 ff and the authorities there cited.)’
[123] Important in this regard is the degree of probability of the manifestation of harm.
The greater the possibility that damage will occur, the easier it is to establish
that such damage was foreseeable, and vice versa.
[124] The courts have re cognised that in assessing the foreseeability of damage,
regard may be had to how the person in question may reasonably expect
others to conduct themselves. For example, in Kruger v Carlton Paper of South
Africa (Pty) Limited 2002 (2) SA 335 (SCA) , it was held that although loss
through contact with an open electrical terminal under the defendant’s control
was generally foreseeable, the conduct of the plaintiff (an employed electrician)
causing him to suffer loss , which involved him squeezing between a wall and
the terminal, was not something that a reasonable person would have foreseen
(see paragraph 19). It was described as an act of gross negligence, if not out -
and-out recklessness (paragraph 15). And in Stratton v Spoornet 1994 (1) SA
803 (T), it was held that the conduct in question, involving a child climbing a
pylon and venturing to the point of touching a live cable , was so unlikely that
the harm was not reasonably foreseeable. It was also stated (at 811B) that
‘[t]he very fact that an accident of this gene ral kind has never occurred is, in my
view, a cogent and compelling pointer to the conclusion that this kind of harm
does not fall within the realm of reasonable foreseeability’.
[125] As regards the question of whether the reasonable person would take
precautionary steps to prevent the harm, relevant factors are the nature and
extent of the risk, the seriousness of the damage if the risk materialises, the
relative importance and object of the defendant’s conduct and the cost and
difficulty of taking precautionary measures (see generally Neethling et al op. cit.
pp 145-147 and the cases referred to there).
[126] Turning to the facts of the present case, the Defendant did not actually foresee
[126] Turning to the facts of the present case, the Defendant did not actually foresee
injury arising as a result of this open belltoby hole, because it was not in fac t
aware of th is missing lid. It was however generally aware that belltoby lids go
missing in i ts area of responsibility as a result of theft or vandalism . But even
though it knew generally of such circumstances, there was no evidence that it
foresaw the risk of injury in general occurring as a result of hol es being left
open and unguarded. On the contrary , the evidence of the Defendant’s
witnesses was that the chances of a person getting hurt in such a small hole
were very small.
[127] I do not think that this evidence should be rejected. The mere existence of an
open hole , 11cm in diameter, in a pavement does not (on the evidence led
before me) necessarily give rise to a high or material probability that damage
will occur , especially where the hole is visible, easily avoided by a normal
pavement user, and not situated in a very busy area. It is not unreasonable to
conclude that most pavement users would not get entangled with such a hole.
Indeed, the Plaintiff’s own evidence was that if he had been walking, he w ould
not have stepped in the hole.
[128] What makes this case unusual, however, is once again that the damage was
not caused as a result of what may be regarded as typical pedestrian
behaviour. I t cannot be ignored that the harm that actually ensued was the
result of a very unfortunate and unusual set of circumstances involving a
person sprinting as fast as he could after a thief , not looking where he was
stepping, and landing with his forefoot pointing vertically downwards in the hole
at the perfect angle. I do not think that a reasonable local authority would have
foreseen such an injury occurring as a result of its not filling a belltoby hole in
the pavement.
[129] I therefore am of the view that even if the Defendant’s conduct had been held to
be wrongful, I would not, on these particular facts, have held that its failure to
repair this particular belltoby hole was negligent, because t he necessary
degree of foreseeability of harm was not shown to be present.
[130] I should however again stress that in reaching this conclusion, I am not
suggesting that the Defendant m ight not be found to have acted negligently on
other facts and in relation to other types of injury that may be proved to have
occurred in other cases. Moreover, it is not necessary for me to deal with the
question as to whether a reasonable local authority wo uld have done more to
prevent such risks occurring than merely reacting to complaints from the public.
[131] I also, of course, need not deal with the issue of contributory negligence.
CONCLUSION AND COSTS
[132] For the reasons given above, I conclude that the Plaintiff has not established
that Defendant is liable for any loss arising out of his fall. His claim must
therefore be dismissed.
[133] I see no reason why costs should not follow the result.
[134] This outcome mak es it unnecessary for me to address the question as to
whether a particular costs order should be made in respect of the evidence of
Ms de Bruyn. The Defendant had contended that the Plaintiff was unreasonable
in not admitting the authenticity of the photo graphs of which she was the
photographer. I have my doubts as to whether the Plaintiff can be criticised for
not making such admissions , particularly since he was then able to extract
information from Ms de Bruyn as to the contents of the photographs in cross -
examination. However, s ince those costs will be covered by the general order
as to costs, I do not express a view in that regard.
[135] Finally, there is the question of the costs of an earlier postponement of the trial
in February 2024 , ap parently following the late filing by the Defendant of a
notice in terms of Rule 36(10) to rely on the aforementioned photographs, as
well as notice of the intended use of the physical belltoby in evidence.
[136] Neither party provided me with all the facts necessary to place me in a position
to determine liability for these wasted costs. While the Defendant was clearly
late in giving the notices just before trial , having regard to the nature of the
disputes and the fairly anodyne nature of what is depicted in the photographs, I
also cannot conclude that a postponement was necessarily warranted.
[137] In the circumstances, I am unable to apportion blame for the wasted costs. I t
seems appropriate that I should therefore make no order as to costs.
[138] In the premises, I make the following order:
(a) The Plaintiff’s claim is dismissed with costs, including the costs of
counsel on Scale B; and
(b) There is no order as to the costs occasioned by the postponement of the
trial set down for 27 February 2024.
-----------------------------
M W JANISCH
Acting Judge of the High Court
APPEARANCES:
For the Plaintiff: L Gabriel
Instructed by: Kruger & Co
For the Defendants: M de Wet
Instructed by: Fairbridges Attorneys