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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
JUDGMENT
Case No: 16771/2019
In the matter between:
LORRAINE JANE PARKER PLAINTIFF
and
DANIEL PRICE FIRST DEFENDANT
ANETTE PRICE SECOND DEFENDANT
Coram: MPHEGO AJ
Heard: 2 September 2025 (The parties filed supplementary written
submissions on 10 and 19 September 2025, respectively)
Delivered: 12 March 2026
JUDGMENT
MPHEGO AJ:
INTRODUCTION
[1] These action proceedings were met with an application for absolution from the
instance at the conclusion of the plaintiff's case . O ral argument on the absolution
application ensued, with the parties subsequently being requested to prepare
supplementary written s ubmissions. The parties filed the supplementary written
submissions on 10 and 19 September 2025, respectively.
BACKGROUND
[2] The plaintiff is Lorraine Jane Parker, an adult female who owned and operated a
landscaping business called Roots and Shoots Landscaping.
[3] The first defendant is Daniel Price, an adult male. The second defendant is Annette
Price, an adult female. The first and second defendants reside at […] H[...] Lane,
Newlands, Cape Tow n ("the premises"), being the premises where the accident
described below occurred.
[4] On or about 6 September 2018, at approximately 14h30, the plaintiff sustained a
head injury when a section of metal fence struck her on the left side of her head.
THE PLAINTIFF’S CASE
[5] The plaintiff asserted in her particulars of claim, that the first and second respondents
as owners, alternatively the beneficial and risk -bearing possessors, of th e premises,
owed a duty of care towards the public in general and t o her in particular, which duty
included:
a) A duty to ensure the safety of any person entering the premises.
b) A duty to ensure the safety of any person walking in or at the premises.
c) A duty to take all necessary steps to avoid accidents such as the one which
gave rise to this action.
d) A duty to ensure that any person or entity employed, alternatively contracted, to
carry out any of the aforesaid duties would do so speedily, properly and
effectively.
[6] It was submitted that the second defendant is the owner of the premises.
[7] The plaintiff pleaded that the accident was caused solely by the breach of the duty of
care and/or the causal negligence of the first defendant, alternatively the second
defendant, further alternatively the first and second defendants jointly and severally,
in that they:
a) Failed to ensure the safety of any person, and in particular the plaintiff, entering
the premises.
b) Failed to ensure the safety of any person, and in particular the plaintiff, walking
in or at the premises.
c) Failed to ensure that the fence of the premises wa s maintained properly and
timeously at all times.
d) Failed to ensure that the fence of the premises was safely secured.
e) Failed to take all necessary steps to avoid accidents such as the one which
gave rise to this action.
f) Failed to ensure that any person or entity employed, alternatively contracted, to
carry out any of the aforesaid duties would do so speedily, properly and
effectively.
[8] In consequence of the accident, the plaintiff sustained certain bodily injuries,
including a head injury. As a result of the injuries and the sequelae thereof, the
plaintiff suffered, and will continue to suffer, the following damages:
a) Past hospital, medical and related expenses in the estimated amount of R5 000.
b) Future hospital, medical and related expenses in the estimate d amount of R70
000, comprising future neurological consultations and pain medication.
c) Past and future loss of earnings, alternatively loss of earning capacity, in the
estimated amount of R250 000.
d) General damages in the amount of R500 000.
[9] The plaintiff claims damages in the total amount of R825 000, together with interest
thereon at the prevailing legal rate from the date of demand, alternatively from
fourteen days after the date of judgment to the date of final payment, and costs of
suit on the High Court scale.
Evidence presented by the plaintiff
[10] The plaintiff testified in court regarding the accident, stating that:
a) She was a landscaper appointed to install a new lawn at the premises.
b) She had been working at the premises for two days prior to the accident (3rd
and 4th September 2018).
c) The fence had been closed and secured by ropes on either side.
d) On 6 September 2018, Mr Price began undoing the ropes to give access for the
lawn installers to come in, and the fence then fell on her head.
[11] Mr Gary Green testified inter alia that:
a) he has known the plaintiff for over 27 years;
b) since the accident, the plaintiff has been unwell and experiencing dizzy spells,
one of which landed her in hospital;
c) the plaintiff has not fully rec overed from the injuries sus tained due to the
accident, she often loses balance;
d) the plaintiff experienced pressure on her head which demobilized her and she
could not drive; and
e) the plaintiff had become claustrophobic and broke down at times.
[12] A video clip of the accident was presented as evidence in court. It inter alia showed:
a) the first defendant untying ropes on the fence;
b) the plaintiff walking towards the first defendant as he was untying the ropes
from the fence; and
c) the fence falling and striking the plaintiff.
[13] The plaintiff testified as follows at the trial: " Mr Price was busy unravelling the ropes
of the fence and, I see from the video, that I stepped back and was doing something
to assist him with the rope on one side of the fence and then the fence fell on my
head.". She further acknowledged: "I may have tried to help."
[14] The plaintiff filed extensive medical documentation confirming the nature of her
injuries and a Notice in terms of Rule 36(9)(a) and (b) indicating that the plaintiff
intended to call the following expert witnesses at trial:
a) Dr E W Burger (General Practitioner);
b) Elspeth Burke (Neuro & Clinical Psychologist);
c) Madeleine Pretorius (Industrial Psychologist); and
d) Munro Forensic Actuaries.
[15] The trial bundle comprised reports from medical d octors, Burger, Burke and
Pretorius, as well as report from Dr Mdunge Mguni (Radiologist), Dr Coenie Hatting
(Neuropsychologist), Dr Pierre van der Merwe (Neuropsychologist) and Dr B Leslie.
None of the medical doctors testified at the trial.
THE DEFENDANTS’ CASE
[16] The defendants denied that they breached any duty of care owed to the plaintiff and
pleaded that the portion of the fence was removed at the plaintiff's special instance
and request.
[17] The defendants further plead ed that the plaintiff's alleged injuries were caused as a
result of the plaintiff's own negligence in that she failed to allow the first defendant to
remove the fence on his own, because she interfered with the process of removal of
the fence, and stood too close to the first defendant whilst he was in the process of
untying the ropes attached to the fence in order to remove a portion of the fence.
[18] In the alternative, the defendants pleaded that the plaintiff consented to be subjected
to the risk of injury (volenti non fit injuria ), in that she (1) was requested not to
interfere and assist with the removal of the fence, (2) was requested to stay clear of
the area where the fence was removed, (3) was fully aware of the risks involved in
standing close to the area where the fence was removed, (4) and despite this
knowledge and whilst appreciating the risk, she nevertheless stood close to the area
and was bumped when the fence swung around.
[19] In the further alternative, the defendants plead ed that if it is found that they acted
[19] In the further alternative, the defendants plead ed that if it is found that they acted
wrongfully and/or negligently, the plaintiff was solely and/or contributorily negligent in
failing to avoid the accident and/or her alleged injuries when, by the exercise of due
and reasonable care, she could and should have done so.
[20] In relation to foreseeability and causation, the defendants contend that any injury was
not foreseeable and that the plaintiff was negligent by not allowing the first defendant
to remove the fence on his own without her interference and st anding too close
during the removal.
[21] The defendants pleaded that the plaintiff voluntarily assumed the risk, in that she was
fully aware of the risks and, despite this, chose to stand close, thereby consenting to
the risk of injury.
[22] The defendants pleaded that there is some contributory negligence on the part of the
plaintiff and in the alternative, if found liable, the defendants argue that the plaintiff
was solely or contributorily negligent and any damages should be apportioned in
terms of the Apportionment of Damages Act.
Defendants counsel’s cross examination of the plaintiff
[23] At the beginning of cross -examination, the plaintiff was questioned on whether she
had requested access to the garden through the portion of fence in question. After
some deliberation, the plaintiff conceded that she had indeed requested this access,
responding: ‘Yes, I needed the access through that gate’.
[24] The plaintiff was asked a series of questions about the condition of the premises and
the fence prior to the accident including, (1) w hether the fence was safely secured
before it was opened at her req uest (2) whether it was a well -maintained fence, and
(3) w hether the fence remained standing and secured by ropes whilst she was
working in the garden before she asked the first defendant to remove it . She
responded in the affirmative to the questions.
[25] The plaintiff was asked whether there was anything present at the property during
her ‘whole job ’ that prevented her from doing her work ‘speedily, properly and
her ‘whole job ’ that prevented her from doing her work ‘speedily, properly and
effectively’. She answered ‘no’ and further conceded that having the fence removed
and gaining access through it actually made her job easier and speedier.
[26] It was put to the plaintiff that what had happened was purely an accident , an
unfortunate mishap. The plaintiff responded in agreement, stating: ‘It was
unfortunate. I don't feel th at there was any malicious intent. It happened ’. It was
further put to her that accidents sometimes happen , and no one is to blame, to which
she responded: ‘It was just very unfortunate that it happened because it changed my
life. Correct’.
[27] When the same proposition (that accidents happen and no one is to blame) was put
to her again, the plaintiff vaguely stated that she ‘thinks’ someone is to blame. When
asked who she thinks is to blame and why, she responded that she ‘thinks’ the first
defendant is to blame, and as for the reason for her response , she simply stated:
‘because it caused a long-term problem’.
[28] The plaintiff acknowledged that even she did not foresee the accident occurring,
having testified: ‘While I was on the property on the previous 2 days, there was no
indication that something like this could happen with the moving of the fence’.
[29] The plaintiff was taken to some of the reports of the medical experts during c ross-
examination to highlight discrepancies between her testimony and the contents of the
reports in that the plaintiff had given different versions of how the accident occurred:
a) The plaintiff told Dr Eugene Burger that ‘the earthen substructure beneath a
section of metal palisade fencing shifted and the fence that it supported
collapsed, striking her on the left side of the head.’1.
b) The plaintiff described ‘being impacted by a metal pipe’2.
c) At trial, the plaintiff testified that Mr Price was ‘busy unravelling the ropes of the
fence’ and ‘I think Mr Price slipped and the fence fell down.’3.
[30] In the supplementary submissions filed by counsel for the plaintiff it is acknowledged
that the medical expert reports constitute hearsay evidence.
1 Trial Bundle, p 49
2 Trial Bundle, p 32
1 Trial Bundle, p 49
2 Trial Bundle, p 32
3 Defendants’ Supplementary Written Submissions, para 18
APPLICATION FOR ABSOLUTION FROM THE INSTANCE
Defendant
[31] As alluded to above, at the conclusion of the plaintiff's case, the defe ndants’ counsel
applied for absolution from the instance on behalf of the defendants from the bench
and the court requested that the written submissions be filed on behalf of the plaintiff
and the defendants.
[32] The defendants’ counsel submitted that the test for absolution from the instance, as
set out in Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88 (SCA) referring
to Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G -H, is whether
there is evidence upon which a court, ap plying its mind reasonably to such evidence,
could or might find for the plaintiff and that the plaintiff is required to make out a
prima facie case with evidence relating to all elements of the claim.
[33] It was submitted on behalf of the defendants that the plaintiff must not only stand or
fall by her pleaded case but she should accurately set out the facts which gave rise
to her alleged claim or supposed right of action – the nature and/or manner in which
he or she alleges that the defen dant acted wrongfully and/or negligently – and that
these are the facts which the plaintiff must then set out to prove.
[34] The particulars of claim alleged negligence as set out in paragraph [7] on the basis
that the defendants failed to: (1) ensure the safety of persons entering and walking
on the premises; (2) ensure the fence was maintained properly and safely secured;
(3) take necessary steps to avoid such accidents; and (4) ensure any contracted
persons would carry out duties properly.
[35] The defendants take issue with the fact that the plaintiff failed to lay any foundation,
let alone attempt to prove, even a prima facie case of wrongfulness or negligence on
the part of the defendants. The defendants submit that nothing in the particulars of
claim mentions the first defendant having moved, opened, shifted or touched the
claim mentions the first defendant having moved, opened, shifted or touched the
fence, nor is it mentioned how he could have done so wrongfully or negligently.
[36] The defendants relied on Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority SA 2006 (1) SA 461 (SCA) , which provides that the
first principle of the law of delict is that everyone has to bear th e loss they suffer
("skade rus waar dit val"), and that Aquilian liability requires the defendant's act or
omission to have been wrongful and negligent and to have caused the loss. The
defendants based plaintiff’s burden of establishing that the defendants' conduct was
both wrongful and negligent in order to succeed in a delictual claim for damages , on
this judgment.
[37] The defendants submitted that the plaintiff's evidence refuted her own case. During
cross-examination, the plaintiff conceded that:
a) she requested access through the fence;
b) the premises were generally safe before the process of untying the ropes to
remove the fence was undertaken;
c) the fence was well-maintained and safely secured before untying of the ropes to
remove the fence; and
d) nothing prevented her from doing her job speedily and effectively , and that by
having the fence removed and gaining access through the fence, her job was
actually made even easier and speedier.
[38] The effect of these concessions is that the plaintiff effectively admitted th at the
defendants were not negligent in the ways she had pleaded, thereby undermining her
own case.
[39] The defendants’ counsel further submitted that the plaintiff failed to lead evidence on
what ‘necessary’ steps the defendants could or should have taken to avoid the
accident, as required by the test for negligence in Kruger v Coetzee 1966 (2) SA 428
(A). The defendants further submitted that the plaintiff also failed to establish
foreseeability, and testified that there was ‘no indication that something like this could
happen’. The defendants submitted that e ven if the court could infer what steps
would have been necessary or reasonable, the plaintiff did not lead any evidence as
would have been necessary or reasonable, the plaintiff did not lead any evidence as
to how the defendants failed to take such steps which is also required by Kruger v
Coetzee.
[40] Additionally, as stated the defendants contend that the plaintiff failed to establish how
the accident and/or the harm was in any way foreseeable by either defendant s and
pointed to the testimony of the plaintiff that even she , herself did not foresee the
accident occurring, stating: ‘While I was on the property on the previous 2 days, there
was no indication that something like this could happen with the moving of the fence .’
and the plaintiff acknowledged during cross -examination that the accident was an
accident with no malicious intent.
[41] The defendants submit that neither wrongfulness nor negligence can be inferred from
the mere fact that a person suffered harm and/or the extent of such harm.
[42] The defendants further submitted that the plaintiff's evidence was of poor quality,
presenting different versions of how the accident occurred, and the plaintiff was
unable to explain discrepancies between her testimony and the contemporaneous
documents which were filed on her behalf.
[43] The defendants seek an order of a bsolution from the instance and dismissal of the
plaintiff's claim and costs.
Plaintiff
[44] The plaintiff submits that her particulars of claim properly allege that the defendants,
as owners or beneficial possessors of the premises, owed a duty of care to the public
and the plaintiff as set out in paragraph [5] above.
[45] The plaintiff alleged that the accident was caused solely by the defendants' breach of
the duty of care and/or causal negligence, including failure to ensure the fence was
maintained and safely secured.
[46] It was submitted on behalf of the plaintiff that the breach of a legal duty implies
wrongfulness, and the plaintiff is not required to plead wrongfulness, relying on
authorities including Minister van Polisie v Ewels 1975 (3) 590 (A) and Van Eeden v
Minister of Safety and Security 2003 (1) SA 389 (SCA ) and Minister of Law and
Order v Kadir 1995 (1) SA 303 at 317C to 318A . Notably a review of these cases
Order v Kadir 1995 (1) SA 303 at 317C to 318A . Notably a review of these cases
reveals that:
a) The Minister van Polisie v Ewels 1975 (3) SA 590 (A) case does not directly
support the proposition that wrongfulness need not be pleaded separately.
Rather, it establishes that wrongfulness depends on the existence of a legal
duty.
b) The Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) case
supports the opposite proposition, that wrongfulness is a separate element
that must be established in addition to fault (negligence).
c) The Minister of Law and Order v Kadir 1995 (1) SA 303 at 317C to 318A case
deals with the relationship between statutory duties and delictual liability. The
relevant passage highlighted by the plaintiff’s counsel discusses whether a
breach of a statutory duty automatically gives rise to a private law action for
damages.
[47] It was argued on behalf of the plaintiff that negligence is pleaded in paragraph 8 of
the particulars of claim , that the defendants breached their duty by failing to secure
the fence (negligently so), causing the fence to fall on her head and sustaining
injuries.
[48] The plaintiff made the contention that when the first defendant opened the fence, it
was completely unsecured, and had the fence been secured, the accident would not
have occurred. She further contended that The fence ought to have been secured,
also during the removal proce ss and that the defendants did not ensure the safety of
any person walking in or at the premises and the defendants took no steps to avoid
the incident, as pleaded by the plaintiff. The plaintiff further submitted that it is not for
her to allege and prove what steps the defendants ought to have taken to avoid the
accident; rather, the defendants should allege and prove what steps they took to
guard against such an occurrence.
[49] The plaintiff submitted that the vid eo evidence indicates the defendants' unsecured
fence fell and struck her on the left side of her head. When the first defendant
opened the fence, it was completely unsecured, and had it been secured, the
opened the fence, it was completely unsecured, and had it been secured, the
accident would not have occurred. However, t he vide o shows the plaintiff walking
towards the fence and the first defendant.
[50] The plaintiff argued that her claim (that the defendants failed to secure the fence) is
sustained by the evidence regardless of whether she asked for access or whether
the first defendant was the one who physically opened it.
[51] The plaintiff submitted that she and Mr Gary Green testified as to her condition after
the accident, specifically her balance problems , which caused her to suffer a second
fall at home.
[52] The plaintiff submitted that while descriptions of the accident by medical experts
constitute hearsay, her own testimony is supported by the video recording. The
medical reports of Dr Coenie Hattingh (neuropsychologist) and Dr Pierre van der
Merwe (neurolo gist) remain hearsay evidence, but support her evidence regarding
injuries.
EVALUATION
[53] The principle as set out in Claude Neon Lights (S.A.) Ltd v Daniel 1976 (4) SA 403
(A) at 409G -H4 as referred to in Gordon Lloyd Page & Associates v Rivera 2001 (1)
SA 88 (SCA) require this court to determine whether there is evidence upon which,
applying its mind reasonably to evidence presented, could or might (not should, nor
ought to) find for the plaintiff. This implies that the plaintiff had to make out a prima
facie case in the sense that there is evidence relating to all the elements of the clai m
to survive absolution because without such evidence no court could find for the
plaintiff5.
[54] The Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA )
judgment as relied upon by the defendants emphasised that the court ought not to be
concerned with what someone else might think - it should rather be concerned with
its own judgment and not that of another 'reasonable person ’ or court. It also
prescribes that absolution at the end of a plaintiff's case, in the ordinary course of
events, will nevertheless be granted sparingly but when the occasion arises, a court
should order it in the interests of justice.
should order it in the interests of justice.
4 Claude Neon Lights (S.A.) Ltd v Daniel 1976 (4) SA 403 (A) at 409G -H. See too Levco Investments (Pty)
Ltd v Standard Bank of SA Ltd 1983 (4) SA 921 (A) at 928C.
5 Marine & Trade Insurance Co Ltd v Van der Schyff [1972] 1 All SA 144 (A); 1972 (1) SA 26 (A) 37G−38A;
Schmidt Law of Evidence (2003) 3−16/3−17
[55] The court in On Farm Holdings (Pty) Ltd v Van den Heever [2024] 3 All SA 629
(ECG) at para 12, stated that absolution at the close of a plaintiff's case should not
be granted except in 'very clear cases'.
[56] The plaintiff’s pleaded case is set out in paragraphs [5] to [9] above and the evidence
advanced by the plai ntiff at the trial is set out in paragraphs [10] to [15]. The
assessment is , whether taking that evidence into consideration, the plaintiff ha s
made out a prima facie case in the sense that there is evidence relating to all the
elements of the claim6. The threshold of proof is low7, but stated above absolution is
to be granted sparingly, but when the occasion arises, a court should order it in the
interest of justice8.
[57] The authorities make clear that the plaintiff must present evidence relating to all the
elements of the claim to survive absolution. In, Abrahams v City of Cape Town 2025
JDR 1663 (WCC) , the court stated: ‘A Plaintiff has to present a prima facie case
comprising evidence relating to all elements of the claim if it is to evade an
application for absolution, as the absence of such evidence would constrain a Court
from finding for the Plaintiff.’9.
[58] Below is an assessment of the plaintiff’s evidence on each element:
a) In relation to harm , I am satisfied that the video evidence presented shows the
fence striking the plaintiff and that the medical reports do make mention of
some injuries sustained by the plaintiff, and Mr Green testified about the injuries
sustained by the plaintiff and how it impacted on the plaintiff’s life.
b) In relation to causation, the video shows the fence striking the plaintiff . During
cross-examination the plaintiff conceded that the fence was removed at her
request and that she ‘may have tried to help ’ the first defendant when he was
removing the fence.
c) In relation to wrongfulness , the plaintiff relies on the principle that the breach of
c) In relation to wrongfulness , the plaintiff relies on the principle that the breach of
a legal duty implies wrongfulness and submi tted that she is not required to
6 De Klerk v Absa Bank Limited & Other [2003] 1 All SA 651 (SCA) at 656.
7 Van Zyl N.O obo A.M v MEC for Health Western Cape Provincial Department of Health [2023] 1 All SA 501
(WCC).
8 De Klerk v Absa Bank Limited & Other [2003] 1 All SA 651 (SCA) at 656.
9 For a delictual claim, these elements are: (1) harm; (2) wrongful conduct; (3) a causal con nection between
the conduct and the harm; and (4) fault or blameworthiness (negligence).
plead wrongfulness 10, as stated above, the authorities relied upon for this
proposition do not assist the plaintiff . The plaintiff based a duty of care on the
defendants being owners and/or possessors of the premises. The only evidence
presented for the breach of that duty centres primarily on the video footage
which does not evidence wrongful conduct and negligence on the part of the
first defendant.
d) The plaintiff's evidence on negligence (fault) is significantly weakened by her
own concessions. While she pleaded negligence and the video shows the fence
falling, she conceded that (1) the fence was ‘safely secured ’ and ‘well
maintained’ before being opened at her request, (2) there was no indication that
this could happen, (3) no one is to blame for the accident happening, (4) did not
address what steps the defendants should have taken ( 5) and led no evidence
on foreseeability.
[59] A number of judgments prescribe that for delictual liability to be established there
must be harm sustained by the plaintiff, conduct on the part of the defendant which is
wrongful, a causal connection between the conduct and the plaintiff ’s harm; and fault
or blameworthiness on the part of the defendant11.
[60] The plaintiff’s evidence does not satisfy all the elements, she has not led evidence on
foreseeability and reasonable steps t hat could have been taken. Her concessions do
not point to negligence on the part of the defendants and no evidence was led
pointing to negligence , resulting in the Kruger v Coetzee -test12 not being met by the
plaintiff leading to a failure to make out a prima facie case . The requirement is that
there must be evidence relating to all the elements of the claim to survive absolution
because without such evidence no court could find for the plaintiff.
[61] The video footage shows the plaintiff voluntarily positioning herself next to a fence
while it was being removed at her own request , it shows a risk that she voluntarily
while it was being removed at her own request , it shows a risk that she voluntarily
assumed by standing next to the fence, and it shows the fence falling, but not that the
10 Relying on Minister van Polisie v Ewels 1975 (3) 590 (A); Minister of Law and Order v Kadir 1995 (1) SA
303 at 317C to 318A, Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA).
11 Evins v Shield Insurance Co Ltd 1980 2 All SA 40 (A); 1980 2 SA 814 (A) 838 –839; Edouard v
Administrator, Natal 1989 4 All SA 309 (D); 1989 2 SA 368 (D) 391; HL & H Timber Products (Pty) Ltd v
Sappi Manufacturing (Pty) Ltd 2000 4 All SA 545 (SCA); 2001 4 SA 814 (SCA) par 13; McCarthy Ltd t/a
Budget Rent a Car v Sunset Beach Trading 300 CC t/a Harvey World Travel 2012 6 SA 551 (GNP) para 12.
12 Kruger v Coetzee 1966 (2) SA 428 (A)
defendants fail ed to do something they ought to have done particularly when the
plaintiff herself did not perceive any danger warranting precaution.
[62] In the circumstances, the video footage closes off on the harm-causing conduct, but
there is a further enquiry that is triggered by this , as the Constitutional Court stated
that “harm-causing conduct ” is a prerequisite for the further enquiry into the other
elements of delict, namely wrongfulness and fault13.
[63] I am satisfied that there is no evidence upon which this court, applying its mind
reasonably, could or might find for the plaintiff and it would not serve justice to refuse
absolution from the instance.
[64] It follows that the plaintiff’s claim should be dismissed and I find no reason why costs
should not follow the result.
ORDER
[65] In the circumstances I make the following order:
a) The plaintiff’s claim is dismissed with costs, with counsel’s fees to be taxed on
scale C.
_____________________________
R MPHEGO
Acting Judge of the High Court
Appearances:
13 H v Fetal Assessment Centre 2015 2 BCLR 127 (CC); 2015 2 SA 193 (CC) para 54
For the Plaintiff: Adv. AJ du Toit
For the First and Second Defendants: Adv. R Van Wyk