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[2026] ZAWCHC 188
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Gordon v Civils 2000 (Pty) Ltd (14194/2018) [2026] ZAWCHC 188 (17 March 2026)
FLYNOTES:
PERSONAL INJURY – Slip and trip –
Construction
site
–
Plaintiff
fractured ankle after fall on uneven sand covered surface
outside public venue – Defendant contractor
had excavated
and backfilled trench, left area exposed without signage or
surfacing – Court held contractor retained
control, owed
duty of care, and negligently failed to warn or mitigate risk –
Plaintiff contributorily negligent by
entering construction area
in high heels without proper lookout – Equal apportionment
ordered – Defendant liable
for 50% of damages.
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 14194/2018
In the matter between:
URSULA MARLENE
GORDON
PLAINTIFF
And
CIVILS 2000 (PTY)
LTD
DEFENDANT
Neutral citation:
Coram:
Mgengwana AJ
Heard
:
12 November 2025
Delivered
electronically
: The judgment is handed
down electronically by circulating to the parties or legal
representatives by email. The date for
the handing down of the
judgment is deemed to be 17 March 2026.
Summary:
Delict – Negligence – What
constitutes negligence – What constitutes being in control of
an area for purposes
of liability - Member of the public lost balance
and fell while walking on a public parking area with uneven surface
and loose
sand and fractured her left ankle in the process –
Onus - Apportionment of Damages Act 34 of 1956
ORDER
[1]
In the result, I grant the following order:
(a)
The Defendant is
liable for fifty percent of the Plaintiff's proven damages.
(b)
The Defendant is to
pay the party and party costs relating to the liability aspect of the
Plaintiff's claim, such costs to include:
i.
The costs of the
trial of 10 - 12 November 2025.
ii.
The costs of counsel on
Scale B.
JUDGMENT
MGENGWANA AJ;
Introduction
[1] This is a
delictual action brought by the Plaintiff for damages allegedly
suffered as a result of her losing her balance
and eventually falling
while walking on a public parking area with an uneven surface covered
in loose sand and rubble thereon.
The damages sustained by the
Plaintiff are allegedly a direct consequence of a left ankle fracture
she sustained during this incident
that took place on, 13 August 2016
outside Surfside Pavilion, Beach Road, Strand.
[2] According to
the Plaintiff’s pleadings, this incident took place on a
building site, which was open to members of
the public, under the
control of the Defendant who was attending to building works thereon
at the time and as a result of being
in control thereof, the
Defendant was responsible for maintaining the site in a safe
condition in relation to the members of the
public.
[3] The Plaintiff
also pleaded that the incident was caused by the sole negligence of
the Defendant and/or its employees who
were acting within the course
and scope of their employment, who were negligent on the following
grounds:
(a)
For failing to ensure that the loose sand, which
had covered the uneven surface and thereby creating a risk for
members of the public,
was removed from the site.
(b)
For failing to warn, alternatively, adequately
warn members of the public of the presence of the loose sand and
uneven surface.
(c)
For failing to take reasonable precautions to
ensure that the loose sand and uneven surface do not pose a danger to
members of the
public.
(d)
For failing to display warning signs to warn
members of the public about the loose sand and uneven surface on the
site.
(e)
For failing to take reasonable steps to prevent
any harm eventuating from the potential risk created by the loose
sand and uneven
surface.
[4] Besides
admitting the fact that it was engaged in building work outside
Surfside Pavilion, the Defendant denied all that
is contained in
paragraphs two and three of this judgment and put the Plaintiff to
the proof thereof. The Defendant also reserved
the right to lead
evidence in rebuttal of the allegation that it was in control of the
site where the incident took place (the
incident site).
[5] The Defendant
also pleaded that the Plaintiff was the sole author of her own
misfortune for the following reasons:
(a)
She failed to keep a proper lookout.
(b)
She failed to prevent injury to herself when, by
exercise of reasonable care, she could and should have done so.
(c)
She failed to take heed of the warning that she
was entering a construction area.
(d)
She failed to take heed of the warning that she
was entering an area which contained a tripping hazard.
[6] The Defendant
also pleaded in the alternative that should this Court find that it
or any of its employees were negligent
in any of the alleged respects
or at all, then such negligence neither caused nor contributed to the
incident that is the subject
of this litigation.
[7] The Defendant
pleaded in the further alternative that should this Court find that
it or any of its employees were negligent
as alleged by the
Plaintiff, or at all, and such negligence was the cause of or
contributed to the said incident (all of which
is denied), then it
pleads that the Plaintiff was also at fault in relation to the
injuries, she having been negligent in one or
more of the respects
set out in paragraph five above, the Defendant then pleads that the
damages which the Plaintiff may be found
to have suffered, be reduced
in accordance with the Apportionment of Damages Act 34 of 1956 (as
amended).
[8] The trial of
this matter only proceeded in respect of the issue of liability
following an order separating merits from
the quantum, made in terms
of Rule 33(4) of the Uniform Rules on 21 November 2023.
The evidence
[9] The Plaintiff
testified as follows:
(a)
She was attending her sister-in-law’s
sixtieth birthday, hosted at the Strand Pavilion. They arrived at the
venue at approximately
18:00 at dusk. As the occasion was a formal
one, she had high heels on. On their arrival, she could immediately
see that they were
parked at a construction site and because of this,
she walked slowly and cautiously towards the entrance to the Strand
Pavilion
but across the car park. While walking, she stepped onto
soft sand which caved into what looked like a hole, she then fell
onto
her left elbow and knee. Although she immediately felt pain, she
and her husband laughed about the incident and continued to walk
and
enter the venue of the birthday. She later realized, on the same
evening, that she had sustained a serious injury as she could
not
stand on her left leg to such an extent that she had to hop when
leaving the venue. When asked by her counsel, why she is suing
the
Defendant, she said the Defendant should have put up signs indicating
that the parking was a construction site.
(b)
During cross-examination she conceded that she
might not have been keeping a proper lookout as she was concentrating
on arriving
at the birthday venue. When it was put to her that she
was not exercising reasonable care, she said that she did not deem
that
necessary because the sand on the road surface looked even to
the naked eye. She gave the same reason when it was put to her that
she failed to exercise caution since she was entering a construction
site.
[10] The next
person to testify on behalf of the Plaintiff was her husband, who was
with her when the incident occurred. He
corroborated the manner in
which the incident took place. He testified that the incident took
place on a Saturday, but he only
returned to the incident site to
take photographs thereof on the Monday following the incident as he
did not take them on Saturday.
He also testified that he spoke to
Carey Ann Bob (Safety Officer), T. Tomose (Safety Representative) and
Jaco Loyd (Site Manager).
He testified that he told them about what
had happened to his wife at the incident site on the evening of
Saturday, 13 August 2016.
The Plaintiff closed her case after the
evidence of Mr. Gordon, her husband.
[11] The first
witness to testify on behalf of the Defendant was Mr. Kevin Daddy and
he testified as follows:
(a)That he was employed
as Contracts Manager of the Defendant at the time of the incident. He
also testified that the only work
that they did on a portion of the
incident site was a trench excavation and installation of a pipeline
thereon. Thereafter, they
closed it by filling it with sand, which
they compacted and left it for another service provider to apply tar
thereto. He testified
that they removed barricades around the site
after it was compacted and then they handed it over to the City of
Cape Town informally
because no handover documents were signed as the
work they performed over the portion of the incident site did not
form part of
their original scope of work they were doing at the time
at the Strand Pavilion. Based on the handover, they were not in
control
of the incident site when the incident took place, even
though from time to time they were called upon to perform some
maintenance
work on the incident site.
(b) During
cross-examination, Mr. Daddy testified that after they finished
working on it, the incident site was left exposed for
approximately
three months. He conceded that in such state of exposure, the
compacted sand would become loose and uneven because
of the weather
as Strand is a windy area.
[12] The next
witness to testify on behalf of the Defendant was Carey Ann Bob, who
testified as follows:
(a)
That she was employed as a Health and Safety
Officer of the Defendant at the time of the incident. That she
recalled being approached
by the husband of the Plaintiff on Monday
morning, who told her that a family member got injured during the
past Saturday on the
Strand Pavilion. That her duties included doing
inspections of the construction site and taking photographs thereof.
She recalled
having taken photographs of the construction site on
Friday, the 12
th
of
August 2016. She also recalled having taken photographs of the
construction site on Monday, the 15
th
of August 2016. She admitted to having inspected
the incident site shortly before the incident in question and shortly
thereafter
but denied having noticed tripping hazards on the incident
site. She also testified that she worked with Thembinkosi Tomose and
Jaco Loyd at the time, but both individuals are no longer employed by
the Defendant.
(b)
During cross-examination she conceded that the
Defendant was the last company to perform work on the incident site
before 13 August
2016. She also confirmed that no certificate of
completion was submitted by the Defendant to the City of Cape Town in
respect of
the work done on the portion of the incident site. She
also confirmed that after they were done with their work, they left
the
incident site to another service provider to complete the work
thereon. She admitted that loose sand does become a hazard at some
stage. She also testified that when she did her last inspection of
the incident site on Friday the 12
th
of August 2016 at 14:00pm, the incident site was
fine, but she cannot rule out any deterioration having occurred
between her last
inspection and the incident time even though she did
not see any hazards when she inspected the incident site on the
Monday following
the evening of the incident.
Issues for
determination
[13] Based on the
above set of facts, this Court is required to decide on whether any
negligence may be imputed to the Defendant
for any damages sustained
by the Plaintiff because of her left ankle fracture. To come to this
conclusion, this Court is also enjoined
to decide whether the
Plaintiff has successfully discharged the onus placed on her, on a
balance of probabilities, that the Defendant
was in control of the
incident site at the time of the incident.
Applicable legal
principles
Negligence
[14] The classic
test for negligence is articulated by Holmes JA in
Kruger v
Coetzee
1966 (2) SA 428
(A) as follows:
‘
For
the purposes of liability
culpa
arises
if –
(a)
a
diligens
paterfamilias
in the position of the
defendant –
(i)
would foresee the reasonable possibility of his
conduct injuring another in his person or property and causing him
patrimonial loss;
and
(ii)
would take reasonable steps to guard against such
occurrence; and
(b)
the
defendant failed to take such steps.’
[1]
[15] Olivier JA
restated the law as follows in
Mukheiber v Raath and Others
1999 (3) SA 1065
(SCA):
‘
[31]
In our law, the standard of conduct expected from all members of
society is that of the
bonus
paterfamilias
,
i.e.
the
reasonable man or woman in the position of the defendant. An
act which falls short of this standard and which causes damage
unlawfully is described as negligent;
i.e.
it is
tainted with
culpa.
The test for
culpa
can, in the light of the development of our law since
Kruger v
Coetzee
1966 (2) SA 428
(A)
be stated as follows (see
Boberg,
Law of Delict,
390):
For the purposes of
liability
culpa
arises if -
(a) a reasonable
person in the position of the defendant -
(i)
would have foreseen harm of the general kind that actually occurred;
(ii)
would have foreseen the general kind of causal sequence by which
that
harm occurred;
(iii)
would have taken steps to guard against it, and
(c)
the
defendant failed to take those steps.’
[2]
[16] Boberg states
the following in volume 1 of his book titled “
The Law of
Delict
”:
“
If
these requirements are satisfied (and the flexibility of the concept
of “general kind” in relation to both harm and
to the
causal sequence gives the court ample latitude to do justice in
unusual cases), it is believed that the ambit of liability
will be
sufficiently circumscribed to make additional recourse to any
doctrine of legal causation entirely superfluous.’
[3]
[17] Molefe AJA
held as follows in
Cenprop Real Estate (Pty) Ltd and Another v
Holtzhauzen
:
‘
[17]…Whether
a
diligens
paterfamilias
in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case. No hard and fast
basis can be laid down. Hence the futility, in general,
of seeking
guidance from the facts and results of other cases.’
[4]
[18] Brand JA held
as follows in
Hawekwa Youth Camp v Byrne
:
‘
[22]…By
contrast, negligent conduct in the form of an omission is not
regarded as prima facie wrongful. Its wrongfulness
depends on the
existence of a legal duty. The imposition of this legal duty is a
matter for judicial determination involving criteria
of public and
legal policy consistent with constitutional norms. In the result, a
negligent omission causing loss will only be
regarded as wrongful and
therefore actionable if public or legal policy considerations require
that such omission, if negligent,
should attract legal liability for
the resulting damages (see eg
Telematrix
(Pty) Ltd supra
para
14;
Local
Transitional Council of Delmas supra
paras
19-20;
Gouda
Boerdery Bk v Transnet
2005
(5) SA 490
(SCA)
para 12).’
[5]
Control
[19] Nugent JA held
as follows in
Chartaprops 16 (Pty) Ltd and Another v Silberman
:
‘
[16]
It can be taken to be settled that an action lies against a
shopkeeper for negligently omitting to clear
hazards from the shop
floor and I think that applies as much to a person in control of a
shopping mall in respect of the floors
that are under its
control...Moreover a reasonable person in control of a shopping mall
would clearly foresee that spillages
might occur in the passages and
cause harm if they were permitted to remain, and would take
reasonable steps to guard against harm
occurring (
Kruger
v Coetzee
).’
[6]
[20] Makgoba J held
as follows in
Holm v Sonland Ontwikkeling
2010 (6) SA 342
(GNP)
‘
[23]
A defendant acts wrongfully when he creates a source of danger by
means of positive conduct
(commissio)
and
subsequently fails to eliminate that danger
(omissio)
with
the result that harm is caused to a plaintiff. See Neethling,
Potgieter and Visser
Law
of Delict
5
th
edition
at page 52 (par 5.2.1).
Likewise
a defendant which is in control of property upon which a hazard
exists is under a duty to warn a plaintiff of the nature
of the
hazard and the risk involved, by appropriate warning of the hazard.
Failure to do so involves a wrongful omission.’
[7]
Onus
[21]
In
Pillay
v Krishna
at 951-2, a
three-legged approach was stated as follows with regards to burden of
proof:
‘
The
first principle in regard to the burden of proof is that if one
person claims something from another in a Court of law, then
he has
to satisfy the Court that he is entitled to it. But there is a second
principle which must always be read with it, where
the person against
whom the claim is made is not content with a mere denial of that
claim, but sets up a special defence, then
he is regarded quoad that
defence, as being the claimant: for his defence to be upheld he must
satisfy the Court that he is entitled
to succeed on it. But there is
a third rule: “he who asserts, proves not he who denies, since
a denial of fact cannot naturally
be proved provided that it is a
fact that is denied and that the denial is absolute.’
[8]
[22]
Apportionment of liability in case of contributory negligence is
governed by section 1 of the Apportionment of Damages
Act which reads
as follows:
‘
(a)
Where any person suffers damage which is caused partly by his own
fault and partly by the fault of any other person, a claim
in respect
of that damage shall not be defeated by reason of the fault of
the claimant but the damages recoverable in respect
thereof shall be
reduced by the court to such extent as the court may deem just and
equitable having regard to the degree in which
the claimant was at
fault in relation to the damage.
(b)
Damage shall for the purpose of paragraph (a) be regarded as having
been caused by a person's fault notwithstanding the fact
that another
person had an opportunity of avoiding the consequences thereof and
negligently failed to do so.’
[9]
Parties’
submissions
[23] The
Plaintiff’s counsel submissions may be summarized as follows:
(a)
Defendant retained control of the incident site as
evidenced by the testimonies Mr. Daddy and Ms. Bob. Therefore, the
Defendant
owed a duty of care to the public.
(b) Based on the
evidence of Mr. Daddy and Ms. Bob regarding the deterioration of the
compacted incident site as a result
of exposure to adverse weather
conditions, the Defendant reasonably foresaw the possibility of harm
being caused to members of
the public.
(c) The Defendant
took no steps to prevent the harm from eventuating.
(d) The Defendant’s
failure to take any steps to prevent harm from eventuating is
wrongful because public policy and
legal norms impose a duty of care
on a contractor who retains control over a potentially hazardous site
open to public use. The
Defendant’s contractual and
professional responsibility to monitor and ensure safety created a
clear legal duty to act. Its
failure to take adequate preventative
measures renders its omission wrongful and actionable.
(e) There is no
evidence to support a finding that the Plaintiff contributed to her
still to be proven damages.
[24] The
Defendant’s counsel submissions may be summarized as follows:
(a) The Defendant was not
in control of the incident site at the time of the incident. The
incident site did not form part of the
Defendant's contractual works,
except insofar as a short deviation trench on a portion thereof. The
Defendant’s involvement
was temporary, concluded months before
the incident and followed by formal inspection and acceptance by the
Municipality. Upon
such acceptance, control reverted to the
Municipality.
(b) In the absence of
control, the Defendant owed no duty of care to the Plaintiff at the
time of the incident.
(c) No evidence was given
that the Defendant was aware of any latent defect.
(d)The reasonable
foreseeability test cannot be satisfied as no reasonable contractor
could have foreseen harm from a latent subsurface
void in a
compacted, approved section of the ground, handed back months
earlier.
Analysis of the
Evidence
[25] The undisputed
evidence herein is that the Plaintiff sustained a fracture of her
left ankle on 13 August 2016 after falling
while walking on a public
parking area, which had loose sand and an uneven surface outside
Surfside Pavilion, Beach Road, Strand.
The undisputed evidence is
also that the area at which the Plaintiff was, was neither cordoned
off to members of the public nor
were there warnings cautioning
members of the public to be more circumspect when walking thereon.
[26] The undisputed
evidence is also that the portion of the park where the incident took
place, was previously worked on
by the Defendant who dug a trench,
installed a pipeline thereon, filled it with sand again, compacted it
and informally handed
it back to the City of Cape Town. This work
took place a couple of months before the incident and no one
thereafter performed any
work on this site. Although another entity
was supposed to come in and tar the incident site, this never
occurred.
[27] It is also
undisputed that when the incident took place, the Defendant was
performing construction work on a site adjacent
to the incident site.
The evidence is also that even though the Defendant insisted that the
incident site was not under their control
when the incident took
place, their Safety Officer kept on inspecting it and took
photographs thereof constantly.
[28] It is also
undisputed that because the incident site that was previously dug
out, filled back in and compacted, was left
unattended for a while
and it was susceptible to deterioration because of weather conditions
which included wind as Mr. Daddy confirmed
that Strand is a windy
area hence his team would occasionally attended to the maintenance of
the incident site after being requested
by the City of Cape Town to
do so. Ms. Bob also confirmed that even though she found the incident
site in good condition when she
inspected it on Friday the 12
th
of August 2016 at 14:00, she cannot rule out the fact that something
could have happened to it between that date and the incident
date
even though her evidence was that she found the site in the same good
condition she left it on Friday the 12
th
of August 2016 at
14:00pm.
[29] What is in
dispute is whether the Defendant as stated in the papers was in
control of the site at the time of the incident.
The Defendant
passionately argued that it was not in control thereof for two
reasons, firstly the work done on the site of the
incident did not
form part of the work that they were contracted for and secondly,
they informally handed over the incident site
back to the City of
Cape Town when they finished doing their work thereon and after the
inspection and acceptance of their work
by the City of Cape Town’s
engineer. The reason proffered for the informal handing over was that
the work done on the incident
site was not part of the work they were
contracted to do. However, no cogent reason was given for the
constant inspection and photography
of the incident site whereas the
Defendant believed that it was no longer responsible for the site.
[30] When
Defendant’s counsel was asked what the Court should make of the
uncontroverted evidence of the daily inspection
and photographing of
the incident site by the Safety Officer in the employ of the
Defendant, the Court was asked to draw no inference
from this
conduct. Unfortunately, this Court cannot ignore Defendant’s
conduct in the aforementioned regard as it is not
a once off conduct,
but it is constant conduct which is performed by no other person but
a Safety Officer employed by the Defendant
regularly. The only
inference that can be drawn by this Court from this conduct is that
the Defendant still considered itself as
an entity responsible for
the well-being of the incident site, there can be no other
explanation for the Defendant’s conduct
in this regard other
than this. Based on the above and the intermittent maintenance of the
incident site when called upon by the
City of Cape Town, this Court
finds that the Defendant was in control of the incident site at the
time of the incident.
[31] This finding,
having been made, it therefore follows that the Defendant was under a
duty to warn the Plaintiff that the
area at which she was walking on
has uneven surface and loose sand which could injure her by putting
up the necessary signage in
the absence of cordoning off the entire
area however, the Defendant failed to do so.
[32] This Court
also finds that the Defendant was aware of the potential danger posed
by the loose sand on the uneven surface
on the incident site
and it also did foresee that this danger had a potential of injuring
someone but its action of constantly
inspecting and taking
photographs the incident site instead of putting up the necessary
signage failed to prevent injury to the
Plaintiff. This Court
therefore also finds that the steps that were taken by the Defendant
to prevent injury to the Plaintiff in
the circumstances of this case
were unreasonable as they failed to prevent injury to the Plaintiff.
[33] This Court is
therefore satisfied that the Plaintiff has succeeded in discharging
the onus placed on her, she has proved,
on a balance of
probabilities, that the Defendant was negligent for its failure to
take reasonable steps to prevent Plaintiff from
injuring herself
whilst walking on the incident site that had uneven surface and loose
sand even though the Defendant was in control
of same and that it is
this negligence, had resulted in her fracturing her left ankle.
[34] However, this
Court cannot ignore the evidence of the Plaintiff herself. The
Plaintiff had testified that when she got
out of the car she was
travelling in, she could immediately notice that the area she was
about to traverse is a construction site,
but she nevertheless took a
conscious decision to enter same while wearing high heels. It is
therefore not surprising that she
shortly thereafter fell and
fractured her left ankle. This kind of behavior is nothing short of
negligence on her own part. She
failed to prevent injury to herself
when, by exercise of reasonable care, she could and should have done
so. She also conceded
during the cross-examination that she might not
have been keeping a proper lookout in the prevailing circumstances as
she was concentrating
on getting to the venue of the birthday. This
Court therefore finds that the Plaintiff is equally to blame for the
injuries sustained
by herself in the incident of the 13 of August
2016.
[35]
In the result, I grant the following order:
(a)
The Defendant is
liable for fifty percent of the Plaintiff's proven damages.
(b)
The Defendant is to
pay the party and party costs relating to the liability aspect of the
Plaintiff's claim, such costs to include:
i.
The costs of the trial from 10 - 12 November 2025.
ii.
The costs of counsel on Scale B.
TJ MGENGWANA
Acting
Judge of the High Court
Appearances:
For
the plaintiff:
A. Smit of Miller Bosman Le Roux
For
the Defendant: J.A. du
Plessis
Instructed
by:
L. de Swart of Mellows
& de Swart
[1]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-F.
[2]
Mukheiber
v Raath and Another
1999
(3) SA 1065
(SCA) at para 31.
[3]
The
Law of Delict by P.Q.R. Boberg Volume 1 Aquilian Liability 1984 at
page 390.
[4]
Cenprop
Real Estate (Pty) Ltd and Another v Holtzhauzen
2023
(3) SA 54
(SCA) at para 17.
[5]
Hawekwa
Youth Camp v Byrne
2010
(6) SA 83
(SCA) at para 22.
[6]
Chartaprops
16 (Pty) Ltd and Another v
Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA) at para 16.
[7]
Holm
v Sonland Ontwikkeling
(Mpumalanga)
(Edms) Bpk
2010 (6) SA 342
(GNP) at 23.
[8]
Pillay
v Krishna
1946
AD 946
at 951-2.
[9]
Apportionment
of Damages Act 34 of 1956.