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[2026] ZAGPJHC 1026
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Ehrke v Masstores (Pty) Ltd ta Makro SA Alberton (2022/018737) [2026] ZAGPJHC 1026 (2 September 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
CASE
NO: 2022/018737
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
In the matter between:-
JOHANNES
MARTIN
EHRKE
Plaintiff
and
MASSTORES
(PTY) LTD T/A
MAKRO
SA,
ALBERTON
Defendant
JUDGMENT
ALLEN AJ
INTRODUCTION
[1]
Plaintiff is Johannes Martin Ehrke,
currently 72 years old, an adult male business owner/pensioner of
Alberton, Gauteng.
[2]
The Defendant is Masstores (Pty) Ltd t/a
Makro SA Alberton (“Makro”), a company with limited
liability, duly registered
and incorporated according to the laws of
the Republic of South Africa, with registration number 1991/006805/07
of Alberton, Gauteng.
[3]
In this action plaintiff claims damages
from the defendant arising from an incident on 19 December 2020
wherein plaintiff sustained
multiple injuries when he slipped and
fell on his way to his motor vehicle. He was negotiating a slope on
the defendant’s
premises when he stepped on laminated pieces of
paper which caused his feet to slip out from under him.
[4]
Plaintiff claims the amount of
R1 011 426.06 plus interest thereon at a rate of 8.25% per
annum from date of letter of
demand and costs of suit.
[5]
Plaintiff claims the incident was as a
result of the negligence of the defendant's employees as stated in
the particulars of claim:
“
8.
The incident was caused by the negligence of the Defendant’s
employee’s and/or agents acting within the course
and scope of
their employment, alternatively the wrongful and negligent breach of
the legal duty as mentioned above in one or more
of the following
respects:
8.1
The Defendant’s employee or employees and/or agents
(hereinafter collectively referred
to as the “Defendant”)
failed and/or neglected to ensure that the floor surface of the
premises was safe and/or hazard
free for the Public to traverse,
under circumstances where the Defendant could and should have done
so;
8.2
The Defendant failed and/or neglected to prevent the Plaintiff from
being injured, when
by exercising reasonable care, the Defendant
could and should have done so;
8.3
The Defendant failed and/or neglected to take reasonable precautions
to prevent an incident
of this nature from occurring at the shop
under circumstances where the Defendant could and should have done
so;
8.4
The Defendant failed and/or neglected to display any, alternatively,
adequate warning signs
to inform the public and specifically the
Plaintiff of the existence of a possible hazardous situation under
circumstances when
the Defendant could and should have done so;
8.5
The Defendant failed and/or neglected to inspect the floor surface of
the shop properly,
alternatively, regularly for hazardous objects
which may cause injury under circumstances when the Defendant could
and should have
done so;
8.6
The Defendant failed and/or neglected to routinely make available
staff members, alternatively
sufficient staff members to timeously
inspect, detect and adequately remove any dangerous objects on the
floors of the shop under
circumstances where the Defendant could and
should have done so;
8.7
The Defendant failed and/or neglected to implement and adhere to the
necessary inspection
and monitoring protocols pertaining the safety
of the isles and/or floor surfaces of the shop under circumstances
when the Defendant
could and should have done so;
8.8
The Defendant failed and/or neglected to safeguard the vicinity in
which the hazard and/or
obstructions occurred under circumstances
when the Defendant could and should have done so;
8.9
The Defendant created a dangerous situation by erecting laminated
signs in front of the
shop, which could cause a hazardous situation
for members of the public, should it become unattached to the
position it was placed
and failed to take reasonable steps to avoid
injury to members of the public;
8.10
The Defendant failed to monitor the area where the laminated notices
were affixed in order to make
sure no dangerous situation is created;
8.11
The Defendant failed to remove the laminated notices from the floor
area in front of or near the shop,
in order to avoid members of the
public or patrons from slipping on it.”
[6]
As a result of the incident, plaintiff
sustained the following injuries:
“
9.1.1
right hip fracture;
9.1.2
T2 injury;
9.1.3
soft tissue injury back;
9.1.4
soft tissue injury right hip; and
9.1.5
right thumb injury.”
[7]
2022/018737
As a result of the incident and the
sequelae thereof the Plaintiff:
“
10.1
experienced pain, suffering, emotional shock and trauma and will in
future suffer further such pain and suffering
10.2
Was fully disabled for a period of time and remains partially
disabled;
10.3
had to undergo medical treatment and will possibly undergo medical
treatment in the future;
10.4
suffered loss of amenities of life and will possibly suffer further
loss of amenities of life in the
future;
10.5
had suffered a loss of income and will in future suffer a loss of
income / employability.
10.6
It is not reasonably or practicably possible for the Plaintiff to
separately quantify the damages suffered
pertaining to the individual
heads of damages in relation to general damages.”
[8]
As a result of the aforesaid:
“
the
Plaintiff suffered damages in the amount of R 911,426.06 clearly
specified in Annexure “B” attached hereto, and
calculated
as follows:
11.1
Past Medical and related expenses
R 21,426.06
11.2
Estimated Future Medical Expenses
R 130,000.00
11.2
Past loss of Income
R 90,000.00
11.3
Future loss of Income / Employability (estimate)
R 270,000.00
11.4
General damages
R 500 000.00
TOTAL
DAMAGES
R1,011 426.06
”
[9]
At the start of the hearing the parties
agreed that the issue of liability is to proceed only on the merits
and quantum was postponed
sine die
.
[10]
No expert reports were filed or experts
called to testify. The trial bundle consisted of the plaintiff's
Identity Document, the
photographs of the scene of the accident which
were admitted by the respective parties and the letter of demand with
return of
service.
[11]
The matter proceeded with the hearing of
oral evidence. Plaintiff called three lay witnesses namely the
plaintiff, the plaintiff's
spouse, Mrs. Ehrke, and the plaintiff's
son, Johan Martin Ehrke. The defendant called two lay witnesses, Mr.
Chauke and Mr. Radebe.
THE PLAINTIFF'S CASE
Johannes Martin Ehrke.
[12]
He is the plaintiff. He testified that he
is now unemployed and a pensioner by choice as he cannot do what he
used to do anymore.
He confirmed the incident on 19 December 2020
during COVID and COVID rules applied outside the defendant’s
premises. The
time of the incident was just after 12:00. He and his
wife went to the defendant to buy paint as he was busy with
renovations at
his house.
[13]
He noticed that there was a queue, tape and
notices on it. He showed on photo 4 where the queue formed outside
Makro on the pavement
and the yellow line that was for COVID. He and
his wife went to the paint department where they mixed 2 x 5 liters
of paint whereafter
he paid for it and they left through the exit.
They then walked past the return-cubicle on the outside of the
premises towards
the entrance of the premises to his vehicle that was
parked close to the entrance.
[14]
He testified that they were walking on the
pavement and the queue was to his right. He walked to the left of the
queue with the
paint carried in both hands. His wife was walking to
his left. He testified it was summer and windy. He then fell at the
entrance
of the pavement between the bollards. There is a slight
downslope. When asked why he fell, he testified that he saw a piece
of
laminated paper (with hard plastic) and he stepped on it, A4 size.
[15]
The paper caused him to lose his balance
and it was super slippery. His feet slipped, he did a split and he
fell on his back. When
asked where did the paper came from, he
answered it was hanging on a piece of tape to inform people to stand
in the queue. The
tape referred to is red and white hazard tape. He
testified that as he came out, he saw the notices came loose and was
lying all
over. After he fell there were at least three of those
papers around him, all laminated. He carried the cans of paint in
each hand
and weighs six to eight kilograms each.
[16]
He and his wife were walking next to each
other and he talked to her. When asked: “where was your
attention?”, he responded:
“I looked at her whilst
talking, slipped and fell and had no control”. After he fell,
people offered water, Makro called
an ambulance, they brought a
wheelchair and put him on it until the ambulance arrived. He could
not get up.
[17]
His son, Johan Ehrke, took photo 6 and 7.
His wife could not go with him to hospital. She went home, called
their son, who immediately
went to take photos which are in the trial
bundle. The witness testified they moved trolleys over the pedestrian
entrance, a zebra
crossing, and they put up tape after the incident.
He also testified there were A4 laminated paper in front of the cone
which could
be seen on photo 6.
[18]
I have considered what was lying in front
of the cone on the photo and it was a blue folder with something in
it which cannot be
seen on the photo and not white laminated pages as
testified by the witness.
[19]
He further testified that when they came
out it looked different than when they went in. The defendant should
have kept the place
clean and safe to control the crowd and the paper
blown off could be slippery. He was asked what a reasonable person
would do in
the circumstances and he replied “to keep it safe
for pedestrians”. He testified the tape was also loose.
CROSS-EXAMINATION
[20]
In cross-examination he admitted that he is
not an expert on slippery substances. He also conceded that no expert
notice was filed
on the slippery nature of the documents. It was then
put to him that his evidence on the super slippery nature of the
laminated
pieces of paper should be disregarded. He answered that
laminated paper is very slippery from experience and after this
incident
he knew it was very slippery and very dangerous. It was put
to him that he is not an expert on lamination and he can't give such
an opinion. He conceded that he was not an expert.
[21]
It was put to him that he failed to keep a
proper lookout to which he responded, “I don't agree, I am a
normal person, aware
of my surroundings. I've been many times before
at the defendant's place and did not notice a piece of paper on the
floor, only
after I split”. It was put to him that his
attention was, in his own words, talking with his wife and looking at
her which
he confirmed.
[22]
He further testified that the tape was not
up when they arrived and the tape with notices on it was next to the
queue, between the
queue and the outside of the building. There was
no tape at the columns or at the entrance.
[23]
It was put to him that the defendant’s
case will be that the tape was as per photo 7 and the area at the
entrance was entirely
cordoned off. People arriving were told to
queue at the back towards the return-cubicle and from there to the
entrance. The witness
answered that on his arrival there was no tape,
no trolleys and the tape was next to the queue.
[24]
It was put to him that the trolleys were
there on the zebra crossing because of COVID and the protocols,
people one and a half meter
apart, to wear masks and the controlling
of numbers for people to enter ten at a time. The defendant answered
that there was nothing
to stop him to walk from the exit towards the
entrance next to the people and there was nothing to prevent him from
returning to
the entrance and that he could walk there.
[25]
It was put to him that normally, as he
testified, how he walked there did not apply at that time due to
COVID. The plaintiff answered
that there was no sign that he could
not walk there. It was again put to him he was looking at his wife,
talking to his wife, and
he was not keeping a proper lookout. The
witness disagreed.
[26]
It was put to him that people who wanted to
enter, queued with their trolleys and it was put to him that he
walked there regardless
of the signs. He answered that they walked
there next to each other and no one said they could not walk there.
He reiterated that
there was no tape at the bollards when they
entered. The tape was next to the queue about five meters away from
the queue in the
area between the queue and the outside wall of the
building.
[27]
It was again put to him that he failed to
keep a proper lookout and the tape was in place as per photo 7 and
was in place when he
exited. He answered the trolleys were parked at
the entrance afterwards and he also said that the tape was on the
floor next to
the queue. It was put to him that it was an
ex
post facto
fabrication, there was no
tape or papers on the floor and that the tape was up and properly
fixed. The answer was “papers
were on the ground after they
cleared and they cleared it up”.
[28]
He testified that his son went there
afterwards and saw the papers stacked there next to the cone. It was
put to him that it looks
like a folder and not papers. The witness
did not respond further. He reiterated that his wife was to his left
and he looked at
her, but his head was not turned 90 degrees was his
answer. He didn't see the paper.
[29]
It was put to him that the question was
where was his attention and he now amended his version and he
miraculously landed on paper
and saw paper surrounding. It was put to
him that he cannot walk with carelessness and the evidence
establishes that he did not
keep a proper lookout, failing to see the
paper on the ground and avoid a piece of paper, by that he was
negligent and if he had
seen the paper, he could have avoided it. He
answered at least three pieces “were lying all over”.
[30]
When he came past the return cubicle he saw
it. He saw the papers attached to the tape were lying on the ground
and he noticed it
when they passed it. It was put to him that the
defendant would deny that there were tape and paper on the ground and
how could
he have seen the tape and the paper but not the slope and
how was that possible? He answered “it was windy and the wind
took
the tape down and the paper”. It was put to him that he
did not look further towards the slope and how was that possible?
He
said “I saw it”.
[31]
It was then put to him that if he paid
attention to what was on the ground he would have seen it. He
answered “it happened,
it was not supposed to be there and the
one I did not see I did not expect it to be there, and the defendant
created a hazardous
situation”.
[32]
It was put to him that he did not take
precautions. It was also put to him that his attention immediately
prior to the fall was
with his wife and he did not pay attention. He
answered the incident happened and he didn't expect paper to make him
slip. It was
put to him that the tape was in place across the
bollards and he either stepped over or under it. He answered there
was no tape
there at the time.
[33]
He was then referred to photo 8 with the
non-disclaimer notice which is a very big notice right next to the
left of the entrance
as can be seen on the photo, not covered by any
material and clearly visible. He was asked if he saw the sign and he
said the first
time he saw it on the photo and is always cluttered
with info.
[34]
On photo 2 it can be seen that it is not
cluttered and clearly visible and he said the notice is small and did
not draw attention.
I have considered the photo and it looks about a
meter and a half by a meter big. The photo was taken about 20 meters
away and
one can almost read it from that distance.
[35]
It was put to the witness the fact that he
did not see the notice meant he failed to observe his surroundings
and the sign was not
cluttered and it's an indicator of his careless
approach to Makro. He answered that his wife was to his left and he
observed the
bollard, but he did not observe what was behind the
bollard and nothing expected to be behind the bollard and the bollard
blocked
his view.
[36]
It was put to him that he did not look to
the ground as he had in his hands about 18 kilograms of paint, he
walked the slope between
the bollards and he was speaking and looking
to his wife. He disagreed. He was asked if Makro placed it behind the
bollard and
he said it was there. He saw the papers all over and it
was put to him it was not his version and then he said “no
comment”.
[37]
It was put to him that tape was used to
cordon off the entire entrance area as per photo 2, 3, 6 and 7 and he
said “I don't
agree, there was no tape at the entrance”.
Trolleys were at the entrance to prevent customers to join the queue
and he disagreed
and said that it was placed there afterwards. It was
put to him that warning tape were fixed there at the whole entrance
area with
COVID-19 signs, warnings, etc. He reiterated the tape was
next to the queue. It was put to him that the tape was not down, the
tape was up to which he responded “I don't agree”.
[38]
It was put to him that the Fidelity guards
were also stationed at the entrance and the exit to direct customers
away from the entrance
queue and he said “I don't agree”.
It was put to him that it was not proper or reasonable in the
circumstances since
he was not aware of his surroundings, he should
not have exited through the entrance queue and by that not keeping a
proper lookout.
He said “I do not agree, people walk there
every day”. It was put to him that this happened during COVID
and it's not
every day or a normal day and he said “I agree”.
He further testified the yellow lines were not used on that day but
the tape.
[39]
It was put to him that roaming managers
were on duty at the entrance, exit and kept a lookout over clientele
at Makro. He answered
“I remember, I saw people and when I was
on the floor they came to help”. It was put to him that those
managers ensured
that the pathway was clear of anything. He answered
“it might have, but they didn't do their work”.
[40]
It was put to him that the tape was up at
the bollards and he walked over or under the tape to the road section
and he said he didn't
agree, there was no tape when he passed there.
It was put to him that he failed to keep a proper lookout, he was
negligent resulting
from the harm suffered and he said “I don't
agree, I did what a normal person would do”.
RE-EXAMINATION
[41]
He was again asked where was his attention
during the period he walked and he said “I observed and saw
things happening. At
that moment, my attention was with my wife when
I fell”. He also answered that in his peripheral vision when he
talked to
his wife, he could see the way was clear and not to bump
pedestrians and then he fell. He further testified most stuff he buys
from Makro and the normal practice is his wife is with him.
[42]
From the court side there was one question.
In his peripheral vision he looked left towards the parking lot when
he talked to his
wife and the queue was on his right. He confirmed.
Johan Martin Ehrke
[43]
He was the next witness to testify. The
plaintiff is his father. His mother phoned him to say that his father
fell at Makro. He
got in his car and went to defendant’s place,
spoke to management and took the camera footage. He saw the paint
stains and
knew where it happened. He confirmed having taken photos 6
and 7. He took it plus minus one hour after his father fell, around
13:00 the same day. He was back home at 14:00. He testified it was
not the first time he visited Makro on the day. He was there
just
before 12:00. He went back to get a printout of his slip 11:59. He
testified he had two transactions 11:59 and 12:05 and he
left about
12:10. No proof was submitted of the transactions he referred to
during his testimony.
[44]
He was not aware that his father was there.
He further testified that the tape was not there when he went there
for the first time,
only when he went back. The trolleys also were
not there when he went there the first time and no tape was spanned
at the entrance
on his first visit. He also testified that the first
time he was there, the tape was not on the floor. The tape was closer
to the
left towards the liquor store and not at the zebra crossing.
[45]
People queued at the right. He was then
asked if there were any tape at the queue. He answered not at the
entrance and on the way
out he could not remember. When asked when he
left the scene at the entrance was there tape on the floor and
laminated flyers on
the floor. He testified there were A4 size flyers
lying all over at the zebra crossing and the entrance, he assumed it
was the
wind that blew it.
[46]
He testified there was an object in front
of the cone and that was some of the flyers gathered and placed there
as can be depicted
on photo 7.
CROSS EXAMINATION
[47]
He testified he was the first time at
defendant’s premises 11:50 on the day. His parents were there
at the same time. His
father testified the incident happened just
after 12:00 and he answered possibly. He was shown photo 5 and
testified there was
no tape to the right-hand side between the
bollards and the tape was more towards the entrance. On photo 7 the
tape was from the
disabled parking sign towards the liquor store to
the left (the tape was up as can be depicted on the photo).
[48]
He testified that the tape was lying on the
floor, photo 5, to the right of that bollard and the white pillar at
the dustbin and
there was nothing between the bollards. According to
the first two witnesses, there was no tape there.
[49]
He further testified a lot of laminated
pages were scattered across the floor. He could not say the specific
area but noticed and
he thought about the hazard behind it. It was
put to him that the tape was not damaged or broken and it covered the
whole entrance
area as per photo 7. On the photo one can see it was
broken between the bollards and tied again.
[50]
It was put to the witness that the
defendant’s version would be that it was not broken but after
the plaintiff exited it was
either ripped apart or to assist
plaintiff. He testified on his arrival he walked through the bollards
and he walked back to the
queue as he was told at the entrance. (I
find this improbable. There was testimony there was not a lot of
people, thus how he could
not have seen his parents standing outside
at the same time). He didn't know when plaintiff fell. On photo 5
tape was to the left
on the floor.
[51]
It was put to him that there was no hazard
created on the floor and on photo 7 he showed where they were
stacked, close to the cone
and between the cone and the bollard on
the one side and between the cone and the dustbin on the other side
and from the parking
pole towards the liquor store.
[52]
It was put to him that the defendant's case
would be that he was not returning as he testified within one hour as
his father fell
just after 12:00 and he would have encountered the
plaintiff and the ambulance. He answered that his mother did not have
her phone
with her.
RE-EXAMINATION
[53]
None.
[54]
There was one question from the court. He
confirmed the tape was spanned from the P sign to the liquor store
and on the ground left
of the bollard between the cone and the
bollard.
Mrs. Ehrke
[55]
Plaintiff is her husband. She was present
with the incident after they purchased the paint. She testified that
she was walking to
the right of her husband and confirmed the queue
outside. She reiterated that she was on his right-hand side and he
was walking
towards the edge of the pavement. She saw tape on the
ground. They turned at the slope between the bollards. She talked to
her
husband and suddenly he fell backwards. Maybe he slipped or
something. He was right beside her. The incident happened on the
slipway.
[56]
She didn't see what happened or what caused
it and she just saw paint and tried to pick it up and she ran to him
and tried to pick
him up as he said he was sore. She testified the
tape was on the ground when they walked in. She testified the tape
was up as on
photo 2, where her husband was standing, the tape was up
behind him, for the queue to follow. She didn't notice something
attached
to the tape at the time.
[57]
She confirmed the ambulance took him to
hospital. She couldn't go with and was waiting because of COVID.
Someone came and said they
will replace the paint. She left and went
straight home. She was shocked. She phoned her son immediately. He
said he will go and
have a look. When he fell, he was lying backwards
against the pavement. As they were walking, she looked in front and
talking.
She did not look on the ground, but in front.
[58]
She testified her husband did pay attention
where he was walking and she was too. She testified on photos 6 and 7
there was no tape
when they arrived there and no trolleys either and
when they came out there were also no trolleys. They were walking
between the
bollards when he slipped. She was beside him.
CROSS-EXAMINATION
[59]
She confirmed the plaintiff was to her left
and she to his right when they walked on the sidewalk. They exited
between the bollards
when he fell. There was no big queue at the
entrance at that time. No one told them that is not the place to be.
She testified
his legs was on the crossing, his upper body on the
pavement. On photo 6 it shows that the paint is quite some distance
away.
[60]
It was put to her that the trolleys were
there. She said “I don't agree”. Photo 3 shows where the
paint starts, and
if she was on her husband's right, should the paint
not have caught her? She answered “I didn't see him slip, his
fall looked
like a slip”. She saw laminated paper where he was
falling and more lying around and she remembered the white spots of
the
papers lying around, and there was one on the pavement.
[61]
When asked where it was exactly lying, she
said she can't for sure tell but she saw one between the parking lot
and the pavement
and there were a lot of people there. She testified
that when she walked with her husband, she did not look at the tar
between
the bollards and she testified that she didn't look down when
they're going down the kerb stone.
[62]
She couldn't recall the time between the
fall and the ambulance’s arrival. She couldn't remember if the
sun was shining. The
paint was replaced after her husband was in the
ambulance. The time span, again, she couldn't confirm.
[63]
She testified that when she arrived the
tape was up as she was standing in the queue behind the tape. She
testified that the tape
was, on photo 2 behind her husband, from the
sanitary station to the returns-cubicle. She did not know how it was
fastened. It
was put to her that her version contradicts her son's
evidence regarding the tape that was up and she answered “I
know what
I saw”. It was put to her that there was a commotion
after the fall and someone could have moved the papers. She answered
“I didn't see, I saw what I saw”.
[64]
She reiterated that it was windy and the
wind might have blown the papers. She wasn't looking at the tar and
therefore couldn't
answer whether her vision was not obscured at the
bollards. She confirmed that she didn't look at the bottom. She
didn't notice
anything that could obscure her and her husband's view.
It was put to her that the plaintiff testified the bollard obscured
his
view, to which she answered “no it cannot, that is what I
saw”.
[65]
She testified that she did not speak to
anyone. It was put to her that the defendant will testify that
plaintiff missed a step.
She answered that she did not look down. She
was to her husband's right. She saw tape fluttering. She didn't take
further notice
of the paper and proceeded with walking. She then said
“I think I said look here”. She did not see the slip or
anything.
[66]
She reiterated that there was no tape at
the entire front and the trolleys were not parked there as per photo
7. When it was put
to her that the floor and the ramp was clear of
any hazards, she said “I don't know, paper was lying there”.
When it
was put to her that she did not keep a proper lookout, she
said “I don't agree”.
[67]
It was further put to her that had both of
them looked down, they would have recognized if there was any hazard.
She answered “if
I looked down, yes, but I did not”. It
was put to her that if she saw tape on her left lying there that was
a reasonable
warning and she answered “I was focused on the
tape alone”. She didn't agree that there were no hazards on the
floor.
It was put to her that the paint made him less stable, 16
kilograms, and he could have used one of the trolleys, but he didn't.
There was no comment from the witness.
RE-EXAMINATION
[68]
None.
[69]
There was one question from the court. On
photo 7 there was something lying in front of the cone and the
witness was asked what
it was. She answered it looked like white
paper. The witness was asked if it can be a folder. She confirmed
that she knows what
a folder is and she said “not sure, maybe
it can be”.
[70]
Photo 7 was magnified and it showed it was
flat on one side and bulky on the other side and when observed from
the other side towards
the building the one flap looked up of the
folder and in the court’s view that is a blue folder and not
white paper as proffered
in court. There also seems to be a time
delay between photo 6 and photo 7, taken by the son, since the
trolleys weren't on the
same place from the one photo to the next
photo and the flap standing up on the one photo was not up on the
other photo.
[71]
That was the case for the plaintiff.
THE DEFENDANT’S
CASE
Dumisani Joseph Chauke
[72]
He recalled the incident. He is employed by
the defendant. He is the loss prevention manager. He is responsible
for, amongst other,
managing, health and safety, food investigation,
investigation team, maintenance of the store and managing the
facilities. He testified
the health and safety protocols during COVID
included barricading the area in front of the entrance, to make sure
there are enough
sanitizers, barrier tape at the entrance and 1.5
meters distance for the customers to queue.
[73]
He testified the tape was placed as per
photo 7 to direct customers to go to the queue at the
returns-cubicle. The tape ran from
the left of the photo to the
dustbin and that was to assist people with access. People were also
orally told to queue to the right
and there were also directional
signs pointing them to the right. Signs were stapled to the danger
tape. The trolleys were placed
on the zebra crossing as backup for
the store in the front and to blockade.
[74]
Part of their maintenance and upkeeping is
to deal with hazards and he confirmed five COVID officers were
employed to deal with
hazards on the floor area as per the protocols.
One was appointed at the main entrance and one at the back of the
queue. They walked
around the area to clean it of clutter. People did
not enter as normally, but as guided. He also had a senior manager
there, most
of the time responsible to direct and assist customers.
He testified if there were objects, same would have been cleared
within
a reasonable time.
[75]
It was put to him that plaintiff said the
incident happened just after 12:00. He answered “I did not see,
I was called by
the senior manager at the entrance, I was at the
reception”. He went to the customer that fell to check on him.
He spoke
to his wife. She said to him “that the plaintiff
missed a step”. She was on the phone. Plaintiff was in pain.
First
Aid was already there assisting. He saw the paint on the floor
and also the tape on the floor. He testified that the senior manager
must have taken off the tape to assist and his name is Mr. Vincent
Radebe and told him he'd torn the tape to assist.
[76]
He confirmed the tape and the laminated
paper was on the ground after that. When asked if there were any
other interaction with
the plaintiff or his wife, he answered, he
spoke to the son. The son came the following day and introduced
himself as the son of
the plaintiff. The son approached the witness,
was furious and said his father fell because of laminated paper. The
son visited
him at the reception. The son then walked out through the
customer entrance.
[77]
It was put to him that the plaintiff plus
the other two witnesses testified that there were no warning tape
blocking the entrance
on the day. He denied this and testified the
tape was there to barricade. It was put to him that the plaintiff
said that if there
was tape, it was lying on the ground when he
entered Makro. The witness answered “not correct”. It was
put to him that
the laminated papers were scattered. He said it was
stapled to the tape and it is incorrect that it was loose. He
confirmed that
the trolleys were there at the zebra crossing.
[78]
It was put to him that the trolleys were
placed there after the plaintiff fell, as on photo 7. He answered “it
is standard
practice that the trolleys and the tape had to be there
and was always there”. They put back the tape after the
incident.
When he was asked how does it make sense to him how the
plaintiff fell, he answered a lot of customers would insist walking
past
towards the entrance, but they should exit on the far side and
he must have had to insist to walk back to the entrance.
CROSS-EXAMINATION
[79]
He confirmed that they get acknowledged for
a clean record for incidents. On photo 7 he was shown the trolleys
and the paint spillage
from the yellow parking line. He testified the
cleaners had to come and they used a broom and water to scratch it
off. The
plaintiff was lying on the area below the cone on the
tar and below the cone is also the area where he has fallen. He fell
in front
of the cone on the tar. The cone was not there at the time.
[80]
It was put to him that the plaintiff fell
between the bollards. The witness answered it was to the left of the
bollard and the cone,
looking towards the building, and the
plaintiff’s wife confirmed to him. It was put to the witness
that the paint in his
right hand spilled, to which he answered “no,
the paint that spilled was in his left hand”. The paint
containers had
handles. He confirmed the tape was between the
bollards. He testified the laminated A4 paper signs were multiple
times stapled
over the whole area. He didn't know about the signs not
showing when the photo was taken, but it was stapled. He confirmed no
signage
could be seen on the photo.
[81]
It was put to him that the son took the
photo the same day to which he answered “no, he came the
following day”. It
was put to him that the son took the photo
after 13:00 on the day. He answered that the signs were there and
someone could have
removed the signs to take the photo. He was then
referred to what was in front of the cone and it was put to him that
it's A4 papers.
He answered their laminated A4 papers were red with
black arrows. It was put to him that even from another angle it looks
white.
The witness disagreed and said that it is not the color of
their signage. He then testified that whatever is there, if someone
removed it and put it there, that was the person’s version.
[82]
He was at the reception when this happened.
From time to time, they would go outside and plus minus 20 to 30
minutes before the
incident he was on the outside. It was put to him
that Me. Ehrke’s phone was at home to call her son and she did
not have
her phone. He answered “I engaged with her, she was on
the phone. She stopped talking, spoke to me and then was on the phone
again”.
[83]
It was put to him that it was not put to
her that she was on the phone to which he answered “she was on
the phone and said
he missed the step”. It was put to him that
she denied having said that and he reiterated what she said. He was
asked about
the incident report and he said it was recorded, but he
doesn't know why it was not discovered. At the time there were no
cameras
at the entrance or outside. There are now cameras at the
entrance area.
[84]
The protocols applied was what was
applicable at the time. The tape, the signage, the COVID officer, the
senior manager and the
tape was at the back. He was asked about the
queues and stated there were one queue demarcated and another queue
for elderly, disabled
and pregnant persons with chairs in a queue
closer to the wall of the building. He testified that the people will
stand in the
queue 1.5 meters apart in a demarcated area towards the
patio area. He does not know when the photo was taken.
[85]
It was put to him that someone can walk to
the right to the patio side of the queue. He testified someone was
not to walk there
as per the protocols and what his team executed.
When they enter, they got numbers to ensure that those exit not to go
to the entrance
again. As far as the queue is concerned, he testified
that if plaintiff and his wife walked to the left of the queue,
between the
queue and the patio, towards the entrance they could not
have walked next to each other as it is too narrow and should have
walked
one behind the other.
[86]
He testified you cannot walk on the
pavement to the liquor store as it is blocked off. He confirmed at
the time the liquor store
was closed. It was put to him that all
three witnesses for the plaintiff testified that there was no tape
there. He answered, they
must have jumped the tape because the tape
was there. He reports to the store manager, he was on duty and
reported to him. The
store manager said to replace the paint. He
confirmed the signage again. He testified it was important to keep a
clear space, a
safe environment and to pick up everything to make it
safe for the customers and if laminated paper were lying around, it
could
be unsafe for customers.
RE-EXAMINATION
[87]
He testified the paint spillage, as it
looks on the photo, came from the cleaners and the paint spill was
not as put to him. The
tape was put back together afterwards and
there were two knots there. He disagreed that the photo could have
been taken one hour
after the incident. On photo 5 and 7 people could
stand to the right of the tape. The demarcation tape was 1 meter in
length and
1.5 meters apart at the entrance area on the pavement.
Mzikayifane Vincent
Radebe
[88]
He recalled the incident. He was employed
at the time as marketing manager. He does not work there anymore. He
was responsible for
the image, ambiance, service cleanliness and
interacting with the promoters. At that time, it was during COVID and
there were measures
at Alberton, customer numbers limited, cards with
numbers were curated and issued, and how the cards were utilized,
entering and
exiting by customers.
[89]
Space was created outside and customers
would queue in the demarcated area for social distancing. He
confirmed the queue where the
elderly queued and the chairs for the
elderly between the normal queue and the walls. He testified it was a
critical time, signage
on the pillars, red and white tape to cordon
off and signage against the wall. There was tape from the entrance to
the left towards
Wiesenhof and the liquor store, each cordoned off
separately, so that it cannot be entered from the other area on the
pavement.
[90]
On photo 3 he indicated that the tape went
from the main entrance towards the pillar at the dustbin and from
there to the right
at the wall where it was fixed to the trolleys. He
testified the retail have a standard and the yard had to be cleaned
and in-store
as well. The tills had to be opened, the store clean,
radio at the right volume before it opens and the cards had to be
checked
which Fidelity would give to customers. The cleaning crew
will be on duty when the store opens and during the day they will
roam
to clean where necessary. He was responsible for the outside
area. He would rove between the entrance and the back. He could not
recall if the day was windy. He did not witness the incident. He was
informed after the fall.
[91]
When he heard it, he gave a call to the
risk manager, Mr. Chauke, and First Aid was called as well. He went
to the incident and
the plaintiff was down. First Aid was there.
Plaintiff did not speak and his wife did not speak to the witness
either. The plaintiff
was lying close to the cone on the tar, as per
photo 7. There was paint on the tarmac and there were people. He
testified the first
responders cut the tape. It was cut and laid
down. He confirmed the tape was affixed with notices.
[92]
It was put to him the plaintiff said there
was no tape as per photo 7. He disagreed and disputed that there were
a number of laminated
pieces on the ground. He confirmed the trolleys
were there on the zebra crossing. It was put to him that the
plaintiff said they
could walk out at the zebra crossing at the
entrance. The witness answered “no, they avoid interaction and
customers exit
behind the queue where there is a separate zebra
crossing. The correct pathway would be to exit through that zebra
crossing and
on the tarmac to the customer’s car”.
[93]
The demarcation was to ensure customers
follow instructions as per the COVID protocols. They were also
outside to advise customers
to adhere to the protocols. It was put to
him that when the plaintiff and his wife walked back after shopping
towards the entrance
the wife saw tape on the building side on the
ground which he disputed. The tape was in the shaded area on the
pavement, which
he disputed.
[94]
It was put to him that upon their exit
there were laminated loose pages on the floor. He disputed this. It
was put to him that the
plaintiff believes he stepped on one where he
fell. The witness also disputed this. The witness was asked if he
could guess what
would lead to the fall. He answered “I think
he came the wrong direction at odds with customers who gave him an
eye. Colleagues
would have told him also. He went under the tape, he
got tired of being told what to do. He had paint and then he fell”.
[95]
He was shown photo 5. The queue extends to
past the return-cubicle and it is much narrower at the returns area.
He was shown photo
2, on the far right there was a man, basically to
explain that plaintiff and his wife could walk side by side. The
witness answered
“the space is narrow and with the queue there,
they would have to follow each other”.
CROSS EXAMINATION
[96]
He was inside and outside. 70% on the
outside, 30% on the inside. He would walk around, check, exit and
have an overview over the
cards, sanitizer and the wipes. He was
inside at periods. It happened six years ago. It's possible that he
could have forgotten
things. He confirmed that he was outside, he
cannot remember exactly when. He confirmed on photo 3 the tape was
attached to the
trolleys in the direction of Wiesenhof at the time
and to the left of the entrance.
[97]
The trolleys for customers were placed in
front of the entrance to avoid contact and sanitized. This formed the
primary bay and
also trolleys in the parking lot and, unless they
ignored this, they would take one on the left. There can be a lot of
customers
on a regular day, month end, etc. He testified if the
trolleys on the left of the zebra crossing would have been taken then
someone
would close that gap putting trolleys there again. He
testified that the notices were put up in the morning in pairs of
three,
stapled to the tape some horizontal some vertical hanging from
the tape. He was then asked how could an elder person duck below
the
tape that is waist high. The witness answered “I said I
wouldn't know”.
[98]
The witness disputed that the tape was not
there. On photo 7 he showed the black chair in front of the signage
and that's usually
where the chairs are for the elderly, etc. He was
asked why the main entrance was not the same as per Wiesenhof. He
said at Wiesenhof
customers were sitting down and social distancing.
Every area has its own queue and there was never a queue at the
restaurant.
If the other two areas, the liquor store and the
restaurant, would have had as much customers as the defendant, they
would have
provided a longer area for them to queue.
[99]
They adhered to the COVID regulations until
it was uplifted. He couldn't remember when it was uplifted. Customers
were told many
times where to queue. If the three witnesses for the
plaintiff got under the tape to that area, they would have been told
to queue
from the outdoor area. He reiterated the tape was at the
entrance and cordoned it off. They stopped many people at the tape
even
though the trolleys were there, some people did not even wear
masks.
[100]
He testified that if people broke the COVID
rules, they were taken out of the queue. When the witness arrived,
the customer was
already assisted by First Aid. It was necessary to
cut the tape to get the wheelchair through. He didn't know how it was
cut or
why it was cut in two places. A lot could have happened on
that day. He again testified he don't know if they cut it or if it
was
in two places and the First Aid can answer on that. He did not
cut the tape.
[101]
It was put to him that the first witness
said he cut the tape. The witness answered “I did not tell him
that, First Aid did
it”. He disputed that the plaintiff and his
wife had ample space to walk. Two people cannot walk side by side
with paint
to the left of the queue and the patio area. The witness
did not see the plaintiff walking. He was shown photo 7 and what was
in
front of the cone and answered “I cannot agree that it's the
papers”. He said what he could see and he did not see laminated
papers lying around.
[102]
On photo 6 he was again referred to what
was in front of the cone and he said it might be a folder, looks like
that, if paper it
does not lie flat on the left. It was put to him
that those papers were put there. He said he cannot dispute it. It
was put to
him that the plaintiff slipped between the bollards. He
disputed it, and none of the papers were lying around, was his
answer.
RE-EXAMINATION
[103]
They supplemented the pamphlets from time
to time. He was inside when he was notified. He confirmed different
printing is used against
the wall, portrait and landscape. He
confirmed that they printed signs as many as needed, at least three.
Photo 2 and 3 was taken
in February 2021. It shows a chair behind
plaintiff and behind the white pillar and photo 7 was magnified and
behind the person
with the reflective jacket, chairs were identified.
[104]
Then from the court side the witness was
asked if it was windy. He couldn't remember. It was put to him that
it does not look like
that on photo 7. On this photo one cannot see
any wind influence that might have caused a distraction on the trees
and shrubs at
the time the photo was taken. On this photo one can
also see that it was a sunny day.
[105]
That was the case for the defendant.
DISCUSSION
[106]
The defendant denied any allegations of
negligence and liability and pleaded that “the accident was
caused solely through
the negligence of the plaintiff who was
negligent in one or more of the following respects: He failed to keep
a proper lookout;
he failed to take any or adequate steps to avoid
his fall, when, by the exercise of reasonable care he could and
should have done
so."
[107]
The secondary issue for determination is
whether or not the defendant took sufficient reasonable precautions
to prevent any potential
danger and particularly the danger allegedly
emanating from laminated papers on the concrete and tar surfaces. It
is not disputed
that the defendant owed a duty of care to the members
of the public entering the premises and to ensure their safety.
[108]
The central issue before court is whether
the plaintiff has established, on a balance of probabilities, that
the defendant is liable
in delict for the injuries plaintiff
sustained. Defendant argued that the questions to be considered are
whether there was any
hazardous situation created by allegedly
“slippery
”
laminated papers
lying on bare concrete/cement/tar floor surface outside the premises
and were such slippery or hazardous items
on the floor at the time
and place where the plaintiff fell and if so, whether the defendant
knew or ought reasonably to have known
of the existence of such
hazard.
[109]
Furthermore, whether the defendant breached
a legal duty of care owed to the
plaintiff by failing to
take reasonable steps to prevent or remedy the hazard and if so,
whether such breach fatally and legally
caused the plaintiff's fall
and resulting injuries and whether in all the circumstances the
liability should be attributed to the
defendant.
[110]
The defendant further argued that should a
slippery or hazardous laminated paper was lying on the floor and what
caused the paper to fall not be proven, this court
does not have to deal with the remainder of the questions and ought
to dismiss
the claim.
[111]
In the case of
Skilya
Property Investments (Pty) Ltd v Lloyds of London Underwriting
2002 (3)
SA 765
(T)
it was said on page 780:”In
S
v
Mtsweni
1985
(1) SA590 (A)
at
593E
- F Smalberger AJA emphasised that inference must be distinguished
from speculation and must be based on properly proved objective
facts. He quoted, with approval, the following passage from
Caswell
v Powell Duffryn Associated Collieries Ltd
[1939]
3 All ER 722
(HL)
at 733E - F: 'Inference must be carefully distinguished from
conjecture or speculation. There can be no inference unless there
are
objective facts
from
which to infer the other facts which it is sought to establish. In
some cases the other facts can be inferred with as much
practical
certainty as if they had been actually observed. In other cases the
inference does not go beyond reasonable probability.
But if there are
no positive proved facts from which the inference can be made, the
method of inference fails and what is left
is mere speculation or
conjecture.'
It
must also be emphasised that the inference sought to be drawn must
comply with the first rule of logic stated in
R v Blom
1939
AD 188
at 202 - 3:'(1) The inference sought to be drawn must
be consistent with all the proved facts. If it is not, the inference
cannot
be drawn.'
See
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982
(2) SA 603 (A)
at
614H. Where more than one inference is possible on the objective
proved facts the Court may by balancing probabilities select
a
conclusion which seems to be the more natural, or plausible,
conclusion from amongst several conceivable ones, even though that
conclusion be not the only reasonable one. And in this context
'plausible' has the connotation of 'acceptable, credible, suitable'
-
Govan
v Skidmore
1952
(1) SA 732 (N)
at
734C - D;
Ocean
Accident and Guarantee Corporation Ltd v Koch
1963
(4) SA 147
(A)
at
159C - D;
AA
Onderlinge Assuransie Beperk v De Beer (supra
at
614H - 615B);
Spes
Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd
1983
(1) SA 978
(A)
at
981A - D.”
[112]
In the case of
Kruger
v Coetzee
1966
(2) SA 428
(A)
on page 430 it was
said: “
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.
This has been constantly
stated by this Court for some 50 years.
Requirement
(a)
(ii)
is sometimes overlooked. 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.”
(Own
emphasis)
ARGUMENT FOR THE
PLAINTIFF
[113]
It is plaintiff’s case that their
witnesses were credible and the evidence reasonably possibly true,
and no ulterior motive
emerged from them to lie about the events of
the day. It was also argued that the son's evidence provided
confirmation as to how
the scene looked like earlier in the day when
the plaintiff had the incident and that he also visited the store
earlier just before
his father had the fall.
[114]
It was argued that he printed his receipt
from that day and could indicate the exact time he paid for the last
item, being 12:05.
No substance was proffered that the son was in
fact in the store on the date and time as he testified. The photos he
allegedly
took on the day also did not have any date and time on the
photos themselves or further substance proffered that the photos were
in fact taken on the date and time as testified by the son.
[115]
It was further argued that on photos 6 and
7 the object in front of the cone was identified by the son as “a
stack of A4 laminated
papers”. It was conceded that it was
difficult to precisely identify the object as such from the photo. I
have considered
the object from the photos and also questioned
witnesses in this regard. Me. Ehrke as well as a witness for the
defendant agreed
that it could possibly be a folder. In my view the
object is a blue folder, viewed from the side, of approximately A4
size and
of which the top part was a reflection from the sun making
the top look white.
[116]
The evidence for the plaintiff was that
there were white laminated paper lying around which is inconsistent
with what could be established
on the photos as well as the evidence
of the defendant that they used red laminated papers with black
printing on it.
[117]
It was further argued that the scene was
cleared after the incident by placing tape in front of the entrance
bollards and placing
trolleys at the zebra crossing as per photos 6
and 7. On the evidence before me, it cannot be said that the photos
were taken on
the date and time as alleged. Evidence for the
defendant was that the son only attended at the store the following
day and he was
furious. The evidence for the defendant was that there
were trolleys there at all relevant times and tape due to the COVID
protocols
and not only at the time the photos were taken.
[118]
It is plaintiff's case that the entrance to
the restaurant and liquor store had an opening in front of the
entrances and probably
the entrance to the main store as well. The
defendant's witnesses testified that the entrance to the main store
was regulated differently
in terms of the COVID protocols due to the
number of customers visiting the main store in comparison to the
liquor store that was
closed at the time and the number of customers
visiting the restaurant. At the main store the entrance was closed at
the bollards
with tape and trolleys and the queue started at a
different place on the sidewalk or pavement and where people did
approach the
entrance from the wrong direction, they were directed to
fall in the queue demarcated one and a half meters apart on the
pavement.
[119]
Plaintiff's case further was that the
defendant’s evidence had material contradictions namely that no
pieces of paper came
loose from the tape and on the photos no notices
remained fastened or could be seen fastened to the tape.
[120]
Mr. Chauke's evidence was that he spoke to
Me. Ehrke when she was on her phone and told him that her husband
missed a step. She
testified that she went home to phone her son and
did not have her phone with her. No substance was proffered, such as
a phone
record, confirming from which phone the call was made and
when. No evidence was led whether the plaintiff had a phone with him
on that day. Evidence was only led that Me. Ehrke did not have her
phone with her. The son was around the same time at the store,
inside
and outside, but did not notice anything or saw his parents, whilst
it was not busy.
[121]
It is plaintiff's case that the paint stain
should be accepted as proof where the plaintiff fell between the
bollards. No expert
evidence was led that the paint stain, as could
be seen on photo 6, could be attributed by its looks to the fall of
the plaintiff.
The defendant testified that the paint was cleaned and
swept which makes it look different. No substance was also proffered
as
to the elevation of the parking lot and whether the direction of
the paint could be attributed to the fall or to the elevation of
the
parking lot or the cleaning thereof.
[122]
It is common cause that the plaintiff had a
can of paint in each hand. It is the plaintiff's case that the right
hand can of paint
had the result whilst the defendant’s case
was the left hand can of paint. There is also a contradiction as to
where the
plaintiff fell. The plaintiff's case is he fell between the
bollards. The defendant's case is, looking towards the entrance, to
the left of the left bollard where the pavement is higher and not the
same downslope as between the bollards.
[123]
It is plaintiff's case that one could walk
in the opposite direction to the right of the queue towards the exit
from the entrance
as there was a person standing looking in the
opposite direction where one could walk, photo 7. My understanding is
that this goes
against plaintiff's version that he and his wife
walked in the same direction as the queue, to the left of the queue,
towards the
entrance side by side whilst talking to each other and
against COVID protocols. From the photo, and photo 5, it is therefore
not
reasonably possibly true that two people could walk side by side
with the plaintiff carrying two five litres of paint in each hand
taking more space than just the width of two human beings.
ARGUMENT FOR THE
DEFENDANT
[124]
The plaintiff argued that the defendant
“failed to take any or adequate steps to avoid his fall when,
by the exercise or reasonable
care, he could and should have done
so”. It is defendant's case that it employed strict COVID-19
protocols which included
social distancing, customer entrance
management, crowd control and notification and communication
strategies.
[125]
The defendant also employed usual
strategies to market, communicate, warn and notify customers of the
prevailing circumstances.
The defendant employed senior managerial
staff at its premises to ensure that the COVID-19 protocols were
strictly observed and
adhered to. The defendant’s staff made
continuous observations and physical checks of its premises to ensure
the absence
of any hazardous situations from arising.
[126]
Where a plaintiff fails to keep a proper
lookout, or did not take reasonable steps to avoid a visible hazard
such conduct can be
treated as contributory negligence on such a
scale as the court may determine in terms of the Apportionment of
Damages Act 34 of
1956.
[127]
In the instant case the plaintiff is
expected to act as a reasonable person,
diligence
paterfamilias
, by keeping a proper
lookout and failing to take reasonable care to do so constitutes
carelessness, recklessness, and negligence,
possibly contributory
negligence.
[128]
The defendant argued that plaintiff's case
rests on an inference rather than on direct observation since
plaintiff and his wife
admitted that they did not witness the
plaintiff step on anything causing him to slip and trip. No
eyewitness was called in this
regard either. Plaintiff testified that
he never looked down to the ground at the time he fell as his
attention was with his wife
who he said was walking to his left,
talking to her and looking in her direction. She testified that he
was walking on her left
and thereby looking to his right towards the
customers which is in itself contradictory.
[129]
Neither the plaintiff nor his wife could
confirm what caused his fall and when plaintiff became aware of a
laminated page after
he fell, he assumed that it was this paper
laminated with hard plastic. Plaintiff's wife did not see the cause
of the plaintiff's
fall and she did not look down either. Both
plaintiff and his wife therefore did not look down when they were
negotiating the pavement
towards the parking lot and the gradient of
the pavement at the bollocks. The laminated paper allegedly to blame
was not before
court and the parties are in disagreement as to how it
looked. No substance was proffered as to the footwear plaintiff was
wearing
on the day either.
[130]
Defendant further argued about the warning
tape plaintiff's wife saw lying on the ground to the right-hand side
of the couple fluttering
in the wind as it was a windy day. She
pointed out this hazard to the plaintiff. The queue was to the right
of the couple and the
tape to their right. Plaintiff paid no further
attention to this hazard either.
[131]
On the probabilities of the evidence before
me this hazard was to the right-hand side of the couple, but on the
right-hand side
of the couple there was the queue of customers and to
their right hand side the queue of seniors, pregnant women etc. and
then
the wall of the building. If it was there, it was therefore two
queues to the right of the couple whereas in the testimony the tape
was to the left of the couple, be it on the ground or up.
[132]
Furthermore, as per photo 6 before me I
have considered whether it was a windy day and at least at the time
this photo was taken
no wind could be observed by looking at the
trees or any person on the photo’s clothes that there was in
fact wind. The testimony
was that it was a windy day and not that
there were gusts of wind from time to time. No substance was
proffered to substantiate
other than the oral testimony and the
photos.
[133]
The mechanism of plaintiff's fall remains
undetermined, unproven and unverified and only avert through
ex-post
facto
conjecture and reconstruction of
which the credibility materially is in question. The defendant also
averred to the contradictions
in plaintiff’s case regarding the
warning tape placed across the entrance area in the vicinity of the
bollocks where plaintiff
fell, whether a hazard was created by loose
laminated pages lying in a path the plaintiff took, where he fell and
whether the plaintiff
himself acted negligently to not take any
precautions, care or cognizance of his surroundings to avoid such
hazardous situation.
[134]
The plaintiff's version was that the tape
was up alongside a queue for the customers from the entrance towards
the returns-cubicle
when he entered the store. He testified that as
they came out it was windy and he noticed that these notices had come
loose and
were lying all over and denied that there was tape at or
near the two bollards. In contradiction, the plaintiff's son
testified
in his evidence in chief when he entered the store a few
minutes before the plaintiff the danger tape was already lying on the
floor and already ripped. The son's evidence in chief was that there
were loose tape lying on the ground both sides of the bollards.
[135]
The son's version is therefore that the
tape was already down and torn before plaintiff arrived at the
entrance which contradicts
the plaintiff's version regarding the
location and orientation of the tape. Both versions cannot be
correct.
[136]
The plaintiff's evidence was that he did
not deem it necessary or reasonable to keep a proper lookout upon
exiting the store and
leading to the scene of the accident and did
not look down upon approaching the scene where he fell. His attention
was focused
at his wife, who was walking to his left, and he was
talking to her and it was not to the surrounding areas or the floor.
In re-examination
this version changed that his wife was in his
general field of vision leading to the scene of the accident.
[137]
Plaintiff's wife, over two days, was
persistent in her evidence that she was walking to the plaintiff's
right-hand side and the
plaintiff on the side of the parking lot.
Both versions cannot be reasonably possibly true and are
contradictory. This is destructive
to plaintiff's version as to his
general care and reasonableness to be on the lookout of his
surroundings. The negligent attitude
and carelessness of plaintiff's
approach of the angled kerb stone and pavement in close proximity
being raised higher than the
tarmac is contradicted with the position
of his wife at the time.
[138]
In cross-examination, plaintiff asserted
that he observed his surroundings, the bollard obstructed his view
and his wife obstructed
his view, but in evidence in chief he
answered as follows: “My Lord, we were talking to each other
and I was looking at her.
We were talking about what we were going to
do, and the next thing I just fell and slipped and had no control.”
In re-examination
he testified that he observed all the way whilst
talking to his wife, looked around and saw things happening which is
materially
contradicting to the evidence in chief and
cross-examination.
[139]
It is uncontested that plaintiff did not
look down towards the ground when entering or exiting the premises or
approaching the bollocks.
The plaintiff testified that he saw tape
lying on the floor with papers attached to it before he fell and
simply walked past it.
His wife testified that she also saw tape on
the ground and drew the plaintiff's attention to it, but no further
evasive or precautionary
steps were taken. This is contradictory to
the wife's testimony that she did not look down and her testimony in
evidence in chief,
that she and the plaintiff were generally watching
where they were walking.
[140]
Me. Ehrke’s evidence is also
contradictory to the plaintiff's evidence because she gave an oral
and physical warning to the
plaintiff and no evidence was forthcoming
from plaintiff regarding such warning. The plaintiff's son in his
testimony noticed papers
lying around in the area where plaintiff
fell, but he neither stepped on nor slipped on any of them. Photo 6,
furthermore, depicts
a blue folder and not laminated papers.
[141]
The plaintiff's testimony that his view was
obstructed by his wife walking on his left and his attention shortly
before and at the
time of the incident was with his wife is in my
view the best and correct evidence.
[142]
The first witness for the defendant
testified that Me. Ehrke indicated to him that the plaintiff missed a
step. This has to be weighed
up against the probabilities of the
plaintiff's and his wife's versions immediately prior to the falling
of the plaintiff. If it
is, for a moment, accepted that the plaintiff
was walking on the left, as testified by his wife, his view could not
have been obscured
by his wife as per his testimony. Accepting that
the plaintiff, as per his testimony, was walking on the right-hand
side of his
wife and they were walking next to each other at the time
he fell and looking at the photos the wife could not have been
immediately
next to plaintiff, with the two cans of paint in both
hands and both of them going through the bollocks next to each other
if one
considers the width of the bollards and the angle they
approached them.
[143]
The testimony was not that Me. Ehrke went
to the left of the two bollards and it can be accepted that she did
not exit through there
and it's also a very narrow space. In my view,
on plaintiff's version, he could have exited to the right of the two
bollards between
the right bollard and a plant which is different
from the area between the bollards since the pavement is starting at
the right
bollard.
[144]
Plaintiff did not look down as per his own
testimony and it is reasonably possibly true that he did not see the
kerb stone and “missed
his step” as per the communication
to defendant’s witness shortly thereafter. On the
probabilities, plaintiff missed
his step on the angled kerb stone
instead of a laminated page which laminated page is not visible on
the photos. Notwithstanding
the plaintiff's obscured view, he noticed
the papers when he passed them and not that he tripped on the papers
in cross-examination.
[145]
The plaintiff testified that it was a windy
day and thought that the wind took down the tape, but it was not
moving around which,
on the probabilities, should be moving around if
it was windy, or as per Me. Ehrke's testimony, that “the wind
was blowing”,
contradicting the plaintiff's testimony. Me.
Ehrke’s testimony was therefore of a much stronger wind than
the description
by the plaintiff. The defendant's witness testified
that it was not windy after he considered the photograph shown to him
which
again confirms no wind at least at the time the photo was
taken.
[146]
This places in doubt the plaintiff's only
version that the laminated notices that were stapled to the tape came
loose and were on
the ground. No expert evidence was proffered as to
the weather and or weather conditions and photograph 6 was the only
photograph
to rely on regarding the windy conditions on the date of
the incident.
[147]
The defendant’s COVID-19 protocols
and crowd control measures was corroborated by the testimony of
plaintiff's witnesses.
The plaintiff, however, in cross-examination,
testified that there were guards and staff, but did not tell them
anything and did
not tell them that they were not allowed to walk
there which is contradictory to plaintiff's evidence in chief where
he testified
that there were people guiding them. He could not
remember exactly how many and the staff told him what to do and where
to stand.
[148]
The evidence of the plaintiff's son was
that he was stopped by the defendant's employees and said that he had
to go stand in the
queue. Plaintiff’s testimony was also to
confirm the yellow lines placed on the ground outside the premises on
the pavement
for the adherence of customers to social distancing, but
in cross-examination plaintiff testified that the yellow lines were
not
used on that day and defendant used a queue with tape to the
right of the queue.
[149]
On the probabilities, there were two queues
of which one was the yellow lines where social distancing was
enforced and a second
queue to the right where seniors, pregnant
women, etc. queued with chairs to sit on and, on plaintiff's version,
with tape to the
right of that queue. On the photos it was not
visible and on the probabilities not reasonably possibly true as the
tape could not
be fastened at any place towards the returns-cubicle.
[150]
Plaintiff later denied that social
distancing protocols was not adhered to on that day whilst, in his
own words, he visited the
place regularly, can only be to alleviate
the inconvenience of the conclusion that plaintiff traversed on
ground where he was not
supposed to be in terms of the COVID-19
protocols and furthermore, not having kept a proper lookout.
[151]
It is common cause that no expert witness
was called to testify in the instant case. In the circumstances no
expert evidence was
led by plaintiff to prove or provide evidence as
to the slippery nature of the laminated papers lying on the surface
where he testified
he fell and the possible influence of his
footwear. There is therefore no evidence before court regarding the
slippery nature,
looks, construction or condition of the laminated
pages and the surface it was on and when stepped on it with the
footwear plaintiff
was wearing on the day and in relation thereto
which makes it impossible to make a deduction in this regard.
[152]
In the plaintiff’s testimony he
confirmed that he exited the store and had no intention of
re-entering the store at the main
entrance or the return of any goods
at the returns-cubicle and, in terms of the COVID-19 protocols, he
was to, after exiting the
premises, to walk to the zebra crossing at
the exit and onto the tarmac and then to his vehicle and not walk
towards the main entrance
on the pavement in contravention of the
COVID-19 protocols at the time.
[153]
I find Mrs. Ehrke's testimony questionable
insofar as favourable details was specific in recollection whereas
unfavourable details
she had a limited or no recollection of.
[154]
Predicated on the evidence before me. I
cannot come to the conclusion that a hazardous situation existed at
the time of the plaintiff's
fall, whether it was created by defendant
or permitted by defendant to persist or for that matter to arise. In
my view the plaintiff's
conduct is the direct and material cause for
the incident.
[155]
Defendant’s witnesses gave clear
evidence as to the COVID-19 protocols that were in place and applied
at the time of the incident.
Mr. Chauke was questioned about the
completion of an incident report on the day which he confirmed and
testified that what he testified
in court was relayed in the incident
report. He was questioned why the incident report was not discovered.
At the hearing a copy
was also not requested.
[156]
No camera footage was available of the
incident since, at the time, no cameras were installed that could
record the incident.
[157]
The defendants' witnesses corroborated each
other regarding the running of the tape, signage and stapling thereof
to the tape.
[158]
Mr. Chauke was questioned about the absence
of signage on the tape in photograph 7. He disputed the alleged time
the photograph
was taken and testified that the son visited him the
following day and was furious. He also testified that the
photographer might
have removed the signs.
[159]
On one of the photos a huge disclaimer
notice, clearly visible from about 20 meters away where the
photograph was taken and situated
to the left of the entrance, albeit
that plaintiff’s evidence was that the area was cluttered with
information that same
did not stand out. This is inconsistent with
the photographs before court.
[160]
Plaintiff elected to carry the two cans of
paint with handles in each hand weighing each 6 to 8 kilograms and
elected not to make
use of a trolley, readily available.
[161]
Plaintiff also proffered the version that
the bollard might have obscured his view and that resulted him
slipping on paper behind
the bollard which he did not see. If, for a
moment, it is accepted that there was paper behind a bollard and
plaintiff walking
to the right of his wife, he would have to walk to
the front of the right bollard to step on the paper. Contradictory to
this,
plaintiff's wife testified that there was nothing that obscured
his view down to the ground.
[162]
From the testimony plaintiff, and Me.
Ehrke, was immediately prior to the incident aware of tape and
laminated paper on the ground
which they passed. And the hazard
therefore, if it existed, was visible.
[163]
It is a settled practice for plaintiff not
to pay attention to his surrounds as he visits the defendant's
premises regularly.
[164]
Whether the plaintiff slipped or missed his
step, the fact that plaintiff elected to carry approximately 16
kilograms of paint in
his hands increased the risk and reduce his
ability to recover his balance in such an instance.
[165]
In plaintiff's own evidence he did not look
down when he was about to descend a sloped kerb with the paint in
both hands and after
having observed warning tape and papers on the
ground and to enter this area of the incident, contrary to COVID-19
protocols, amounts
to negligence, carelessness and reckless in the
circumstances, in contrast to what a reasonable customer in the
circumstances would
have done.
[166]
Plaintiff's ordinary vigilance was
displaced due to his admission of his familiarity with the
defendant's premises. This stands
in contrast to the plaintiff's
son's testimony that he saw the same hazard, allegedly, and avoided
it thereby confirming that plaintiff
did not act reasonably at the
time of the incident. Plaintiff, furthermore, did not adhere to his
wife's warning prior to the incident
either. I also find it
questionable that plaintiff would continue to walk and approaching an
area where his wife obscured his view,
a bollard obscured his view,
he did not look down and in an area against COVID-19 protocols.
[167]
No substance was proffered as to what
plaintiff actually stepped on and what footwear he was wearing at the
time, if any, and, furthermore,
plaintiff and defendant presented
different versions as to where plaintiff was lying after falling. In
the circumstances, I cannot
make an inference that the proximity of
possibly paper, unidentified, could be the cause of plaintiff's fall.
[168]
If, for a moment, it is accepted that it
was a windy day or strong wind as per Me. Ehrke's testimony and it is
accepted for a moment
that what can be seen from the front of the
cone on photo 6 is to be regarded as “stacked laminated
papers”, then on
the probabilities they should have been
scattered as well and not remain in one place as proffered.
[169]
The fact that plaintiff could not see what
he slipped on, and neither his wife, for not having looked down
cannot exclude the possibility
the plaintiff could have missed his
step which on the probabilities makes it equally probable than a slip
on a laminated page.
No evidence was proffered as to how the
laminated page looked, where it was observed after the fall and was
not identified by any
independent witness or preserved.
[170]
If, for a moment, it is accepted that there
were loose pages on the ground as per the plaintiff's son's evidence
it would have been
on the ground for about an hour for the defendant
to have removed them or clean the area which is inconsistent with
defendant’s
protocols and the evidence that it was a windy day,
to remain in the same place.
[171]
The plaintiff's version that the tape was
up when he arrived was contradicted by his son's version that the
tape was down.
[172]
It cannot be excluded that plaintiff's
testimony was reconstructed over time instead of not recalling.
[173]
The plaintiff's familiarity replaced his
vigilance in the circumstances.
[174]
The plaintiff stepping forward behind the bollard
where his view was obscured whilst not looking down was reckless and
unreasonable.
[175]
In
the case of
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) SA 461
(SCA)
it was said:”
[12]
The first principle of the law of delict, which is so easily
forgotten and hardly appears in any local text on the subject, is,
as the Dutch author
Asser
points
out, that everyone has to bear the loss he or she suffers.
[1]
The
Afrikaans aphorism is that 'skade rus waar dit val'.
Aquilian
liability provides for an exception to the rule and, in order to be
liable for the loss of someone else, the act or omission
of the
defendant must have been wrongful and negligent and have caused
the loss. But the fact that an act is negligent does
not make it
wrongful
[2]
although
foreseeability of damage may be a factor in establishing whether or
not a particular act was wrongful.
[3]
To elevate negligence to the determining factor confuses wrongfulness
with negligence and leads to the absorption of the
English law tort
of negligence into our law, thereby distorting it.
[4]
”
[176]
Aquilian liability is an exception to the
general rule that “skade rus waar dit val” consequently
the onus rests on
the plaintiff that must establish and prove on a
balance of probabilities (act or omission), wrongfulness (breach of a
legal duty),
fault (negligence or intention), causation (both factual
and legal) and harm (patrimonial loss or damage).
[177]
Both
parties argued about two mutually destructive versions before court.
Plaintiff relied on the case of
National
Employers’ General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E)
and defendant the case of
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
2003
(1) SA 11
(SCA)
where it was said:”
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So, too, on a number of peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must
make findings
on
(a)
the
credibility of the various factual witnesses;
(b)
their
reliability; and
(c)
the
probabilities. As to
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness'
candour
and demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his
performance compared to
that of other witnesses testifying about the same incident or events.
As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the
onus
of
proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court's
credibility findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing
the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
[5]
[178]
In
the case of
Chartaprops
16 (Pty) Ltd and Another v Silberman
[2008] ZASCA 115
;
2009
(1) SA 265
(SCA)
it was said:”
[18]
In a case like this one the parties stand in such relationship to one
another and in my view it indeed calls for the higher
standard of
care that I have referred to. A person who invites the public to
frequent a shopping mall will be expected by
members of the
public to have ensured that the floors of the premises are reasonably
safe and they will expect to look to that
person if they are not.
They are not ordinarily able to make their own assessment of the
performance of the cleaners who might
have been appointed to the task
and, unlike the person in control of the premises, they are also
not ordinarily able to determine
where the fault for any failure of
the cleaning system lies and who is responsible for that occurring.
In short, they are entirely
reliant upon the person in control of the
premises to ensure that reasonable precautions are taken to keep the
floor safe. It seems
to me in the circumstances that it is reasonable
to expect a person in control of a shopping mall to ensure that
reasonable precautions
are taken to keep the floors safe and is
liable if those precautions are not taken by a person whom he or she
has appointed to
do so. That is how the duty was described in
comparable circumstances in
Probst
v Pick 'n Pay Retailers (Pty) Ltd
,
[6]
consistent with other decisions,
[7]
and I respectfully agree. The precautions that should reasonably be
taken were described by Stegmann J in
Probst
v Pick 'n Pay Retailers (Pty) Ltd
(in
relation to a shop floor but I think it applies as much in this case)
to be
-
not so onerous as to
require that every spillage must be discovered and cleaned up as
soon as it occurs. Nevertheless, it does
require a system which will
ensure that spillages are not allowed to create potential hazards for
any material length of time,
and that they will be discovered, and
the floor made safe, with reasonable promptitude.
[8]
The
learned judge should not be thought to have said that it is enough
to have an adequate system in place: I think it is implicit
in what
he said that the system must be adhered to.”
[179]
The defendant owes a duty of care to
customers to maintain a safe premises. The legal duty does not remove
the plaintiff's burden
of proving the factual predicate for a breach
of that duty and pre-supposing that a hazardous condition has been
proven to exist.
[180]
In
the case of
Mzaca
v King Sabata Dalindyebo Local Municipality and Another
(1320/2020)
[2024] ZAECMHC 47 (18 June 2024)
it was held:”
[12] To
obtain a judgment holding the defendants liable to pay delictual
damages, the court in
Minister
of Safety & Security
v
Van
Duivenboden
[9]
stated
that the plaintiff must prove, on a balance of probabilities, that
the act(s) or omission(s) of the defendants were
wrongful and
negligent and have caused the loss. The approach in our law to the
plaintiff’s claim is not controversial. It
is trite that in
order to succeed in her delictual claim for damages, the plaintiff
must establish that the wrongful and negligent
conduct of the
defendants or their employees, acting within the course and scope of
their employment, had caused her harm.
[10]
[14]
In
Naude
NO
v
Transvaal
Boot and Shoe Manufacturing Co
[11]
it
was held – “Although the onus of proving negligence is on
the plaintiff, the plaintiff does not have to adduce
positive
evidence to disprove every theoretical explanation which is
exclusively within the knowledge of the defendant, however
unlikely,
that might be devised to explain (his paraplegia) in a way which
would absolve the defendant and his employees of negligence.’
[15]
In
Monteoli
v
Woolworths
(Pty) Ltd
[12]
the
court confirmed that the onus, nevertheless, remains with the
plaintiff. The defendant has an evidential burden to show
what steps
were taken to comply with the standards to be expected.”
[181]
In
the case of
Gailis
v Woolworths (Pty) Ltd and Another
(11651/2022)
[2025] ZAWCHC 579
(11 December 2025)
it was held:”
[
46]
The
plaintiff's claim is founded in delict. Aquilian liability,
Harms JA said in
Telematrix
[13]
is
an exception to the general rule that "
skade
rus waar dit val
".
In order to fall within the exception,
a
plaintiff must establish the following elements on a balance of
probabilities: (a) Conduct (either an act or omission); (b)
Wrongfulness
(breach of a legal duty); (c) Fault (negligence or
intention); (d) Causation (both factual and legal); and (e) Harm
(patrimonial
loss or damage).
[47]
The
onus rests on the plaintiff to prove each of these elements. Where
there are two mutually destructive versions before the court,
the
approach to be adopted was authoritatively set out in
SFW
[14]
.
The
court must make findings on the credibility and reliability of
witnesses and evaluate the probabilities. Where the probabilities
are
evenly balanced, the plaintiff can only succeed if the court believes
her evidence and is satisfied that the defendant's version
is false.
[48]
As
stated in
Baring
Eiendomme
[15]
:"…
where
there are two mutually destructive stories, [the plaintiff] can only
succeed if he satisfies the Court on a preponderance
of probabilities
that his version is true and accurate and therefore acceptable, and
that the other version advanced by the defendant
is therefore false
or mistaken and falls to be rejected
."
Slip and fall cases
[49]
In
slip-and-fall cases, the foundational factual requirement is proof of
the existence of a hazardous condition. This principle
emerges
consistently from various authorities
.
[16]
[50
]
The
distinguishing feature of the cases relied upon by the parties is
that the existence of a hazardous or slippery substance was
established by clear and credible evidence, whether by admission,
direct observation, or common cause agreement.
Only
once such a hazard is proven does the enquiry shift to whether the
defendant knew or ought to have known of it, and whether
reasonable
steps were taken to address it.
[51]
The
principle that a retailer owes a duty of care to customers to
maintain safe premises is well-established. In
Chartaprops
[17]
Nugent
JA stated:"
A
person who invites the public to frequent a shopping mall will be
expected by members of the public to have ensured that the floors
of
the premises are reasonably safe and will expect to look to that
person if they are not
."
[52]
The
same judgment confirms that a retailer cannot readily hide behind the
fact that cleaning was delegated to an independent contractor.
However, this principle presupposes that a hazardous condition has
been proven to exist
. The existence of a
legal duty does not remove the plaintiff's burden of proving the
factual predicate for a breach of that duty.
[53]
The
doctrine of
res
ipsa loquitur
may
apply in slip-and-fall cases, but only after a plaintiff has
established that the fall was caused by a proven hazard.
As
explained in
Probst
[18]
,
the doctrine allows a court to infer negligence where the plaintiff
has testified to the circumstances of the fall and the apparent
cause, and has shown proper care for his own safety. However,
the
doctrine "cannot be used to infer the existence of the hazard
itself." There must first be evidence of a hazardous
condition
before negligence can be inferred.
[54]
The
central and fatal deficiency in the plaintiff's case is the complete
absence of evidence establishing that there was a wet,
slippery, or
hazardous substance on the floor at the time and place where she
fell.
[55]
The
plaintiff herself conceded under cross-examination that she had not
been looking at the floor before her fall and did not observe
any
water, moisture, or substance on the tiles. When asked directly by
the court whether she had seen any hazard on the floor,
she responded
that she had not seen a hazard at all
.
Whilst it is acceptable that a patron looks at the products the
retailer has to offer, it is noteworthy that not the plaintiff,
her
husband, or any other staff member of Woolworths noticed
any substance on the floor.
[56]
Mr. Gailis did
not witness the plaintiff's fall. He only turned toward her after she
was already on the ground. He confirmed
that he never looked at the
floor at any time after the plaintiff fell, despite allegedly waiting
approximately twenty minutes
for their son to arrive. His evidence
that he "was not interested in the floor" speaks volumes.
He cannot, and does not,
provide any evidence that the floor was wet
or slippery.
[67]
The
plaintiff's own evidence contained material inconsistencies. She
could not reconcile her testimony with contemporaneous statements
recorded by Woolworths employees, nor with letters written
by her attorneys. She could not recall key aspects of the
incident,
including who reached her first and what was said. Her evidence that
Mr. Basson reached her before her husband did was
flatly contradicted
by Mr. Gailis, who insisted this was "impossible."
[73]
Having
found the evidence of Woolworths' witnesses to be more credible
and reliable, I turn now to consider the specific issue
of the
trolley.
[79]
On
balance, I find that the probabilities favour Woolworths'
version that the plaintiff's fall was associated with the trolley,
whether by tripping over her feet while pushing it, or tripping over
the trolley itself. However,
I
do not need to make a definitive finding on this point, because the
plaintiff's case fails on a more fundamental basis: she has
not
proven the existence of the hazard upon which her entire claim is
premised.
[80]
The
plaintiff cannot establish wrongfulness without first proving that a
hazard existed. Wrongfulness in this context arises from
a breach of
a legal duty to take reasonable steps to address a known or
foreseeable hazard. Where no hazard has been proven to
exist, there
can be no breach of duty, and hence no wrongfulness.
[86]
The
plaintiff has failed to discharge the onus resting upon her. She has
not established the fundamental factual element upon which
a claim
for delictual liability depends: the existence of a wet, slippery, or
hazardous substance on the floor at the time of her
fall.
[87]
In
the absence of proof of a hazardous condition, there can be no
wrongful or negligent failure by Woolworths to address
such
a condition, nor any causal link between alleged negligence and the
plaintiff's injuries.
[88]
This
Court is mindful that the plaintiff is an elderly person who
sustained serious injuries in a traumatic incident. I have sympathy
for her. However, the law requires that a plaintiff prove her case on
a balance of probabilities, and this the plaintiff has failed
to do.”
(Own
emphasis)
[182]
In the instant case plaintiff is also an elderly person who sustained
serious injuries in a traumatic incident. I, similarly,
have sympathy
for the plaintiff. However plaintiff is required to prove his case on
a balance of probabilities, which he failed
to do.
CONCLUSION
[183]
From a helicopter point of view plaintiff
failed to prove that any hazardous situation was created or allowed
to persist, by laminated
pages on the surface where plaintiff fell
down on defendant's premises. No substance was proffered as to how
the laminated pages
looked, its surface and the reaction on the
surface beneath it taking into account also plaintiff's unknown
footwear. Me. Ehrke
testified that it was pieces of white laminated
paper whereas defendant testified the paper used was red with black
lettering.
[184]
Plaintiff failed to prove that his fall was
caused by any hazardous situation on the floor outside defendant’s
premises. This
has to be weighed up against plaintiff's own lack of
vigilance and carelessness immediately prior to the incident.
Plaintiff failed
to establish the evidentiary basis of his claim and
his witnesses contradicted his testimony with their own versions.
[185]
The plaintiff failed to prove that the
defendant knew or ought to have known of the existence of a hazard.
Furthermore, plaintiff
failed to prove that the defendant breached a
legal duty of care owing to the plaintiff by not taking reasonable
steps to prevent
or remedy the hazard. In the circumstances, the
plaintiff's claim is dismissed with costs to follow the result.
ORDER
[186]
In the circumstances, the following order
is made:
1. The plaintiff’s
claim is dismissed.
2. The plaintiff is
to pay the costs, scale B, to include the costs of counsel.
ALLEN
AJ
ACTING JUDGE OF THE HIGH
COURT,
GAUTENG DIVISION
JOHANNESBURG
This
judgment was prepared by Acting Judge Allen. It is handed down
electronically by circulation to the parties or their legal
representatives by email, by uploading to the electronic file of this
matter on Caselines, and by publication of the judgment to
the South
African Legal Information Institute. The date for hand-down is deemed
to be 2 September 2026.
HEARD
ON:
26 August 2026
DECIDED
ON: 2 September
2026
For
the Plaintiff: Mr. H.W.
Theron
Instructed
by:
HW Theron Inc.
For
the Defendant: Adv. A. Jansen van Vuuren
Instructed by:
Mellows and De Swart Inc.
[1]
C
Asser
Handleiding
tot de beoefening van het Nederlands Burgerlijk Recht:
Verbintenissenrecht
9
ed (1994) part III at 12: 'In beginsel moet ieder de door hem zelf
geleden schade dragen.'
[2]
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
1992
(1) SA 783 (A)
at
793I - J;
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA)
([2002]
3 All SA 741)
at
para [12].
[3]
Government
of the Republic of South Africa v Basdeo and Another
1996
(1) SA 355
(A)
at
368H.
[4]
There
are a number of informative articles dealing with wrongfulness that
have been helpful by Francois du Bois, Anton Fagan,
Johan Potgieter,
J R Midgley, Jonathan Burchell and Dale Hutchison in T J Scott &
Daniel Visser (ed)
Developing
Delict: Essays in Honour of Robert Feenstra
also
published in the 2000 edition of
Acta
Juridica
.
[5]
See
also
Baring Eiendomme BK v Roux
2000
JDR 0795 (SCA)
at
para 7.
[6]
[1998]
2 All SA 186
(W)
at 200
g
.
[7]
Turner
v Arding & Hobbs Ltd
[
1949]
2 All ER 911
(KB)
at 912E;
Alberts
v Engelbrecht
1961
(2) SA 644
(T)
at
646D;
City
of Salisbury v King
1970
(2) SA 528
(RA)
;
Jones
v Maceys of Salisbury (Pvt) Ltd
1982
(2) SA 139
(ZH)
at
141H.
[8]
Stegmann
J in
Probst
v Pick 'n Pay Retailers (Pty) Ltd
[1998]
2 All SA 186
(W)
at 200, in which the leading cases in this country and abroad are
considered.
[9]
Minister
of Safety & Security
v
Van
Duivenboden
2002
(6) SA 431
SCA
at
para [12];
LD
obo AD
v
Member
of the Executive Council responsible for the Department of
Health
[2021]
JOL 49623
(ECM)
at para 2.
[10]
KX
v
Member
of the Executive Council for Health, Western Cape
[2021]
JOL 51401
(WCC)
at
para 3.
[11]
Naude
NO
v
Transvaal
Boot and Shoe Manufacturing Co
1938
AD 379
at
392(3).
[12]
Monteoli
v
Woolworths
(Pty) Ltd
2000
(4) SA 735
(W)
at
127.
[13]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking
v
Advertising
Standards Authority SA
2006
(1) SA 461
SCA
at para 12.
[14]
SFW
Group Ltd and another
v
Martell
et cie and others
2003
(1) SA 11
(SCA)
at
para 5.
[15]
Baring
Eiendomme
v
Roux
[2001]
1 All SA 399
(SCA)
at
para 7.
[16]
Montoeli v
Woolworths (Pty) Ltd
1999
JDR 0632 (W);
Holtzhausen
v
Cenprop
Real Estate (Pty) Ltd and Another
2021
(4) 221 (WCC);
Brauns
v
Shoprite
Checkers (Pty) Ltd
2004
(6) SA 211
(E).
[17]
Chartaprops
16 (Pty) Ltd
v
Silberman
[2008]
ZASCA 115
;
2009
(1) SA 265
(SCA)
at
para 18.
[18]
Probst
v
Pick
'n Pay Retailers
1998
(2) All SA 186
(W).