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[2014] ZAWCHC 35
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Federica ZA v Smith and Another (5462/11) [2014] ZAWCHC 35 (19 March 2014)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE Division, CAPE TOWN)
Case
No
5462
/11
DATE:
19 MARCH 2014
In the matter
between:
Federica
ZA
.......................................................................
Plaintiff
And
André
Frederick Smith
..........................................
First
Defendant
Matroosberg
Reservaat CC
..........................
Second
Defendant
Court:
Griesel J
Heard:
17, 19 & 24
February 2014
Delivered:
19 March 2014
JUDGMENT
Griesel
J:
[1]
This claim arises out of an incident on 27
June 2009 when the late Mr Pier Alberto Za (‘the deceased’)
slipped on snow
and fell from a precipice to his death. The incident
occurred near Matroosberg,
the highest
mountain peak in the Boland,
situated
on
the farm
Erfdeel
some 35km north of Ceres.
The first
defendant, Mr André Frederik Smith, is the owner of the farm,
on which the second defendant conducts the business
of
Matroosberg
Private Nature Reserve
.
[2]
The plaintiff, Mrs Frederica Za, was
married to the deceased during his lifetime. She is suing the
defendants herein, both in her
personal capacity and in her capacity
as the natural guardian of her three minor children, L…. (born
on 28 August 2001),
M… (born on 30 January 2004) and M……
(born on 3 July 2007), for their loss of support suffered as a result
of the death of their breadwinner. By agreement between the parties,
the court has been asked at this stage only to determine
the
issue of liability, with the
quantum
of the claims standing over for later determination if
necessary.
The
facts
[3]
The
facts are uncomplicated and largely undisputed, no evidence having
been adduced on behalf of the defendants. In conducting
the
business of a private nature reserve on the property, the second
defendant (with the full knowledge and approval of the first
defendant) invites and allows members of the public access for a fee
to make use of the available recreational activities. In particular,
there are a number of 4x4 routes on the property which can be
accessed by members of the public in four-wheel drive vehicles. One
of the main attractions of the property, particularly during winter
snow, is an elevated mountain peak named Conical Peak in the
immediate vicinity of Matroosberg. One of the 4x4 routes, taking in
excess of one hour over very rough terrain, ends in an open,
flattish
plateau at the foot of the peak where members of the public can park
their four-wheel drive vehicles and alight into the
snow to enjoy the
spectacular 360° views. In the immediate vicinity of this
‘parking area’ there is a precipice
falling down steeply
into a ravine or gorge, known as Groothoekkloof, in excess of 150
metres deep. All of this appears from a
collection of photographs
handed in as exhibits during the trial,
[1]
some of which were taken on the day of the incident. In addition, the
court has had the benefit of attending an inspection
in
loco
on 6 September 2013 when there was a significant amount of snow, both
at the scene and along the 4x4 route to the top.
[2]
[4]
It is common cause that on the day of the
incident the deceased, accompanied by a friend, Mr Ben Moggee, drove
from Cape Town to
Matroosberg, each in their own four-wheel drive
motor vehicle. Moggee had been to Matroosberg on at least four
previous occasions.
The deceased, who hailed from the Dolomites in
north-eastern Italy, had expressed a keen interest in going up to
Matroosberg in
the snow and he and Moggee finally managed to make
arrangements to go on the particular day in question.
[5]
At
the office on the farm they paid an entrance fee to the second
defendant and signed an indemnity acknowledging that they were
using
the facilities offered at their own risk. Thereafter, they drove
their vehicles along the designated 4x4 track up the mountain
to the
parking area referred to, where there were already 20 to 30 other
people.
[3]
They parked their
vehicles and alighted. The whole area was covered in ‘white
snow’, as Moggee described it. They intended
taking their
folding chairs to a position close to the edge where Moggee had
picnicked with his family on a previous occasion.
Moggee took two
folding chairs and two beers from his vehicle and set off in the
direction of the spot chosen by him, where they
wanted to ‘soak
up the view’
[4]
and drink
a beer each before returning down the mountain for a braai at the
camping area. There was no warning of any danger they
might face in
the direction in which they were walking. According to Moggee, they
walked parallel to the edge of the precipice,
although this version
was challenged during cross-examination, when it was pointed out
to him that in his statement to the
police, he had stated that he had
‘nader na die kloof se kant toe [geloop]’. Be that as it
may, after walking a short
distance, both Moggee and the deceased
unexpectedly and almost simultaneously slipped on the snow,
fell and started sliding
towards the precipice. The surface was hard
and slippery. Moggee was able to arrest his slide before the edge.
Sadly, however,
the deceased slid over the precipice and fell to his
death.
[6]
Moggee was unable to get up by himself due
to the slippery surface of the snow. He called for help and was
pulled from his position
by others present in the area using ropes.
He immediately wished to return to the edge to see if he could see
the deceased. A harness
was fashioned from climbing rope and he
attempted to approach the edge of the precipice. The surface was too
slippery to enable
him to do this and he used a spade to dig
footholds in the surface. He had to dig about three times into the
surface to make an
indentation useful as a foothold.
[7]
Moggee confirmed that he had previously
encountered snow on a number of occasions (including at Conical
Peak). The deceased was
familiar with snow conditions, having grown
up in the Dolomites in Italy, as mentioned earlier. Moggee testified
that neither he
nor the deceased saw the situation on Conical Peak
that day as dangerous in any way.
[8]
A
second witness called by the plaintiff, Mr Otto Rall, arrived at the
parking area shortly before Moggee and the deceased. He had
not
previously been to Matroosberg. On the way up the mountain, the snow
was soft, but where the tyre tracks of the vehicles were
it was hard
and slippery. He parked with the other vehicles at Conical Peak. When
he and his wife got out of the vehicle they found
that the area where
they had stopped and where they walked was hard and slippery (‘hard
en glibberig’). Because the
snow was very slippery, he had to
dig his heels into the snow to prevent him losing his balance and
falling onto his backside.
He and his wife ventured to near the edge
of the precipice, although he was unable to see exactly where the
edge was. He took a
photograph of his wife standing near the
edge,
[5]
but decided not to go
any closer because he was apprehensive that it might be dangerous to
do so.
[9]
He was aware of Moggee and the deceased
arriving and he noticed that they walked between his vehicle and the
deceased’s vehicle
towards the point where the incident
occurred. He recalls the deceased exchanging a few words with his
wife. He did not see precisely
where they had walked from there as he
had his back to them after they had passed his vehicle. He did not
know what caught his
attention, but he turned to see Moggee lying on
the snow near the precipice. He could see from his expression that
something was
seriously wrong. He then set about assisting in
recovering Moggee from his dangerous position.
[10]
The plaintiff called expert evidence
relating to the qualities, characteristics and potential dangers of
snow. Dr Rik de Decker
is a very experienced mountaineer, skier, ski
mountaineer and mountain rescue practitioner. He was able to speak
authoritatively
and with experience about snow, ice, Alpine
conditions and the dangers they pose. He knows the Matroosberg very
well and in fact
participated in the recovery of the body of one
Andrew Johns, who fell to his death in 2007 from a spot close to
where the deceased
met his fate.
[11]
His evidence was that snow and ice environments
change continually, from time to time and from place to place
and during the
cycle of the day. This is not an unusual phenomenon
and is entirely foreseeable. However, the overall impression, save
for the
area of lensing identified by him, was of a snow-covered
mountain area. The danger, so he testified, lay in the fact that the
soft
layer of snow concealed a hard frozen snow layer, which was
extremely slippery, particularly where it occurred on a slope. Once
one slipped and fell on this surface, one would start to slide and
only stop once something arrested one’s slide, or one
fell over
a precipice.
The combination of these factors makes the site
where the deceased slipped and fell, ‘objectively dangerous’.
An ‘objective
danger’ is one that is present due to the
prevailing conditions, but is unlikely to be recognisable as being
dangerous by
people with no experience of such conditions.
Experienced mountaineers take precautions when encountering
these or other
objective dangers.
[12]
The plaintiff also led the evidence of a Mr
Dion Tromp,
an expert in height safety
equipment and working at height and holds the highest South African
qualification for working at height,
training people to work around
high and dangerous sites and site risk assessment for working at
height, including the risk of falling.
In addition he has substantial
mountaineering and rescue experience, including mountaineering
and skiing in snow and ice conditions.
[13]
He has been responsible for the technical
planning of a number of mountain rescue operations using helicopters
and was involved
in the recovery of the bodies of Andrew Johns and
Elaine Abrahams, who fell to their deaths from Conical Peak into the
kloof in
2007 and 2010 respectively.
[14]
In his expert summary, filed in terms of
Uniform rule 36(9)(b), he suggested that t
he
site at Conical Peak where
the deceased
fell to his death could be made significantly safer to members of the
public, at a relatively minimal cost, in a number
of ways, eg (a) by
prohibiting access to the 4x4 route that leads to the site and
Matroos
berg itself when dangerous
conditions present themselves; (b) by putting up catching fences
that will prevent people from falling
over the edge, as is done at
sites in Europe and elsewhere; (c) by prohibiting access, and
specifically vehicular access,
to the site itself by providing a
turning point and parking area for vehicles before and below the
point where the route to the
site levels out; (d) by warning and
educating people, by way of signs and notices, when dangerous
conditions present themselves so that people who
do venture onto the site know that they are entering a very
treacherous area.
[15]
In his evidence, he did not recommend
proposals (a) and (b) above, conceding that they were not practical.
Instead, he concentrated
on the other two proposals. In this regard,
he suggested
inter alia
,
that ‘some type of barrier’ in the form of a stone wall
or wire fence be built with an opening closed by a simple
gate or
chain to serve as an entrance gate, through which visitors would have
to pass before getting to the parking area and the
area of danger
near the edge of the precipice. At the entrance thus created by the
stone wall or wire fence, he recommended that
‘lots of warning
signs’ be placed that make it clear to visitors to keep away
from the precipice and of the dangers
of slipping and sliding on the
surface. He suggested also that a line of poles connected by markers
should be placed along the
line beyond which visitors should not be
allowed to go closer to the precipice and warning that treacherous
conditions existed
on the other side of the line.
[16]
In addition, he suggested that an
‘induction’ or formal briefing should be held at the
office area, prior to visitors
commencing the ascent on the
four-wheel-drive route to Conical Peak, so as to alert visitors to
the dangers posed by the conditions
to be encountered at the top.
The
pleadings
[17]
In her particulars of claim, the plaintiff
pleaded that the first and/or second defendant and its employees
‘owed the deceased
a duty to ensure that he was protected from
or warned of any unusual risks arising from his partaking in the
recreation activities
offered by the second respondent, including the
risk of injury or death caused by falling at or near the vicinity of
Conical Peak’.
Such duty, according to the plaintiff, arose
from the following facts:
’
13.1
The second defendant conducted business in the supply of recreation
and related facilities to
members of the public attending the private
nature reserve, including the provision of four-wheel drive vehicle
tracks to remote
areas of the private nature reserve on the first
defendant’s property with the knowledge and consent of the
first defendant.
13.2
The second defendant was obliged to and, in certain respects, did
provide information regarding
the dangers likely to be encountered by
visitors to the private nature reserve.
13.3
The first and second defendants knew that in the immediate vicinity
of the area where members
of the public parked four-wheel drive motor
vehicles in which they had travelled to Conical Peak, there was a
sharp precipice falling
to in excess of 150 metres, which was not
readily discernible, particularly in inclement weather and when snow
had fallen.
13.4
The first and second defendants were aware, or ought to have been
aware, that the phenomenon
of snow coating a layer of ice occurred in
the area which members of the public parked their vehicles near
Conical Peak and its
immediate vicinity and that, as a result –
13.4.1
members of the public would perceive the area to be covered with
snow; and
13.4.2
members of the public would be unaware that the snow covered a layer
of slippery ice sloping towards the
precipice referred to above.
13.5
The first and second defendants were aware that members of the public
had previously slipped
and fallen in the vicinity of the parking area
and that, as a result thereof, on at least one occasion prior to 27
June 2009, a
member of the public had fallen to his death in the
vicinity of Conical Peak.
13.6
The first and/or second defendants were in a position to provide
warning signs and/or barriers
to warn against and/or prevent members
of the public slipping on ice, or rhime ice and/or in any other
manner injuring themselves
in the vicinity of the parking area at
Conical Peak.
[18]
According to the plaintiff, the defendants
(either individually or jointly) breached the duty owed by them to
the deceased in that –
‘
14.1
they failed to erect any warning signs at or near Conical Peak,
warning of the danger of slippery
surfaces and the proximity of the
unguarded precipice;
14.2
they failed to issue any warnings at the time of entrance to the
reserve and/or at the
time the deceased purchased a “permit”
to enter the reserve or at any other time of the dangers referred to
above;
14.3
they failed to erect any barrier, railing or any similar structure to
prevent visitors
to the reserve, including the deceased, approaching
too close to the precipice for safety and/or slipping or falling
towards and/or
over the precipice;
14.4
they failed to take any steps to prevent the deceased falling from
the precipice whatsoever
in circumstances where they could and should
have taken precautions referred to above.’
[19]
In their plea, the defendants denied that
they owed the plaintiff any duty as pleaded. Instead, they alleged
‘that the risk
of injury of [sic] death caused by falling in
the area in question is patent’. They also denied the
allegations of negligence.
Legal
principles
[20]
When
it comes to damage, one of the first principles of the law of delict
is that as a general rule everyone has to bear the loss
he or she
suffers; in other words, the damage rests where it falls.
[6]
In order to shift the burden of damage to another, a plaintiff must
establish that the other party is legally obliged to compensate
him
or her for the loss suffered. This requires proof of all three
elements of a delictual claim founded on negligence, ie a legal
duty
in the circumstances to conform to the standard of the
reasonable person; conduct that falls short of that standard;
and loss consequent upon that conduct.
[7]
[21]
It is common cause that the second
defendant provided some information regarding the dangers likely to
be encountered by visitors
to the private nature. It is in dispute
whether it should have provided more information than it did. In a
well-constructed argument
counsel for the plaintiff guided the court
past various milestones in our law of delict, such as
Ewels
,
Herschel v Mrupe
,
Kruger v Coetzee
and many others in order to show – (a) that there was
a legal duty on the defendants to protect persons in the
position of
the deceased against the foreseeable possibility of harm; (b) that
a reasonable person in the same position would
have taken the steps
suggested on behalf of the plaintiff; and (c) that the
defendants failed to take such steps.
[22]
As
far as the element of wrongfulness is concerned, counsel for the
plaintiff relied on the principle that an owner or occupier
of
premises is ordinarily liable to ensure that the property does not
present undue hazards to persons who may enter upon and use
the
property. In other words, it is the owner’s legal duty to
ensure that the premises are safe for those who use them.
[8]
Counsel for the defendants, on the other hand, as foreshadowed
in their plea,
[9]
laid great
stress on the exception to this rule as formulated by Innes CJ in
Skinner
v Johannesburg Turf Club
,
[10]
to the effect that an owner of premises is not under any duty to
protect a visitor from any danger which is ‘clear and
apparent’:
‘Open danger, manifest and apparent, it would
be unreasonable to expect the owner to guard against.’
[23]
In this context, counsel for the defendants
referred by way of analogy to the well-known examples of Table
Mountain and the Drakensberg
escarpment at Tugela Falls, pointing out
that in both instances, the danger was so clear and apparent that one
simply does not
find signs warning people that they are on top of a
mountain
–
notwithstanding the
fact that death or injury to visitors is entirely foreseeable at both
places.
[24]
Having been to the scene of the incident
(and to the other two sites mentioned in the previous paragraph), I
am inclined to agree
with this line of reasoning. As mentioned
earlier, one approaches the parking area below Conical Peak by way of
a 4x4 trail, which
gradually ascends the mountain along its western
slope. One does so over very rough terrain, requiring a great degree
of skill
and a very powerful and sturdy four-wheel drive vehicle to
reach the top. During winter months, a large section of the route is
covered in snow, thereby increasing the degree of trickiness. On
arrival at the top one is presented with a dramatic view of the
various mountain ranges and peaks towards the north and the east. It
is immediately apparent, even to the first-time visitor, that
there
must be a very deep gorge between the parking area and the cliffs
clearly visible on the other side of the kloof. The fact
that the
land slopes slightly towards the edge of the gorge is likewise clear
and apparent, even though the actual edge itself
is not visible from
the parking area. As for the condition of the snow underfoot, the
qualities of snow can vary from moment to
moment and from place to
place and can be extremely treacherous. This likewise becomes clear
and apparent as soon as visitors disembark
from their vehicles, as
confirmed by Mr Rall under cross-examination.
[25]
In short, the potential danger inherent in
the snow-covered site near a deep precipice ought to be clear and
apparent to a visitor
upon arrival on the scene, which danger
increases exponentially the closer one approaches to the concealed
edge of the precipice.
[26]
Having said that, I do not find it
necessary to make any firm finding in this regard or to base the
judgment on this issue. In the
view that I take of the matter, it may
be assumed in favour of the plaintiff (without finding) that the
defendants were under a
legal duty to protect persons in the position
of the deceased against the possibility of harm and that their
failure to take adequate
steps to prevent foreseeable harm was indeed
unlawful and negligent. However, proof alone that reasonable
precautions were
not taken to avoid foreseeable harm, and that
the harm occurred, does not establish that the former caused the
latter. Before
the defendants can be held liable, the court must be
satisfied that there is indeed a causal link between the defendants’
negligence and the death of the deceased. It is on this aspect, in my
view, that the plaintiff’s claim falters.
[27]
In
FNB v
Duvenhage, supra,
Nugent JA observed
that it may in some cases be useful to commence the enquiry into
liability with the third element of delictual
liability, namely
causation:
‘
At
times it is worth giving thought to causation at the outset, . . .
even if not on doctrinal grounds, because
in practice claims often
fail for want of a causal connection between the unlawful conduct and
the loss.’
[11]
[28]
Adopting that approach in the present case,
I proceed to consider whether the requisite causal connection between
the alleged unlawful
conduct and the loss has been established.
Causation
[29]
As
pointed out by Corbett CJ in
International
Shipping Co (Pty) Ltd v Bentley
,
[12]
the
enquiry as to factual causation (which is in issue in this matter) is
generally conducted by applying the so-called ‘but-for
test’,
which is designed to determine whether a postulated cause can be
identified as a
causa
sine qua non
of
the loss in question. He proceeded:
‘
In
order to apply this test one must make a hypothetical enquiry as to
what probably would have happened but for the wrongful conduct
of the
defendant. This enquiry may involve the mental elimination of
the wrongful conduct and the substitution of a hypothetical
course of
lawful conduct and the posing of the question as to whether upon such
an hypothesis plaintiff’s loss would have
ensued or not.
If it would in any event have ensued, then the wrongful conduct was
not a cause of the loss;
aliter,
if
it would not have ensued. If the wrongful act is shown in this
way not to be a
causa sine qua non
of the loss suffered, then no legal liability can arise.’
[30]
In
Siman
& Co v Barclays National Bank
,
[13]
the same learned judge suggested that where the unlawful conduct of
the defendant takes the form of a negligent omission, as in
this
case, it may be appropriate to apply a substitution process, as
opposed to an elimination process in the case of
a positive act.
This process requires the court to postulate a hypothetical
course of lawful conduct instead of the unlawful
omission of the
defendant and to pose the question as to whether in such case the
event causing harm to the plaintiff would have
occurred or not.
However, as stressed by Corbett JA, this should not be regarded as an
inflexible rule. Moreover, as Cameron
et
Brand JJA reminded us in
Minister
of Finance & others v Gore NO
:
[14]
‘
Application
of the “but for” test is not based on mathematics, pure
science or philosophy. It is a matter of common
sense, based on
the practical way in which the ordinary person’s mind works
against the background of everyday-life experiences.’
[31]
To
the same effect is the judgment of Nugent JA in
Minister
of Safety and Security v Van Duivenboden
,
[15]
where he held as follows:
‘
There
are conceptual hurdles to be crossed when reasoning along those lines
for once the conduct that actually occurred is mentally
eliminated
and replaced by hypothetical conduct questions will immediately
arise as to the extent to which consequential
events would have
been influenced by the changed circumstances. Inherent in that
form of reasoning is thus considerable scope
for speculation which
can only broaden as the distance between the wrongful conduct and its
alleged effect increases. No
doubt a stage will be reached at
which the distance between cause and effect is so great that the
connection will become altogether
too tenuous but in my view that
should not be permitted to be unduly exaggerated. A plaintiff
is not required to establish
the causal link with certainty but only
to establish that the wrongful conduct was probably a cause of the
loss, which calls for
a sensible retrospective analysis of what would
probably have occurred, based upon the evidence and what can be
expected to occur
in the ordinary course of human affairs rather than
an exercise in metaphysics.’
[32]
The
law relating to causation in the context of delictual liability has
recently been examined in some detail by the Constitutional
Court in
Lee
v Minister of Correctional Services
.
[16]
In her judgment, writing for the majority, Nkabinde J
pointed
out that
there
are cases in which the strict application of the
‘
but-for
test’ would result in an injustice, hence a requirement for
flexibility.
[17]
However,
unlike
the minority, she did not find it necessary to suggest that our law
relating to causation should be developed or that the
but-for test
was inappropriate. On the contrary, she referred with approval to the
AD and SCA judgments referred to above. As subsequently
explained by
Brand JA in
Minister
van Polisie v Van der Vyver
:
[18]
‘
Soos
ek dit sien, doen Nkabinde R hoegenaamd nie ’n wysiging
van hierdie hof se benadering tot die toepassing van die
“but-for
test” aan die hand nie. Inteendeel, sy bevestig dit juis. Soos
blyk uit die passasies wat sy aanhaal, word
met “flexible”
slegs bedoel dat ’n eiser nie oorsaaklikheid met matematiese
presiesheid hoef te bewys nie, maar
bloot op oorwig van
waarskynlikheid.’
[33]
I agree with counsel for the defendants
that, unlike in
Lee’s
c
ase,
there is no need in this instance to relax the application of the
traditional but-for test, which I proceed to apply to the
facts of
the present case.
Discussion
[34]
In approaching the question of causation in
the present scenario it is necessary, first of all, to consider what
steps a reasonable
person in the position of the defendants would
have taken to avoid foreseeable harm to visitors to Matroosberg. As
mentioned earlier,
Mr Tromp made certain suggestions in his expert
report as well as his evidence. He frankly conceded that certain of
his theoretical
proposals would not be practically feasible, such as
closing vehicular access to the site during snow, or erecting rails
and/or
catch nets along the precipice. What he persisted with were
proposals aimed at informing and warning visitors of the dangers to
be encountered at Conical Peak.
[35]
The question that must be posed for
purposes of the present enquiry is whether taking any or all of those
steps would, on a balance
of probabilities, have averted the death of
the deceased. This requires a ‘common sense’ approach,
entailing ‘a
sensible retrospective analysis of what would
probably have occurred’ had the defendants taken the steps
suggested by Mr
Tromp. In answering this question the court cannot
allow itself to be swayed by the sympathy that one naturally feels
for the victim
and his dependants in this case.
[36]
Reverting to the evidence in this case, one
is confronted with the striking example of Mr Moggee, who had
previously visited the
site on no less than four occasions, both in
summer and winter, and who was accordingly well acquainted with the
lay of the land.
He had previously seen the kloof and had sat with
his family in the snow on the edge of the precipice, admiring
the view.
He wanted to repeat that experience with his friend on the
day in question
and to experience the
thrill associated therewith. Both he and the deceased were also
acquainted with the varying qualities of snow
in different
circumstances. The ‘induction’ and warning signs proposed
by Mr Tromp would have equipped first-time visitors
with the exact
same knowledge that Mr Moggee already had. The fact that,
notwithstanding this knowledge, he slipped literally
to within
an inch of his life demonstrates persuasively that the steps
proposed by Mr Tromp would not, on the probabilities,
have
prevented the death of the deceased. It is noteworthy in this
context that Mr Moggee was not asked during his evidence
what steps,
if any, would have deterred him from his chosen course, namely to go
to the edge of the precipice to ‘soak up
the view’ of the
kloof below.
[37]
To sum up, on the evidence as a whole, I
conclude that the plaintiff has not discharged the onus of proving
that there is a causal
connection between the alleged unlawful and
negligent omission of the defendants and the death of the deceased.
In the result,
the plaintiff has failed to establish that the
defendants are legally liable to her for the loss of support suffered
as a result
of the death of their breadwinner. Unfortunately
for her, the damage must accordingly rest where it falls.
Costs
[38]
In the light of the findings above, costs
must follow the result. One aspect of costs requiring attention
relates to the costs occasioned
by the postponement of the trial,
which had originally been set down for 21 October 2013. In my view it
is the defendants, who
sought an indulgence in order to counter the
plaintiff’s expert evidence, who ought to be liable for the
wasted costs occasioned
by the postponement.
Order
[39]
For the reasons stated above, the
plaintiff’s claims are dismissed with costs, excluding the
wasted costs occasioned
by the postponement of the trial set
down for 21 October 2013, for which the defendants shall jointly and
severally be liable.
B
M Griesel
Judge
of the High Court
[1]
See
Exhibits A1–139, B, C, F and G.
[2]
A
minute of the inspection, illustrated with photographs taken on that
occasion, forms part of the pleadings bundle (Pleadings,
p 33
et
seq
).
[3]
Record,
p 9/5. At a later stage in his evidence, Moggee estimated that there
were ‘20, 30 vehicles’ (Record, p 14/5).
[4]
Record,
p 11/15.
[5]
Exh
A15.
[6]
Telematrix
(Pty) Limited v Advertising Standards Authority SA
2006
(1) SA 461
(SCA) para 12, quoted with approval in
Roux
v Hattingh
2012 (6) SA 428
(SCA) para 25.
[7]
Per
Nugent JA in
First
National Bank v Duvenhage
2006
(5) SA 319
(SCA) para 1 and
Minister
of Correctional Services v Lee
2012 (3) SA 617
(SCA) para 33. Nienaber JA prefers
four
elements (
HL&H
Timber Products (Pty) Limited v Sappi Manufacturing (Pty) Limited
2001 (4) SA 814
(SCA) paras 13–14), whereas Neethling &
Potgieter prefer
five
(J Neethling & JM Potgieter
Neethling-Potgieter-Visser
– Law of Delict
,
6ed, p 4).
[8]
See
eg MacIntosh & Scoble
Negligence
in Delict
,
5ed p 196–199;
Delict
8(1)
LAWSA
2ed para 65 n 52;
Swinburne
v Newbee Investments (Pty) Ltd
2010 (5) SA 296
(KZD) para 13.
[9]
Quoted
in para [19]
above.
[10]
1907
TS 852
at 860, quoted with approval in
Cape
Town Municipality v Butters
1996 (1) SA 473
(C) at 480E G.
[11]
Supra,
n
7
para
22.
[12]
1990
(1) SA 680
(A) at 700E H.
[13]
1984
(2) 888 (A) at 915E G.
[14]
2007
(1) SA 111
(SCA) para 33.
[15]
2002
(6) SA 431
(SCA) para 25.
[16]
2013
(2) SA 144 (CC).
[17]
Para
41.
[18]
(861/2011)
[2013] ZASCA 39
(28 March 2013), para 33.