FORM A
FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES:  ANNEWYNNE DU PLESSIS and NELSON MANDELA 
METROPOLITAN MUNICIPALITY 

•	Case Number:  CA 371/08  
•	High Court:  Easter Cape – Grahamstown  
•	DATE HEARD: 12 June 2009
DATE DELIVERED:  20 August 2009
JUDGE(S):  Tshiki, AJ & Froneman, J  
LEGAL REPRESENTATIVES –

Appearances:
•	for the Applicant(s):  Adv Mullins 
•	for the Respondent(s):  Adv Booi

Instructing attorneys:
•	Applicant(s):  Neville Borman & Botha 
•	Respondent(s):  Wheeldon Rushmere & Cole  

CASE INFORMATION -
•	Nature of proceedings:  Civil Appeal    
•	Topic: Application concerns the sale in execution of a proper.
•	Key Words:

Reportable 
IN THE HIGH COURT OF SOUTH AFRICA 
EASTERN CAPE - GRAHAMSTOWN	         					 
   
Case No. CA 371/08
Date Heard:
Date Delivered:  

In the matter between:

ANNEWYNNE DU PLESSIS						APPELLANT
and
NELSON MANDELA METROPOLITAN MUNICIPALITY	       RESPONDENT

				 JUDGMENT

Plaintiff was injured when she stepped into a hole on the street after having alighted from her vehicle at night.  As a result she sued the municipality for damages.  Plaintiff’s action for damages for the injuries she sustained was dismissed in the Magistrate’s Court Port Elizabeth.  On appeal it was held that the failure by the municipality to repair the damaged street, after having been warned of the existence of the danger, or at least to warn the public of such danger, was wrongful and negligent.  The appeal court consequently declared the municipality liable to pay plaintiff’s proved damages.
		
TSHIKI AJ:
A)	INTRODUCTION:
[1]	On the night of 9 June 2003 the appellant went to a party at her erstwhile boyfriend’s house at 9 Reginald Road, Mount Pleasant, Port Elizabeth.  The house is the last one in a cul-de-sac.  When she arrived she could not park her car in the driveway as she usually did because there were already other cars there.  She then parked her car on the right hand side of Reginald Road.  It was dark and there was no lighting in the road.  She stepped out of the car, locked the door and then stepped backwards.  When she did so she fell into a hole in the road and injured herself in the process.  As a result she sued the respondent for damages in the Port Elizabeth Magistrate’s Court.  Her claim was dismissed in that court.  She now comes on appeal against the dismissal of her claim.

B) ISSUES
[2]	 Appellant’s case as presented in the court below was that the respondent had been made aware of the danger presented by the hole in the road on a number of occasions prior to the incident, but that it negligently failed to repair the hole, or failed to give adequate warning of its dangers to road users.  In its plea respondent denied each and every allegation by the plaintiff and put everything in issue.

C)	EVIDENCE
[3]	The appellant gave evidence of the circumstances under which the accident occurred.  Her ex-boyfriend’s father, Mr Julietti, was called as a witness to corroborate her version that there was a hole in the road and that prior notice had been given to the respondent about the danger presented to road users by the hole in the road.  The respondent called only one witness, Mr Sponnick, the planning and development officer in the City Engineers Department.  His evidence related to the system the respondent had in place to record complaints about roads under the respondent’s control, and to act upon those complaints. 

[4]	Two interrelated factual issues arose for determination at the trial.  The first was whether the appellant in fact stepped into an existing and visible hole in the road, or whether she stepped onto a layer of tar which gave way under her to reveal an underlying hole in the road.  The second was whether prior notice of a hole in the road was given to the respondent by Mr Julietti.

[5]	It is unfortunately not clear from the Magistrate’s judgment upon what basis he dismissed the appellant’s claim.  He indicated at the start of the judgment that because the proceedings were mechanically recorded he would not “dwell much on the facts”.  He then stated that he had “nothing to attach negatively on witnesses from both sides” in regard to credibility, but nevertheless found that the appellant did not act reasonably in that “[s] he should have put on the lights and see (sic) where she was going to.  If there was any hurdle of (sic) hole”.  The last sentence of the judgment reads:

“The court is prepared to acknowledge that as the hole developed as shown on the pictures it became a danger to the society but it was not so when the incident occurred.”

[6]	These cryptic remarks raise more questions than they answer.  The appellant’s evidence was attacked during the trial on the basis that her previous statements on how she was injured, made to the doctors who examined her soon after the accident, indicated that she did not step into an existing hole, but that the layer of tar that she stepped on gave way under her to reveal the hole photographed later.  In support of this general line of attack Mr Sponnick’s evidence sought to refute the evidence of Mr Julietti that he gave prior notice to the respondent of a hole in the road.  The implication was that there was no hole in the road before the appellant stepped onto a layer of tar that gave way beneath her and that accordingly neither she nor the respondent was or could have been aware of the danger in the road.  The magistrate’s findings that the appellant should have seen if there was a “hurdle o[r] hole”, but that there was no “danger to the society” when the incident occurred is not in line with this defence raised by the respondent at the trial, and also appears to be in contradiction to each other.

[7]	What was called for in the judgment was an assessment and finding on the factual issues raised in evidence and on the pleadings.  The fact that proceedings are mechanically recorded does not excuse a judicial officer from dealing with the facts in his or her judgment in a coherent manner.  Litigants are entitled to know the reasons for a finding for or against them.  In the present case neither the appellant nor the respondent was able to rely on the magistrate’s judgment in the argument on appeal for the simple reason that neither knew what the true reasons for his findings were.

[8]	The magistrate’s failure to provide proper or coherent reasons for his decision to dismiss the appellant’s claim makes it necessary for a true re-hearing of the matter on appeal, on the basis of the appeal record.

[9]	From a close reading of the appellant’s evidence it appears that she could not dispute that she told the doctors earlier that she indeed stepped onto a tarred layer which gave way beneath her.  But this does not mean that Mr Julietti’s evidence of a pre-existing hole in the road which was reported to the respondent must be rejected.  His evidence was that the hole he observed was not the large one that appeared on the photographs taken by the appellant soon after the accident.  He described it as a hole of only about 300mm by 400mm.  His explanation, in cross-examination, of what might have happened to the appellant was this:  

“Yes this I’m sure broke [referring to the tar layer] when she stood on that portion there, you see, the hole was there, a small hole was there already, then when she stepped on it [the tar layer again], she had no idea that it was there, she gets out of the car, walks down, it was a huge piece of tar, she stands on it and naturally she is going to fall through, there’s nothing holding it underneath because it’s been washed away.” 

[10] 	It is apparent from the above extract of the evidence of Mr Julietti that although the size of the hole was smaller at the stage before the accident than after the accident, its potential of causing injury to the road users was apparent and real and should have been prevented.  The evidence of Mr Julietti continues further:

“There was a hole, I saw it with my own eyes okay, she might not have seen it, how many times I drive around, I don’t see where I’m parking, I don’t see what’s there, nobody looks for something you’re not expecting to see, okay the hole was there, all I can say is I saw it.
Now but are you suggesting that Ms Du Plessis stepped into that hole of 300 or 400 mms? - - - I can’t say that.
Okay. - - - I can say, what I think is that she stepped, to maybe like you personally said this piece of tar which has been hollowed, next to the hole which I had seen and it can only get hollow because of the water that went through there like you also said, and she fell through, but the fact remains the hole was there, the damage was there, I called the Council to come and sort it out and nothing was done about it, that’s what I am upset about.”.

[11]	That Mr Julietti had reported the presence of the hole to the respondent on several occasions has not been refuted by the respondent in the court a quo and our acceptance of his evidence in that regard is fortified by the magistrate’s attitude in not rejecting the evidence of Mr Julietti.  In response to these numerous reports made by Mr Julietti the respondent’s employees would simply promise to attend to the matter but failed to do so before the appellant was injured.

[12]	The evidence of the respondent’s only witness Mr Sponnick could not rule out the probability of Mr Julietti’s report having been recorded at the time it was reported.  Sponnick described in some detail the respondent’s system and procedure followed when a complaint of the nature of Mr Julietti is received.  He testified that a form is completed and sent to the main office where the information is logged onto a computer whereafter the appropriate action is taken.  Sponnick referred to a bundle of documents which contained reports received by the respondent over the relevant time.  In his evidence in chief he sought to convince the court that the absence of Mr Julietti’s recorded complaint amongst the bundle could mean that the presence of the hole was never reported to the respondent.  However, in cross-examination by counsel for the respondent Sponnick conceded that the system used by the respondent could not work perfectly.  In addition he did not personally complete the forms in question.  His evidence was therefore of a hearsay nature and he could not himself refute as a fact that the report was made.  It was put to him that some serial numbers were missing from the bundle.  His explanation for the reason for the missing documents was not convincing.  Instead of providing an explanation it created a    strong suspicion that the documents were tampered with, with a view to remove the relevant documents from the bundle.  The confusion was exacerbated by the conflicting answers which he gave.  Firstly he gave the impression that the bundle was a complete record but changed when confronted with the unexpected questions by Mr Mullins for the respondent.  He initially told the court that when a mistake is made the document is torn up or if tea is spilt on it or it is damaged by a cigarette the document is discarded.  His evidence in this regard should be rejected as being unreliable, more so when tested against the direct and reliable evidence of Mr Julietti.  There is, therefore, no reason for us not to accept Mr Julietti’s explanation as the true reflection of what happened before the appellant was injured.     

[13]	The respondent’s liability in this matter must thus be determined on the basis of the following facts:
On the night in question the appellant initially stepped onto, or close to, a hole on the road when she alighted from her vehicle.  There were no warning signs in the vicinity which could have alerted her to the existence of the hole.  When she stepped into or next to the hole a layer of tar gave way under her, thereby causing the existing hole to become much larger.  The respondent had been warned of the existence of a hole in the road some days prior to this incident, but took no steps to fix the hole or warn the public of its existence.  The respondent led no further evidence that it had any budgetary or other constraints which prevented it from fixing holes in the street promptly, or from at least erecting warning signs when such holes in the street are reported to the municipality.  

D)	DID THE RESPONDENT ACT UNLAWFULLY?
[14]	The basis of the respondent’s liability, according to the appellant’s particulars of claim was as follows: 

“[14.1]	The Defendant accordingly acted wrongfully, negligently and in breach of its duty of care by failing to repair the manhole/trench in Reginald Street, and thus prevent the Plaintiff from sustaining the injury she sustained when falling in such manhole/trench.”

[14.2]	Furthermore the Defendant acted wrongfully, unlawfully and negligently and in breach of its duty by failing to take sufficient steps to warn member (sic) of the public, including the Plaintiff, of the danger of the open manhole/trench and in particular failed to take adequate steps and to affix warning signs and illumination when it was dark to warn pedestrians, including the Plaintiff.”

[15]	An omission is wrongful if the defendant is under a duty to act positively to prevent the harm suffered by the plaintiff.  The test is one of reasonableness.  A defendant is under a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent harm.  (Van Eeden v Minister of Safety & Security, See also J.C. Van Der Walt and J.R. Midgley, Principles of Delict ). 

[16]	 Our law has developed to the stage where an omission is regarded as unlawful conduct when the circumstances of the case are of such a nature that the omission not only incites moral indignation but also that the legal convictions of the community deemed that the omission ought to be regarded as unlawful and that the damage suffered ought to be made good by the person who neglected to do a positive act. (Minister of Polisie v Ewels).

[17]	In Cape Town Municipality v Bakkerud  Marais JA restated the position in respect of a municipality’s duties as follows:

“[28]…There can be no principle of law that all municipalities have at all times a legal duty to repair or to warn the public whenever and whatever potholes may occur in whatever pavements or streets may be vested in them.  
[29] It is tempting to construct such a legal duty on the strength of a sense of security engendered by the provision of a street or pavement by a municipality but I do not think one can generalise in that regard.  It is axiomatic that man-made streets and pavements will not always be in the pristine condition in which they were when first constructed and that it would be well-nigh impossible for even the largest and most well-funded municipalities to keep them all in that state at all times.  A reasonable sense of proportion is called for.   The public must be taken to realise that and to have a care for its own safety when using the roads and pavements.  
[30] It is not necessary, nor would it be possible, to provide a catalogue of the circumstances in which it would be right to impose a legal duty to repair or to warn upon a municipality.  Obvious cases would be those in which difficult to see holes develop in a much used street or pavement which is frequently so crowded that the holes are upon one before one has had sufficient opportunity to see and to negotiate them.  Another example, admittedly extreme, would be a crevice caused by an earth tremor and spanning a road entirely.  The variety of conceivable situations which could arise is infinite.” 

[18]	A local authority, therefore, has a duty to act only where the legal convictions of the community demand the recognition of such a duty.  In applying the test of what the legal convictions of the community demand and reaching a particular conclusion, the Courts are not laying down principles of law intended to be generally applicable.  They are making value judgements ad hoc ( Bakkerud’s case, supra, at page 1059I- 1060A) .

[19]	It follows that the ultimate enquiry is whether the local authority can reasonably be expected to have acted in the circumstances of a particular case.  (Cutting v Nelson Mandela Metropolitan Municipality).

[20]	In the present case I have already accepted the evidence of Mr Julietti that the respondent was apprised of the existence of the new source of danger being the hole on the tarred road next to his house.  What, in my view, was expected of the respondent’s employees was to go and inspect the nature of the source of danger with a view to assess its magnitude in order to establish the urgency and the nature of the steps that could be taken to avert any eventual harm that it can cause to the members of the public including the appellant.  The duty to take a positive step by the respondent began from the first day when its employees were advised by Mr Julietti of the presence of the hole. When the respondent became aware of the presence of the dangerous hole in the road a duty was created for it to prevent any harm that could be caused by the existence of the hole. The existence of a legal duty upon the respondent to warn of danger and to repair and maintain roads and pavements is not necessarily a general duty but it arises from the particular circumstances of a given case. The members of the community of the area in which there exists a dangerous hole would reasonably expect the respondent to fix and repair the hole or at least warn the road users of the danger created by the existence of the hole.

E)	NEGLIGENCE 
[21]	Whether the respondent was negligent depends on whether its conduct in the circumstances falls short of that of a reasonable man.  The test for negligence appears in the following dictum of Holmes JA in Kruger v Coetzee

		“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.”

[22]	The importance of establishing the nature of the source of danger is to establish the gravity of the risk of preventing the harm.  The problem is whether “the game is worth the candle”.  It does not follow that no matter what the circumstances may be, it is justifiable to neglect a risk of small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, for example, that it would involve considerable expense to eliminate the risk. He or she would weigh the risk against the difficulty of eliminating it.
(compare the remarks of Schreiner JA in Herschel v Mrupe 1954(3) SA 464 (AD) at 477A-C).

[23]	 In this case it has not been the defence of the respondent that repairing the damage would involve considerably huge expenses.  In any event it would have been sufficient for the respondent to warn the road users by encircling the area with a barrier and that would involve minimal expenses.    

[24]	The conduct of the respondent herein should be judged against that of a reasonable man.  A reasonable municipality in the shoes of the respondent would have sent people to inspect the hole.  It is clear from the evidence led by the plaintiff that the hole posed a serious risk of injury to the road users.  Had the respondent inspected the hole it would have seen the necessity to immediately repair or fix the road or at least to put visible warning signs to alert the road users about the risk of harm.  It could not be said that a collapsed drain was not a serious matter especially after heavy rains.  The situation clearly called for urgent investigation by the respondent.  To prevent the occurrence of serious injury to the road users, by carrying out the prescribed procedures, would have involved no extra cost to the respondent.  This is so especially if the step to be taken was to warn the road users of the presence of the danger.  The failure to take these steps constituted negligence on the part of the respondent. 

[25]	Respondent’s Counsel, Mr Gajjar, who drafted the respondent’s heads of argument has relied on the unreported case of M D October v Nelson Mandela Bay Metropolitan Municipality (a judgement of Goosen AJ, Case Number CA 173/2008).  The difference between the two cases is that in the present case the evidence of Mr Julietti who made the reports to the municipality about the presence of the hole has been accepted as reliable, contrary to the October case where the evidence of a witness who is alleged to have made a similar report was rejected. That in itself makes the October case distinguishable from the present matter.  

[26]	The conduct of the respondent in this case falls short of that of a reasonable man in the circumstances.  Having been warned on several occasions about the existence of the dangerous hole on the road it failed to take reasonable steps to repair the road or to warn the road users of the potential danger.  This has resulted in the appellant falling into the undermined hole and consequently sustaining serious injuries. (Cape Metropolitan Council v Graham).  A reasonable municipality in the circumstances would have at least taken reasonable steps to warn the road users of the presence of the danger.  The respondent has failed to do so and therefore was negligent in the circumstances and consequently liable to pay the appellant’s proved damages.

[27]	It was agreed in the court a quo that the issues of liability and quantum should be separated and that the court a quo should first adjudicate the merits.  It is in respect of those merits that the case was brought before us by way of an appeal.

[28]	In the result I would allow the appeal and make the following order:
  1.	The appeal is allowed with costs;
   2.     The order of the court a quo is set aside and is substituted with the 
            following order:

	 “A. It is declared that the defendant is liable to compensate the plaintiff for 	       any damages she may prove she has suffered arising out of the injury      	       sustained by her in the incident which is the subject of these 
                  proceedings.
             B. The defendant is ordered to pay costs of suit.”
3.          The case is referred back to the trial court to proceed with the
              determination of quantum. 

______________________
P W TSHIKI 
ACTING JUDGE OF THE HIGH COURT	

I agree and it is so ordered:

______________________
J C FRONEMAN
JUDGE OF THE HIGH COURT	

Counsel for the Appellant:		Adv Mullins

Instructed by:			Neville Borman & Botha
	GRAHAMSTOWN

Counsel for the Respondent:	Adv Booi 

Instructed by:			Wheeldon Rushmere & Cole
					GRAHAMSTOWN

Date argued:				12 June 2009

Date judgment delivered:		June 2009