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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 1613/2004

In the matter between

N.M. NOTWALA …........................................................................................Plaintiff

and

SC CONTRACTORS CC ….......................................................................Defendant

JUDGMENT

PICKERING J:

It is common cause that on 16 February 2004 defendant was involved in the digging of a trench in the public road known as Nxenye Street, Lingelihle township, Cradock and that the soil thereby removed from the trench was deposited alongside the trench. It is further common cause that on 16 February 2004 plaintiff, having crossed the trench, was in the process of crossing the soil deposited alongside it when she fell, thereby sustaining certain injuries. In consequence thereof plaintiff, a 56 year old married woman, has instituted action against defendant for damages alleging that defendant, having created a new source of danger in Nxenye street, was negligent in, inter alia, failing to ensure that the loose soil deposited next to the trench was safe for the use of members of the public; failing to warn members of the public that such soil was loose, unstable and a source of danger; failing to take any or adequate steps to prevent the loose soil from constituting a danger to members of the public; and failing to take reasonable steps to ensure that members of the public, including herself, did not lose their footing on the soil deposited alongside the trench.

In its plea, as amended, defendant pleaded no knowledge of the incident involving plaintiff but pleaded in the alternative that it was caused by the sole negligence of plaintiff in that she failed to keep a proper lookout; failed to have due regard to “the presence of the trench and the loose soil”; failed to avoid the incident whereas by the exercise of reasonable care she could and should have done so; and, failed to avoid the incident by “taking an alternative side route that was available to her”. In a further alternative defendant raised the defence of volenti non fit iniuria.

At the commencement of the trial before me an order was made by agreement separating the issues of liability and quantum and the trial proceeded only on the former issue.

Nxenye Street is a relatively short street running approximately from north to south. At the northern end thereof it forms a T-junction with Pundle street and at the southern end it forms a T-junction with another street. Plaintiff’s house is situate at no. 4, Nxenye Street, on the eastern side thereof. Between her house and Pundle street to the north are situate the house of a neighbour and, next door to that, on the corner of Nxenye and Pundle street, a shop known as BB Shop. On the southern side of her house are only the premises of a business known as Pumla’s Tavern, which is conducted by her husband, and the house of one Tuku.

It is common cause that the trench, which was part of a scheme to provide waterborne sewage to Lingilehle Township, was dug alongside the eastern pavement of Nxenye street thus separating plaintiff’s house from the trafficable portion of the street.

Plaintiff testified that on Monday 16 February 2004 she was at home when the excavation of the trench commenced. She remained inside her house throughout the course of the day, with the windows thereof shut in order to exclude the noise and dust, and gave the work outside no further thought. That evening, however, she was to attend a prayer meeting at the home of her sister whose child had died. She had made arrangements with her half-brother, Whitey Mbebe, for a lift in his motor vehicle to her sister’s home.

At approximately 18h30 Mr. Mbebe sounded the hooter of his motor vehicle outside her house. She came out of the gate of her premises only to be confronted by the sight of the trench running in front of her house. The trench was so close to her property that it cut off a portion of the cement driveway leading to the garage of her house. Running along the western or road-side of the trench was a continuous mound of soil which had been excavated from the trench. The trench and soil are depicted on certain photographs, exhibits 1-4, which were handed into Court during the course of the testimony of one Sybok.

It appears from these photographs that a sheet of metal, referred to by all witnesses as a “shutterboard” had been placed over the trench in front of plaintiff’s house (and, indeed, in front of each of the houses of her neighbours) forming a bridge by means of which persons could cross over the trench from either side of the road. Photograph 1 depicts the shutterboard in front of plaintiff’s house and was taken from the eastern side of the trench looking towards the street. Photograph 2 was taken from the western side of the trench looking in the direction of plaintiff’s garages on the eastern side thereof. Photograph 3 was taken from a position opposite plaintiff’s house looking in the direction of Pundle street to the north with the shutterboard in front of plaintiff’s house depicted in the foreground. Photograph 4, again showing the shutterboard in front of plaintiff’s house, is taken looking in the direction of Pumla’s Tavern to the south. It is apparent from the photographs that the mound of soil on the western side of the trench immediately opposite the shutterboard has to a certain extent been compacted or flattened so as to facilitate access over the mound. According to plaintiff, however, the photographs do not depict the state of the mound of soil as it was on the evening of 16 February. At that time, according to her, the soil opposite the shutterboard had not yet been compacted and formed part of a continuous mound of loose soil and gravel on the western side of the trench. Similarly, although the photographs depict very small amounts of loose soil and stones on the eastern side of the trench the amount of soil on that side was, according to plaintiff, considerably greater on the evening of 16 February.

Whilst it is common cause between the parties that the photographs, Exhibits 1 – 4, were taken by Sybok the following day, 17 February, the time at which the photographs were taken is a matter of heated dispute. Whereas defendant alleges that the photographs depict the scene of the incident exactly as it had been on the previous day at the time plaintiff fell, plaintiff alleges that they were taken at a time after defendant’s employees had compacted the mound of soil early on the morning of 17 February. Because of this dispute the trial was postponed after the evidence of certain of plaintiff’s witnesses had been led in order to enable the defendant to obtain the opinion of an expert, Professor Baart, in this regard. In the event, plaintiff too obtained the opinion of an expert witness, Professor Raubenheimer. On the resumption of the trial the experts, at the request of the Court, consulted with each other in an attempt to resolve certain differences of opinion which existed between themselves. Fortunately, the consultation bore fruit and a minute, exhibit A, reflecting their agreed opinion, was handed into Court by consent. The relevant portion of this minute read as follows:

“The experts agree that:

1. The photographs A1 – A4 were taken nowhere near noon on the 17 February 2006.

2. The photographs A1 – A4 were most probably taken between the times 07h50 and 09h20.”

The reference in the minute to “noon” arises from the initial evidence of Sybok, with which I shall deal hereunder, to the effect that he took the photographs at midday on 17 February 2004.

In the light of the experts’ opinion all plaintiff’s witnesses who had already testified were recalled for further cross-examination, save for the aforementioned Mr. Mbebe, whom, it is common cause, is no longer available.

Reverting to plaintiff’s evidence there was, so she said, no safety barrier or so-called “danger tape” around the trench or indeed anywhere else at the scene of the construction works.

On being confronted by the trench plaintiff weighed up the various options available to her. She stated that it was not an option to go back into her house. She was regarded as the mother of the family and her presence at the prayer meeting was non-negotiable. She could not walk along the eastern side of the trench towards Pundle street, a distance of approximately 40 – 50 metres, because of the soil and because of the fact that the space between the trench and a boundary wall alongside her driveway which separated her house from that of her neighbour was insufficient to enable her to pass by it without being in danger of falling into the trench. She estimated this distance as being approximately 12 centimetres. She stated that had there been space along that eastern pavement she would much rather have proceeded that way than to have crossed over the shutterboard. Although the wall is not visible on photographs 1-4 it does appear on certain other photographs, in particular, photograph no 5 at p 54 and exhibit B, both of which, however, were taken after the completion of the construction work. She stated that she could also not walk to the left towards the tavern in order to gain access to the street that way because the whole street was dug up. In the circumstances the only option available to her was to cross over the shutterboard onto the western side of the street and then to climb over the mound of soil running alongside the trench.

Although she was nervous she managed safely to negotiate the shutterboard and arrived at the mound of soil directly in front of it. She stated that she was not afraid to cross the mound of soil because she did not expect to fall there. She then proceeded to climb up the mound of soil which, so she stated, was approximately 1 to 1½ metres in height. It appeared to consist of loose soil. She was wearing flat soled sandals. She stated that as she climbed up she felt that the soil was loose and her feet penetrated into the soil. She reached the top of the mound, walking “slowly and safely”. She did not think that it was dangerous to traverse the mound, more particularly because there were no signs warning of any danger. Had there been such signs, so she stated, she would have called Mr. Mbebe to come and assist her. Although there were stones lying around on the mound and on the mound itself she thought that at the place where she was crossing there were no stones under the soil. Had there been any indication that the soil was unstable because of the presence of stones she would have avoided the stones and stepped only on the soil surface of the mound. However, when she had taken only one step on the downward slope of the mound she stepped on a stone which was concealed by the soil, slipped and fell. Fortunately for plaintiff she fell onto the western side of the mound and not back towards the trench. Unfortunately, however, she suffered a compound fracture to her ankle resulting in a bone thereof protruding through the flesh of her leg.

She stated that had the soil opposite the shutterboard been in the same compacted condition as depicted on photographs 1 - 4 she would not have fallen.

Eventually an ambulance arrived and she was taken to hospital.

Upon being recalled for further cross-examination she reiterated her denial that the soil opposite the shutterboard had been compacted prior to her fall. Although her initial evidence to the effect that she could not have gained access to the street by proceeding to the left towards the tavern had not been challenged under cross-examination, it was now put to her for the first time that the trench had in fact only been dug up to the entrance to the tavern on 16 February and that she could safely have proceeded that way. A photograph, Exhibit B9, which is an enlargement of photograph 4, was handed into Court, the photograph purporting to show that the trench did in fact end at the tavern gate. Plaintiff, however, persisted in her averment that the trench had been dug along the entire eastern side of Nxenye street.

Plaintiff’s half-brother, Whitey Mbebe, confirmed that he arrived by car opposite her house in Nxenye street on the evening of 16 February 2004 in order to fetch plaintiff for the prayer meeting. At the time of his arrival the trench had already been dug and the workers had left. There was no danger tape or warning sign of any nature whatsoever around the site. With regard to the photographs 1 – 4, Mr. Mbebe corroborated the evidence of plaintiff to the effect that the soil opposite the shutterboard had not been compacted as depicted especially in photograph no 2 and, furthermore, that there was more soil deposited on the eastern side of the trench than is depicted in the photographs. He stated that the height of the mound opposite the shutterboard appeared to be lower on the photographs than it had been on the evening in question. The mound of soil on the western or road side of the trench had been approximately 1 metre in height.

He saw plaintiff emerge from her house and cross over the shutterboard. He did not think that the mound of soil on the western side of the trench constituted a dangerous hazard for her inasmuch as it appeared to consist only of sand. He only saw stones at the place where plaintiff had lost her footing after she had fallen. According to Mbebe plaintiff fell on taking her second step down the mound of soil on the street side thereof.

He stated further that plaintiff would not have been able to walk along the eastern side of the street towards Pundle street because of the soil that was present on that side of the trench and because there was only a small space between the neighbour’s wall and the trench of approximately 18 – 20 cm. As he put it, “only Bruce Lee could have crossed there”, Bruce Lee being apparently a martial arts expert of legendary renown.

The following day he proceeded to plaintiff’s house at some time after 16h00. He noticed that the soil on the western side of the trench opposite the shutter board had been levelled in order to create an opening onto the road.

It is common cause that Mbebe is no longer available to testify and he was not recalled.

Mr. Nuyani Stali testified that during February 2004 he was employed by defendant as a general labourer despite having a matriculation certificate. He was engaged on the trench works together with approximately eighteen other labourers. He stated that he lived at no 5 Nxenye street. His house was situate on a double plot opposite plaintiff’s house and Pumla’s Tavern.

Earlier in the day he had been at work digging the trench. He stated that his work consisted of following the machine which was excavating the trench and removing any stones left by it in the trench. He stated that as the machine moved along the road, digging the trench, it deposited the soil on the road side of the trench creating a continuous mound approximately 45 cm high although the height varied from place to place. He stated that the particular machine which was used was a so-called TLB, which, it is common cause, is a front end loader with a backhoe and which has four rubber tyres. He stated that it was not an excavator but then conceded that he did not know the difference between the two The soil was deposited on the road side so as not to inconvenience residents. In the excavation process, however, soil fell off the scoop of the machine and was deposited, also in a continuous mound, on the pavement side, to a height of approximately 30 cm. By the time everyone left the site that afternoon at some time after 16h30, the trench had been dug up all the way past the tavern to the end of Nxenye street. Before leaving work he and the other labourers had placed the shutterboards over the trench as depicted in photographs exhibits 1 – 4. When they left no danger tape had yet been placed in position at the trench. Tape was usually placed around the shutterboard in such a position as to cordon off the trench from the public and to create a bridge over the shutterboard.

He stated that the distance between the eastern or pavement side of the trench and the fences of the houses on that side was approximately three quarters of a metre. The distance between the trench and the end of the boundary wall between plaintiff’s house and that of her neighbour was approximately 70 cm.

He stated that after work he went home to 5 Nxenye street. At approximately 18h30 he was standing waiting for his girlfriend at the gate of his house. He was facing plaintiff’s house across the road. While he was standing there he saw Mbebe arrive in his motor vehicle. He then saw plaintiff come out of her house and walk across the shutterboard and up the mound of soil opposite it. She reached the top of the mound whereafter he saw her falling onto the road side of the mound. Her ankle was injured in consequence of the fall.

The following day he commenced work at between 07h15 and 07h30. Shortly thereafter one Leo, whom Stali described as being the owner of defendant, arrived at the scene. It is common cause that Leo is in fact Mr. del Giudice, one of two members of defendant. Del Giudice spoke to one George in the presence of Stali and told George to instruct the workers to flatten or level the soil on the western side of the trench directly opposite the shutterboard in order that people could go across the shutterboard and enter the street easily. He and the other labourers were also instructed to remove the soil which had been deposited on the eastern or pavement side of the trench. This they did using spades. After the workers had done all the work as instructed the scene resembled that as depicted on the photographs, exhibits 1 – 4.

During the course of cross-examination by Mr. Louw the following exchange occurred:

“Q In any event, my instructions are that this Leo that you referred to was in fact not on that scene of the site the day after the plaintiff was injured.

A What?

Q Mr. Leo was not there as you claimed.

A After the day plaintiff got injured?

Q Yes

A He went there.

Q And accordingly I must also put it to you that this version of yours about what he would have said there at the scene is also not true.

A It is the truth.”

Stali stated further that he did not see the photographer, Sybok, at the scene on 17 February. Under cross-examination it was put to him that the machine which had been used on 16 February in order to excavate the trench was in fact an excavator with steel tracks and not a TLB with four rubber wheels as stated by him. He insisted, however, that he was not mistaken in this regard. He reiterated that the trench had been dug all the way up Nxenye street from one end to the other. He denied further that the machine which had done the excavating had flattened the mound at the end of the day.

Plaintiff’s husband, Monwabisi Notwala, testified that he owned Pumla’s Tavern which was adjacent to his house at 4 Nxenye street. He stated that prior to the commencement of the construction defendant’s foreman, George Deysel, had spoken to him and had told him that access to his garages would be cut off by the trench. He denied having been told this by defendant’s liaison officer, Mr. Ncayo. He corroborated the evidence of plaintiff’s other witnesses to the effect that on 16 February the trench had been dug past the tavern up to the end of the street. He stated that on that day the gates leading to the tavern had accordingly been closed. He denied having asked George Deysel to put up danger tape at the tavern around the excavation for the protection of his customers. He did not notice, however, whether there was any danger tape in position at the end of the day.

He was in the tavern on the afternoon in question when Mbebe called to him telling him that plaintiff had been injured and that an ambulance should be called. He did so call the ambulance. Thereafter he proceeded to the scene and discovered his wife lying down on the street-side of the trench. He confirmed the evidence of plaintiff, Mbebe and Stali to the effect that the mound of soil opposite the shutterboard was approximately 1 metre in height and that it had not been levelled or compacted in any way at that time.

The following morning, at approximately 7 am, he met George Deysel when the latter arrived on site. He informed Deysel of the fact that plaintiff had been injured the previous day. Deysel thereupon took out his cell phone and called del Guidice, telling him that “John’s wife” had been injured at the site. Almost immediately thereafter del Guidice arrived at the site. He told Deysel that the soil opposite the shutterboard on the western side of the trench was high and that George should bring his workers to level it.

He denied, as was put to him under cross-examination, that the photographer, Sybok, was present when Deysel arrived on site. He stated that he had sent a message for Sybok at approximately 8h30 but was told that Sybok was still asleep. In his evidence in chief he stated that he was not present when Sybok took the photographs. Under cross-examination, however, he stated that Sybok arrived at the scene between 10 and 11 am and he showed him where to take the photographs. He explained that he had merely pointed out the scene which he wanted to be photographed and had then moved back. He then denied having said in evidence in chief that he had not been present.

Sybok stated in his evidence that he was a professional photographer. On a particular day, the date of which he was not certain, he was contacted by plaintiff’s husband to take photographs of the scene where plaintiff had been injured. As I have said, it is now common cause that he went to the scene to take photographs on 17 February. He stated that he took the four photographs, exhibits 1 – 4 at midday. It was put to him under cross-examination that having regard to the shadows depicted on the photographs it was extremely unlikely that they had been taken at midday during February but Sybok was adamant that that was in fact the case.

He was recalled for further cross-examination in the light of the agreement between the experts as to the probable time at which the photographs were taken. He now stated that he was unsure of what time he had gone to plaintiff’s house and that he had been merely estimating that he had gone there at 12 noon. He denied, however, that he could have been at the scene between 07h50 and 09h20 and said that he could not have gone to the scene before 11 am. He immediately qualified this by saying that he had no independent recollection of the time at which he had gone there and had merely deduced such time by looking at the photographs themselves. It was put to him that defendant’s foreman, George Deysel, would say that Sybok was already at the scene at 7 am but he denied that this could be so. He stated that when he got to the scene he did not see any workers and did not know where they were although he could hear the engines of machines droning in another street.

He denied that the trench had stopped at the tavern and stated that he specifically remembered that it had gone past the tavern right up to the end of the street at the time that he had gone there.

That then was the evidence led on behalf of plaintiff.

The aforementioned del Guidice testified on behalf of defendant. He stated that the defendant had been awarded the tender for the construction of a waterborne sewage system in Lingelihle. In such a project the first step was to alert residents affected by the work of the fact that it was difficult and dangerous. The task of doing so fell to Ncayo, his community liaison officer. It was necessary, so he said, to protect members of the public as much as possible, hence the erection of sign boards and the placement of danger tape around the works every evening. Because children in particular liked to play with the danger tape, however, it often disappeared overnight along with the droppers to which it was attached. This, he ventured to suggest, might be the reason that no danger tape was in evidence at the site the following morning. He conceded, however, that this explanation had never been put to plaintiff’s witnesses and that he had thought of it whilst in the witness box. He stated also that he had never discussed during consultation for the trial as to why no danger tape was present in the morning.

He stated that the soil in the area was of an extremely hard, white, cemented type known as calcrete and in order to perform the work economically a steel tracked excavator with a so-called “rock bucket” would have been used to dig the trench. In digging the trench the excavator would have reversed up Nxenye street from the commencement of the trench in Pundle street, excavating the trench with the rock bucket attached to its boom in front and depositing the excavated soil or spoil, as it was known, to its left on the street-side of the trench. A TLB would not have been used. The TLB would have been used later to clear up the street after the excavator had moved on.

He stated that after the excavator had finished digging the trench it would have flattened the spoil on the side thereof. It would have done so, not to create easy and safe access into Nxenye street, but in order to facilitate the passing of the sewage pipes from the street side of the mound into the trench. Evidence that the excavator had flattened parts of the mound appeared, so he said, from the photographs, especially photographs 2 and 3 where marks left by the steel tracks of the excavator were visible and a path had been made along the mound as could be seen from photograph 3. These tracks were also visible on photograph B9. With reference to that photograph and to photographs 3 and 4 he stated that the relatively clean appearance of the trench on the pavement side thereof in the foreground of that photograph was a good illustration of how little spillage of spoil there would have been on the pavement side during the course of excavation. He was unable to explain, however, why there appeared to be a considerable amount of spoil on the pavement side of the road further up towards the tavern.

He conceded that it would have been very easy for the excavator to have scooped the spoil away from the western or street side opposite the shutterboard in front of plaintiff’s house so as to create a level area through which pedestrians could access the street. He himself would have constructed a ramp leading from the western end of the shutterboard over the mound of soil. He said that the shutterboards had been placed opposite each house in Nxenye street specifically to enable residents to get into the street and conceded that by putting the boards where they were defendant was in fact inviting the residents to use them in order to cross the trench. He would have expected people to cross by means of the shutterboard and would not have expected them to look up and down Nxenye street for an alternative route. He stated further that he was aware of the regulations applicable to excavation work but had never read them. He conceded that Regulation 11(3)(i) of the relevant Regulations obliged him adequately to protect the trench by means of the erection of a barrier of at least one metre in height as close to the trench as possible but reiterated that his employees always put up danger tape in the evening. He would have expected to see danger tape directing a person such as plaintiff onto the shutterboard and across into the street. Although it had initially been put to plaintiff’s witnesses that the responsibility for the erection of the danger tape lay with Ncayo he stated that this was in fact the responsibility of Deysel.

As to what had occurred on 17 February at the scene he stated that he had no independent recollection of the day at all. During April 2004 he had undergone a heart by-pass operation and, in consequence thereof, the period preceding this had become a blank in his memory. He had, however, spoken to Deysel who told him that he had arrived at the scene at 7 am and that the photographer was then already present.

With regard to the mound of soil on the western side of the trench he conceded that the material would have been difficult to cross because of the stones contained in it and conceded also that if the material was loose and not compacted the possibility of some-one falling because of the instability of the material was reasonably foreseeable. He stated that the excavator would have only compacted such soil as was under its tracks and would not have removed the danger constituted by loose stones in the soil.

Mr. Jaap van Wyk, an independent consulting engineer appointed by Cradock Municipality to oversee the waterborne sewage project, stated that he had returned to the scene shortly before testifying and had taken certain measurements in an attempt to determine the respective distances between the eastern edge of the trench and the tavern and boundary walls. Having done so he estimated that the distance between the eastern edge of the trench and the wall of the tavern would have been approximately 1,9 metres. He estimated that the distance between the eastern edge of the trench and the end of the plaintiff’s boundary wall would have been approximately 2,1 metres providing that, if the trench had to some extent veered towards plaintiff’s house, that distance would have been approximately 1,68 metres.

With reference to photographs 3 and 4 he corroborated del Guidice’s evidence that the amount of spoil on the ground on the eastern side of the trench appeared to him to be typical of the amount which would have been deposited as spillage during excavation of the trench. He stated that he would be surprised were that soil to have been 30 – 50 centimetres in height. It appeared to him from photograph B9 that the excavation ended at the manhole at the gate of the tavern.

He stated further that an excavator would normally have been used to dig the trench in view of the nature of the stony soil. There were also signs of the metal tracks of the excavator visible on the photographs which supported his view.

Mr. Ncayo, defendant’s community liaison officer, testified that it was his function to act as a liaison between the community and defendant as well as between the defendant and its employees. On 16 February 2004 he visited Nxenye street from time to time. He was unable to remember when exactly he was there. He was also unable to say whether danger tape had been placed around the excavations beyond stating that it was Deysel’s duty to have done so.

The following day, 17 February, he again went to Nxenye street, arriving at approximately 7 am. Whilst he was there del Guidice arrived and walked around the site talking to Deysel. He did not know what they were speaking about. He did not see any photographer there. He estimated the mound of soil on the western side of the road to have been approximately 45 cm in height.

He stated that prior to the incident he knew plaintiff. According to him she used to be assisted by other persons if she was walking on “uneven ground”. She also required assistance when getting into a motor vehicle. Questioned under cross-examination on this issue he stated that by “uneven ground” he intended to refer to the steps at the entrance of her kitchen. He stated that every time he had seen her walking up the steps she had been assisted. He then stated under further cross-examination that in fact he had only seen her walking up the steps once. He had also seen her being assisted to enter her motor vehicle on only two occasions. He stated finally that he could not remember very well as to whether the trench had proceeded all the way down Nxenye street on 16 February but thought that it had only been dug up to the tavern so that plaintiff could get his cars into the tavern. He could not recall whether he had told this to his counsel at any stage prior to testifying.

Defendant’s foreman, Mr. George Deysel, testified that he oversaw the excavation works in Nxenye street on 16 February. An excavator with steel tracks was used to dig the trench. A TLB machine would have been available to clean up the street if needed. As to the amount of spoil on the eastern side of the trench as depicted in photographs 1 – 4 Deysel maintained that such was typical of the limited amount of spillage which there would have been from the rock bucket of the excavator. The trench was dug only up to the manhole at the tavern gates and not beyond it. The driveway giving access to the tavern was not obstructed in any way and motor vehicles could access the tavern yard. After having excavated the trench the excavator levelled or compacted the mound of soil on the street side opposite the shutterboard in front of plaintiff’s house using the back of the rock bucket to do so. Deysel conceded that it would have been a simple matter for the excavator to have removed the soil and stones in front of the shutterboard completely.

He stated that he was the last worker to leave the site that evening. He could not explain why it had been put to plaintiff that Ncayo had been the last to leave. He himself put the danger tape around the site in such a manner as to direct residents at plaintiff’s house onto and over the shutterboard. Why it had been put to plaintiff that Ncayo had done this he could also not explain except to say that Ncayo had probably left only some five minutes before him. He stated that work at the site had ceased at 17h00 and that thereafter he had remained in order to secure the site. He was not certain when he had finally left but it would not have been later than 18h00. When he left the danger tape was in position. It was, however, not there the following morning when he arrived back at the scene. The only explanation that he could think of was that it had been stolen overnight by children, something which was a regular occurrence. All the metal droppers to which the tape had been attached were also gone. This was also a regular occurrence. He stated that plaintiff could not be telling the truth in alleging that there was no danger tape in position when she left her house at 18h30 because it was impossible that it could have been stolen between the time he left the site and plaintiff exited her house.

In his evidence in chief he stated that he returned to the site at approximately 7h30 but no later than 7h45. All the labourers commenced work at the site at 7h00. Under cross-examination he said that he was unable to explain why it had been put to plaintiff’s witnesses that he had himself arrived there at 7h00 and stated that he could not remember telling his counsel that he had done so. He agreed that if he had only arrived at 7h30 he could not have been on the site before the workers although it had been put to both Mr. Notwala and Sybok that such had been the case. Pressed on the time issue he said that he had arrived between 7h30 and 7h45 because he was sometimes held up at the office. He could not, however, remember if he had been so held up on 17 February. He finally conceded that it was possible that he had arrived at 7h00 and concluded this aspect of his evidence by saying that he was in fact not certain of the time.

Upon his arrival he met Notwala who told him of plaintiff’s injury. There was also a photographer present. Upon hearing of plaintiff’s fall he telephoned del Guidice to inform him thereof as a matter of normal procedure. He stated that he could not remember whether del Guidice came to the site in response thereto and accordingly could not remember having spoken to him at the site. It was put to him under cross-examination that Mr. Louw had put it to Notwala that “other evidence” on behalf of defendant would confirm that del Guidice did go to the site. He first replied that he did not know this before saying that he was certain that he had told Mr. Louw that del Guidice was not there. He qualified this immediately by stating that he could not remember if del Guidice was there and that he could not dispute Notwala’s evidence that he had indeed arrived on site. When it was put to him that both Notwala and Stali as well as Ncayo had testified to the effect that he, Deysel, and del Guidice had spoken together on the site his initial response was that he did not remember this, followed immediately by a denial that they could have spoken because del Guidice was never there. He denied that defendant’s labourers had cleaned the sides of the trench and had compacted the mound of soil on the morning of 17 February.

The ambulanceman who had arrived in Nxenye street to pick up plaintiff, Mr. Oktober, also testified. He stated that he found plaintiff lying between mounds of what appeared to be bedding soil. The mound which plaintiff had traversed immediately opposite the shutterboard was approximately 10 cm in height. Under cross-examination it was put to him that the mound at that spot was much higher. Oktober found himself unable to answer that question. Further questioned on the matter he conceded that he had not really looked at the surrounding scene as he was concentrating on plaintiff.

That then was the evidence led on behalf of defendant.

As would have been seen from the above summary a great many issues were exhaustively explored. Nxenye street appears from the photographs to be an exceptionally stony area and it is not unfair to say that defendant, in particular, left very few of those stones unturned in its defence of this case. Be that as it may as will also have appeared from the evidence there were numerous factual disputes between the parties. Certain of these disputes, however, had virtually resolved themselves by the end of the evidence or became common cause during the course of argument. In particular the following may be accepted:

The trench in Nxenye street had in fact only been dug up to the tavern on 16 February and it would have been possible for plaintiff to have entered Nxenye street by means of proceeding through her backyard to the tavern and then into the street by way of the tavern driveway; an excavator and not a TLB was used to excavate the trench on 16 February; the distance between the eastern edge of the trench and plaintiff’s boundary wall was, at least, 1,68 m; the distance between the eastern edge of the trench and the tavern wall was at least 1,9 m; the mound of soil on the western side of the trench opposite the shutterboard in question had, by the time photographs 1 – 4 were taken, been compacted to the extent that it did not in that condition constitute a source of danger to the public.

The main issues remaining in dispute were whether or not the danger tape was in position at the time of the incident; whether the mound of soil on the western side of the trench had been compacted by the excavator on 16 February or by defendant’s labourers using spades on the morning of 17 February; the size of the mound of soil on the eastern side of the trench; and the time that photographs 1 – 4 were taken.

On these disputed issues the respective versions tendered on behalf of plaintiff and defendant are irreconcilable and mutually destructive. The approach to be adopted in such circumstances appears from a number of cases such as National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E), (referred to with approval in Baring Eiendomme Bpk v Roux [2001] 1 All SA 399 (SCA); Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) at 14J – 15D; and Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) where the following is stated at 589G:

“It is equally true that findings of credibility cannot be judged in isolation, but require to be considered in the light of the proven facts and the probabilities of the matter under consideration.”

I will commence with a consideration of my general impression of the witnesses.

Plaintiff was, in my view, an excellent witness. She created a very favourable impression upon me. Her evidence was consistent throughout and she remained unshaken during the course of cross-examination. Mr. Louw did not seek to argue to the contrary. Stali too was an impressive witness. He was, moreover, an entirely independent witness with no apparent motive to favour either plaintiff or defendant in the matter. The only real criticism of his evidence which could be advanced relates to his insistence that the machine used to excavate the trench was a TLB and not an excavator. I do not consider his error in this regard to reflect in any way adversely on his credibility. Mbebe was also, in my view, a good witness. He, however, created the impression of being somewhat excitable in the witness box and, for instance, took umbrage when Mr. Louw asked him in an entirely courteous manner questions concerning the weight of plaintiff. I gained the impression that he was not well disposed towards defendant and, accordingly, his evidence should be approached with some degree of caution. Mr. Notwala was a good witness save in one respect namely, as to whether or not he was present when Sybok took the photographs. In that regard he denied having stated in evidence in chief that he was not present whereas he had done so. He was also not certain as to the time that Sybok arrived at the scene but I did not gain the impression that he was being dishonest in this regard.

Sybok was a most unimpressive witness who clearly adapted his evidence to suit the exigencies of the situation.

Del Guidice made a reasonably good impression upon me albeit that there were aspects of his evidence that were, in my view, somewhat improbable. I will revert to those hereunder. The evidence of Van Wyk has been accepted by plaintiff and no more need be said about that. Oktober was an extremely poor witness and it became abundantly clear that he had paid no real attention to the scene upon his arrival to pick up the plaintiff and that his evidence did not take defendant’s case any further. I will accordingly have no further regard thereto. Ncayo was a reasonably good witness and Mr. Paterson did not advance any criticism of his evidence save for that relating to plaintiff’s alleged need for assistance. Deysel, on the other hand, was an exceptionally poor witness. He appeared uneasy in the witness box and his evidence was evasive and contradictory. He created a very poor impression upon me.

It will be convenient to consider first the issue of the presence or absence of the danger tape. It may be stated at once that it is clear that the danger tape played no role whatsoever in plaintiff’s decision to cross the trench by means of the shutterboard. She crossed the trench despite, on her version, the absence of the danger tape. Assuming her evidence to be true it is apparent that had the danger tape been there it would only have had the effect of directing her even more specifically towards and over the shutterboard. As stated by del Guidice this was its very purpose. The tape, if present, obviously would not have blocked access to the mound over which plaintiff still had to cross on the western side in order to access the street and it thus played no causative role in her fall. The failure by defendant to erect the danger tape is not relied upon by plaintiff as a ground of negligence except to the extent that it forms part of the alleged failure by defendant to take reasonable or adequate steps properly to secure the site and was indicative, so plaintiff alleged, of the lackadaisical attitude of defendant in this regard. It is also, as was submitted by Mr. Paterson, of relevance as an indication of the general credibility of the various witnesses.

Plaintiff’s evidence on this aspect was consistent throughout as was that of Mbebe and Stali. Plaintiff had no apparent motive to lie about the danger tape. As I have said she would have crossed the trench regardless of the presence or not of the tape. The evidence of Mbebe and Stali on this aspect was also entirely consistent. Defendant’s evidence relating to the danger tape was, however, exceptionally poor. It was initially put to the plaintiff’s witnesses that Ncayo was the last to leave the site on the evening on 16 February and that he erected the danger tape. This was denied by Ncayo who stated that the responsibility for the erection of the danger tape lay in fact with Deysel. Although it is common cause that defendant’s legal representatives were only in a position to consult with Deysel for the first time halfway through the trial after the postponement of the matter on 31 October 2005 this does not assist defendant. Defendant’s legal representatives had the benefit of consulting with Ncayo prior to the commencement of the trial on 27 October 2005 and obviously received instructions from him which, in the event, turned out to be contrary to his evidence. Ncayo’s evidence on this aspect was also adverse to defendant’s case. He was asked by Mr. Louw as to what safety measures were in place at the end of the first day. His reply was that “what usually happens is that danger tape is placed around the site.” But what happened on that day? asked Mr. Louw, eliciting the reply that “it was not my duty to put the tape there.” For a third time Mr. Louw enquired as to whether the tape had been put in position and again the reply was only to the effect that “it was supposed to be done”. It was quite apparent, in my view, given the persistence of the questioning, that Ncayo’s replies were contrary to counsel’s expectations.

Del Guidice’s evidence was that it was defendant’s practice to erect danger tape around its work sites. His explanation that it must have been stolen by children was, on his own admission, thought of in the witness box and he had never discussed with defendant’s legal representatives the possible reasons for the absence of danger tape on the morning of 17 February. This, in my view, is quite improbable especially given the apparent importance of the role played by the danger tape at that stage of the proceedings.

It appears from Deysel’s evidence, however, that he had thought of this explanation prior to testifying because, so he said, such theft by children of danger tape was a constant, regular, and almost daily problem. Despite this the allegation was never put to plaintiff or such of her witnesses who were recalled for further cross-examination. It is quite improbable, in my view, that, had Deysel informed defendant’s legal representatives of this explanation, it would not have been put to plaintiff and her witnesses especially when regard is had to the laboriously detailed nature of their cross-examination in every other respect. In my view the purported explanation was clearly a belated attempt on the part of del Guidice and Deysel to cover up the failure on the part of defendant to erect the danger tape at the site on 16 February. In all the circumstances I have no hesitation in accepting the evidence of plaintiff and her witnesses to the effect that there was in fact no danger tape present at the scene on the evening of 16 February when she emerged from her house.

I turn then to consider the issue as to whether the mound of soil immediately opposite the shutterboard on the western side of the trench had been compacted on 16 February or only on 17 February after plaintiff had fallen. The issue of the time at which the photographs were taken is obviously closely intertwined with this issue.

In his evidence Sybok initially stated that he took the pictures at noon. His evidence in this regard was clearly wrong, even without regard being had to the expert opinion. On being recalled he stated that he had merely estimated the time as being noon. A reading of his evidence makes it clear that his averments in this regard are false. He had been quite adamant in the face of persistent cross-examination that the photographs had been taken at noon. His evidence that he could not have gone to the scene before 11h00 can, in my view, also not stand scrutiny in the light of the experts’ opinion that the photographs were probably taken between 07h50 and 09h20. In this regard it is to be noted that the agreed expert opinion does not preclude the possibility of the photographs having been taken outside the ambit of the time frames mentioned therein. Although the experts were not called to testify as to the possibility of the photographs having been taken at 07h00 or at 11h00 counsel were agreed that in effect the greater the deviation from the time frames set by the experts the greater the degree of improbability that the pictures could have been taken at either of the alleged times. One thing is, however, certain from their opinion and that is that the photographs were not taken near noon.

Sybok, as I have said, was a most unimpressive witness and in my view no reliance can be placed upon his evidence. There remains, however, the evidence of Mr. Notwala and of Stali. Stali saw no photographer present prior to the workers being told to level the soil. Although Mr. Notwala’s evidence that Sybok arrived between 10h00 and 11h00 is improbable in the light of the expert opinion he was unshaken in his evidence that Sybok was not present when Deysel and del Guidice arrived at 07h00 or shortly thereafter.

I turn then to consider the evidence of defendant’s witnesses in this regard.

It had been put by Mr. Louw to Notwala that Deysel had arrived on site at 07h00 and that the photographer had then already been present. In his evidence del Guidice said that Deysel had told him that he had arrived at the site at 07h00 and had found Sybok present. Ncayo, however, who also arrived at the scene at 07h00 saw no photographer present.

Deysel commenced his evidence by stating that he arrived at the site between 07h30 and 07h45 and that Sybok was present at that time. When asked why Mr. Louw had put it to plaintiff’s witnesses that he had been there at 07h00 he replied that this was inexplicable and that he could not remember telling this to Mr. Louw. He agreed that had he only arrived between 07h30 and 07h45 the workers who commenced their labours at 07h00 would have been on the site before him. Confronted with the fact that it had been put to Notwala and Sybok that he had arrived there before the workers he essayed some type of explanation to the effect that he might have been held up at the office but then stated that he could not remember that this had in fact been so. He finally attempted to extricate himself from the hole which he had dug for himself by saying that he was not certain of the time at which he had arrived.

As I have said, Deysel was an extremely poor witness. His evidence on this aspect was exceptionally poor, evasive and contradictory. His averment that Sybok was present was also contradicted by Ncayo. I have no doubt whatsoever that Deysel was attempting to adapt the time of his arrival at the site in order to fit in with the opinion of the experts as to the probable time at which the photographs were taken.

In all the circumstances Deysel’s evidence that Sybok was present upon his arrival, whether that was at 07h00 or 07h30, can, in my view, safely be rejected. I am satisfied on the probabilities that the photographs were indeed taken at some time between 07h50 and 09h20. The evidence concerning the compacting of the soil on the western side of the trench must be considered in the light of this finding.

The only eye witness to the alleged compacting of the soil on 16 February was Deysel. According to him the excavator levelled or compacted the soil in front of the shutterboard by using the back of its rock bucket. He denied that this had been done the following morning before the photographs were taken. His evidence on this aspect of the case was in keeping with the rest of his evidence, namely, evasive and contradictory. As appears from his evidence he strangely enough remembered having spoken to Mr. Notwala and having thereafter telephoned del Guidice to inform him of the bad injury sustained by plaintiff yet could not remember whether or not del Guidice had come to the site in response thereto. He stated that he was certain that he had told Mr. Louw that del Guidice was not there before stating that he could not remember if in fact he had been there. He alleged that he could not remember having spoken to del Guidice on the site and immediately denied that he could have spoken to him because, according to him, del Guidice was never there.

It is, in my view, utterly improbable that Deysel would have remembered in detail having been informed by Mr. Notwala of the serious injury to plaintiff and having telephoned del Guidice to inform him thereof and yet have no recollection as to whether or not del Guidice had arrived at the site in response to that telephone call. The evidence on behalf of plaintiff was that del Guidice had arrived almost immediately thereafter. Del Guidice, for his part, professed to having no memory whatsoever of either the telephone call from Deysel or having gone to the site in consequence thereof. Mr. Paterson submitted in this regard that del Guidice was an untruthful witness whose evidence that he had suffered a memory blank because of his heart bypass operation should be rejected. Del Guidice’s evidence flies in the face of the averment put by Mr. Louw to Stali to the effect that del Guidice was not present. It is difficult to understand how so categorical a statement could have been put by Mr. Louw unless he had clear instructions from del Guidice to that effect. This is a most unsatisfactory aspect of del Guidice’s evidence and must, in my view, cast considerable doubt on his veracity. It is not necessary, however, in my view, to make such a finding and I shall accept for present purposes that del Guidice’s amnesia was real and not as Mr. Paterson termed it “convenient.” The upshot thereof, however, is that defendant can rely only on the evidence of Deysel in this regard. On that evidence it is not at all clear what exactly defendant’s case is in view of the fact that Deysel vacillated between an averment that del Guidice was not there and an averment that he could not remember whether he was there. Deysel’s evidence that del Guidice did not come to the site is in any event contradicted by that of Ncayo who stated that del Guidice had arrived at the scene and had spoken to Deysel.

Arrayed against this extremely poor evidence was the evidence of Stali and Notwala. Stali was, as I have said, a very good witness. He stated that del Guidice had arrived promptly in response to Deysel’s telephone call. It is, in my view, entirely probable that del Guidice would have visited the scene upon being apprised of the accident. Furthermore, Stali averred that del Guidice spoke to Deysel and told him to instruct the workers to flatten the soil on the western side of the trench directly opposite the shutterboard whereafter he and the other labourers did in fact compact the soil using spades. Stali’s reaction upon it being put to him by Mr. Louw that del Guidice had not been present was also telling and it is apparent from his reply that he was reacting with disbelief to what was being put to him. Stali’s evidence also receives corroboration from that of Mr. Notwala who stated that after the telephone call by Deysel del Guidice arrived “almost immediately” at the site and informed Deysel that the soil opposite the shutterboard on the western side of the trench should be levelled. In my view Deysel’s evidence that he either had no recollection of his conversation with del Guidice or in fact did not have such a conversation was false and, in giving such evidence, he was clearly motivated by a desire to avoid having to explain the contents of their conversation.

In all the circumstances, taking into account the probabilities, I have no hesitation whatsoever in accepting the credible evidence of plaintiff and her witnesses to the effect that the soil was compacted by defendant’s labourers shortly after 07h00 on the morning of 17 February at a time before Sybok arrived on the scene and, therefore, in accepting plaintiff’s evidence as to how she came to fall. On her evidence the causal mechanism of the damage was the step taken by her on the loose stone concealed under the soil. The issue of the negligence, if any, of defendant has in all the circumstances been considerably narrowed down. Mr. Paterson submitted that such negligence arose from defendant having left a concealed stone or stones under a mound of soil where members of the public such as plaintiff were not only expected but invited to walk. In Kruger v Coetzee 1966 (2) SA 428 (A) the following was stated by Holmes JA at 430 E-H:

“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.”

In Pretoria City Council v De Jager 1997 (2) SA 46 (A) at 55H-56C the following was stated:

“The Council was obliged to take no more than reasonable steps to guard against foreseeable harm to the public. Whether in any particular case the steps actually taken are to be regarded as reasonable or not depends upon a consideration of all the facts and circumstances of the case. It follows that merely because the harm which was foreseeable did eventuate does not mean that the steps taken were necessarily unreasonable. Ultimately the inquiry involves a value judgment.”

It must be emphasised that because defendant was excavating the trench in a public street to which the public had access and that such an excavation could reasonably be expected to cause damage unless proper precautions were taken it was the duty of defendant to see that those precautions were taken. (Crawhall v Minister of Transport and Another 1963 (3) SA 614 (T)).

Del Guidice conceded, correctly, that the presence of the shutterboard constituted an invitation to plaintiff to cross the trench by means thereof. Indeed, it was with this very intention that defendant caused the shutterboard to be placed over the trench. It was an inevitable consequence of having crossed the shutterboard that plaintiff would have to traverse the mound of soil opposite it in order to gain access to the street. Having been invited to cross the trench at that point plaintiff was entitled to expect that she could walk up and over the mound with safety. (Compare Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (E) and the cases cited therein at 217G.) The mound appeared to her to consist of loose soil. There were no signs warning her of any possible instability of the mound or of any possible danger in crossing the mound. No stones were visible under the soil.

Del Guidice conceded in this regard that if the mound of soil was in fact loose, contained hidden stones and was not properly compacted the possibility of someone falling and injuring themselves because of the instability of the material was reasonably foreseeable. This concession was correctly made.

The diligens paterfamilias in the position of defendant would accordingly have taken reasonable steps to guard against such reasonable possibility by ensuring that the mound of soil was in a condition such as to enable plaintiff to cross it in safety.

It is apparent from the evidence that defendant took no such steps at all on the evening of 16 February. It is clear, however, that the possibility of harm to persons in the position of plaintiff was reasonably preventable. According to defendant it would have been a simple and easy matter for the excavator to have removed the soil opposite the western end of the shutterboard thus creating a level pathway to the street through which plaintiff could have walked. It would also have been a relatively simple and easy matter for defendant’s labourers to have compacted the soil on the evening of 16 February as indeed they did on the morning of 17 February. The compaction of the soil on 17 February rendered the soil in the mound sufficiently stable so as not to constitute any danger to members of the public and plaintiff herself stated that had the mound been compacted in the manner depicted on the photographs she would not have fallen.

In my view therefore defendant and its servants were negligent in the respects which I have enumerated at the outset of this judgment and their negligence resulted in plaintiff suffering damage as a result of the injury she sustained.

Mr. Louw submitted, however, that plaintiff was also negligent in relation to her damage. He submitted firstly that she negligent in not taking extra care when, having crossed the trench, she noticed that the mound of soil contained loose soil and many stones. I do not agree. As I have pointed out above there were no warning signs present; whilst there were loose stones lying around there were, according to plaintiff, no signs of any loose stones in the mound immediately opposite the shutterboard where she had to cross, the mound itself at that point appearing to consist only of loose soil; and, finally, she had been led to that very place by defendant’s action in placing the shutterboard there thus creating in her mind the expectations that she could safely cross at that point. In these circumstances she cannot be criticised, in my view, for attempting to cross the mound in the manner she did and she was not negligent in doing so. For these reasons too I am satisfied that there is no merit in Mr. Louw’s further submission that, regard being had to her weight and age, she should have called for assistance before crossing the mound. Mr. Louw did not seek to rely in this regard on Ncayo’s evidence concerning plaintiff’s alleged need for assistance when climbing up steps.

Mr. Louw next submitted that instead of crossing the trench by means of the shutterboard plaintiff should have rather chosen to walk either to the right along the side of the trench between her boundary wall and the trench down to Pundle street, or to her left to the tavern gate.

His submission that plaintiff should rather have proceeded to the right, an alternative which was vigorously and exhaustively explored by him during the first three days of the trial leading up to the postponement, was, in the end, only somewhat faintly persisted in by him during argument. In my view his approach during argument is entirely understandable. On the acceptable evidence there were some amount of spillage of soil onto the eastern side of the trench. Exactly how high or extensive this spillage was I find it unnecessary to determine, despite this matter having been the subject of considerable debate with the various witnesses during the course of the trial. The fact is that from the acceptable evidence the eastern side of the trench was not entirely free of obstruction. The gap between the unprotected eastern edge of the trench and the end of the wall was in the region of 1,6 metres. In my view it is entirely unrealistic to suggest that plaintiff, a generously proportioned woman, statuesque in build and weighing 130 kilograms, should have attempted to negotiate such a passage way between the unstable edge of the trench and the wall. No doubt had she done so and fallen into the trench her conduct would have been castigated by defendant as being highly negligent.

As to plaintiff proceeding to the left, it is apparent from photograph B9 that there was a very considerable amount of spillage of soil on the eastern pavement in the vicinity of the tavern. In my view it was not an option for plaintiff to proceed along the side of the trench in that direction. Mr. Louw submitted, however, that she could have proceeded through the backyard of her house, into the tavern premises next door, and then out of the tavern driveway. Apart from the fact that this suggestion was never pertinently put to her under cross-examination it is, in any event in my view, devoid of merit. Once it is accepted, as it must be, that the shutterboard was placed over the trench as a direct invitation to plaintiff to cross the trench at that point then it is difficult to grasp the basis upon which it is now suggested that plaintiff should have declined such invitation, turned around, and proceeded through her backyard to the tavern and hence to Nxenye street. It is even more difficult to grasp the basis upon which it is suggested that her failure to have done so constituted negligence on her part, much less the 80% negligence which Mr. Louw sought to ascribe to her conduct.

In my view accordingly the defendant has not discharged the onus of proving contributory negligence on the part of the plaintiff.

Defendant’s final throw of the dice was to invoke the defence of volenti non fit iniuria. In the light of defendant’s concession that it had in effect invited plaintiff to cross the trench by way of the shutterboard it is surprising that the defence was in any way persisted in. To uphold such a defence in the circumstances of this case would be akin to dismissing Little Red Riding Hood’s claim for damage sustained by her after entering her grandmother’s house at the invitation of the wolf.

The following order will issue:

1. It is declared that the defendant is liable to the plaintiff for such damages as she is able to prove in consequence of having fallen in Nxenye street on 16 February 2004.

2. The defendant’s plea of contributory negligence is dismissed.

3. The remaining issues are postponed for adjudication on a date to be arranged between the parties and the Registrar.

4. The defendant is ordered to pay the costs of the hearing of the issues already determined in this judgment, including the qualifying expenses of Professor Raubenheimer. Plaintiff is declared a necessary witness.

_______________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing on behalf of Plaintiff: Adv. T. Paterson

Instructed by Nolte Smith Attorneys

Appearing on behalf of Defendant: Adv. F. Louw

Instructed by Netteltons Attorneys

Date argued: 7 June 2006 (Judgment reserved)

Date delivered: 15 June 2006

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