---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

 

CASE NO: 3626/2018

(1)    REPORTABLE:  YES/NO

(2)    OF INTEREST TO OTHER JUDGES:  YES/NO

DATE: 15/03/2024

SIGNATURE

In the matter between:

 

E[...] M[...] B[...] obo MINOR                                                                             PLAINTIFF

CHILD, K[...] B[...]

 

And

 

DR JS MOROKA LOCAL MUNICIPALITY                                                      DEFENDANT

 

 

JUDGMENT

 

Introduction and Facts

[1]        This is an interlocutory application for absolution from the instance brought in terms of Uniform Rule 39(6) read with Uniform Rule 39(20). The mother of a minor child instituted an action against the against the Defendant claiming damages resulting from the injuries allegedly sustained by the minor child when she was crushed by a storm water pipe allegedly belonging to the Defendant.

 

[2]        The Plaintiff alleged that on 13 February 2017 at Matshiding, a place falling within the Defendant’s area of municipal control, the minor child, while playing with her friends next to storm water pipes allegedly left by the Defendant’s employees or an unknown third party contracted to the Defendant, the minor child climbed on the storm water pipes and apparently fell and was ran over by one of those pipes. It is alleged that as a result of the aforementioned incident, the minor child suffered serious injuries consisting of skull fracture, bleeding in ears, nose and mouth, and injury to the eyes. After the incident, the minor child was taken to the local. The Plaintiff is claiming an amount of R4 255 000.00 for both patrimonial and non-patrimonial damages.

 

The Pleadings

[3]        The Plaintiff averred that the storm water pipes were under the control of the Defendant and were at all material times left unattended and not cordoned off. The Plaintiff further alleged that the Defendant had a legal duty to safeguard the storm water pipes in order to ensure that these pipes do not cause any harm to the members of the public. The Plaintiff further alleged that when the minor child’s grandmother went to the Defendant’s offices to report the incident, the Defendant through its ward counsellor, paid a visit to the plaintiff’s family and offered them R5000 in compensation.

 

[4]        The Defendant on the other hand contended that the incident did not happen because the site in question was at all material times properly cordoned off. It further contended that if any loss is recoverable from the Defendant, such loss should be reduced to such extent as is just and equitable having regard to the degree to which minor child materially contributed to its loss, as contemplated by Section 1(1)(a) of the Apportionment of damages Act 34 of 1956. The Defendant further disputed that the alleged sympathy payment made to the family of the Plaintiff was an admission of any liability by the Defendant. It alleged that the payment was ostensibly made by a ward councillor, JT Mkoneni, in his personal capacity and not on behalf of the Defendant.

 

The Evidence

[5]        The Plaintiff adduced the evidence of two witnesses Ms B[...] B[...] and Ms E[...] B[...] who are the grandmother and mother of the minor child respectively.  It must be stated from the onset that these two witnesses were not present when the actual incident took place and could therefore only testify about what they observed after the fact and what they were told by those who were at the scene. Ms B[...] B[...] said she arrived at the scene after the accident had already happened and found the child already injured and bleeding from the mouth, nose and ears. She stated that she was informed by the minor child’s older brother who was allegedly at the scene when the incident took place. He was apparently 12 at the time of the incident and now 19 years of age. Ms B[...], however, stated that she could not with certainty say whether the brother was at the scene when the incident took place.  I pause to mention that this brother to the minor child was not called to testify about what happened.

 

[6]        Although it was not clear who told Ms B[...] what happened, what remains is that she only relied on hearsay evidence regarding the incident in question. Although she could not back it up, Ms B[...] alleged further that the storm water pipes belonged to the Defendant and that the Defendant acknowledged their fault by paying the family R5000 apparently as acknowledgment of the child’s injuries and also as compensation. She testified that the pipes were delivered to the employees of the defendant, and they were there for a long time without it being cordoned off.

 

[7]        The mother of the child Ms E[...] B[...] was in even more difficult position as she basically had no personal knowledge of the incident and could not therefore shed any further light thereon. She did not see how the incident and did not even attend to the scene of the accident after it happened. She was basically informed of what happened to her child and all her evidence constitute hearsay evidence. She, however, also testified that she received a sympathy payment from the local ward Councillor apparently paid as compensation for the injuries. The Defendant challenged the payment in question and contended that it was not a payment made by the Defendant but by a councillor acting in his personal capacity and not on behalf of the Defendant. Although Ms B[...] insisted that her evidence in this regard could be corroborated by that of the councillor, it must be mentioned that the latter was never called to substantiate her claims.  Ms B[...] also testified that she was not aware of any storm water pipes until the incident took place. This was the only evidence placed on record by the Plaintiff who then closed its case.

 

[8]        After the Plaintiff closed its case, the Defendant brought an application for absolution from the instance in terms of Rule 39(6) and contended inter alia that the Plaintiff had failed not only to establish how the minor child came to be injured, but also failed to establish liability on the part of the Defendant towards the Plaintiff. The Defendant contended further that by failing to call witnesses who saw the incident happen and by failing to prove that the Defendant made any acknowledgement of liability the Plaintiff had failed to make out a prima facie case against the Defendant.

 

[9]        When absolution from the instance is sought at the close of the plaintiff’s case the test to be applied is “… not whether the evidence led by the Plaintiff established what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonable to such evidence, could or might (not should, nor ought to) find for the Plaintiff.” Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) AT 409G-H.

 

[10]      Further, it is trite as enunciated in Ntsala and Others v Mutual & Federal Insurance Co. Ltd 1996 (2) SA 184 (T), that in damages claim the onus rests on the Plaintiff to prove negligence. In order to succeed with the claim, the Plaintiff has to show that the Defendant was guilty of the conduct which was negligent, wrongful and which most importantly was the cause of the damages.  The test for negligence is to be found in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G.  ‘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.

 

… 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…’

 

Discussion

[11]      When considering such an application the court must consider whether there is evidence upon which a court, applying its mind reasonable to such evidence, could or might find for the Plaintiff. When considering adduced in this matter it is common cause that it is mainly hearsay. None of the witnesses called by the Plaintiff to testify could testify about the incident which gave rise to the claim. They could not give a clear and probable version regarding the alleged injuries suffered by the minor child. The grandmother and mother of the minor child were not at the scene when the incident occurred and therefore could not testify to it. The only admissible evidence by the grandmother is that the child was injured. However, despite this allegation, no attempt was made by the Plaintiff to lead evidence proving that the child was indeed injured as alleged or that the injuries are compatible with the alleged occurrence.

 

[12]      Furthermore, the grandmother contradicted herself on an important aspect concerning the position in which she found that child there. In her evidence in chief, she stated that she found the child still under the pipes and had to remove it in order to free her. However, under cross examination she stated that on her arrival the pipe was on the side of the child and not on top as she earlier testified. When probed further she explained that the pipe rolled away from the child after crushing her. In addition to her version being predominantly hearsay, this contradiction also puts the credibility of Ms B[...] evidence into question. Although contradictions and credibility do not normally feature at this stage, it is however relevant in this case especially given the deficiencies in the evidence as alluded to above.  

 

[13]     Over and above the problems attendant to the evidence of the grandmother and mother, the minor child was also not called to testify probably due to her age even though nothing was placed on record in this regard. However, despite the evidence that her older brother, who was 12 years of age at the time, was present at the scene when the minor child was injured, he was not called to testify about the incident and how the minor child was injured even though he is now 19 years of age.  

 

[14]      Further, another aspect which seems to be lacking from the evidence presented by the Plaintiff is that which relates to the ownership of the pipes and how they were kept at the site. The only evidence suggesting that the pipes belong to the Defendant is that of the grandmother who stated that they were delivered by the employees of the Defendant. She, however, does not say how and when these pipes were delivered and how she knows that the delivery was made by the Defendant’s employees. No attempt was made to adduce evidence to establish that the pipes indeed belonged to the Defendant or were under the control of the Defendant.

 

[15]      Furthermore, in the light of the above and in particular the failure to establish that the incident took place, the assertion that after the incident happened, the Defendant through a ward counsellor paid R5000 cash in compensation does not take the Plaintiff’s case any further. It cannot be concluded on the basis of the payment of the money by the councillor that the Defendant directly or indirectly conceded any liability as alleged by the Plaintiff. That the money was paid in cash by hand makes the suggestion by the Plaintiff implausible. On the other hand, this fact supports the Defendant’s case as a Municipality has to follow certain procedures in order to make payments to anyone.  It is unheard of Municipality to pay cash for compensation, sympathy or even for services. In the light of these factors the Defendant’s contention that the incident was not reported is probable.

 

Conclusion

[16]      In conclusion I find that the Plaintiff has failed to establish a prima facie case that the incident complained of did take place as alleged. The Plaintiff has further failed to present evidence to establish that the minor child was injured. In addition, the Plaintiff failed to establish prima facie negligence on the part of the Defendant. The evidence presented by the Plaintiff simply falls short required threshold and it accordingly cannot be said that there is evidence based on which a reasonable man might find in favour of the Plaintiff. In addition, based on the evidence before court, no reasonable inferences can be drawn in favour of the Plaintiff. In the light of these deficiencies the application for absolution from the instances should be granted.     

 

Order

[17]      In the result I make the following order:

 

            Absolution from the instance is granted with costs.

 

 

MBG LANGA

JUDGE OF THE HIGH COURT

MIDDELBURG LOCAL SEAT

 

Appearances:

Counsel for the Plaintiff:	Adv MB Hlungwani
Counsel for the Defendant:	Adv TN Mlambo
Date of hearing:	19 and 22 February 2024
Date of judgment:	15 March 2024

 

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 15 March 2024 at 11h00.

---