Du Toit v Mangaung Metropolitan Municipality (155/2020) [2021] ZAFSHC 242 (22 October 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no. 155/2020

In the matter between:

DR

KATRINA DU

TOIT PLAINTIFF

and

MANGAUNG

METROPOLITAN MUNICIPALITY

DEFENDANT

CORAM: DE KOCK, AJ

HEARD ON: 19 AND 20 October 2021

JUDGMENT BY: DE KOCK, AJ

DELIVERED: 22 October 2021

[1] This is an action by the Plaintiff against the Defendant in respect of injuries she allegedly sustained on the 21st of September 2019 when a water meter chamber (the structure) collapsed causing her to trip, stumble and fall.

[2] At the commencement of the trial, by agreement between the parties the Court made an order in terms of Rule 33(4) separating the quantum from the merits. The trial proceeded on the merits only. The parties requested the Court to adjudicate paragraphs 1, 3, 4 and 5 of the amended particulars of claim read with the corresponding paragraphs of the Defendant’s amended plea. A bundle of discovered photos were handed in and marked exhibit “X”.

[3] The Plaintiff alleges that she fell and was injured because of the Defendant’s sole negligence and breach of its duty of care through its employees. The Defendant failed to maintain the structure in a proper state of repair, adequately warn members of the public, failed to do routine inspections to the structure to ensure that same was safe for the public, failing to put up/erect a barricade around the structure, take any and/or adequate measures thereby rendering the structure dangerous for the Plaintiff and members of the public.

[4] In the Defendant’s Plea the Defendant denies that it breached its duty of care and denies that the Defendant was negligent and/or any of its employees. The Defendant further in the alternative pleads that if it is found that the Defendant was negligent then the Plaintiff’s negligence contributed to her own injuries and damages. The Defendant also pleads voluntary assumption of risk by the Plaintiff (volenti non fit injuria). The Defendant specifically pleaded that the steel of the structure is coated with a red oxide primer to prevent corrosion. It is pleaded that at the site where the incident is alleged to have occurred and the water meter chamber is located there was ample space for the Plaintiff to complete conservative design walking speed of 1.2 m/s. It is pleaded that the position of the water meter chamber cater for normal pedestrian space which includes the Plaintiff. It is also pleaded that the measured walkway space of 1.9 meters wide from the water chamber and the electric streetlight, provided sufficient walkway space for the Plaintiff to walk or run without interfering with the municipal service structure. In addition, it was pleaded the road reserve complies with the safety and convenience of a pedestrian and cyclists as it provides sufficient on or off-road paths or sidewalks and the roadway width allows for vehicles to proceed safely at the operating speed intended for the class of that road. It was further pleaded that the water meter chamber was at all times visible to the Plaintiff to see during the day and night because of the red colour steel lead which is contrasted by green grass on the sidewalk.

THE EVIDENCE:

[5] A total of three (3) witnesses were called to testify at the trial. The Plaintiff testified on behalf of her own case. The Defendant called two (2) witnesses namely Mr Ikaelelo Likhi and Mr Samuel Baloyi.

EVIDENCE ON THE MERITS:

The Plaintiff’s case:

[6] The Plaintiff testified that she is a medical doctor. The Plaintiff testified that on the 21st of September 2019 at the corner sidewalk of Lukas Steyn Street and David Botha Street, the incident occurred. The Plaintiff testified that she had a problem with some of the vertebrae of her spinal cord, which led to severe pain and that she was under medical care in the form of physiotherapy. Her physiotherapist advised her to do walking as exercise on a progressive scale. The Plaintiff did this and on the particular day, being the 21st of September 2019 the Plaintiff and her husband walked on the pavement at the corner of Lukas Steyn Street and David Botha Street. The Plaintiff testified that they left their house at approximately 17h00. The Plaintiff testified that they walked down David Botha going to turn left into Lukas Steyn Street. The Plaintiff turned the corner and walked with her right foot on the structure and then her left foot, when both feet was on the structure the structure gave away and the Plaintiff fell forward. The Plaintiff fell flat and hurt her right leg. The Plaintiff was referred to photo 2 in bundle “X” in regard whereto she testified that the structure had four (4) plates. The Plaintiff was evenly referred to photos 9,10,19 and 20 of bundle “X” as in terms whereof she testified that each plate had two hinges and eight hinges in total. The Plaintiff testified that the second plate is the one that caused the incident.

[7] The Plaintiff further testified that on the particular day she wore supportive shoes meant for hiking as it was necessary for her back. There were no signs erected warning pedestrians of the fact that it might be dangerous to traverse the structure. This was the first time that the Plaintiff walked there as pedestrian. After the Plaintiff fell her husband went home. The Plaintiff lied for approximately 20 minutes in which time the Plaintiff had ample time to observe the structure. The Plaintiff observed that the hinges were rusted. All four hinges looked intact when the Plaintiff walked over the structure. Due to the spontaneous back injury that the Plaintiff incurred in 2019 the Plaintiff walked with great attention hyper focused because, every movement was painful. At the specific time the Plaintiff weighed 70 kg. On the 10th of September 2020 the incident was in the news on Network24. After the incident was on the news the water chamber/structure were repaired the number of plates changed, there were five (5) smaller plates with each three (3) hinges in total, fifteen (15) hinges. The Plaintiff were referred to photo 4 in exhibit “X”. The Plaintiff testified that the lid dropped when she stepped on it – it dropped approximately half a meter. It was further testified that the structure is approximately 3 meters from the Montana Townhouse complex situated in her neighbourhood.

[8] During cross-examination the Plaintiff testified that on the 21st of September 2019 the weather was nice, light, and clear and that she was the only one who stepped on the structure and not her husband. The Plaintiff advanced reasons as to why she did not walk on the 1.9 walkway but walked over the structure. The Plaintiff indicated that every single step she took was painful and she took the shortest distance. The Plaintiff indicated that the uneven grass terrain was painful. It was less painful to go up and down the structure than walking on the grass. The Plaintiff further testified did she did not want to walkover her husband. The Plaintiff further testified that the structure was visible.

THE DEFENDANT’S CASE ON THE MERITS:

The Defendant’s evidence:

[9] Mr Likhi testified that he was employed with the Defendant with Water and Sanitation and Water Demand Management. He testified that he worked there since 2014. He further testified that the water chambers fell under his division. He was referred to photo no. 2 in exhibit “X” in terms whereof he testified that the water chamber houses municipal water meters for residential areas and that it is situated opposite the Montana Guesthouse. He testified that he was on site during March 2020. He was on site at the structure to repair the steel plate, a new steel plate was installed. He testified that it is his observations that the steel plate was a bit damaged as in the photos before Court. According to his assessment that he made for the Defendant his finding was that the meter chamber was suitably placed, the chamber did not pose danger, it was visible, and the red colour were visible from the green grass.

[10] In regard to the Court’s question Mr Likhi admitted that the structure where the incident occurred belonged to the Defendant, alternatively the Defendant exercised control there over.

CROSS-EXAMINATION:

[11] During cross-examination Mr Likhi testified that he was present at the structure during March 2020 because of the pending case, the specific matter before Court. It was admitted that the hinges were loose and not attached and were hanging outside the structure down in the pit. He further testified that the water meters inside the structures are monthly read by someone of the Municipality. It was testified that the hinges might have become loose because of a significant load but that the structure can take the weight of a full-grown man. It was evenly testified that the structure could be failing because of previous vandalism. According to Mr Likhi the erection of a fence would be impractical. With reference to photos 11, 12, 13 and 14 contained in exhibit “X” it was conceded that it could have been corrosion. It was evenly testified that a car on the structure could cause damage to the hinge.

EXPERT EVIDENCE:

[12] Mr Baloyi on behalf of the Defendant testified that he has a master’s degree in Business Administration, Post Graduate Diploma in Project Management, Bachelor’s Degree in Civil Engineering, National Diploma in Civil Engineering, Labour Intensive Construction (NQFL 7) and Accredited Road Safety Auditor (SARF). Mr Baloyi’s primary profession is a civil engineer. He testified that his scope of work included the assessment of the current structures condition and whether sufficient provision has been made for pedestrians and traffic, whether it poses any treat to the public and the maintenance frequency of such structure. The position of the meter chamber is on the property line of the side within the municipal right of way. The steel of the structure was coated with a red oxide primer and paint which is a specially formulated coating that protects the surface from corrosion. The current condition of the structure is very sound and intact and there are no real defects. Mr Baloyi conceded to Court that he did inspection during April 2021. Mr Baloyi concluded that at Lukas Steyn and David Botha Streets where the water meter chamber is located there is ample space for young and elderly to complete conservatively design walking speed of 1.2 meters per second. The position of the water meter chamber caters for normal pedestrian space. Mr Baloyi concluded that the municipal water chamber has adequate footwear or sidewalk space which allows for pedestrians to walk on either side. The steel lids are well designed for covering the water meter chamber. The mountable curbs may allow traffic to park vehicles, to park over the water chamber structure. The water meter structure is currently in sound condition and there is no required maintenance at this stage.

[13] During cross-examination Mr Baloyi could not answer whether there was any maintenance plan in place. He testified that a pedestrian could pass over the structure and that it can take the weight. Mr Baloyi conceded that he did his report without the photos that were placed before Court. If he did his assessment based on the photos before Court in bundle “X” he would have recommended maintenance and that his conclusion would have been different and most importantly that the structure posed a threat to the public.

ANALYSES:

[14] The Court is convinced that the Plaintiff has the necessary locus standi and that the Plaintiff on the 21st of September 2019 at or near the corner/sidewalk of Lukas Steyn and David Botha Streets, in front of the residential complex of Montana Townhouses, Heuwelsig, Bloemfontein sustained injuries when the structure collapsed causing her to trip, stumble and fall. No evidence contradicting the latter has been advanced.

[15] The decision of the Supreme Court of Appeal in Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) deals with Municipality’s negligence. In the latter matter Marais JA held that a general legal duty could not be imposed upon all Municipalities to maintain roads and pavements but that the Plaintiff must place before the Court sufficient evidence to enable the Court to conclude that a duty to repair existed or that the public had to be warned, and failure to effect repairs or to warn the public was blameworthy. In the case of Judd v Nelson Mandela Bay Municipality (CA 149/2010) [2011] ZAECPHC 4 (17 February 2011), the Court emphasized the point that in such cases the failure on the part of the Municipality to repair and maintain roads and pavements would be held to be unlawful only if the legal convictions of the community demanded that preventative action had to be taken on the facts of each case. In Hirschman N.O. and Hirschman v Kroonstad Municipality 1914 OPD 37 it was decided that there is a duty on a landowner with regards to persons who are on his land as of right, to take all reasonable care to protect them from any danger due to the condition of the property. This was quoted with approval in BS v MS 2015 (6) SA 356 (GP) at 316 G.

[16] In King v Arlington Court (Muizenberg) (Pty) Ltd 1952 (2) SA 23 (CPD), Thompson J decided as follows:

“In my judgment it follows from Paine’s case supra that where a defect in premises is one which is likely to cause harm to others and is in itself of such a character it should have been discovered by the exercise of reasonable care on the part of the owner/landlord, the latter is negligent in permitting the defect to continue to exist.”

[17] In Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ) Heaton-Nicholls J stated the following:

“Property owners are obliged to ensure their property does not present undue hazards to the public or enter and use the premises.”

[18] In the matter of Stewart v City Council of Johannesburg 1947 (4) SA 179 (WLD), the Court held as follows:

“Pedestrians are entitled to regard sidewalks as safe and to proceed accordingly unless they are plainly warned to the contrary. The ordinary pedestrian does not proceed a sidewalk with his eyes glued to the ground. He does not expect to walk into excavations and obstructions on a paved sidewalk. The ordinary pedestrian walks normally looking ahead at about eye level…”

[19] It emerged during evidence and became common cause that the premises and/or structure where the incident occurred belong to the Defendant alternative that the Defendant exercise control there over. The structure is situated in a residential area close to the Montana complex. Thus, members of the public in particular the Plaintiff had access to the premises and the structure. The Court is of the view that the Defendant was aware that members of the public had access to the premises. It was conceded during evidence that the structure in the state as it was posed a danger to the members of the public. It is clear from the photos contained in exhibit “X” and the evidence that the welding of the hinges were either loose or became loose when stepped on it. The Court concludes that the Defendant had a legal duty to exercise reasonable control and to take reasonable steps to maintain the structure and to take reasonable steps to ensure the safety of the public.

[20] The further issue is whether the Defendant was negligent in failing to take the reasonable steps to maintain the structure, more specifically repair the broken structure or warn the public about it and place safety measures in place, such as a barricade and have a proper system of inspection.

The Court deems it fit to refer to the following case law. In McIntosh v Premier, KwaZulu-Natal and another 2008 (6) SA 1 (SCA) the following was said at paragraph [12]:

“As is apparent from the much quoted dictum of Holmes JA in Kruger v Coetzee 1 966 (2) SA 428 (A) at 430 E – F, the issue of negligence itself involves a twofold inquiry. The first is: was the harm reasonably foreseeable? The second is: would the diligence pater familias take reasonable steps to guard against such occurrence and did the Defendant fail to take those steps? The answer to the second inquiry is frequently expressed in terms of a duty. The foreseeability requirement is more often than not assumed, and the inquiry is set to be simply whether the Defendant had a duty to take one or other step such as drive in a particular way or perform some or other positive act and if so, whether the failure on the part of the Defendant to do so, amounted to a breach of duty.” (Own emphasis)

[21] In the locus classicus matter of Kruger v Coetzee 1966 (2) SA 428 (A) at p. 430 the following dicta appears:

“The purpose of liability culpa arises if –

(a) A diligence pater familias in the position of the Defendant:

(i) Would foresee the reasonable possibility of its conduct injuring another in its 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 fifty (50) years. Requirements (a)(ii) is sometimes overlooked. Whether a diligence pater familias 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 a particular circumstances of each case.”

[22] The structure as already alluded to is situated in a residential area. The broken structure posed a danger to the public. The Court is persuaded that the broken structure indeed constituted a trap to a pedestrian. The foreseeability test is satisfied in that it emerged from the Defendant’s witnesses’ evidence that the structure can be damaged by vandalism, a motor vehicle or corrosion.

[23] No evidence was placed before Court that on the 21st of September 2019, the structure was not dilapidated. Evenly no evidence was placed before Court that the Defendant had a sufficient system of reporting and maintenance. Even though the incident occurred on the 21st September 2019, Mr Likhi was called upon to attend to the dilapidated and broken water meter chamber only during March 2020, six (6) months later. It was in such a state of degradation that the Defendant gave a contractor the instruction to redo all steel doors of the water meter chamber. An extra door was added, and each door was then fitted with three (3) hinges as opposed to the previous two (2) hinges. Furthermore, no reliable evidence was placed before Court why a barricade could not be erected around the structure. It is clear from the photos contained in exhibit “X” that there were no warning signs erected.

[24] The Defendant’s defence that adequate walking paths for the pedestrians was available does not in the circumstances assist the Defendant.

It was conceded during evidence by the Defendant’s witnesses that people can walk on the structure and that it is supposed to sustain the weight of a full-grown man. The fact that red oxide was applied evenly does not assist the Defendant because no evidence was presented to Court when last red oxide was applied. Respectfully the contention that the structure was safe and according to standard when it at construction stage does not assist the Defendant. The question before Court is whether the structure was safe on the 19th of September 2019.

[25] The Court is satisfied that the Plaintiff has been able to show that the Defendant breached its duty of care. The Court is evenly persuaded that the Defendant was negligent and that the negligence led to the Plaintiff’s fall. The defence of volenti non fit injuria cannot assist the Defendant considering the evidence before Court.

[25] It has not been proven that the Plaintiff knew the risk, realized it and voluntarily undertook it.

[26] In regard to wrongfulness the Court refers to the judgment of Minister of Police v Ewels 1975 (3) SA 590 (A), it was stated at 597 A – B that:

“Conduct is wrongful if public policy considerations demand that in the particular circumstances the Plaintiff has to be compensated for the loss suffered by the Defendant’s negligent act or omission i.e. the legal convictions of the society regarding the conduct as wrongful.”

[27] With due regard to the latter stated case law and with the facts presented to the Court the Court is evenly of the view that the Defendant’s conduct is wrongful.

CONTRIBUTORY NEGLIGENCE:

[28] The onus is on the Defendant to show that the Plaintiff was contributory negligent. The Court is not persuaded that the Defendant succeeded in proving contributory negligence. In particular it cannot be said that the Plaintiff failed to walk in the “designated walkway” as there was no warning signs prohibiting the public to walk over the structure. It is clear from the Plaintiff’s evidence that she kept a proper look-out and moved at a slow pace. An adequate explanation was given as to why the Plaintiff passed over the structure instead of the grass. No evidence was presented by the Defendant as to what evasive manoeuvre the Plaintiff should have taken in the circumstances.

COSTS:

[29] It is trite that costs is in the discretion of the Court. As stated in this Judgment in the beginning of the proceedings the parties by agreement separate the merits and quantum. Since the Plaintiff successfully proofed the merits, the Plaintiff is entitled to a cost order.

[30] In the circumstances the following orders are granted:

ORDER:

1. The Defendant is liable to compensate the Plaintiff in full, 100% of the Plaintiff’s proven or agreed damages arising out of the incident that took place on the 21st of September 2019.

2. The Defendant is liable for payment of the Plaintiff’s taxed or agreed party and party costs in respect of the merits.

DE KOCK, AJ

For the Applicant: Adv L Pohl SC

Instructed by:

Honey Attorneys

Bloemfontein

For the Third Respondent: Adv P Masihleho

Instructed by: Moroka Attorneys