Huber v Mafikeng Local Municipality and Another (386/02) [2005] ZANWHC 95 (2 November 2005)

IN THE HIGH

COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO.: 386/02

In the matter between:

NOBERT

BERNARD HUBER PLAINTIFF

AND

MAFIKENG LOCAL MUNICIPALITY 1ST

DEFENDANT

MAFIKENG RUGBY CLUB 2ND

DEFENDANT

MMABATHO

THLAPI

AJ

JUDGMENT

TLHAPI AJ:

INTRODUCTION

[1] The Plaintiff instituted action against the Defendants for damages for injuries sustained during a fall from the grand stand of the Mafikeng Rugby Stadium. The incident took place on 1June 2001. At the commencement of these proceedings it was agreed that the merits would be decided first and that the decision on the quantum be postponed sine die. The issues in the special plea were not proceeded with.

ISSUES TO

BE DETERMINED

[2] The court has to determine whether:

(a) there was negligence on the part of one or both defendants; and if so,

(b) whether there was contributory negligence on the part of the plaintiff.

FACTS

[3] Phillip Stephanus Van Dalen (“Phillip”) was the first witness to testify. He testified that he had gone to the Mafikeng Rugby Club in the early evening of 1June 2001. He was in the company of some friends. They went to sit near the top of the grand stand which was where they normally sat during functions at the Rugby Club. They were drinking beer and socializing. In the club house, situated next to the grand stand, is a pub where a private birthday party was been hosted that evening. He saw the Plaintiff approach them in the company of one Sammy and Eddie Cloete, Simon, Liezel and Roelien. They walked up the stand to sit with them. The Plaintiff sat with them for a while. Later the Plaintiff and Eddie went to fetch beer. They returned with the beer. After some time Plaintiff and Eddie announced that they were leaving. They went down the stairs. He heard Eddie scream and realised that the Plaintiff had fallen on the concrete slab below; next to a Toyota sign. He was bleeding from the face and was unconscious. They took Plaintiff to Victoria Hospital on a bakkie.

[4] A step was missing next to where they were sitting below. Those who frequented the grand stand and who played rugby knew about the missing step. Phillip was also present when Eddie Cloete made and signed a statement. He also appended his signature. Mr Wessels read this statement into the record.

[5] According to Eddie’s statement he accompanied the Plaintiff to the club to order a few beers for them and their friends. They proceeded to the grand stand about halfway up the stand and drank the beer with their friends. Later, they decided to go home. They together with the Plaintiff descended the grandstand. The visibility was poor. About the second step from the ground the Plaintiff missed a step. He fell head first on the concrete slab. The Plaintiff sustained a serious wound. Eddie and together with Flippie transported the Plaintiff to Victoria Hospital where plaintiff was air lifted by chopper to Flora Clinic in Johannesburg.

[6] Nobert Bernard Huber testified. He does not recall the incident. He is not a rugby fan and had never previously been in the vicinity of the grand stand.

[7] Roelien Fouche testified that earlier on during the day she was in the company of the Plaintiff and others at the Plaintiff’s house where they enjoyed a few drinks. She spent about three hours with the Plaintiff. She saw him taking intoxicating liquor. The Plaintiff, Sammy, Eddie, Gary, Liezel and herself decided, at a later stage, to go to the Rugby Club. They travelled in the Plaintiff’s bakkie. Eddie drove. They went to sit on the grand stand. She could not remember where they sat when shown the photograph. She did not see how the Plaintiff was injured. She only saw him lying on the ground. On their arrival the bakkie was parked at the end of the grand stand. They walked along the front of the grand stand and upwards to reach their seats where the others were already seated.

[8] Kim Farrell testified that on the day of the incident her father, Arnold Farrell, and Gampa Rossouw were hosting a joint birthday party at the Rugby Club. She frequented the place and used to go there as a child. It was between 22h00 and 23h00 hrs in the evening. She was in the company of Jeanne, Mary and a small girl. When she sits on the grand stand she usually goes to the top. But on this day they did not do that because of the presence of the small girl. They sat on the extreme right towards the middle of the grand stand as one moved upwards. They were the only ones sitting there. Later she saw other people walking up the grand stand from the opposite side towards the centre. She recognised Sammy Cloete and Gary Solomons. She did not know the Plaintiff. Gary came to greet them and invited them to join the group. They could not do so because of the little girl.

She testified further that foul language was being used by the other group. She then saw the Plaintiff stand up and say that he was going to fetch a drink at the bar. The Plaintiff moved in a diagonal direction descending towards the bar which is situated to the left of the grand stand. He lost his balance. It appeared as if he flew or dived from the upper end and fell on his head. As he was moving downwards she heard someone in her group say he was probably going to fall. After the Plaintiff fell, some of the men from his group went to him. She cautioned them not to move him lest he sustained injuries to his neck. The Plaintiff was taken away. She went to the bar to report the incident to her father. The Plaintiff did not fall or start his dive on the second step where there was a plank missing. It was further up. The Plaintiff was unusually loud and used foul language. He was under the influence of liquor. Plaintiff could not stand firmly. When he moved downward he was already off balance.

[9] Arnold Farrell testified that he has been the chairperson of the Rugby Club since the beginning of the year 2005. He had been involved with the club since 1995. He served as a treasurer for three years from 2001. He testified that the Rugby Club was responsible for the maintenance of the grounds, playing fields and the grand stand. A committee was responsible for club administration and fundraising which was the main source of income for the club. The Mafikeng Local Council has no control over the club and has never assisted in the maintenance of the grand stand and fields. An agreement of lease had been concluded between the Mafikeng Local Council and the Mmabatho Sports Association. The Rugby Club was affiliated to the Association and the Rugby Club would have been bound by this agreement. He did not know if the lease had been renewed. However the Rugby Club had continued to exist and operate in the terms of the agreement. This is still the position. The Rugby Club took out insurance cover for furniture and fittings as well as public liability. Repairs on the leased premises did not fall within the ambit of responsibility of the 1st Defendant. Repairs were effected as and when there were funds available. There were lights on the premises which were lit during every game. Those who frequented the grandstand including himself were aware of the missing step. Under normal

circumstances only members are allowed entry to the club. On this day he and Mr Rossouw hosted a private function. Members of the public, who had been invited, were present. Although the Plaintiff is known to him he had not been invited to the function. The Plaintiff was not a member of the club. He had not heard of the incident on the night it occurred. He received a report the next day. He went to investigate the scene. He saw a blood stain on the concrete slab.

[10] Mr Christopher (Gampa) Rossouw testified that he was the club manager between 1996 and 1997. He confirmed that he was one of the hosts of the party at the club on the date of incident. The club was responsible for maintenance since 1995. The 1t Defendant had never been involved in the maintenance of the premises. He saw the Plaintiff enter the club at about 21hrs. He informed the Plaintiff that it was a private function and that he was not welcome. The Plaintiff was under the influence of liquor and did not have a good balance. The Plaintiff wanted beer. He did not know if Eddie was in the Plaintiff’s company.

[11] A lease agreement was concluded on 14 April 1989 between the first Defendant and the Mmabatho Sports Association to which the 2nd Defendant is affiliated. The defendants had previously concluded a lease on 28 February 1967 for the lease of the playing fields and other improvements used by the club.

[12] Paragraph 9 of the lease agreement reads:

“While the LESSEE shall be responsible for the maintenance of good order and control of the land, the LESSEE in conjunction with

CLUBS shall endeavour to maintain good, orderly and proper use of the said property for all purposes directly associated and incidental to the sporting activities described in paragraph 4 supra”.

Paragraph 10 reads:

“The LESSEE shall at all times maintain all buildings, fences and structures on the said property in good order and shall endeavour to return them in such good order, fair wear and tear expected; at the termination of the lease”.

Paragraph 14 reads:

“The LESSEE agrees to indemnify and keep the LESSOR indemnified against all actions, proceedings, claims or demands, costs, damages and expenses which may be brought, levied or made against the LESSOR or which the LESSOR may incur or sustain by reason of any act omission or negligence on the part of the LESSEE, its employees, members or persons acting under its control or its members”.

No other agreement was concluded by the Defendants after the expiry of the lease. The parties have however indicated that is an oral agreement. They continue to be bound by the conditions of the lease agreement.

SUBMISSIONS

For the Plaintiff:

[13] The 2nd Defendant was in control of and responsible for the maintenance of the grand stand. It was therefore 100% negligent in that it was in control of a potentially dangerous situation and failed to exercise a duty of care against the possibility of such a dangerous situation materializing and harms the individuals frequenting the grand stand.

[14] The Plaintiff lost his balance at a point seen on photographs nine and ten showing a missing broad plank. It is below a point marked “X” by Kim Farrell (next to which appears a chip in a plank). As the Plaintiff moved downwards he focussed on the missing plank not realizing that there was one before this one, which had a chip in it, and into which he stepped thereby losing balance.

[15] In the event that contributory negligence is alleged, the defence bears the onus to prove that the Plaintiff’s conduct was negligent, having foreseen the possibility of harm befalling him as a result of the dangerous situation existing.

[16] The Defendants bear the onus to prove that the Plaintiff was drunk.

[17] The 1st Defendant has a duty of care to ensure that the amenities it owns and to which the public has free access are in a fit and proper state.

[18] Even though the 1st Defendant is indemnified against claims instituted against the 2nd Defendant, the 1st Defendant had the right of access to the premises to ensure that the premises are properly maintained and are in a safe condition. The fact that the Rugby Club has an obligation to maintain the premises does not exonerate the 1st Defendant. The Defendants are jointly and severally liable for damages suffered by the Plaintiff.

For the Defendants:

[19] The Plaintiff pleaded that he lost his footing where a plank was broken and/or missing. The Plaintiff did not plead that he fell as a result of a chip on a plank as he was descending the grand stand. No evidence was led to show approximately where it is alleged he lost his footing.

[20] The Plaintiff was drunk. He had been drinking before the incident. This was admitted in the pre-trial minutes. The Plaintiff did not miss the missing plank visible on the photographs. The photographs were in any event misleading in so far as they seek to point out where the Plaintiff started to fall.

[21] The photographs were taken six months after the event. No evidence was led to show that the planks were in the exact state as seen in the photographs at the time of the incident.

[22] There were contradictions between Eddie’s statement and the consultation notes filed as an annexure regarding the missing step.

[23] The Plaintiff has failed to discharge his onus in that there is no evidence which proves, on a balance of probabilities, that he fell as a result of missing a step as pleaded. The court should order absolution from the instance. Alternatively if it should be found that there was contributory negligence it should be 80% -20% against the Plaintiff.

[24] The 1st Defendant was not in control of the rugby stadium nor responsible for its maintenance and upkeep. It therefore did not owe any legal duty to the Plaintiff and no evidence was led to prove such fact. The Plaintiff failed to discharge his onus in respect of the 1st Defendant.

THE LAW

[25] It is important to deal firstly with the relationship between the Defendants regarding the leased property. In my view, a situation cannot be allowed to exist, where first defendant owns public property, and the second defendant is in control of and uses such public property, without proper agreements in place. Parties to a lease agreement are bound by certain express or implied obligations in the absence of which certain obligations are imposed by law. It becomes difficult when there is no written lease agreement or where parties have continued in this relationship without renewing the lease contract when such renewal becomes due. In this instance the courts will always fall back on the obligations as established by the common law.

[26] Among others, the lessor has a residual obligation to maintain the property or place it in a reasonably fit position for the purpose for which it is let, while the lessee’s residual obligation is to maintain the property in a good state of repair, fair wear and tear excepted.

[27] My interpretation of paragraphs 9 and 10 of the “lease agreement” does not necessarily mean that the 2nd defendant was responsible for repairing the dilapidated state of the grand stand at the time that the incident occurred. Nowhere in this paragraph does the word “repair” appear. In the absence of evidence tendered by the Defendants to establish the meaning of the words, to maintain. . . . . . In good, orderly and proper use, or maintain in good order fair wear and tear expected”, I am reluctant to hold that the 2nd Defendant was solely responsible for the repair of the dilapidated state of the grand stand as at the time of the incident and therefore it is solely answerable to the Plaintiff. In this regard the following text of A J Kerr, The Law of Sale and Lease 3rd edition at 307-308 reads:

“The importance of remembering that the lessor is contracting out of his residual obligations is apparent also when a meaning has to be given to the word “maintain”. If a lessee undertakes to “maintain” the premises in good repair he does not have to put them initially into that condition – that remains the lessor’s duty. A lessee who undertakes to maintain premises in the same good order and condition as he found them need not repair structural defects nor put the premises in a better condition than they were in when he took occupation. This, however, must be understood to refer to the overall condition of the premises because “repairing” may involve replacing worn out items with new ones and the new items, looked at in isolation, will be in a better condition than the old ones were in when the lessee took occupation.”

[28] In order for the Plaintiff to succeed in his claim against the Defendants he has to prove that the Defendants owed a duty of care and that they, being in control of the grand stand, reasonably foresaw the possibility that the dilapidated state of the seats/steps on such grandstand could cause damage and harm to those using it and that they failed to take reasonable steps to ensure that such harm does not occur (Kruger v Coetzee 1966 (2) SA 428; Barnard v Santam Bank [1998] ZASCA 84; 1999 (1) SA 202 (SCA) at 214 at A-B).

[29] It has been established from the evidence of the witnesses, except for the Plaintiff, that those frequenting the rugby stadium were aware of the dilapidated state of the grand stand stairs/seats. It has also been established that the grand stand was not only used during games, but whenever there was an occasion people would go up the grand stand to socialize and drink. According to the test for negligence, as set out in the Kruger case supra the defendants in the position of the diligens paterfamilias should have reasonably foreseen the possibility of injury being caused; they should have taken reasonable steps to guard against harm occurring, and that they failed to take the necessary steps. The Defendant’s are therefore not absolved by the fact that the users had the knowledge of the dilapidated state of the stairs/seats as seen from the photographs and that they continued to frequent and use them despite such fact.

[30] The Plaintiff said he could not remember how the incident took place. He testified that he had not been among those who frequented the rugby stadium and by inference would not have had knowledge of the dilapidated state of the stairs. It is his case that he sustained injury as a result of him losing his footing where a plank was broken and/or missing while descending the grand stand.

[31] In order to succeed the Plaintiff bears the onus to prove that the Defendants were negligent. On the other hand, Defendants in order to escape liability have to rebut the presumption of negligence. In deciding on who succeeds one has to look to the evidence. According to Roelien she was at the Plaintiff’s home during the day where she, together with others, including the Plaintiff drank liquor. Later in the evening, she together with the Plaintiff and others, went in the Plaintiff’s vehicle: (which was not driven by Plaintiff but by someone else) to the rugby stadium. Phillip testified that the Plaintiff and others came to join them on the grand stand. They were seated towards the top of the grand stand. The Plaintiff accompanied by Eddie went to fetch liquor at the pub and came back with it. They all drank and socialized for a while. Christopher Roussouw testified that he had seen the Plaintiff in the pub when he came for beer. According to him the Plaintiff was unsteady on his feet and he was under the influence of liquor. Kim Farrel testified that she saw Plaintiff descend the grand stand, saying he was going to fetch beer, immediately before the fall; Plaintiff was under the influence of liquor because he spoke loudly and used foul language. She saw him loose his balance. On this evidence alone the probability is that, indeed the Plaintiff was under the influence of liquor. This fact cannot be disputed.

[32] Having said this I now need to establish from the evidence where it is that the Plaintiff fell. The Plaintiff pleaded that he lost his balance as a result of a broken or missing plank on the grand stand as a result of which he fell thereby sustaining his injuries. I have to look at this in the light of the evidence of Kim Farrel and the statement of Eddie Cloete. Kim Farrel saw the incident as it happened. She saw the Plaintiff descending and that he was off balance during the decent due to the fact that he was under the influence of liquor; even before he fell there was apprehension from her side as well as from someone in her group that he was going to fall. She pointed to a place in the photographs where she believed that the Plaintiff started to fall. This is next to a plank which has a chip. This plank being higher than the place where there was a missing step/seat. In my view and having regard to the fact that the witnesses testified that visibility was poor, it cannot be said with certainty that that is exactly where he started to fall, it could have been in that vicinity.

[33] In his statement Eddie Cloete said that the Plaintiff fell as a result of the missing step, and in the consultation notes annexed to the papers he contradicts this version. Unfortunately his statement could not be tested by cross- examination, and his version is not the only one regarding the incident. Kim Farrel came forward as a credible witness. There is in my view no reason to doubt her testimony. The following was said by Els J in Ntsala and others v Mutual & Federal Insurance Co Ltd 1996 (2) SA 184 (T) at 190 E-F:

“……the onus rests throughout on the plaintiff to prove negligence on the part of the defendant. Once the plaintiff proves an occurrence giving rise to an inference of negligence on the part of the defendant, the latter must produce evidence to the contrary: he must tell the remainder of the story or take a risk that judgement be given against him”

I am therefore not satisfied that the Plaintiff has discharged the onus that the defendants were negligent. I therefore need not consider whether there was contributory negligence.

[34] In the premises and for the reasons above I make an order of one of absolution from the instance with costs.

___

V

V TLHAPI

ACTING

JUDGE OF THE HIGH COURT

Appearances:

For the Plaintiff : Adv J J Wessels

For the 1st Defendant : Adv N Gutta

For the 2nd Defendant : Adv J C Pieterse

Attorneys for the Plaintiff : Smit & Stanton

Attorneys for the 1st Defendant : Gura Tlaletsi Inc

Attorneys for the 2nd Defendant : Nienaber & Wissing

Date of Hearing : 26 September 2005

Date of Judgment : … December 2005

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