Moufhe v Tzandeboo Construction (Pty) Ltd and Another (A260/2018) [2021] ZAGPPHC 872 (13 December 2021)

REPUBLIC OF SOUTH

AFRICA

IN THE HIGH COURT

OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA.

(1) REPORTABLE: NO

(2)

OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NO: A260/2018

In the matter between:

AVHAMBONI

JOHANNES MOUFHE

APPELLANT

And

TZANDEBOO CONSTRUCTION(PTY) LTD

RESPONDENT

ROAD AGENCY

LIMPOPO

SECOND RESPONDENT

Delivered:

This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to Parties / their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date of the judgment is deemed to be 13 December 2021.

JUDGMENT

NEMAVHIDI AJ

[1] This is an appeal against the Judgement of the High Court sitting in Pretoria. The appeal is not opposed, subject thereto that no order as to costs will be sought against the First Respondent.

[2] Leave to appeal to this court was granted by the Supreme Court of Appeal.

[3] The Appellant, is aggrieved by the High Court which prevented him from calling a further witness and an order of absolution from the instance granted against him with costs.

BACKGOUND OF THIS

MATTER

[4] The First Respondent was awarded a contract by the Second Respondent to construct a bridge in Fondwe village, in the Vhembe District of the Limpopo Province, after the bridge had collapsed due to heavy rains.

[5] Upon completion of the bridge the First Respondent left a concrete pipe unattended next to a sports field.

[6] The Appellant’s 13-year-old son and his friends were playing on the concrete pipe on the 31st of January 2012. He fell while he was on the rolling pipe which crushed his foot.

[7] The Appellant alleges that the injuries sustained by his son were caused by the sole negligence of the First Respondent who left the concrete pipe unattended after handing over the bridge to the Second Respondent.

[8] The Appellant and his son testified in court and when their Counsel wanted to call another witness, the Court prevented him as a result of which he had to close his case, resulting in the Court granting absolution from the instance with costs.

THE

LEGAL PRINCIPLE

[9] Absolution from the instance may be granted at the end of the plaintiff’s case, if the plaintiff has failed to adduce sufficient evidence upon which a reasonable court might grant judgement in favour of such plaintiff, or the plaintiff has not produced sufficient evidence to establish a prima facie case, in other words, a case of which all the elements of the claim have been proven.

[11] The test for absolution to be applied at the end of the plaintiff’s case is set out in the Gordon Lloyd Page and Associates vs Rivera and Another 2001(1) SCA at 92E as formulated in Claude Neon Lights SA v Daniel 1976 (4) SA 403 A at 409 - H.

[12] “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 the is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (should not, nor ought to) find for the Plaintiff”.

[13] If the above mentioned test is applied, a plaintiff must have delivered evidence relating to all elements of the claim.

[14] The onus is less stringent, as there should only be evidence which a court could or might find for the plaintiff.

[15] Absolution from the instance should not be granted lightly by courts and should only be granted in circumstances where the plaintiff’s case is so weak that no reasonable court could find for the plaintiff.

[16] In the present case the Appellant and his minor son’s case was not properly ventilated when Counsel for the Appellant was prevented from calling another witness to testify in support of the Appellant’s case.

[17] By preventing the Appellant from calling another witness the Court created a situation where the Appellant could not deliver all the evidence relating to the elements of the claim. We are of the view, however, that even on the evidence presented, a court could find for the Appellant.

[18] In addition to the order of absolution from the instance in these circumstances, the costs order also aggrieved the Appellant.

[19] The court only based its decision to grant an absolution from the instance on whether it was unlawful for the First Respondent not to remove the concrete pipe upon completion of the bridge.

[20] The Court a quo should have found that failure of the First Respondent by not removing the concrete pipe from the sports field might cause harm or danger to the children.

[21] On the evidence presented, a court might find that the First Respondent was negligent in living that concrete pipe at a place where children play.

[22] In Transvaal Provincial Administrator v Coley 1925 AD 24: Appellant administration through its servants planted a number of young trees upon a portion of the playground of a school under its control, and in order to protect the trees erected wooden stakes with sharp and jagged points round each tree. These stakes were pressed into the ground and brought together at the top in the form of a pyramid. The area covered by the trees had become overgrown with grass, and in that area a hole had been dug, and the earth heaped up at the side of it, forming a mound two or three feet in height. Respondent’s daughter, a child of six years, when playing on the mound ran down it and fell on one of the stakes, which pierced her eye in such a way that it had to be removed.

In Coley, at page 28, the following is stated: “[I] have come to the conclusion that a prudent and careful man, who gave his mind to the matter as such a person would naturally do, should have foreseen that the sticks with such sharp projections in the neighbourhood of the mound where children would naturally play, were a source of danger to very young children and sooner or later might result in injury. If the sticks had been placed in the middle of the playground where children are wont to play hockey, for instance, it can hardly be doubted that that would constitute negligence. And, apart from the presence of the mound in the immediate vicinity, there is also much to be said for the view that a prudent man should not have placed sticks where the accident occurred, for although they were not on the cleared space it was admitted that they were on ground which formed part of the playground”.

[23] The Appellant is litigating on behalf of the minor child and with deference to the court a quo, it should have been more cautious before granting absolution from the instance without hearing further evidence led by the Appellant.

[24] The Courts are the upper guardians of the children and although the Coley case was decided before the Constitution of the Republic of South Africa, 1996, the Court clearly decided in favour of the protection of children which is now envisaged in section 28(1) of the Constitution.

Consequently, the following order is made:

a) The appeal is upheld with costs.

b) The order granting the absolution from the instance is set aside.

c) The costs order granted against the Appellant in the court a quo is set aside and replaced with an order that costs be in the cause.

ACTING JUDGE OF

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

PRETORIA

I agree.

N

DAVIS J

JUDGE

OF THE HIGH COURT OF SOUTH AFRICA

MAKHOBA J

JUDGE OF

THE HIGH COURT OF SOUTH AFRICA

Date of Hearing: 01 SEPTEMBER 2021

Judgment delivered: 13 December 2021

For the Appellant: MR. SO Ravele (Attorney)

: Ms. IM Khosa (Attorney)

For the first Respondent: Thomas & Swanepoel Attorneys

For the Second Respondent: AM Vilakazi Tau Attorneys