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

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

The appeal was upheld because the High Court erred in preventing the appellant from calling a further witness, thereby denying him the opportunity to present all relevant evidence. The test for absolution from the instance requires only that there be evidence upon which a reasonable court could or might find for the plaintiff. The evidence presented, even without the additional witness, was sufficient for a reasonable court to find for the appellant. The failure of the first respondent to remove the concrete pipe from a place where children play constituted a foreseeable risk and potential negligence. The costs order against the appellant was also set aside, as the circumstances did not...

Citation
[2021] ZAGPPHC 872
Parties
Appellant: Avhamboni Johannes Moufhe; Respondent: Tzandeboo Construction (Pty) Ltd; Respondent: Road Agency Limpopo
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 December 2021
Case Number
A260/2018
Procedural Posture
Civil Appeal / Appeal From High Court Judgment; Leave to Appeal Granted by Supreme Court of Appeal
Outcome
Appeal upheld; order of absolution from the instance and costs order set aside.
Judges
Nemavhidi, N Davis, Makhoba
Legal Topics
Absolution From the Instance, Negligence, Children Safety, Prima Facie Case
Delict Civil Procedure Absolution From the Instance Negligence Children Safety Prima Facie Case

Case Brief

Summary, issues, holding and outcome

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Parties

Avhamboni Johannes Moufhe

Appellant

Tzandeboo Construction (Pty) Ltd

Respondent

Road Agency Limpopo

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment; Leave to Appeal Granted by Supreme Court of Appeal

Legal Issues

  1. 1 Whether the High Court erred in granting absolution from the instance against the appellant.
  2. 2 Whether the appellant was improperly prevented from calling a further witness.
  3. 3 Whether the evidence presented was sufficient for a reasonable court to find for the appellant.

Ratio Decidendi

The appeal was upheld because the High Court erred in preventing the appellant from calling a further witness, thereby denying him the opportunity to present all relevant evidence. The test for absolution from the instance requires only that there be evidence upon which a reasonable court could or might find for the plaintiff. The evidence presented, even without the additional witness, was sufficient for a reasonable court to find for the appellant. The failure of the first respondent to remove the concrete pipe from a place where children play constituted a foreseeable risk and potential negligence. The costs order against the appellant was also set aside, as the circumstances did not...

Court Disposition

Appeal upheld; order of absolution from the instance and costs order set aside.

Orders

  • The appeal is upheld with costs.
  • The order granting absolution from the instance is set aside.