Nyamela v King Sabata Dalindyebo Local Municipality (1824/12) [2014] ZAECMHC 44 (27 November 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION MTHATHA

CASE NO. 1824/12

In the matter between:

NOMBULELO DORIS NYAMELA

Plaintiff

and

KING SABATA DALINDYEBO

LOCAL MUNICIPALITY

Defendant

JUDGMENT

GRIFFITHS, J.:

[1] This is an action for damages arising from an incident which occurred during the course of the evening of 14 September 2011 when the plaintiff fell into a hole and suffered severe injuries.

[2] At the outset of the trial I was informed by Mr. Qitsi, who appeared on behalf of the plaintiff, that it had been agreed that the issues of liability and quantum would be separated and that only liability would be dealt with at this stage. I accordingly made a ruling to this effect in terms of Rule 33(4). I was next informed that the issues to be tried were the following:

1. Whether the person or persons who created the hole into which the· plaintiff fell at Mandela Park (next to the National Road (R6l)), Mthatha, were workers of the defendant and/or were working for the benefit of the

defendant.

2. Should it be so established, whether the defendant's employees or persons who performed the work for the benefit of the defendant were negligent in leaving the hole uncovered.

[3] The plaintiff pleaded the following at paragraph 3 of her particulars of claim:

"At all times material hereto:-

3.1 The defendant had a legal obligation to provide water drainages (sic) along the national Road (R61) within its jurisdiction.

3.2 The defendant had a legal duty to protect people from being injured by the holes which provides drainages (sic) which drainage (sic) water along the roads within its jurisdiction.

3.3 The defendant had a legal duty to protect people from injured (sic) by those holes by fencing around the holes or provides (sic) drainage caps (sic) in order to close the holes."

[4] All these allegations were denied by the defendant, as were the grounds of negligence pleaded by the plaintiff. To an allegation that the defendant's employees acted wrongfully as they had breached a legal duty to ensure the safety of the people in the area, the defendant specifically pleaded that no

employees of the defendant had in fact executed the duties alleged, i.e., it was made quite clear that the defendant denied having excavated the hole or having had anything whatsoever to do with it.

[5] As against this background, Mr. Qitsi led the evidence of one witness in supp01t of the plaintiff's case. That was the plaintiff herself who testified that on the day in question she had alighted from a taxi and had walked a distance of approximately 2 m. It was dark at the time and she had not noticed the hole into which she had fallen, as a result of which she was injured. The hole was not covered and was quite large as her entire body fell into it. She stated that there were stones in the hole and that it was completely dark inside.

[6] She had never been back to the hole and could not thus describe it any further. However, five photographs were admitted in evidence as being a true reflection of the condition of this hole as at the time when she fell into it. These photographs indicate a reasonably deep hole which was lined with stones of some sort, the base consisting of wet sand or mud. There· appears to be a drainage pipe entering the hole and the hole itself is clearly situated within one or two meters of the side of the aforementioned road.

[7] The plaintiff also testified that the area, for various reasons, fell within the area of jurisdiction of the defendant but conceded during the course of evidence that no drainage system had been installed by the defendant in Mandela Park where this hole was to be found.

[8] Upon the plaintiff losing her case Mr. Kunju, who appeared on behalf of the defendant, immediately applied for absolution from the instance. This was

opposed by Mr. Qitsi. The test for absolution was crispy set out by Harms JA in Gordon Lloyd Page and Associates v Riviera [1] as follows:

"The test for absolution to be applied by a trial court at the end of a plaintiff s case was ·formulated in Claude Neon Lights (SA) Ltd v Daniel 1 976 (4) SA 403 (A) at 409G - H in these terms: ·

1 • • • (W)hen absolution from the instance is sought at the close of

plaintiff s case, the test lo be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).)'

This implies that a plaintiff has to make out a prima facie case - in the sense that there is evidence relating to all the elements of the claim - to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated ·in different terms, especially it has been said that the court must consider whether there is 'evidence upon which a reasonable man might find for the plaintiff (Gascoyne (loc cit)) - a test which had its origin injury trials when the 'reasonable man' was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another 'reasonable' person or court. Having said this, absolution at the end of a plaintiff's case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice ."

[9] Mr.Qitsi has submitted that a prima face a case has been made out. He has submitted that, despite one of the issues clearly being the question as to whether or not the defendant's employees, or others acting for the defendant's benefit, excavated the hole and failed to protect the public from the dangers presented by it:"...it is not the issue that the Plaintiff should know who actually dug and built that water drainage. The Court cannot allow Defendant to make an excuse by the fact that the Plaintiff does not know who dug the hole. It is enough to fi nd that the water drainage is within the jurisdictional area of the defendant. "In elaborating on this submission, he submitted further:

"I am making this submission looking at the number of decided cases involving negligence of the municipalities because municipalities are liable even for the dangerous pavements which are just damaged by nature which are left unattended by the municipality."

[10] For this proposition he has relied in two cases, Rose Lillian Judd v Nelson Madela Bay Municipality [2] and Adam Richard James v City of Cape Town[3].

[11] The plaintiff sues in delict. She was accordingly required to prove the following:

"(a) the commission or omission of an act (actus reus), (b) which is unlawful or wrongful (wrongfulness), (c) committed negligently or with a particular intent (culpa or fault) (d) which results in or causes the harm (causation) and (e) the suffering of injury, loss or damage (harm). These are separate and distinct components of the same delict, each having its own requirements and test."[4]

[12] It seems clear to me from the aforementioned denials by the defendant in its plea as read with the agreed issues, that the defendant denied the actus reus which, in this case, is in the form of an omission to protect the plaintiff from the dangers presented by the hole. It was therefore incumbent upon the plaintiff to prove that it was indeed the defendant who either constructed the hole through its employees or that it was in some other manner responsible for the dangers presented by the hole: In my view, no evidence whatsoever has been tendered by the plaintiff to establish this. The mere fact that the hole may be within the area of jurisdiction of the defendant cannot imbue it with liability by any stretch of the imagination. It may well be, for all I know, that this particular hole was excavated by whoever constructed the road, referred to by plaintiff s representative as the "National Road", and not the municipality. Even if, as have said, the road and the hole fall within the area of jurisd iction of the defendant but had been dug by another entity altogether such as the National Government or SANRAL, or even the 0 R Tambo Mmunicipality in whose jurisdiction this hole also falls, the defendant cannot be held responsible simply for that reason.

[13] The aforementioned cases to which Mr. Qitsi has referred are clearly distinguishable. In both of them the defendants, being the municipalities concerned, accepted responsibility for the maintenance of, in one instance, the pavement concerned and, in the other, the storm water drain. In the present matter the defendant has not so accepted responsibility and has pertinently denied this in its plea. It thus remained incumbent upon the plaintiff to prove this issue which she clearly has not.

[14] In my view, even making allowances for as many inferences as one might from the evidence presented by the plaintiff, there is simply no evidence upon which a court could or might find for the plaintiff and I therefore conclude that the plaintiff has not made out a prima facie case. This is an unfortunate result as it does appear that the plaintiff has a reasonable case as against whoever is indeed responsible for this hole. However, the order which I am about to grant this does not necessarily close the door on the plaintiff s right of action,

depending on questions of

prescription.

[15] In the result;

I grant absolution from the instance in favour of the defendant, with costs.

HEARD ON : 05 NOVEMBER 2014

DELIVERED ON : 27 NOVEMBER 2014

COUNSEL FOR PLAINTIFF :

Mr. Qitsi

INSTRUCTED BY :

Ntsiki Mthambeka & Associates

COUNSEL FOR DEFENDANT :

Mr. Kunju

INSTRUCTED :

S. Booi & Sons Attorneys

[1] 2001 (l) SA 88 (SCA) at 92 -93

[2] Unreported case No.CA 149/2010 (ECD -Full Bench)

[3] Unreported case No. I 178512009 (WC)

[4] See Judd's case supra at paragraph 8