Tshose v Kyostyle (Pty) Ltd t/a Maponya Investment Holdings and Another (1205/2020 ; 2270/2021) [2024] ZANWHC 314 (31 December 2024)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

Case Number: 1205/2020 & 2270/2021

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

WINNIEFRED MATHILDA TSHOSE

Plaintiff

And

KYOSTYLE (PTY)LTD t/a MAPONYA

INVESTMENT HOLDINGS

[REG. NR: 2009/020096/07]

First Defendant

ELECTROX PROPERTIES (PTY) LTD

[REG. NR: 2008/017465/07]

Second Defendant

Heard: 17 OCTOBER 2024

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses.

The date for the hand-down is deemed to be 31 December 2024.

ORDER

The following order is made:

1. The defendants are liable for 100% of the plaintiff’s proven damages jointly and severally.

2. The defendants are ordered to pay costs of suit on scale B.

JUDGMENT

DJAJE DJP

[1] The plaintiff instituted an action against the defendants for damages suffered due to injuries sustained when the plaintiff tripped, stumbled and fell in Mega City Shopping Mall (“Mega City”). The incident occurred on 10 January 2019. The first defendant was at that time the owner and operator of Mega City. The second defendant was in control of certain areas in Mega City which included the area where the plaintiff fell. The parties agreed to a separation of merits and quantum and proceeded only on merits.

[2] It is not disputed that on 10 January 2019 the plaintiff was at Mega City, she tripped and fell in the passageway where construction in respect of tiling was taking place. In the main the dispute relates to negligence. The plaintiff’s case is that the defendants were negligent in failing to secure the area where the fall occurred. On the other hand, the defendants plead contributory negligence that the plaintiff failed to take cognisance of the warning signs erected at the entrance of Mega City and around the area where the fall occurred.

Plaintiff’s case

[3] The plaintiff testified that on 10 January 2019 she went into Mega City alone. She disputed that the entrance she used had any warning signs on that day. As she walked inside, there were no beacons to demarcate an area that should be avoided by the patrons in the mall. She reached the corner of the management office, and the floor was not covered with tiles completely and it was black. The tiles that were on the other parts of the floor were cream white and some were black. The areas where there were no tiles, the floor was black. It was not easy to differentiate the portions that were tiled from those that were not. As she was walking, she stepped into the area where there were no tiles and fell. She could not get up and one of the management staff asked the security officer to bring a wheelchair. The lady from the management office assisting her was Eunice. After her fall, the management placed a warning tape around the area where she fell. Her husband was called to take her to the hospital. The plaintiff was injured on her leg and arm.

[4] During cross examination it was put to the plaintiff that at the entrance that she used on that day, there was an indemnity notice and further that inside the mall there were signs indicating work in progress.

[5] The plaintiff’s husband, Mr Moses Tshose testified that on the day of the incident he had accompanied his wife to Mega City. He however remained in the car at the parking lot. He was called to come inside the mall, and he found his wife on the floor crying that she was injured and could not stand. He noticed that there were no warning signs or beacons around the area where she fell.

Defendant’s case

[6] The defendants called one witness to testify, Mr Caster Ntsako Makhubela. He testified that he was employed at Mega City by the first defendant as a tiler for a period of ten years as at the date of testifying. On 10 January 2019 he was working inside Mega City removing a broken tile. He worked until lunch time at 13h00. When he returned at 14h00 his manager informed him that a lady fell where he had been working with tiles. According to Makhubela, when he left for lunch three tiles were removed and he placed three red and orange cones around the area where he was working to warn patrons inside the mall. He further testified that there was an indemnity notice at the entrance used by the plaintiff since 2017.

[7] During cross examination, he explained that he worked from 8h00 until 13h00 removing the tiles and had all the equipment required to do the work with him. The equipment included cement mixer, bucket, cement and tiles. When he left for lunch, the equipment was removed except for the extension cords and the bucket. He disputed that he only started to replace the tiles after the plaintiff fell.

Issues to be determined

[8] The issues to be determined herein is whether the defendants were negligent in failing to properly secure the area where the plaintiff fell by placing warning signs/indemnity notice and cones when they had the duty of care towards the plaintiff. In addition, whether the negligence by the defendants resulted in the injuries suffered by the plaintiff from the fall.

Submissions

[9] The plaintiff argued that the duty was on the defendants to keep the floor of the mall safe for use by members of the public. Doing so by putting in place mechanisms that sufficiently warn patrons of any danger in the mall. The plaintiff’s case is that the fall was as a result of the defendants’ negligence by failing to ensure

that the floor was safe. The evidence of Makhubela was criticised as being improbable in that he testified about work equipment and warning cones at the work site when those were not visible to the plaintiff.

[10] In contention the defendants argued that there were indemnity notices placed at the entrances of the mall which were clear and visible providing as follows:

“PLEASE NOTE THIS COMPANY AND/OR THEIR EMPLOYEES WILL NOT BE HELD RESPONSIBLE FOR ANY DAMAGES, THEFT OF FIRE TO VEHICLES OR INJURY TO PERSONS HOWSOEVER CAUSED. ANYONE ENTERING THESE PREMISES DO SO AT THEIR OWN RISK AND VEHICLES LEFT HERE ARE AT THEIR OWNERS RISK”.

[11] The defendants’ plea around the indemnity notices is that the language on the notices is unambiguous and properly displayed. Therefore, the plaintiff should have seen it when she entered the mall. It was submitted that the defendants could not have opened an establishment as big as Mega City to the public without putting up disclaimer notices. The probability would be that patrons would walk into the mall and not read the said notices.

[12] In addition to the above the defendants pleaded contributory negligence in that the plaintiff failed to take cognisance of the warning signs erected where the fall occurred. Further that she failed to keep a proper lookout and not observe where she was walking. According to the defendants, the plaintiff failed to show that reasonable steps were not taken on the day of the fall to ensure that the mall premises were generally safe, and her claim should be dismissed with costs.

Law and application

[13] At the centre of this matter is the issue of negligence. The classic test for negligence was formulated by Holmes JA, in Kruger v Coetzee 1966(2) SA 428 (AD) at 430 E-G:

“For the purposes of liability culpa arises if –

a) a diligens paterfamilias in the position of the Defendant –

(i) would foresee the reasonable possibility of his conduct injuring another in his 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 50 years. Requirement (a)(ii) is sometimes overlooked. Whether a diligens paterfamilias 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 the particular circumstances of each case.”

[14] In the matter of Cape Town Minicipality v Bakkerud 2000 (3) SA 1049 (SCA) at par 31 Marais JA held that:

“It will be for the Plaintiff to place before the court in any given case sufficient evidence to enable it to conclude that a legal duty to repair or to warn should be held to have existed. It will also be for a plaintiff to prove that the failure to repair or to warn was blameworthy (attributable to culpa).

[15] The general principle of causation was reinstated in the case of International Shipping Co Pty Ltd v Bentley 1990 (1) SA 680 (A) at 700 E– I, as follows:

“As has previously been pointed out by this Court, in the law of delict causation involves two distinct enquiries. The first is a factual one and relates to the question as to whether the defendant’s wrongful act was a cause of the plaintiff’s loss. This has been referred to as ‘factual causation’. The enquiry as to factual causation is generally conducted by applying the so-called ‘but for’ test, which is designed to determine whether a postulated cause can be identified as a causa sine qua non of the loss in question. In order to apply this test one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant. This enquiry may involve the mental elimination of the wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether upon such hypothesis plaintiff’s loss would have ensued or not. If it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff’s loss, aliter, if it would not so ensued. If the wrongful act is shown in this way not to be a causa sine qua non of the loss suffered, then no legal liability can arise. On the other hand, demonstration that the wrongful act was a causa sine qua non of the loss does not necessarily result in legal liability. The second enquiry then arises, viz whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote. This is basically a juridical problem in the solution of which considerations of policy may play a part. This is sometimes called ‘legal causation’.”

[16] It is common cause that the plaintiff on 10 January 2019 was at Mega City mall, and she fell. As a result of the fall, she was injured and has now instituted a claim for damages against the defendants. It is not disputed that there were repairs on the tiles being undertaken inside the mall where the plaintiff fell. The cause of the fall is thus not in dispute. The defendants’ plea to the claim is that there were warning signs visible for the plaintiff to see and avoid the danger. Firstly, that there was an indemnity notice at the entrance of the mall and around the place of the fall there were red cones to warn the patrons. All this is being disputed by the plaintiff.

[17] The evidence for the plaintiff is to the effect that there was no indemnity notice and no cones warning of the repairs to the tiles. The floor where there were no tiles was black like the black tiles that were already installed. The plaintiff’s husband corroborated her evidence that there was no indemnity notice and no cones. The warning tape was only placed after the plaintiff fell. The are two conflicting versions in relation to whether there were warning and indemnity notices. In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003(1) SA 11 SCA the guidelines in the manner of dealing with irreconcilable versions was set out as follows:

“ … The technique… generally employed by courts in resolving factual disputes where there are two irreconcilable versions .. may be summarised as follows: To come to a conclusion on the disputed issues, the court must make findings on (a) the credibility of the various factual witnesses, (b) their reliability, and (c) the probabilities.”

[18] The defendant testified that at the time of the fall indemnity notices were put up at all the entrances. The only witness who testified to that effect was Makhubela and that the notices were put up in 2017. The incident happened in 2019. The argument by the defendants that an establishment as big as Mega City could not have been open to the public without indemnity notice does not speak to the facts at hand. The defendants need to prove that on the day of the incident there were indemnity notices at the entrance used by the plaintiff. Further that the notice was clear and visible to members of the public. That was not done.

[19] It was argued that there were cones at the place of the fall to warn the patrons of the incomplete tiling on the floor. There is no evidence that at the time the plaintiff fell the cones were there. According to Makhubela, he left the cones at 13h00 when he went for lunch. In addition to the cones there was a bucket and an electric cord. When the plaintiff fell, he was not present and as such cannot testify as to the position of the cones at the time of the fall. Both the plaintiff and her husband testified that the cones were not there. It is improbable that the plaintiff could not have noticed the cones and the equipment left on site. After the fall there was a lady called Eunice and a security officer who helped the plaintiff. Both

were employed at the mall and could have been called to testify.

[20] The credibility of Makhubela was criticised on the basis that he is bias due to the relationship with his employer. He painted a perfect picture of everything been done to prevent any damage befalling a patron at the mall. The challenge with his evidence is that it is not corroborated by anyone or any documentation, including the job card he was allegedly given on that day. His evidence relating to the work site is that he struggled to remember the equipment that he left at the site when he went for lunch or where he stored the rest of the equipment.

[21] The defendants should have foreseen the reasonable possibility of someone being injured because of the missing tiles on the floor. The version that there was an indemnity notice is unsubstantiated and rejected. The same goes for the evidence of the cones and working equipment left at the site. It is found to be improbable and speculative. The facts herein are that the plaintiff fell as a result of unrepaired floor inside the mall. The defendants failed to place warning signs to secure the place where there were no tiles. The floor was the same colour as the black tiles and the plaintiff could not have been able to differentiate the area where there were no tiles.

[22] The onus is on the plaintiff to prove on a balance of probabilities that the injuries sustained are as a result of the negligence of the defendants and in my view, there was enough evidence tendered to prove that. The defendants wrongful conduct of not putting up warning signs where there were no tiles resulted in the loss suffered by the plaintiff. It is on that basis that the plaintiff’s claim stands to succeed.

Costs

[23] The plaintiff has succeeded, and I see no reason why there should be a deviation from the normal cost rule that costs follow the result.

Order

[24] Consequently, I make the following order

J T DJAJE

DEPUTY JUDGE PRESIDENT

NORTH WEST HIGH COURT

APPEARANCES

DATE OF HEARING

: 10 SEPTEMBER 2024

JUDGMENT RESERVED

: 17 OCTOBER 2024

DATE OF JUDGMENT

: 31 DECEMBER 2024

COUNSEL FOR THE PLAINTIFF : ADV D SWART

COUNSEL FOR THE DEFENDANTS : ADV O NTSHOLE