Van Aswegen v Minister of Justice and Constitutional Development and Another (14363/2013) [2016] ZAGPJHC 359 (21 December 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

21/12/2016

CASE NO: 14363/2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

JOHAN F VAN ASWEGEN Plaintiff

and

THE MINISTER OF JUSTICE

AND CONSTITUTIONAL DEVELOPMENT First Defendant

THE MINISTER OF PUBLIC WORKS Second Defendant

JUDGMENT

MPHAHLELE J

[1] The plaintiff sues the defendants for damages arising out of injuries sustained by the plaintiff on 17 June 2011 as a result of the plaintiff falling from the stairs at Tzaneen Magistrate's court.

[2] The plaintiff claims that his falling was caused by the negligence of the officials in the employ of the first, alternatively second defendant, and further alternatively both defendants.

[3] At the commencement the trial I was informed that the parties had agreed to separate the issue of merits and quantum in terms of rule 33 (4) of the uniform rules of the High Court. I accordingly granted the order in the matter and proceeded in respect of the merits of liability only and the issue of quantum was postponed sine die.

[4] The plaintiff called three witnesses in support of his case, namely Mr. Stefanus van Rensburg, an attorney representing the plaintiff, who was present when the plaintiff fell on 17 June 2011, Mr Johannes Maarten Jansen van Vuuren,a technical engineer and the plaintiff himself. Mr Hasani Derrick Mutarini, the acting court manager on the day in question, testified on behalf of the defendants.

PLAINTIFF’S VERSION

[5] Mr Stefanus Janse van Rensburg (Van Rensburg) is an attorney practicing in Tzaneen. He testified that he represented the plaintiff

in a criminal matter in the Tzaneen district court on 17 June 2011. After the court adjourned he exited the court building using the stairs made of steel at the entrance of the building and waited for the plaintiff on the concrete at the bottom of the stairs.

[6] Looking back Van Rensburg noticed the plaintiff on top of the stairs with his right­ hand on the door. The door swung open and the plaintiff lost his balance and fell down on the ground. He fell down while still holding onto the door. The plaintiff was clearly in pain and was taken by ambulance to hospital.

[7] Mr Johannes Maarten Jansen van Vuuren (Van Vuuren), a professional technologist, testified that he did an inspection in loco at the scene of the incident on 26 August 2015. He took some photographs including the space leading to the court room. He observed that there were no sign boards or signage or marks indicating the steps ahead.

[8] The court building exit door opened up to the outside. The National building regulations and SANS requires a landing in front of the door before the stairs begin. The landing should be the same width of the door width fully opened. During the inspection in loco it was evident that no landing was provided in front of the door opening up to the outside. It is his opinion that the failure to provide a proper landing is a direct result of the accident and the accident could have been averted by providing a proper landing area.

[9] He also noted that the step risers were not consistent in dimension. The measurements were noted as follows: edge of door to first step 195 mm; first step to second step 216 mm; 2nd to 3rd step 213 mm; 3rd to 4th step 241 mm; fourth step to landing 190 mm. The inconsistency of the dimension could also contribute to a person misjudging the steps resulting in a person to slip and fall. The National building regulations and SANS 10 400 specification of risers is 175 mm riser. In this case the risers were all in excess of 175 mm and varied between 190 mm and 241 mm.

[10] The National building regulations and SANS 1O 400 specification for a step tread depth is 250 mm minimum with a maximum of 30 mm nosing with an effective step tread depth of 220 mm. He measured the tread depth of step 1 to 3 as 216 mm and a nosing of 44 mm the step effective tread depth of 172 mm. This is way out of the required specification and will result in a person to miss a step, slip and fall resulting in injuring him or herself.

[11] The National building regulations and SANS 10 400 specifications require stairs of three and more risers to have a hand railing to be provided for one side at least. He observed that this was not present at the staircase where the incident occurred. By the provision of hand railing to the stairs, a person can grab onto the railing in order to assist them not to fall down and injure themselves. Mr Van Vuuren was of the opinion that the stairs were non-compliant and unsafe for public use and that the incident could have been prevented if the necessary safety requirements had been met.

[12] The plaintiff testified that on 17 June 2011 he attended at Tzaneen magistrate's court. On exiting the court building, he found the door closed. He held the door handle and the door swung open to the outside. With his hand holding onto the door handle, he then put his foot next to the door frame, the handle twisted and broke loose and his hand slid out of the door handle and he lost his balance. He then fell next to the pole and piece of cement. When exiting the building, there was no warning sign inside the building about the dangers posed by the stairs. There were no railings on the staircase to hold on in order to avoid the fall. There was also no landing area on exiting the building.

[13] The plaintiff denied that the fall was a plot to avoid his court appearance. He stated that when he came around after the fall, he was in terrible pain. He asked his attorney and the other people in attendance to help him sit down and lean against the stairs. He remained in that position until he was taken away by an ambulance. He confirmed that on entering the court he had walked into the court without any hindrance. He had at that time observed that there were no railings and that he had to be more careful. He was adamant that there was no signage cautioning the public about the stairs.

DEFENDANT’S VERSION

[14] Mr Hasani Derrick Mutarini is an administrative officer at the Tzaneen magistrate court. He attended the scene of the incident on 17 June 2011. He found the plaintiff sitting very close to the court building on the grass. The plaintiff’s attorney informed him that the plaintiff fell from the stairs. Nobody pointed out to him the stairs from which the plaintiff fell. He then looked around and did not notice any broken stairs. There was no indication that the plaintiff was injured. Nevertheless, he was one of the people who assisted the plaintiff to go into the ambulance. He was adamant that the warning signs in respect of the stairs were placed next to the court entrance in or about March 2010. The signs were still in existence on 17 June 2011.

[15] The defendants pleaded that they were not negligent as suggested by the plaintiff in that the defendants had put a sign warning members of the public who use the court to be cautious and careful about the stairs. The defendants alleged that due to the structure of the court building, the plaintiff could not have fallen from the stairs and that the nature and extent of the plaintiffs alleged injuries could not have resulted from a fall from the stairs.

ANALYSIS AND CONCLUSION

[16] This court is called upon to determine whether the plaintiff fell from the stairs and injured himself.

[17] The plaintiff and Mr Van Rensburg were credible and reliable witnesses and their evidence was not seriously challenged by the

defendants. The evidence of Mr Jansen van Vuuren that, the stairs did not comply with the National Building Regulations and SANS standards was not challenged or disputed.

[18] Mr Mutarini, the witness for the defence, was not a credible witness. He was very evasive when giving his testimony. He could not deny that the plaintiff in fact fell from the stairs. His observation that none of the stairs were damaged could not assist the court in determining whether the plaintiff fell from the stairs or not. His evidence that the warning sign alerting members about the stairs was in existence on 17 June 2011 is inconceivable. The sign was apparently placed there in or around March 2010. The sign is a piece of paper, very indistinct, and not placed directly next to the stairs for it to be noticeable.

[19] For his claim to succeed, the plaintiff has to establish that a reasonable person

(diligens paterfamilias) in the position of the defendant:

[19.1] would foresee the reasonable possibility of his conduct (whether an act or omission) injuring another in his person or property and causing him patrimonial loss; and

[19.2] would take reasonable steps to guard against such occurrence and that the defendant failed to take such steps. (See Kruger v Coetzee 1966 (SA) 428 (A)).

[20] Whether a reasonable person would have taken steps to guard against foreseeable harm, involves a value judgment. 4 useful considerations

are: the degree or extent of the risk created, the gravity of the possible consequences, the utility of the actor's conduct and the burden of eliminating the risk. (See City Council of Pretoria v de Jager 1997 (2) SA 46 (SCA).

[21] There must be a good reason for buildings to comply with minimum building standards as prescribed and regulated by law. Failure to comply with such minimum standards is in my view not only unlawful but also prima facie proof that the affected section of the building is not safe for use by the public. The stairs posed more danger to a person leaving the courtroom due to the inconsistency in dimension of the step risers. Further the exit door opened to the outside but there was no provision for landing in front of that door. These could result in a person to miss a step, slip and fall resulting in injuring him or herself.

[22] I find no basis on which I should reject the evidence for the plaintiff. I am satisfied that the plaintiff has established on a balance of probabilities that there was no notice warning members of the public about the stairs and the plaintiff sustained injuries when he slipped and fell from the stairs at the Tzaneen Court on 17 June 2011 and that the injuries were caused as a result of the defendants' negligence.

[23] In the end, I hereby grant the following order:

1. The defendants are jointly and severally liable to pay to the plaintiff the agreed or proven damages suffered by the plaintiff as a result of his falling from the stairs at the Magistrate's court building in Tzaneen on 17 June 2011;and

2. The defendants are ordered to pay the costs of suit jointly and severally, one paying the other to be absolved.

JUDGE OF THE HIGH COURT OFSOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

Counsel for the Plaintiff: Adv CFJ Brand, SC

Instructed by: Andre Grobler Attorneys

Counsel for the Defendant: Adv MS Phaswane

Instructed by: State Attorney:

Date of Judgment: 21 December 2016