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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: ENID OCTOBER V NELSON MANDELA METROPOLITIAN MUNICIPALITY

NOT REPORTABLE

1. Case Number: 1691/07

2. High Court: EASTERN CAPE DIVISION

3. DATE HEARD: 24 OCTOBER 2008

4. DATE DELIVERED: 12 DECEMBER 2008

JUDGE(S): GOOSEN AJ & JANSEN J

LEGAL REPRESENTATIVES –

Appearances:

1. for the Applicant(s): ADV JOOSTE

for the Respondent(s): ADV C J MOUTON & ADV E MENTI

Instructing attorneys:

1. Applicant(s): WHITESIDES

2. Respondent(s): ND NDLOVU & ASSOCIATES

CASE INFORMATION -

1. Nature of proceedings:

2. Key Words:

3. Summary:

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION

Case No.: CA 173/2008

Date delivered:

In the matter between

ENID OCTOBER APPELLANT

and

NELSON MANDELA BAY METROPOLITAN MUNICIPALITY RESPONDENT

______________________________________________________________________

JUDGMENT

GOOSEN, AJ:

1. On 17 December 2004 the Appellant stepped onto the cover of a concrete catch pit located on the pavement outside of her cousin’s house in Kramer Street, Port Elizabeth. The cover gave way under her and she partially fell into the catch pit, her right leg becoming jammed between the steel rim of the cover and the edge of the catch pit. She sustained a serious injury to her leg. Action was instituted against the Respondent and, following the trial of the matter, Plaintiff’s claim was dismissed. It is against this finding that she now appeals.

2. The magistrate, in dismissing the action, found in effect that the Appellant was the author of her own misfortune in that she had failed to keep a proper lookout. The magistrate accordingly found that the Appellant had not established negligence on the part of the Respondent.

3. In prosecuting the appeal, Appellant relied upon the contention that the magistrate had erred in not applying the correct legal principles to the matter and in finding that the Appellant was solely to blame for her misfortune.

4. The essential facts were largely common. On the day in question the Appellant was preparing for a family function to celebrate her father’s eightieth birthday. She drove her car to her cousin’s house to collect certain items that were needed for the function. When she arrived at about five o’clock in the afternoon, she parked alongside the verge opposite the entrance to the property. When she alighted from the car she walked around the back of the car before entering the property. On her return to the car she was carrying a tray of goods. She walked to the passenger side of the vehicle intending to place the tray on the front passenger seat. It was then that she stepped onto the catch pit cover. She had not seen the “drain” before she stepped onto it.

5. Mr. Gerling, a local resident who lives in the vicinity of Appellant’s cousin’s house, testified on behalf of the Appellant that some two or three weeks prior to the incident he had telephoned the Roads and Stormwater Division of the Municipality to report the fact that the cover of the catch pit was defective. According to him he reported the defect because he could see that there was something wrong with the cover. He was concerned because of the presence of children in the area and for that reason reported it. According to him, nothing transpired as a result of the report.

6. Mr. Gerling is himself employed by the Respondent, in the Sewerage Department. His responsibilities as a supervisor in the department include the overseeing of repairs and maintenance to defective infrastructure. He was therefore familiar with the process by which complaints or faults are reported.

7. He was not present on the day when the incident occurred and only came to hear of the incident some time thereafter. He confirmed however that when he reported the problem with the drain cover, the existence of a defect was obvious and could be easily seen because the cover was partially open.

8. The question of a municipality’s liability for damages suffered in consequence of a wrongful and negligent omission to repair or maintain roads or pavements within its jurisdiction has recently received further consideration in a number of matters similar to the present matter.(cf. Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA); Municipality of the City of Port Elizabeth v Meikle [2002] JOL 9525 (SCA); Pook v Nelson Mandela Bay Municipality unreported case no. 3697/06, delivered 26 June 2008)

9. In Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) Marais JA, writing for the Court, after assessing the import of the so-called doctrine of general immunity for omissions and the question of liability based upon the legal convictions of the community, concludes that:

While the Court a quo's conclusion that it was open to it to re-visit the general or relative immunity of municipalities and, if justification existed, to jettison the notion, was therefore correct, I think that, having done so, it was wrong to substitute for it what amounts to a blanket imposition upon municipalities generally of a legal duty to repair roads and pavements. In my view, it has to be recognised that in applying the test of what the legal convictions of the community demand and reaching a particular conclusion, the Courts are not laying down principles of law intended to be generally applicable. They are making value judgments ad hoc.

10. Significantly, the Court in that matter did not assert a general legal duty upon local authorities to maintain roads and pavements, but found that the existence of the legal duty is a matter to be determined in the particular circumstances of the matter. It is therefore for the plaintiff in any particular matter to establish both the existence of the legal duty (in this instance to repair a road surface or drain cover or warn of its state of disrepair) and that the failure to do so was blameworthy in the circumstances (Bakkerud par.31)

11. It was however, argued on behalf of the Appellant that the Respondent was under a general duty to ensure that the catch pit cover did not pose a danger to members of the public. In addition, it was argued that by virtue of the warning given to Respondent by Gerling, who had reported the defective cover, a clear duty to exercise care was established by the evidence. The Respondent, so it was argued is not, to use the words of Marais JA in Bakkerud (at par.28) “a minuscule and underfunded local authority with many other and more pressing claims upon its shallow purse”. The Respondent’s failure to heed the warning provided by Gerling’s report before the incident, so it was argued, clearly establishes negligence on the part of the Respondent.

12. Mr. Jooste, who appeared for the Appellant contended that the magistrate had failed to deal with the evidence on this basis, choosing instead to consider that the Appellant had herself failed to keep a proper lookout and that in failing to do so she was the author of her own misfortune. It is true that the magistrate’s reasoning leaves much to be desired. The critical question however remains, namely whether on the evidence properly before the magistrate both the legal duty and the negligent failure to act are established and whether the onus which rests upon the Appellant was discharged.

13. Mr. Mouton who appeared for the Respondent, conceded that in the circumstances of this case the Respondent would have acted unlawfully in breach of a duty of care if it did not have in place a system by which it could become aware of defects in municipal infrastructure such as roads, drains, manholes and the like which could pose a danger to members of the public. The evidence, so he argued, clearly established that such system was indeed in operation. Mr. Mouton argued that the evidence of Gerling as to the fact that he had warned the Respondent was unconvincing, but even if it is accepted that he did warn of the danger posed by the defective cover, no inference could be drawn therefrom and furthermore no evidence to establish such negligence appears on the record.

14. The evidence of Gerling established that a system to log and respond to complaints and reports concerning defective infrastructure does exist. He confirmed that inspections of infrastructure such as this are conducted by employees in the Roads and Stormwater sections and that where such defects are discovered they are reported through departmental channels. Mr. Sponnek, a manager in charge of the Infrastructure and Engineering Department, which includes responsibility for roads and Stormwater, testified that the Respondent has a system in place by which complaints received from members of the public are recorded and logged in order to facilitate a response thereto. He also testified that the Cleansing department undertakes physical inspections of drains on a six-weekly cycle and, where defects are discovered these are reported and attended to. A large bundle of complaint forms detailing the complaints received in respect of infrastructure defects was produced at trial. These were admitted in evidence although the import and weight to be attached to the documents was hotly disputed. Mr. Jooste contended that the records – it was common cause that they did not contain reference to Gerling’s report – do not establish that no report was made to the municipality regarding the defective catch pit cover. This is undoubtedly so. The documents do however demonstrate the existence of a system whereby such reports are recorded.

15. The question remains whether the evidence establishes that Gerling made a report as to the defective cover prior to the incident. His evidence was that he did. His evidence, upon closer consideration is not however unequivocal. He testified that he reported the defect telephonically some two or three weeks before the incident. He could not say in what year or month he reported the incident, save that it was “a long time ago”. His evidence as to when he became aware of the fact that an incident occurred is less than clear. He stated that he first heard that he was required to testify in the matter two weeks before the trial date when he was approached by the Appellant. Prior to that he had met the Appellant in the street when he came out of his house. He saw that she had a bandage on her leg and after establishing that she had injured herself on the drain he told her that he had reported the defective drain cover to the municipality. His version in this regard conflicts with that of the Appellant. She stated that after she had decided to seek legal assistance, in February following the incident, she was asked by her attorney whether anybody had reported the defective drain cover to the municipality. She undertook to ask her cousin because she does not live in the area and on doing so was informed that residents in the area had discussed the problem and that a neighbour who works for the municipality had already reported the matter. Her cousin then took her to see Gerling at his house whereupon he told her that he had reported the matter. The Appellant was adamant that she had visited Gerling in his house and that he had not spoken to her in the street.

16. Gerling could not say when the incident occurred, nor when he had reported the matter. He could not say to whom he had reported the matter. Gerling’s evidence was certainly unsatisfactory in many respects. I cannot find however that Gerling’s evidence was such – having regard to the conspectus of the evidence and the probabilities of the matter – that it ought properly to have been rejected and accordingly find that he did not report the defective catch pit cover to the Respondent at some stage prior to the incident. It is not possible however to make a positive finding as to when precisely the report was made nor to whom it was made. All that can be found is that a report was made at a stage before the incident.

17. In the context of this matter, the fact that such report was made to the Respondent gave rise to a duty of care on the part of the Respondent to ensure that the defective catch pit did not occasion harm to residents in the area and members of the public. That of course is not the end of the enquiry.

18. The appellant was required not only to establish the existence of a duty of care but also that the failure to remedy the defect or to take such other steps as may avoid potential harm to members of the public was blameworthy in the circumstances. Culpability on the basis of a negligent failure to act or to act timeously necessarily involves an assessment of the nature of the precautions that can be taken to guard against the harm envisaged and whether such precautions are reasonable having regard to the particular circumstances of the case. (see Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA) at par 7) This involves a value judgment which seeks to balance competing considerations, including the degree or extent of the risk created by the actor's conduct; the gravity of the possible consequences if the risk of harm materialises; the utility of the actor's conduct; and the burden of eliminating the risk of harm. (see also Ngubane v South African Transport Services [1990] ZASCA 148; 1991 (1) SA 756 (A) at 776H – J; Pretoria City Council v De Jager 1997 (2) SA 46 (A) at 55H - 56C.)

19. Although the Respondent is not “a miniscule local authority” its ability too address reported defects in its infrastructure and to take precautionary measures must of necessity involve an assessment of the scope of the task, the resources available to it and the time period within which it can reasonably be expected to deal with such matters. In order to effect such an assessment a court must have placed before it such evidence as would enable a fair and reasonable evaluation of the circumstances of the omission upon which reliance is placed to found negligence. The Appellant bore a full onus in this regard. Accordingly she was required to adduce evidence which founded the ground of negligence upon which she relied.

20. No evidence was lead by the Appellant in this regard. Such evidence as exists on the record, and which is relevant to the question of negligence is of limited assistance.

21. Exhibit B comprises a bundle of Municipal Complaint forms for the period November to December 2004. As already indicated the admissibility and relevance of the content of these forms was hotly contested. These documents nevertheless serve to demonstrate the ambit of complaints that require some form of remedial work by the Respondent. Perusal of the documents indicates that complaints, which emanate from all parts of the city, as was confirmed by Sponnek, deal with a wide variety of issues – potholes, uneven road surfaces, absence of traffic signs, blocked drains and stormwater catch pits; open trenches; holes in verges; broken or missing drainage covers or grates and related complaints. These complaints number in the hundreds.

22. Sponnek testified that once these complaints are logged and recorded they are dispatched to the Infrastructure and Engineering depot which is responsible for the particular area from which the complaint emanates. It appears from the complaint forms that the complaints are graded as to importance. This grading appears to relate to whether the issue complained of may give rise to a dangerous condition or whether it can or should be accommodated within the works programme of the department concerned. How this occurs or who is responsible for this assessment was not dealt with in the evidence. What is clear is that once the complaint is dispatched to the depot it will be attended to by the staff of that depot and, once dealt with, reported on as having been completed.

23. Although Sponnek was not pertinently asked to deal with the procedure by which a complaint issue is addressed at the depot concerned, he did testify that in relation to the cover of the catch pit in issue in this matter, once the problem was drawn to the attention of the Respondent by way of the letter of demand addressed on behalf of the Appellant during February 2005, a job card was prepared and the cover was repaired. He was unable to state what the time delay had been between receipt of the complaint and the particular repair work that was undertaken.

24. It was argued on behalf of the Respondent that although very little evidence was led as to the ambit of services rendered by the Respondent, that judicial notice could be taken of the fact that the Respondent services a very large urban area with a substantial number of roadways, pipelines, drains and the like which have to be inspected, maintained and repaired. It is indeed so that the area of jurisdiction of Respondent is very large. In the Smit matter it is recorded that in the year 2000, Respondent’s predecessor was responsible for more than 200 000 manhole covers in the city. (see also Meikle (supra)). Although we are not here dealing with manhole covers, the scale of the challenge to maintain roads, pavements, verges and drains of whatever form in a state of repair that avoids risk of harm to members of the public, is readily apparent.

25. It is against these demands that the response must be measured, taking into account of course the resources, both financial and personnel, available to the Respondent. The difficulty of course is that there is no evidence upon which such assessment can be based. There is certainly no basis upon which it can be found that the failure to remedy the defect that had been reported to it before the occurrence of the event giving rise to the injury was unreasonable in the circumstances and accordingly negligent. Since the onus was upon the Appellant to establish negligence, such onus was not discharged.

26. It should be born in mind that the defective catch pit cover was not located in a busy area where many hundreds if not thousands of pedestrians could be expected. (cf the Smit and Meikle matters). The catch pit was located in a relatively quiet residential area, at the end of a road and near an open field.

27. According to Gerling the catch pit cover was noticeably defective. Indeed it was in an “open” position, i.e. titled in manner that suggested that it was defective. It was this appearance that caused him to be concerned about it and to report the matter. It was therefore clearly visible to persons in the vicinity. This suggests that the catch pit cover did not present itself as a trap to the unwary (cf. Meikle’s case at par. 12 in which the manhole cover there in issue was in the centre of the pavement and visible from a considerable distance).

28. The circumstances of the defect are of course relevant to determining the question of negligence. As was remarked by Marais JA in Bakkerud (at par 28 – 29):

There can be no principle of law that all municipalities have at all times a legal duty to repair or to warn the public whenever and whatever potholes may occur in whatever pavements or streets may be vested in them.

It is tempting to construct such a legal duty on the strength of a sense of security engendered by the mere provision of a street or pavement by a municipality but I do not think one can generalise in that regard. It is axiomatic that man-made streets and pavements will not always be in the pristine condition in which they were when first constructed and that it would be well-nigh impossible for even the largest and most well-funded municipalities to keep them all in that state at all times. A reasonable sense of proportion is called for. The public must be taken to realise that and to have a care for its own safety when using the roads and pavements.

29. It was argued on behalf of the Respondent that the Appellant was the author of her own misfortune, as had been found by the magistrate. The fact that the defective cover was readily observable as being defective and the fact that the Appellant had initially testified that she had not seen the “drain cover” before she stepped onto it, that she was carrying a tray laden with goods, are factors which support a finding that she was not keeping a proper lookout when she stepped onto the defective cover.

30. It is unnecessary however, to make any finding as to negligence on her part.

31. In the light of what is set out above the Appellant did not succeed in discharging the onus of establishing that the Respondent was negligent in failing to repair the defective catch pit cover in the circumstances. It follows that the appeal cannot succeed.

32. I would therefore propose the following order: The appeal is dismissed with costs.

G. GOOSEN

ACTING JUDGE OF THE HIGH COURT

I concur. The appeal is dismissed with costs.

J C H JANSEN

JUDGE OF THE HIGH COURT

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