Court name
High Court of eSwatini
Case number
598 of 2006

Machora v Ministry of Public Works and Transport and Other (598 of 2006) [2011] SZHC 120 (06 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 120













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE




Civil
CASE NO. 598/06



In
the matter between:



SAMSON
MACHORA

…..................................................................................Plaintiff
And



MINISTRY
OF PUBLIC WORKS & TRANSPORT
…..........1st
Defendant



THE
ATTORNEY GENERAL

…......................................................2nd
Defendant







Coram:
Sey, J.



For
the Plaintiff: Mr. M. E. Simelane



For
the Defendant: Mr. S. Khuluse







JUDGMENT







SEYJ.







[1]
By a combined summons dated at Mbabane on the 15
th
day of February, 2006, the
plaintiff is claiming the following reliefs against the 1
st
defendant:



a)
Payment of the amount of E500 000.00 (Five Hundred Thousand
Emalangeni);



b)
Costs of suit;



c)
Further and / or alternative relief.











[2]
The plaintiff is an adult Kenyan male currently operating a
handicraft business at Ezulwini within the Hhohho District. The
evidence in chief of the plaintiff may be summarised as follows: that
on 30
th
of June 2005, at around 3 p.m.
whilst walking along the pavement near the Police Headquarters in
Mbabane in a direction heading to the centre of the town, he heard a
car braking sharply and there was a commotion from behind. He said
everyone ran forward. He also ran and in the process of running away
from the commotion he fell into a manhole that had not been covered.
The plaintiff told the court that at the material time there was no
warning and no signs near the hole into which he had fallen.











[3]
The Plaintiff further testified that on the night of the accident he
was under extreme excruciating pain because he did not realise that
his wrist was broken. The following morning which was 1
st
July 2005, he went to the
Mbabane Government Hospital for an x-ray and he was told that his
hand was broken and that there was a crack in one of the bones.
Consequently, a cement cast was put around his wrist and he was
incapacitated from the date of the accident up until the 11
th
of August 2005 when the cast was
removed.















[4]
It was the plaintiffs further testimony that he was a self employed
handicraft businessman who earned a living by selling wood carvings,
handicraft and jewellery. He stated that at the time of the accident
he had an order to supply assorted handicraft and jewellery worth
El50,000.00 to one of his customers in Mozambique but, due to the
injuries he sustained, he could not deliver the order. He did state,
however, that due to the passage of time he could not get the
business people who are based in Mozambique to come and testify on
his behalf about the order.











[5]
It was the case for the 1
st
defendants that, in the absence
of knowledge that the drainage cover had been removed, they could not
reasonably have foreseen the imminent danger that would result due to
the lack of the drainage cover and could not therefore have been
expected to take reasonable measures to avert the danger. They have
denied liability on the basis that they were unaware of the existence
of the hole as all the drainage holes were fitted with manhole covers
at the time of construction and that regular inspections by roads
inspectors revealed the drainage covers to have been intact.







[6]
The defendants led the evidence of Isaiah Mthethwa who is the
Principal Roads Engineer under the maintenance department of the
Ministry of Public Works. He testified mat amongst his duties he
oversees the maintenance of all public roads in the country. He
stated that in deciding when to carry out maintenance work on the
roads the department relies on monthly reports that are compiled by
roads inspectors who would indicate what kind of maintenance work is
required to be done on a particular road.











[7]
It was Mr. Mthethwa's further testimony that sometime in the year
2005 he recalled doing some maintenance work on the road next to the
Mbabane Police Headquarters and that the work done involved the
replacement of a drainage cover along that part of the road. When
asked how his department had come to know of the existence of the
hole, he testified that it was after the plaintiff had come to notify
them that he had been injured as a result of falling into an
uncovered drainage hole that they discovered the drainage cover to
have been removed. His evidence was that prior to the report of the
accident by the plaintiff they were not aware of the existence of the
hole as their monthly reports that are compiled by roads inspectors
did not reflect that the drainage cover had been removed. He said the
report had indicated that the drainage covers were intact.











[8]
The witness went on to state that to their knowledge the steel covers
remained intact until it was brought to their attention that they had
been removed when the plaintiff reported about his accident. It was
only then that they, as a department, conducted an inspection of not
only the scene of the plaintiff's accident but the whole stretch
covered by the Mbabane - Ngwenya freeway and discovered that in most
parts the drainage covers had been removed by unknown people for sale
at the recycling centre.











[9]
It is common cause that the 1
st
defendants are responsible for
the maintenance of the area of land in question. The issue that calls
for determination at this stage is whether the 1
st
defendant is liable to
compensate the plaintiff in respect of the whole of the damage
suffered by him arising out of the injuries sustained by him in the
incident which is the subject of these proceedings. In a bid to
determine this question, I shall advert my mind to the fact that the
Courts sometimes formulate the inquiry as to negligence in terms of a
duty of care. Invariably, the questions then posed are:



a)
Would a reasonable man in the position of the defendant have foreseen
the harm;



b)
Would he have taken steps to guard against it;



c)
What were those steps; and



d)
Did the defendant take them?



See
P.Q.R. Boberg, 1984,
The Law of Delict Volume 1 Aquilian Liability at 274.











[10]
The same author at page 284 of his book supra outlines the test for
negligence by quoting the remarks expressed by
Holmes
JA
in Kruger
vs. Coetzee 1966 (A) at 430
where
he enunciated the position as follows:







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.







[11]
In
CAPE TOWN
MUNICIPALITY v PAINE 1923 AD 207,
the
defendant municipality owned a sports ground on which it had erected
a grandstand for the use of spectators. The municipality let the
sports ground to the Young Men's Christian Association for use for
sporting activities on certain terms, one of which was that the
municipality remained responsible for keeping the ground and all
structures thereon in repair 'as far as they deem it necessary'. The
plaintiff, a spectator at a sporting function, was injured when he
stepped on the grandstand and his foot went through the woodwork. His
action against the municipality succeeded in the trial court.
Dismissing an appeal, the Appellate Division held that,
notwithstanding the absence of contractual privity between the
municipality and spectators, the municipality had a duty to
spectators to take reasonable care to ensure that the grandstand
remained safe for their use. This duty the municipality had
negligently failed to discharge, and it was accordingly liable to the
plaintiff.







[12]
INNES CJ at
page 26 of the said judgment , held, inter alia, as follows:







"It
has repeatedly been laid down in this court that accountability on
unintentioned injury depends upon culpa - the failure to observe that
degree of care which a reasonable man would have observed. I use the
term reasonable man to denote the diligens paterfamilias of Roman law
- the average prudent man. Every man has a right not to be injured in
his person or property by the negligence of another, and that
involves a duty on each to exercise due and reasonable care. The
question whether, in any given situation a reasonable man would have
foreseen the likelihood of harm and governed his conduct accordingly,
is one to be decided in each case upon a consideration of all the
circumstances. Once it is clear that the danger would have been
foreseen and guarded against by the diligens paterfamilias, the duty
to take care is established and it only remains to ascertain whether
it has been discharged. Now, the English courts have adopted certain
hard and fast rules governing enquiries into the existence of the
duty of care and the standard of care required in a particular case.
Speaking generally, these rules are based upon considerations which,
under our practice, also would be properly taken into account as
affecting the judgment of a reasonable man; and the cases which
embody them are of great assistance and instruction."







[13]
Another case on this point is that of
Halliwell
v Johannesburg Municipal Council 1912 AD 659.
Acting
under permissive powers, the J Municipal Council laid tramlines in
streets under its control. The spaces between and adjacent to the
rails it filled with concrete blocks (cobbles) which, although they
were originally rough, became smooth with the passage of time and
traffic. When H, driving in a one-horse drawn cart, turned from Eloff
Street into De Villers Street, his horse slipped on the cobbles and H
was thrown out of the cart. He sustained a fractured wrist, for which
he claimed 75 pounds damages from the J Municipal Council. A
Magistrate's judgment in favour of H was reversed by the Provincial
Division and reinstated by the Appellate Division. The highest Court
held that, although the Council had not acted negligently in laying
the cobbles, it had thereby introduced into the roadway a new danger
which should have been foreseen and guarded against. It was the
Council's omission to take reasonable steps to guard against that
danger which rendered it liable to H.







[14]
In this case at hand, the essential question is whether the 1st
defendant negligently failed to take such steps as were reasonably
expected of them to avert the hazard constituted by the open manhole
into which the plaintiff fell. However, in a bid to determine the
said question, I shall first embark upon a detailed analysis of the
evidence led during the trial.











[15]
It is trite law that negligence is a question of fact, and must
proved by the party alleging it. It is the plaintiff's testimony that
he fell into a manhole that had not be covered and he has alleged
that it was the responsibility of the 1
st
defendant to ensure that the
drainage hole always had covers. Furthermore, the plaintiff alleged
that the 1
st
defendant knew of the existence
of the hole and foresaw the imminent danger that would result due to
the lack of the drainage covers, but was negligent in that they
failed to take reasonable precautions to guard against any danger
befalling the plaintiff. A copy of The Swazi Observer, dated Tuesday
July 5, 2005, showing the open manhole into which the plaintiff had
fallen, was produced by the plaintiff and admitted in evidence as
Exhibit 4 .











[16]
The evidence tendered on behalf of the 1
st
defendant, per
Mr. Mthethwa, the
only witness called on their behalf, reflected the following:







(1)
As the Principal Roads Engineer, under the maintenance department of
the Ministry of Public Works, he oversees the maintenance of all
public roads to see that they are in good condition;



(2)
That in the year 2005 he was still in the same position and he
recalls maintaining the road next to the Mbabane Police Headquarters.



(3)
In deciding when to carry out maintenance work on the roads the
department relies on monthly reports that are compiled by roads
inspectors who will indicate what kind of maintenance work is
required to be done on a particular road;



(4)
Systematic theft of steel covers over the various types of holes has
been a problem, the reason being that same can be disposed of for
value to scrap metal dealers;



(5)
The witness admitted that the hole covers were not secured to the
ground and susceptible to be unlawfully removed.



(6)
He also testified that the manhole was the responsibility of the 1
st
defendant and he went on to
explain that prior to the report of the accident by the plaintiff
they were not aware of the existence of the open manhole as their
monthly reports that are compiled by roads inspectors did not reflect
that the drainage cover had been removed.



(7)
That on receipt of the plaintiff's report that he had been injured,
the 1
st
defendant attended to the
placing of the cover over the hole. The witness testified that it was
only then that they, as a department, conducted an inspection of not
only the scene of the plaintiff's accident but the whole stretch
covered by the Mbabane - Ngwenya freeway and discovered that in most
parts the drainage covers had been removed by unknown people for sale
at the recycling centre.















[17]
In my view, the conclusion that flows from the evidence detailed
above is that there is a real possibility that the manhole in
question may not have been inspected, or even any observation made of
it, for substantial periods of time, stretching possibly over a
number of months. Although Mr. Mthethwa had alluded to the existence
of monthly reports compiled by roads inspectors, the Court, however,
was not availed the opportunity of seeing any of these reports. In
this regard I must state that I am not impressed by Mr. Mthethwa's
postulation that the cover could have been
in
situ
at the time
that his department carried out the routine road maintenance in the
area and that the theft had happened in a space of three weeks after
their monthly reports.















[18]
The evidence adduced by the plaintiff was that he fell into the
manhole on June 30, 2005. It is worthy of note that the photograph in
Exhibit 4, which was taken on July 5, 2005, depicts that the hole
itself, still then without a cover, was relatively readily
discernible. No report that the cover was missing was received by the
1
st defendant,
a fact confirmed by Mr. Mthethwa; therefore, either the fact of the
missing cover was not observed by any of the 1
st
defendant's roads
inspectors or, if observed, it was not reported.











[19]
I am constrained to conclude that the steps taken by the 1
st
defendant, which
embraced only monthly reports (if those reports in fact occurred) to
avert the danger, did not comply with the test referred to in
Kruger
v Coetzee
(supra). Moreover, in
terms of the authorities cited earlier, it was incumbent on the 1
st
defendant to have put a system
in place where effective observation of an uncovered drainage hole
was a more regular occurrence. This they omitted to do and it is no
defence that the cover was stolen. See
Van
Eeden (formerly Nadel)
v
Minister of Safety &
Security 2002 4 All SA 346 (SCA)
where
the Court held as follows:



"
an omission is wrongful if the defendant is under a legal duty to act
positively to prevent the harm suffered by the plaintiff. The test is
one of reasonableness. A defendant is under a legal duty to act
positively to prevent harm to the plaintiff if it is reasonable to
expect of the defendant to have taken positive measures to prevent
the harm."







[20]
I am inclined to agree with the submissions of counsel for the
plaintiff that the expression "duty of care" is used in two
senses i.e. apart from connoting wrongfulness it is invoked in the
context of negligence to convey the factual conclusion that a
reasonable man would have foreseen and guarded against harm in the
circumstances. More particularly it serves to distinguish between the
foreseeable and unforeseeable plaintiff, giving expression to the
notion that negligence is relative to those persons to whom harm was
reasonably foreseeable and not to others. See:
P.Q.R.
Boberg, 1984, The Law of Delict (supra) Volume 1 at page 31.



















[21]
It is interesting to note that over the past decade in South Africa,
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 received
consideration in a number of matters similar to the present case. See
Port Elizabeth
Municipality v Smit 2002 (4) SA 241 (SCA); Municipality of the City
of Port Elizabeth v Meikle 2002 JOL 9525 (SCA); Cutting v The Nelson
Mandela Metropolitan Municipality (2696/01) [2002] ZAECHC 18 (6
August 2002).











[22]
Judging from the conspectus of the totality of the evidence adduced
in the present instance, it appears to me established beyond
disputation that the 1
st
defendant owed the plaintiff a
duty of care to ensure that the manhole which was erected in the
middle of a foot path was covered at all times. The 1
st
defendant should have foreseen
the reasonable possibility of a pedestrian in the position of the
plaintiff falling into the gaping manhole and injuring his person and
should have taken reasonable steps to guard against such occurrence.
I hold the same to be a fact and I also find that the 1
st
defendant's failure to take
steps to cover the open manhole was negligent.







[23]
On a balance of probabilities, I am satisfied that the plaintiff has
discharged the onus of proving the 1
st
defendant's negligence . In the
circumstances, I find that the 1
st
defendant is liable to
compensate the plaintiff in respect of the whole of the damage
suffered by him arising out of the injuries sustained by him in the
incident which is the subject of these proceedings. I so hold.











[24]
I now turn to the question of quantum of damages. The plaintiffs
claim for damages was advanced under a number of heads, namely, pain
and suffering, loss of income, loss of enjoyment of amenities of life
and future medical expenses. The plaintiff is 44 years old and is a
businessman dealing in handicraft. According to his evidence, he has
suffered severe pain on his right wrist and which said pain lasted
for three months. It is also in evidence that due to the
incapacitation, the plaintiff could not use his right hand as well as
enjoy the amenities of life. He testified that as he is right handed
he could not drive his car, he could not write properly or eat
properly because he could not use a spoon. Also he could not wash up
and dress up properly, fasten a tie and do all other things that a
person with a right hand would normally do. Moreover, he could not
carry on his trade of polishing artifacts or jewellery.







[25]
The plaintiff was a good witness and I am satisfied that he did not
exaggerate the extent of his disability. Be that as it may, in
arriving at any figure, I need to have regard to comparable awards of
general damages in other cases as well as take into consideration the
steady diminution in the purchasing -power of money.







[26]
In
Molefi v
Minister Van Wet and
Ord 1992 (4) QOD G3-10;
the
plaintiff sustained multiple bruises and lacerations, lunate
dislocation of wrist requiring first a closed reduction followed by
an open reduction. Hospitalized for two weeks, unable for some months
to walk, to use his arm, to wash himself or to drive a car. He
suffered considerable pain over an extended period. His wrist was
slow to heal and was still occasionally painful at the time of trial.
In 1992 he was awarded general damages of R15 000.00. According to
The Quantum Year Book
2011,
by Robert
Koch,
the current
value of the damages is R51 000.00.











[27]
In
MABVORO AND ANOTHER
v MUZA
1985 3 QOD 498 (Z),
the
plaintiff as a result of being struck down by a motor vehicle
sustained a fracture of the right wrist plus cut above the eye which
left an ugly scar. He had been rendered unconscious for some hours.
His leg and wrist were placed in plaster cast and he was discharged
from hospital after 15 days still in a plaster cast and in
considerable pain. After six weeks the plaster on his wrist was
removed. He was awarded R15 000.00. Again, According to
The
Quantum Year Book 2011,
by
Robert Koch the
current value of the damages is R137 000.00. At this stage, I must
state mat I take judicial notice of the fact that the currency in
RANDS (R) is equivalent to our EMALANGENI (E).















[28]
In the Swaziland case of
Lyrists
Bruna and Others
v
Swaziland Royal
Insurance Corporation 1987-1991 (1) 313 at page 318
the
learned
Rooney J held
that:



"The
lack of local judicial awards for damages for personal injuries
presents a serious problem for the courts when they are obliged to
make an assessment of general damages for pain and suffering. In
Sadomba v
Unity Insurance Co
(Ltd) 1978 (3) SA 1094, Pittman J
referred
to this problem at 1096. In Rhodesia at that time, there were not so
many judicial awards that an accepted scale could be said to have
been established for a particular kind of injury. He said "I
think it is clear that as monetary compensation for pain and
suffering must not be judged subjectively according to the race, or
social or economic standing of the particular claimant, a Court
awarding such damages must bear in mind the general economic status
of this country and attempt to establish and apply a scale of awards
which is generally appropriate, whatever the status of the particular
member of the population it is applied to may be. It is well known
that awards for pain and suffering which in Rhodesia would be
regarded as extravagant, are frequently made in wealthy countries
like the United States of America. Although no doubt to a lesser
degree, awards in the United Kingdom or South Africa could also be
inappropriate here."











[29]
In this case at hand, the plaintiff herein has claimed the sum of
E300 000.00 in respect of damages for pain and suffering which
rendered him incapacitated for a while in his daily activities.
Taking all the foregoing into account and bearing in mind that the
plaintiff is a businessman in woodcarvings, handicraft and jewellery
and mat he could not use his hand whilst he had a cement plaster cast
around his wrist and hand, I am satisfied that the amount of E300
000.00 he has claimed is a fair sum and will meet the justice of the
case.















[30]
Under loss of income, the plaintiff has claimed El
50
000.00 in respect of an order he should have supplied to a customer
in Mozambique. The plaintiff came across as truthful and I believe
him. Moreover, this piece of evidence was not controverted under
cross-examination even though defence counsel had the opportunity of
disproving the testimony of the plaintiff. In respect of future
medical expenses the plaintiff testified that he is not completely
healed up because he does experience some pain when it is cold and
that he uses a lotion which costs about El20.00 to rub on his wrist.
I agree with the submission of plaintiff's counsel that a sum of El

000.00 would be sufficient under
this head.







[31]
In the result, therefore, the damages to be awarded under the heads
are as follows:







Pain
and suffering E300 000.00



Loss
of income El50
000.00



Future
medical expenses E 1 000.00



Loss
of enjoyment of amenities of life
E
30 000.00



E481
000.00











[32]
For all the foregoing reasons, I have come to the conclusion that the
plaintiffs action must succeed- I therefore hereby enter judgment for
the plaintiff and I make the following order: -



The
1
st
defendant be and is hereby
ordered to pay the plaintiff-







1.
The sum of E 481 000.00.



2.
Costs of suit.











DELIVERED
IN OPEN COURT IN MBABANE ON THIS 6
th
DAYOF JUNE,2011







M.M.
SEY(MRS)



JUDGE
OF THE HIGH COURT