Amoah and others v King Sabata Dalindyebo Municipality
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Cengani-Mbakaza AJ |
| Judgment Date | 15 August 2023 |
| Docket Number | 348/2019 |
| Hearing Date | 19 June 2023 |
| Court | Eastern Cape Division |
Cengani-Mbakaza AJ:
Introduction
The plaintiffs instituted a delictual claim against the defendant (‘the KSD municipality’) based on the allegations that the KSD municipality intentionally and/or negligently and unlawfully damaged the container in which the third plaintiff was conducting its business, the hair salon. The third plaintiff was the owner of and in possession and occupation of the container that was stationed at Plaza Shopping Centre. Inside the container was the stock which consisted of equipment and hair
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products. It is alleged that the first and second plaintiffs were the employees of the third plaintiff.
The claim is based on vicarious liability, in that the unknown employees of the KSD municipality allegedly committed the acts and omissions whilst within the course and scope of the municipality’s employment.
The pleadings
On 1 February 2021, the plaintiffs filed a combined summons in this Court and held the KSD municipality liable for:
a payment of R200 000 which is made up of R10 000 per month, for loss of earnings from March 2017 to the date of the issue of the summons. An amount of R132 000 which is calculated at R11 000 per month for future loss of earnings, from November 2018 to the date of satisfaction of the judgment sought;
a payment of R200 000 which is calculated at R10 000 per month for past loss of earnings from March 2017 to the date of the issue of the summons The plaintiffs held the municipality liable for an amount of R132 000 which is calculated at R11 000 per month for future loss of earnings, from November 2018 to the date of the satisfaction of this judgment; and
in the specificity of Claim C, it was asserted that as the consequence of the loss of the container, the third plaintiff could not trade, with the result that it could not make its profit of R30 000 per month from 21 March 2017 to the date of the issue of the summons. Allegedly, the past loss of earnings computed from April 2017 to date of issue of the summons is an amount of R720 000 and the future loss of earnings amount to R360 000.
Consequently, the plaintiffs seek a:
payment of R332 000 in favour of the first plaintiff;
payment of R332 000 in favour of the second plaintiff; and
payment of R1 080 000 in favour of the third plaintiff, plus interests and costs of suit.
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On 1 April 2019, the KSD municipality filed a notice of appearance to defend and a special plea. The KSD municipality averred that the plaintiffs’ debt became due on 21 March 2017, however, the plaintiffs failed to serve a notice in terms of Institution of Legal Proceedings against Certain Organs of the State Act 40 of 2002 (‘the Act’). The KSD municipality further alleged that there was no consent in writing or in any manner whatsoever allowing the plaintiffs to institute the proceedings without serving a notice as stipulated in terms of the Act.
The KSD municipality vehemently denied that the container was removed intentionally, negligently and unlawfully. They denied that the first and second plaintiff lost earnings as a result of the direct consequences of the municipality and its employees. The fact that the third plaintiff lost trade and profit as a result of the direct consequences of the KSD municipality was also denied. In amplification:
the KSD municipality admitted that the container was stationed at Plaza Shopping Centre. All the street vendors were given notices including the plaintiffs that the containers would be removed from the prohibited or restricted municipal areas; and
the second plaintiff’s container was also removed in terms of the municipal by-laws under Local Authority Notice 137, on the basis that it was placed on the restricted or prohibited area. The KSD municipality’s conduct of removing or impounding the container was lawful.
On the date of the trial, the KSD municipality withdrew a special plea regarding the plaintiffs’ compliance with the provisions of the Institution of Legal Proceedings against Certain Organs of the State, Act 40 of 2002. In terms of Uniform rule 33(4), I made an order that the merits be separated from quantum as agreed by the parties. The parties agreed further, that the plaintiffs would begin to lead evidence.
The evidence
The plaintiffs first led the evidence of Mr Anele Gogozayo (‘Gogozayo’), a security guard, who testified that he used to visit the plaintiffs’ barber business, which is located in a shipping container next to Plaza Shopping Complex where he was employed. He described the container as a hair salon that was located near other
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informal traders who were also conducting other businesses in the caravans and shipping containers. On 21 March 2017 at around 19h30, he noticed the KSD municipality vehicles next to the plaintiffs’ hair salon. They were escorted by a truck loader bull dozer (‘the TLB’) and had some blue lamps. He immediately called the second plaintiff whom he affectionately called Ozi or (‘Amoah) and alerted him of the presence of the TLB and the KSD municipal employees. Amoah arrived and immediately noticed the KSD municipal employees using the TLB to shatter the container.
Under cross-examination, Gogozayo testified that there were three municipal vehicles in the premises including the TLB. He informed the court that he came closer the KSD municipal employees who were smashing the properties but did not speak to them. When asked to describe the container, Gogozayo testified that the container had four corners; tiles on the floor; was mounted on the cement stand, and could easily be transported from one location to another. He went on to explain that it was built of quality and strong iron sheets. When he was informed that this was a shack, Gogozayo insisted that this was a normal container comparable to other containers that were located in the area.
Gogozayo further testified that Amoah was terrified and panicking, so he negotiated with the KSD municipal employees to personally remove some merchandise from the container. When asked if he witnessed the negotiations, Gogozayo admitted that he had gone back to his job and did not observe whether the negotiations bore any fruits. When asked if there were no items inside the container, Gogozayo testified whenever he went to attend the hair salon, he would observe some hair equipment and products inside the container. Since the salon was closed on this particular day, he was unable to see if the products were inside the container because it had been destroyed and was scattered all over. When he was informed that the container was removed in an orderly manner, Gogozayo denied this and testified that the container was dismantled.
Mr Osmanu Amoah (Amoah) testified that he and his wife Mrs Zizikazi Amoah were shareholders of Amoah Trading Enterprise (Pty) Ltd. During March 2017, he was the managing director of the company and his wife was a manager. They were
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employees of the third plaintiff. The hair salon was conducted in a container which was situated outside the retail centre. In his capacity as a managing director of the company, he applied for permission to put the structure on the land and operate the said business. Before the application was approved, he completed an application form. The application form was admitted as exhibit C before court. The application form is titled ‘application for a container/caravan’. It comprises of the King Sabata Dalindyebo logo, the full names of the municipality, the full names of the applicant, his postal and physical address as well as his telephone number. Additionally, the form indicates the place where the container/caravan was to be placed and its purpose. The form demonstrates the particulars of the container, that it was made of metal and was a standard size. It also reveals that the land where the container was to be installed was vacant. According to exhibit C, the person whose particulars appear in the form is the second plaintiff. The application was approved on 19 June 2009.
After the completion of the application form, Amoah was asked to apply for electricity services. Exhibit B demonstrates how this application form was completed. This exhibit also shows the KSD municipal logo as well as full particulars of the second plaintiff. According to the form, the names of the electrician are marked as ‘Khanyisa Electric’. On 7 September 2009, the electrician endorsed his signature in the form. His contact number is also reflected in one of the columns in the document. The costs of the services were estimated at R2 243. On 8 September 2009, the application was approved by E. Naidoo of the KSD municipality. The documents professing to be the proof of payments for the monies paid by Amoah in pursuit of his application for a container were also admitted as exhibits. In respect of the application for a container/caravan, the second plaintiff paid a sum of R100. This receipt was admitted and marked exhibit A. Exhibits D and E prove that he paid some monies when water and electricity services were connected. It is noted that these are original documents.
In his testimony, Amoah also unveiled a geographical map which determines the area where this container was to be fitted after it was approved by the KSD municipality. The document was marked exhibit F. He testified that he put the container in the exact location that was designated to him by the KSD municipality. The exhibits A, B, C, D, E and F were submitted by consent between the parties. The contents of all the documents were never placed in dispute. Additionally, Amoah
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testified that he followed all the correct...
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