Cape Town Municipality v Bakkerud

• Jurisdiction: South Africa
• Citation: 2000 (3) SA 1049 (SCA)

Cape Town Municipality v Bakkerud
2000 (3) SA 1049 (SCA)

2000 (3) SA p1049

Citation	2000 (3) SA 1049 (SCA)
Case No	311/97
Court	Supreme Court of Appeal
Judge	Hefer JA, Marais JA, Schutz JA, Streicher JA, Mpati AJA
Heard	May 2, 2000
Judgment	May 29, 2000
Counsel	A G Binns-Ward for the appellant.; No appearance for the respondent.

Flynote : Sleutelwoorde

Negligence — Liability for — When omission to be regarded as unlawful B conduct — Reasonable person test inappropriate — Legal convictions of community in circumstances of case conclusive — Court to distinguish between own preference as to what such convictions ought to be and those actually prevailing — Court to be mindful of its limitations in diagnosing accurately and prescribing effectively for ills of society. C

Negligence — Liability for — Liability of local authority exercising purely permissive statutory powers of roadmaking and repair for damages resulting from omission to repair streets and pavements — Immunity of municipalities as set out in 'municipality cases' analysed — Though doctrine of general immunity since substantially undermined, wrong to substitute for it blanket imposition of general duty to repair roads D and pavements or to warn of presence of potholes — Though prevailing legal convictions of community now conclusive, courts in applying this test not laying down general principles of law but making ad hoc value judgments — Reasonable sense of proportion called for — Public obliged to have care for its own safety — Size and wealth of municipality, size of potholes and business of road or pavement in E question all relevant considerations — Up to plaintiff to establish legal duty to repair or warn as well as that failure to do so blameworthy (culpa).

Headnote : Kopnota

The respondent, an elderly lady, had sustained injuries when she stepped into a pothole in a sidewalk in a busy part of Cape Town. The F hole had been there for at least six months. The relevant legislation empowered but did not oblige the appellant municipality to construct and repair streets and pavements within its area of jurisdiction. The respondent's claim for damages was upheld by a magistrate's court. In an appeal to a Provincial Division the Court reviewed the applicable law and concluded that the fetters upon the imposition of liability in G delict in cases of omission were no longer as rigid as had at one time been supposed. It was of the opinion that a series of cases decided in the then Appellate Division (the municipality cases), in which a large measure of immunity from action was accorded to local authorities empowered but not obliged to build and maintain streets and pavements, were no longer to be regarded as authoritative in the light of H subsequent decisions of that Court relating to omissions, albeit in admittedly different contexts. The Court a quo also pointed out that the relative immunity conferred upon local authorities in the municipality cases was inconsistent with the current legal convictions of the community, which required municipalities to keep streets and pavements in a safe condition. Having characterised the appellant's failure to do so as wrongful, the Court proceeded to consider whether I the failure was attended by fault (culpa) and concluded that it was. It acknowledged that in considering whether or not fault could be attributed to the municipality, account had to be taken of all factors, including financial constraints, which would have a bearing upon the reasonableness or otherwise of the omission. The appellant then brought the matter before the Supreme Court of Appeal. J

2000 (3) SA p1050

Held, that any attempt to decide whether a particular omission would potentially ground liability by merely measuring it A against the standard of conduct to be expected of a reasonable person would fail because the test was sequentially inappropriate (the existence of culpa only became relevant after the situation was identified as one in which the law of delict required action), and the application of the classic test for culpa to the solution of the anterior problem would produce consequences which were likely to be too burdensome for society. To use the reasonable B person's likely reaction to the situation as the yardstick by which to measure whether or not action was required by law was tantamount to converting every reasonably perceived ethical or moral obligation to act into an obligation or duty imposed by law and this was the very equation against which the law had thus far set its face. (Paragraph [9] at 1054G/H - 1055B/C.) C

Held, further, that, when considering whether there was a coherent and intelligible principle by which to decide whether more than moral or ethical disapproval was called for and whether a legal duty to act had to be imposed, the Appellate Division had been driven to conclude that all that could be said was that moral and ethical obligations metamorphosed into legal duties when the legal convictions of the community demanded that the omission should be D regarded as unlawful. Whether such a demand existed would depend on the facts of the particular case. (Paragraph [14] at 1056E/F - G.)

Held, further, that, when called upon to make policy decisions that entailed identifying prevailing societal attitudes and applying them, a court had to be able to distinguish between a personal and possible idiosyncratic preference as to what the community's convictions ought to be and the actually E prevailing convictions of the community. In playing this general policy-making role a court had to be mindful of its limitations in diagnosing accurately and prescribing effectively for the ills of society: in considering whether a legal duty should be imposed in a given situation it had to strike a balance that was harmonious with the public's notion of what justice demanded. (Paragraphs [15] and [17] at 1057B - C and 1057F - G/H.) F

Held, further, that the Courts in the municipality cases had not held that a municipality was absolutely immune from liability and that in no circumstances could it become obliged to repair a road or pavement or fall under a duty to warn of an unrepaired road or pavement; nor that the empowering legislation, being purely empowering, per se conferred, either expressly or by necessary implication, absolute or even relative immunity; nor that, if a G municipality chose to exercise its powers of repair, it could not be held liable even if it acted negligently in carrying out the repair. What they did decide was that, absent any antecedent or concomitant act of commission by a municipality which altered the case, the law of delict did not give rise to a legal duty to repair a street or pavement. (Paragraphs [18] - [24] at 1058A - 1059C.) H

Held, further, that the cases that had broadened the scope of potential liability in delict for omissions, though not expressly professing to overrule them, had the effect of undermining a substantial part of the foundations upon which the 'general immunity' doctrine rested in the municipality cases by considerably diminishing the authority of their conclusions in regard to any supposed general immunity and the scope of liability for omissions in general. In other I respects the authority of the municipality cases remained undiminished. (Paragraphs [25] and [26] at 1059C/D - H.)

Held, further, that, although the Court a quo had been correct in its conclusion that it was open to re-visit the general or relative immunity of municipalities and, if justification existed, to jettison the notion, it had been wrong to substitute for it what amounted to a blanket imposition upon municipalities J

2000 (3) SA p1051

generally of a legal duty to repair roads and pavements or to warn of their presence. A A reasonable sense of proportion was called for and the public had to have care for its own safety when using roads and pavements. Though it was not possible or necessary to provide a catalogue of circumstances in which it would be right to impose a legal duty on a municipality to repair or to warn, the size and wealth of the municipality, the size of the potholes and the business of the road or pavement in question were B all relevant considerations. (Paragraphs [27] - [30] at 1059H - 1060H.)

Held, further, that it was for the plaintiff to establish the existence of a legal duty to repair or to warn and the failure to do so was blameworthy (attributable to culpa). (Paragraph [31] at 1060I - I/J.)

Held, further, as to the facts of the present case, that they warranted a finding that the municipality had been under a duty to repair the holes or to warn the public of their existence and that failure to do so had been negligent: the area in question was densely populated; the pavement in question abutted on residences and was in constant use; the hole was not shallow; the pavement was relatively C narrow and had the effect of shepherding a passer-by in the direction of the hole; and the hole had been there for several months. Appeal dismissed. (Paragraph [32] at 1061B/C - E.) D

The decision in the Cape Provincial Division in Cape Town Municipality v Bakkerud 1997 (4) SA 356 criticised but confirmed.

Cases Considered

Annotations

Reported cases

Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A): dictum at 364G applied E

Body Corporate of Dumbarton Oaks v Faiga 1999 (1) SA 975 (SCA): referred to

Butters v Cape Town Municipality 1993 (3) SA 521 (C): applied

Cape Town Municipality v Bakkerud 1997 (4) SA 356 (C): criticised but confirmed on appeal F

Cape Town Municipality v Butters 1996 (1) SA 473 (C): applied

Cape Town Municipality v Clohessy 1922 AD 4: not followed

De Villiers v Johannesburg Municipality 1926 AD 401: not followed

Faiga v Body Corporate of Dumbarton Oaks and Another...