Holtzhausen v Cenprop Real Estate (Pty) Ltd and Another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Allie J, Samela J and Sher J |
| Judgment Date | 03 March 2021 |
| Court | Western Cape Division, Cape Town |
| Hearing Date | 03 March 2021 |
| Counsel | Counsel details not supplied. |
| Docket Number | A 116/20 |
Sher J (Allie J and Samela J concurring):
[1] This is an appeal against the judgment [1] and order of this court, whereby it dismissed a claim for damages which the appellant instituted against the respondents after she slipped and fell in the Goodwood Mall on 1 June 2013. At the time of the incident the mall was owned by the second respondent (Naheel) and was managed by the first respondent (Cenprop).
The factual background
[2] The Goodwood Mall is a retail shopping complex which is located on the northern side of Voortrekker Road, Goodwood. Its two main entrances consist of a set of adjoining double glass doors, which are accessed via a parking lot on the southwestern side of the complex, which is the predominant direction from which the winter rain comes in Cape Town.
[3] On the morning of the incident the appellant went to the mall in order to draw money from an ATM. It was raining at the time and she was wearing rubber-soled, low-heeled 'winter' boots. She was accompanied by her daughter and her nephew, and was carrying her 11-month-old baby. She passed through one of the main entrances and crossed over a woven so-called 'walk-off' entrance mat, which was located just inside the entrance doors. There was a yellow 'wet floor' warning sign standing on the tiled floor, between the two sets of doors, and the appellant noted that the floor was wet and slippery.
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[4] She proceeded to make her way slowly in the mall, past a number of shops, towards Pick nPay. After she had traversed about 20 paces (this was later measured as a distance of about 14 metres from the entrance), her feet suddenly gave way from under her, and she fell. In order to break her fall and shield her baby, she extended her right arm, and landed on it, fracturing the right proximal radius and neck of the elbow.
[5] The appellant testified that she fell because the tiles were wet and slippery as a result of rain which had been carried in via the rainjackets, umbrellas and shoes of persons entering the mall. After she had fallen, the appellant sent her daughter to fetch her mother, who was employed at Pick nPay at the time. The appellant's mother confirmed that the spot where she found the appellant lying on the tiles a short while later was very wet. With the assistance of a passer-by and a security guard, the appellant was placed in a wheelchair and taken for medical attention.
The pleadings
[6] In her particulars of claim the appellant alleged that the respondents had acted wrongfully and had been negligent in that they knew, or ought to have known, that the 'surface area' of the floor was slippery when it became wet and posed a danger to members of the public who were required to walk across it, but despite this they had failed —
to prevent members of the public from accessing the area when it was wet; and/or
to ensure that the area did not become slippery when wet; and/or
to take adequate steps to prevent the appellant from slipping and falling, when they could and should have done so.
[7] In their plea the respondents denied that they had been negligent or that they had acted in breach of any legal duty which they may have owed the appellant. In amplification they averred that they had appointed competent and professional contractors to maintain, clean and check the premises and the 'surface area' of the floors at the mall, in order to ensure that they remained clean and would not be dangerous to members of the public.
[8] To this end, Cenprop, a professional property-management company, and a competent and independent contractor, had been appointed to assist in the maintenance of the premises, including the 'surface area' of the floors of the mall, and it had in turn discharged its duties by —
appointing a professional cleaning company, JKL Cleaning Solutions CC, to 'inter alia spot clean daily and any spillage in walkways with warning signage' (sic); and
appointing a professional security provider, Gabriel Protection Services (Pty) Ltd, to 'call cleaning staff, if none were available, for spillage and litter in corridors' (sic).
The evidence
[9] In presenting their cases, both the appellant and the respondents made use of architects as expert witnesses. Each of them inspected the
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area where the appellant had fallen and prepared reports which were submitted into evidence. The respondents' expert also conducted a rudimentary experiment in relation to the surface of the floors in the mall.
[10] At the time of the incident the floors of the mall were paved with 600 millimetre x 600 millimetre glazed ceramic or porcelain tiles, which were in relatively good condition. The tiles had been laid during the course of a refurbishment which had been carried out during 2010 by Growthpoint Properties, which owned the mall at the time, and were similar in appearance to tiles which had been used in the N1 City Mall, in Parow, a short distance away.
[11] In his report the defendant's expert, Hockly, explained that, in the USA and EU, floor tiles are graded, inter alia, in terms of their so-called 'coefficient of friction' (COF) value or, as it is more colloquially known, their 'resistance to slip'. This is a mathematical value which is determined by measuring the force required to move an object across the surface of the tile. Regrettably, in this country COF values are not published, and floor tiles are simply marketed as either 'non-slip', 'slip-resistant' or 'polished'. With this limitation in mind, Hockly was of the view that the floor tiles which had been selected for use in the mall could be considered as achieving a satisfactory balance between aesthetics and practicality. However, he was also of the view that they could be considered as potentially dangerous underfoot when they were wet. He came to this conclusion after inspecting the tiles and conducting a wet- and-dry test of their surface, by touching them and rubbing the soles of his shoes across them.
[12] In like vein, in a report which the plaintiff's expert, Bester, filed a year later, he came to the considered opinion that the tiles would be 'dangerously slippery' when wet. He was of the view that they could not be considered 'slip-resistant', as they were very smooth and had 'little or no texture to touch', and he consequently did not consider them as suitable for use in a shopping mall, with its high volumes of passing traffic.
[13] Aside from their expert, the respondents also led the evidence of the manager of the mall, Albert de Jager, who was employed by Growthpoint Properties at the time when it acquired the mall and refurbished it. He testified that after the revamp Growthpoint sold the mall to Cenprop, and it had in turn sold it to the St Tropez Property Group, which had then on-sold it to Naheel, which he described as a 'division' of St Tropez. Throughout these transfers of ownership, De Jager was retained as the manager of the mall, and he continued to occupy this position as an employee of Cenprop up to the time of the incident.
[14] In their plea the respondents pointed out that Cenprop had been appointed to manage the mall in terms of a 'management agreement' which was set out in a letter dated 8 November 2011. It contained a proposal by Cenprop to manage Naheel's properties on a 'daily' basis, and offered a range of 'management services', including physically
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inspecting the properties on a regular basis and maintaining the buildings and grounds which were situated thereon in good condition. For the rest, the proposal offered the collection of monthly rentals, the renewal of tenant leases, and the sourcing of new tenants, on a part-fee, part-commission basis.
[15] On his arrival at the mall in 2010, De Jager found a cleaning service, JKL Cleaning Solutions CC (JKL), in place, which was operating in terms of an oral agreement it had with the mall's former owners. When asked, in evidence-in-chief, to explain what the nature of this agreement was, he said it was 'very difficult to say . . . essentially they had to keep the malls clean'. At some stage a contract of sorts was drawn up between JKL and the new owners, but it was never signed by the parties. During cross-examination he described the status of this contract as 'just a good faith agreement . . . it wasn't a contractual thing at all' (sic).
[16] JKL had a total of five cleaners in their employ who worked in two shifts between 06h00 and 19h00 each working day: three in the morning and two in the afternoon. They cleaned the corridors and the public toilets in the mall. According to De Jager, when they were busy mopping or cleaning floors, they would put up so-called 'wet floor' signs, ie boards warning passers-by that the area was wet, and they also did so when it was raining. The wording of these boards was never canvassed in evidence.
[17] That then was the sum total of the evidence which was tendered in relation to JKL's cleaning duties, and its cleaning regime, such as it was. In this regard I may mention that the only reference in the record to any written instruction as to the work which JKL was required to perform is that which is set out in annexure B to the unsigned contract, where it is recorded that it was required to sweep and mop the tiled floors and, as was stated in the respondents' plea, to 'spot clean daily any spillage in walkways with warning signage'(sic).
[18] On the day of the incident a security company, Gabriel Protection Services (Pty) Ltd, commenced duties at the mall. It too had a contract of sorts with Cenprop, which was only signed by its director, but not by Cenprop. In terms of its Standard Operating Procedure its security guards were required to call cleaning staff if 'none were available' (sic), for 'spillage' and litter...
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