A municipality can be held responsible if it fails to repair dangerous public infrastructure of which it is aware, a ruling by the Supreme Court of Appeal (SCA) this month has confirmed.
The judgment involved a tragic case in which a toddler drowned in an uncovered stormwater drain in Greenfields, Uitenhage.
On 13 September 2014, a 17-month-old girl fell into the open drain. Her parents, acting through a curator ad litem due to the severe psychological impact, sued Nelson Mandela Bay Municipality for damages, arguing it had a legal duty to maintain and cover public drains. Residents had previously reported the hazard, but the drain remained unaddressed.
The trial court found the parents’ witnesses credible and held the municipality delictually liable (Legally responsible for harm or loss caused to another person through a wrongful or negligent act or omission, under the law of delict). However, the Full Court of the Eastern Cape Division overturned the decision, ruling that the appellants had failed to prove wrongfulness and legal causation.
The SCA overturned the Full Court’s judgment. Writing for the bench, Acting Judge of Appeal Esther Steyn confirmed that the municipality had a statutory and common law duty to maintain public infrastructure and that failure to cover a known hazardous drain constituted wrongfulness. The Court emphasised that where there are mutually conflicting versions of events, trial evidence – including witness credibility – must be properly considered, noting that the municipality’s documentary evidence referred to a different street.
The SCA further held that the toddler’s death was directly and causally linked to the municipality’s negligence.
The Court rejected the municipality’s defence that the child’s care by a 15-year-old relative amounted to contributory negligence, stating that “entrusting a toddler to a responsible teenager for a short period is commonplace”, and the true cause of death was the municipality’s failure to eliminate an obvious public hazard.
The appeal was upheld with costs, including the costs of two counsel where so employed, and the SCA replaced the Full Court’s order with one dismissing the appeal.
In a blog on Norton Rose Fulbright’s website, senior associate Nomonde Sithole explained the broader legal principles confirmed by the SCA. She noted that the judgment rejected the doctrine of municipal immunity, which no longer forms part of South African law. She wrote: “In determining whether a municipality is liable, one needs to consider the ordinary delictual principles (namely conduct, wrongfulness, fault, causation, and harm). Whether a breach of legal duty arises that constitutes wrongfulness will depend on the legal convictions of the community.”
Sithole clarified the distinction between wrongfulness and negligence: “The Court explained that a municipality’s failure to fix a known danger is wrongful if the community would expect the municipality to act. The law asks whether it is fair and reasonable to hold the municipality responsible, especially when the risk is obvious and the municipality has a duty to protect people’s rights and safety. A reasonable municipality would have foreseen the risk of a child falling into an open drain and would have taken simple steps to prevent it, such as covering the drain or putting up a barrier. Once the municipality was alerted to the danger, public and legal policy demanded that it act.”
Regarding causation, she added: “The law does not require absolute certainty, only that it is more likely than not that the municipality’s failure led to the harm. Had the drain been secured, the child would not have drowned. The omission was therefore both the factual and legal cause of the death.”
Sithole concluded: “This decision confirms that municipalities have a clear duty to address known public safety hazards. Municipalities should put reporting and swift repair protocols in place.”
Click here to download the judgment.
