The City is liable for damages and costs incurred by a Mfuleni woman who was injured when she fell into an uncovered manhole in 2013.
This comes after the Supreme Court of Appeal (SCA) dismissed the City’s appeal against the whole of the judgment of the trial court.
The appeal of the City had also failed in the Western Cape High Court.
Nqulelwa Mtyido alleged that while walking along a public road within the Mfuleni municipal area of the City, she stepped into an open manhole.
This resulted in her sustaining injuries to her right ankle on October 17, 2013, at about 8pm.
SCA Justice Petrus Koen said in his judgment what ultimately remained in dispute for resolution, was which one of two mutually conflicting versions should prevail: the version of Mtyido that her injuries were caused when she stepped into the open manhole in Khwezi Street, after the open manhole had previously been reported to the City; or the version of the City that it had no knowledge of an open manhole in Khwezi Street, and, that as a matter of probability, the manhole pointed out by Mtyido in Khwezi Street did not have a missing cover during October 2013.
During the trial, a resident and witness said he had reported the uncovered manhole – some two months prior to Mtyido’s fall and injury – to an employee of the City when he saw the team of workers in the community, whereafter he was told by “the boss” that it would be fixed.
Mtyido told the trial court that she had that evening fetched water from a tap in Khwezi Street at a nearby informal settlement on the day of the incident.
The judgment read: “She walked on the tar road as the pavement was covered with sand and plant growth and she feared she might step on some glass.
“Suddenly she felt that she was falling and realised her right leg had stepped into a ‘drain’, which turned out to be an open manhole without a cover. She called for help, and two ladies who she had come across earlier, came to her assistance. They alerted her husband, who brought his vehicle and took her to the Delft hospital.”
According to a witness for the City, a reticulation manager, “there was no record of a manhole cover missing in Khwezi Street during 2013, or thereafter on the system”.
The manhole cover had since been fitted after December 2013, as the trial court concluded, when the roads for phase 5A were completed or tarred/ re-tarred.
The City’s counsel argued that if liability was imposed on them “it would open the floodgates to open-ended claims”, and that the SCA should place a “brake on liability”.
But Justice Koen said he disagreed with the argument as “every claim must obviously be scrutinised carefully and dealt with on its own facts”.
“If an employee in authority chooses not to give adequate attention to such reports, or fails to escalate such report to the appropriate persons through the correct channels, then the issue is one of better education and ongoing training of the City’s employees being required...The workers referred (the witness) to their ‘boss’ and the ‘boss’ did not try to avoid the complaint but promised to deal with it.
“Either he simply neglected to do so, or having done so, there was a breakdown in communication elsewhere,” said Justice Koen.
The City said it would look into details of matter on Monday.
Cape Times