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Category: Commercial Law

Who takes the fall for spillage incidents in shopping centres?

March 22, 2022 / / Comments Off on Who takes the fall for spillage incidents in shopping centres?

This question of liability amid spillage cases has never been fully settled in our law until recently when the case of Holtzhausen v Cenprop Real Estate (Pty) Ltd and Another [2021] 2 All SA 457 (WCC) created some doubts on the legal position of an owner or manager of a shopping mall in “spillage cases”. Spillage cases refer to instances where a floor becomes unsafe when something is accidentally spilt onto it. These cases help determine who is responsible if an injury is sustained as a result of the spillage, who should pay for the consequent medical costs, and who will be liable in a potential civil claim for additional patrimonial damages.

In the Cenprop case, the plaintiff had instituted a legal action against the defendants: the mall owner and the management company. The plaintiff sustained injuries after she had taken a fall in the Goodwood Mall (which is owned by the first defendant and managed by the second defendant) due to slippery floors in the mall. The slippery floors were caused by rainfall on the day of the incident and the patrons of the mall tracking water into the mall as they entered.  The plaintiff argued that the defendants were negligent in that they knew, or ought to have known, that the area on which the plaintiff had taken a fall was slippery when it became wet and therefore should have taken steps to prevent injuries to patrons.

The first defendant, the mall’s owner, denied these allegations by pointing out that it had discharged its legal duty by appointing a competent and professional contractor (the second defendant) to maintain, clean and check the mall to ensure that the mall was kept clean and would not be a danger to patrons. In turn, the second defendant, the management company, had acquired the services of a cleaning company and a security company to ensure that the mall was safe for its patrons.

Applicable law in regard to spillage cases 

In the case of Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W), the court made it clear that the owner or the entity in control of a shopping mall has a legal duty to take reasonable steps to ensure that the mall is reasonably safe for its patrons. Such a person or entity could be held liable where steps were not taken to ensure the safety of its patrons. The court further held that, although the owners or management of a mall may obtain the services of a cleaning company, the former still remains liable for any negligence on the part of the cleaning company to perform its duties with due care and in the event of a failure of its cleaning system.

Furthermore, in the case of Chartaprops 16 (Pty) Ltd and Another v Silberman [2009] (1) SA 265 (SCA), the Supreme Court of Appeal held and confirmed that a mall owner could conceivably be held liable for the wrongs committed by an independent contractor if the owner failed to take reasonable steps to prevent the risk of harm. In this case, the mall owner had acquired the services of a cleaning company and the owner had no knowledge of the services of the cleaning company being defective. The court held that the mall owner had taken all steps a reasonable person should have taken to ensure that the mall was safe for its patrons.

Thus, considering the above cases, the owner, person, or entity in control of a mall would only be liable for harm or danger that was foreseeable to the hypothetical reasonable man in its position, and is obliged to take no more than reasonable steps to guard against such harm occurring.

Court a quo 

The court a quo in the Cenprop case held that the mall owner was exempt from liability as he had appointed a duly qualified management company to attend to the daily running and maintenance of the mall. In turn, the management company had appointed a competent cleaning contractor to keep the premises clean and free of spillages and, in addition, security guards were tasked to be on the lookout for potential risks and to call the cleaners if they were needed. Therefore, the court was of the opinion that the first and second defendants had done all they could reasonably be expected to do.

The court further held that if any party had to be held accountable for the injuries sustained by the plaintiff, it would be the cleaning company as it bore the ultimate responsibility of ensuring that the mall was safe for its patrons.

Appeal court 

The court a quo’s judgment was taken on appeal to the full bench of the Western Cape High Court (Appeal Court), which overturned the finding of the court a quo. First of all, the Appeal Court held that the court a quo erred in holding that the cleaning company bore the ultimate responsibility. The Appeal Court, while referring to case law, made it clear that the mall owner, or the person or entity who may be in control of the mall, bears the ultimate responsibility of taking reasonable steps to safeguard patrons to a mall and to ensure that the floors are safe.

Spillage cases refer to instances where a floor that would in the ordinary course of normal everyday use be safe, becomes unsafe when something is accidentally spilt onto it. The Appeal Court came to the conclusion that this case did not fall within the ambit of so-called spillage cases as the rainwater brought into the mall by its patrons could not be considered a spillage and, secondly, the type of tile that was used on the floor was slippery when wet, and such risk could not be passed on to the cleaning company.

Therefore, the Appeal Court did not have to decide whether the cleaning company had an efficient cleaning system in place or whether its failure to mop up the water created liability for the cleaning company.

The Appeal Court found that the defendants were negligent because they had failed to take reasonable steps to ensure that the floors remained safe for its patrons when it rained. The Appeal Court pointed out that the defendants could have contracted the cleaning company to dry the sections of the floor that became wet when it rained, or could have closed the entrances that were exposed to the rain, but because such steps were not taken, the fault could only lie with the defendants.

This case clearly points out that even where a mall owner or management company employs the services of a cleaning company to attend to spillages and the like, the former bears the ultimate responsibility of ensuring the mall is safe for its patrons, be it in spillage cases or otherwise.

Mall owners and management companies need to be extra cautious in protecting patrons so as to avoid liability for patrons falling and injuring themselves when frequenting a mall.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The professional gravity of personal social media use

January 25, 2022 / / Comments Off on The professional gravity of personal social media use

In the Edcon Ltd case, an employee was dismissed for making a racist comment on Facebook. The employee had posted a message on Facebook referring to the government as “monkeys” shortly after watching Carte Blanche regarding the reshuffling of Cabinet. Her Facebook page identified her as an employee of Edcon Ltd (the Company). A complaint was made to her employer about the post and the employee was called to a disciplinary inquiry and charged with making an inappropriate racist comment. She was summarily dismissed.

The employee referred an unfair dismissal claim to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the arbitrator found that the dismissal was substantively unfair and awarded 12 months’ compensation. The arbitrator considered the fact that the employee posted the message while on leave and was of the view that no reasonable reader would associate the comment with her employer. Furthermore, she was charged with breaching the employer’s social media policy and yet that policy only applied to employees accessing the Internet through the company’s resources and during working hours. The employee had used her personal computer and it was not during working hours. Subsequently, the policy was amended to include private conduct. The CCMA found that the employee did not breach the employer’s social media policy and did not bring the employer’s name into disrepute as there was no proof that the company suffered any loss. Furthermore, it was found that the employer had acted inconsistently as the employees who had liked the post were only issued with a final written warning.

The Company then took the CCMA decision on review. The Labour Court (LC) first considered whether the Company was entitled to discipline the employee notwithstanding that the comment had nothing to do with her work responsibilities. It was found that the CCMA was correct that the Company’s policies did not apply to her conduct outside of working hours and outside of the workplace. However, an employer may still discipline employees for conduct outside of the workplace if there is a connection between the employee’s conduct and the employer’s business. It was held that in this case, the employee’s comment could be linked to the Company because she identified herself as an employee.

The LC held that the comment had exposed the Company to reputational harm. It was read by customers and the public which attracted negative media as well as social media attention, which placed the Company’s reputation at risk. Numerous customers threatened to take their business away. The arbitrator had placed emphasis on the fact that the Company did not prove the financial loss suffered but the LC found that the commissioner had failed to appreciate that the employee was not charged with causing loss.

The LC also found that the CCMA had not properly appreciated the use of the word “monkey” in the context of South Africa where such a word is rooted in racism. Her post was found to be racist and not in accordance with Company values. It was also held that the right to free speech does not extend to statements calculated to cause offence and harm. Furthermore, she was a senior employee who was expected to have known better. As regards the argument about inconsistent discipline, it was held that co-perpetrators can be treated differently depending on the extent of their participation in the misconduct.

It was held that the commissioner failed to consider all the evidence before him and reached an unreasonable decision. The award was set aside, and the dismissal was found to be substantively fair.

Reference List:

  • Extracted from article in April 2020 edition of De Rebus (DR 31) by Monique Jefferson BA (Wits) LLB (Rhodes).
  • Edcon Ltd v Cantamessa and Others [2020] 2 BLLR 186 (LC)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Understanding the debt collection process

September 7, 2020 / / Comments Off on Understanding the debt collection process

Have you ever heard about the Sheriff of the Court coming to collect your assets and auctioning it off in order to cover your unpaid debt? Is it legal and what are the procedures that must be followed in order for the Sheriff to obtain authorisation to attach your property? Is this even possible if you have not yet appeared in court?

In order for the Sheriff of the Court to effect seizure of your movable, and in some instances immovable property, he/she will need the authorisation of a warrant of execution. The Registrar or Clerk of the Court only issues a warrant of execution after judgment has granted by an order of the court.

For the purpose of this article, reference will be made to the Magistrate’s Court Rules1 only, though similar civil procedure, relevant to the High Court, can be found in the High Court Uniform Rules.

The legal process:

Generally, though not compulsory, the creditor will send a letter of demand to the debtor to inform the latter of the intention to sue as well as the time period in which such performance is due. The claim can be for, inter alia, damages and/or an amount in arrears and/or any other performance due by the debtor. After the letter of demand is sent, the Plaintiff (person or entity suing) will officially start the legal proceedings with a summons, a document issued by the Registrar or Clerk of the Court and delivered to the Defendant (person or entity being sued) by the Sheriff of the Court.

When a summons is received, it is of paramount importance that the Defendant reads it diligently, since it contains information that pertains to the civil procedure, your rights and options in accordance with the law, as well as the particulars regarding the claim. Upon receipt of a summons, you have 10 days to file a Notice of Intention to Defend with the Registrar or Clerk of the Court.2 The notice should be followed by a Plea within 20 days, explaining why you are defending the matter.3 This is the start of the paper war between parties, which might end with, inter alia, a settlement agreement or civil trial. Both these outcomes might potentially lead to a court order that could authorise a warrant of execution.

Default Judgment:

Perhaps the most important process in the civil procedure affecting the Defendant is a default judgment. This is an order of the court that is granted in the absence of the Defendant authorising a warrant of execution. In terms of rule 12 of the Magistrate’s Court Rules, a default judgment may be granted when:

  1. The Defendant has failed to deliver a Notice of Intention to Defend within 10 days; or
  2. The Defendant has failed to deliver a Notice of Intention to Defend before a request for default judgment is lodged; or
  3. The Defendant has filed a Notice of Intention to Defend but has failed to file a Plea within 20 days thereafter; and
  4. The Defendant has received a final notice to file a Plea within 5 days.

The default judgment will consist of a court order stipulating the judgment amount as well the costs that the Plaintiff is entitled to as a result of the legal proceedings.

Warrant of Execution:

The warrant of execution can only be issued after judgment has been granted by the court and authorises the Sheriff of the Court to give effect to said judgment. The execution could be for the payment of money, delivery of movable or immovable property, or ejectment, and has to be issued and signed by the Registrar or Clerk of the Court. 4

It is a common occurrence that people want to defend a matter or state their case when a warrant of execution has already been issued and they are faced with the immediate threat of losing their valuables. In most instances, this might be far too late and the Defendant might be in a position with limited available remedies.

In practice, the Sheriff of the Court will execute the warrant by recording an inventory of the assets of the Defendant, which may, upon instruction from the Plaintiff, form part of an auction in order to satisfy the judgment debt and costs of suit.

In summary, letters and official notices addressed to you should be read closely as it might contain crucial information in respect of your legal rights and procedures to follow. If you are served with a summons, defend the matter if appropriate in accordance with the rules of the court. Alternatively, make arrangements with the Plaintiff for payment or settlement negotiations.

Reference List:

  • Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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