THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 20197/2014

In the matter between:

MARIANNE ALET PAUW

APPELLANT

and

GERTRUIDA ELIZABETH DU PREEZ

RESPONDENT

Neutral citation: Pauw v Du Preez (20197/2014) [2015] ZASCA 80 (28 May
2015)

Coram:
Brand, Leach and Saldulker JJA and Dambuza and Gorven AJJA

Heard:
6 May 2015

Delivered: 28 May 2015

Summary: Delict ─ failure to protect a section of a stairway with a hand-railing
─ such omission wrongful and negligent ─ respondent who fell from stairway not
shown to have been negligent.

_________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Western Cape Division, Cape Town (Traverso DJP and
Erasmus and Goliath JJ concurring):
The appeal is dismissed, with costs
_______________________________________________________________
JUDGMENT
________________________________________________________________

Leach JA (Brand and Saldulker JJA and Dambuza and Gorven AJJA concurring)

[1] Whilst leaving a house owned by the appellant in the Strand on Christmas
Eve, 2005 the respondent lost her balance and fell from a flight of stairs. She
sustained bodily injuries and, in due course, instituted action for damages against
the appellant in the Western Cape High Court alleging, inter alia, that the
appellant had negligently failed to protect that portion of the stairs from which
she had fallen with a railing that would have prevented her fall. When the matter
came to trial, the issue of the appellant’s liability was decided as a separate issue
at the outset with the quantum of damages standing over for later decision.

[2]   The trial court concluded both that the appellant had indeed been negligent
and that she had failed to establish contributory negligence on the part of the
respondent. It therefore issued an order declaring the appellant to be liable to
compensate the respondent for whatever damages she might prove in due course.
In an appeal to a full court, the appellant accepted that she had been negligent but
argued that the trial court had erred in not finding contributory negligence on the
part of the respondent. The appeal was dismissed. With special leave, the

appellant now appeals to this court contending, once again, that the respondent’s
own negligence had contributed to her fall.

[3] The property where the incident occurred was acquired by the appellant’s
parents as a holiday home in the mid-1950s, at a time when the appellant was a
young girl. Initially registered in the name of the appellant’s father, it has
remained in the family ever since. Although the appellant and her husband had
moved to the Strand in November 2002 and had thereafter resided permanently in
the house, it was only formally transferred into her name in 2004.

[4] As is apparent from the photographs and plans of the appellant’s property
included in the record, the house is built on a steep hillside. Access from the
street is provided by way of a fairly lengthy but straight flight of stairs leading
from the street frontage and passing between a garage and a retaining wall. The
garage is set back somewhat, both from the street and the front retaining wall.
Viewed from above, the entire length of the stairway is flanked on the right by a
wall fitted with a handrail.  On the left, it is flanked for approximately half its
length by the side wall of the garage. At the level of the front wall of the garage
there is a security gate across the stairs, hinged on the right hand side and secured
by way of a latch on the garage wall on the left. The fall from the bottom of the
edge of the gate to the level of the ground is approximately 1,2 metres. Below the
gate the stairs on the side of the garage are not fitted with any safety rail or other
form of protection.

[5]   It was from this unprotected portion of the stairway below the gate that the
respondent fell.  It may well be so, as the appellant testified, that no-one had ever
previously fallen off the stairs but, as the saying goes, there is a first time for
everything and the mere fact that no-one else had previously suffered a similar

fate does not excuse the appellant from the consequences of her failure to render
that portion of the stairway safe.

[6]   Although the appellant initially denied negligence on her part, the lack of
protection on the garage side of the stairs below the gate was an inherently
dangerous state of affairs and, as stated earlier, she accepted both in the court a
quo and in this court that she ought to be held liable to the respondent for failing
to fit a safety railing to secure that portion of the stairway.  She also accepted that
had there been such a safety railing, the respondent would probably not have
fallen off the stairs and been injured.   As the respondent’s claim was based upon
an alleged negligent omission, the appellant’s concession embraced an admission
that her failure was both wrongful (in the sense that the policy and legal
convictions of the community would visit a delictual claim with liability) and
negligent (in that she had failed to take steps to avoid the harm when a reasonable
person in her position would have foreseen the reasonable possibility of the
omission causing injury to another and would have taken steps to avoid the harm
occurring). That wrongfulness and negligence are two separate and discrete
elements of delictual liability which, importantly, should not be confused, can
now be accepted as well established in our law, academic criticism from certain
quarters notwithstanding.1

[7]   In any event, the consequence of the appellant’s acceptance of liability  is
that, in regard to the so-called ‘merits’ of the  respondent’s claim, the only issue
that this court is called upon to decide is whether the extent of the appellant’s
liability should be reduced by any contributory negligence on the respondent’s
part . It is trite that, on this issue, the onus fell on the appellant to prove such
contributory negligence.

1 Cf Za v Smith (20134/2014) [2015] ZASCA 75 paras 17-22.

[8]   On Christmas Eve, 2005 the respondent and her mother went to visit
relations who had hired the appellant’s house over the Christmas season (the
appellant was with her husband at his beach house at Boggomsbaai at the time).
They stayed until about 11 pm. It was when leaving and descending the stairs that
the respondent fell and was injured. The fall occurred below the level of the gate
where the stairway on the side of the garage was unprotected.

[9] The respondent and her mother were the only two witnesses who testified
as to how the incident had occurred. It can be accepted that although it was dark
and there were no lights shining directly onto them, the stairs were adequately lit
by the lights in the vicinity. The respondent alleged that she had descended the
stairs with her mother behind her. Her mother contradicted her, saying that she
had gone ahead. At the end of the day it matters not but, as her mother did not see
her fall, the probabilities are overwhelming that the respondent had in fact
preceded her down the stairs.

[10]   The gate was closed when they descended and, closed as it was against the
rise of a step, had to be opened away from persons descending, towards the road.
After both she and her mother had passed through it, the respondent closed the
gate. In order to do so, she first had to proceed down several steps to provide
space to close it behind her, and then turned around and moved back up a few
steps to secure the gate’s latch to the clip mounted on the garage wall. No sooner
had she done so when she lost her balance and fell, not down the stairs
themselves, but off the stairway to end up lying between it and a motor vehicle
that was parked parallel to the stairs facing the garage door.

[11] The appellant’s mother was unable to say precisely how the appellant’s fall
had come about. She volunteered that after the appellant had closed the gate she
turned around and, in the process, missed a step which caused her to lose her

balance and fall. However, she admitted that she had not seen this happening and
that, at the crucial time, she had turned and was facing down the stairs when she
suddenly heard a scream and the sound of the appellant falling.
The appellant herself did not know what had caused her to fall. According to her,
she had just closed the gate but still had her hands on it when she lost her balance,
her hands slipped off the gate, and she fell. But how or why she lost her balance
she was unable to say.

[12] In arguing that the respondent had been negligent, counsel for the appellant
contended that the respondent ought not to have closed the gate at all but should
have left it to her mother to do so. This argument, as I understood it, was based
on the fact that the respondent suffers from a physical disability as a result  of a
head injury sustained as a young child; that as the latch of the gate was on the
side of the garage wall, she had to move towards the open side of the stairway in
order to close it, particularly as she was left-handed; and that in these
circumstances she had exposed herself to the obvious danger of the unprotected
side of the stairway instead of having remained on the opposite side where there
was a handrail available for her to support herself.

[13] Not only was this never specifically pleaded as a ground of negligence, but
the contention has no merit. It is indeed so that more than 30 years previously the
respondent had suffered a brain injury in a motor accident that had left her with a
permanent right-sided hemiplegia and an associated limp on that side, and she
admitted that in order to compensate for her weak right leg she descended the
stairs by angling herself towards her left. But despite her gait being compromised,
the respondent has accepted her physical disability with courage and
determination. She became a long distance runner who, in 1999, had been a
member of an invitation team that attended a para-olympic event in Australia

where she had won three medals, two gold and a silver. And, importantly, as part
of her training she used, at times, to run up 10 flights of stairs.

[14]   Accordingly, despite her physical disability and the necessity for her to be
cautious when traversing non-level terrain, the respondent’s hemiplegia was not
so severe that the stairs at the house constituted a challenge that she ought not
have accepted without assistance. A reasonable person is after all not ‘a timorous
faint-heart always in trepidation lest he (or she) suffer some injury’ but ‘ventures
out into the world, engages in affairs and takes reasonable chances’.2 Bearing that
in mind, the evidence falls short of establishing that the respondent’s disability
was such that it was inherently dangerous for her to have attempted to close the
gate herself, or that she was negligent in not having her mother do so.

[15] However, as a second string to her bow, the appellant argued that the
respondent had been negligent in losing her balance and falling. This argument
was based principally upon the contention that she had failed to keep a proper
lookout and that, after having closed the gate, she had lost her balance as she
must have stepped back and off the edge of the stairway which caused her to fall.

[16] Had the evidence established that the respondent had indeed fallen in this
manner, there may have been room for an argument that she had been negligent.
But there is no evidence this was in fact how she came to fall, nor can it be so
inferred. As I have said, her mother did not see what had happened and the
respondent herself does not know what caused her to lose her balance. All one
knows is that she did so before she fell, but there are a myriad of potential
reasons why persons might lose their balance. It follows that a person doing so,

2 Per Van den Heever JA in Herschel v Mrupe 1954 (3) SA 464 (A) at 490E-F.

and falling, does not in itself give rise to any inference of negligence on his or her
part.3

[17] Thus the reason why the respondent lost her balance remains an
unexplained mystery. It is impermissible to speculate on what led to her doing so.
That being the case, the necessary facts from which a conclusion can be drawn
that she acted negligently have not been established. In these circumstances the
appellant failed to prove contributory negligence on the respondent’s part and the
appeal must fail.

[18] The appeal is dismissed, with costs.

_______________________
L E Leach
Judge of Appeal

3 Cf Swinburne v Newbee Investments (Pty) Ltd 2010 (5) SA 296 (KZD) para 19 and Spencer v Barclays Bank
1947 (3) SA 230 (t) at 238-9.

Appearances:

For the Appellant:

A B Rossouw SC

Instructed by:

D M Bakker Attorneys, Roodepoort

Lovius Block, Bloemfontein

For the Respondent:

J D Maritz SC

Instructed by:

Rose-Innes, Du Preez Attorneys, Barberton

Symington & De Kok, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  28 May 2015
Status:  Immediate
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Neutral citation:  Pauw v Du Preez (20197/2014) [2015] ZASCA 80 (28 May 2015)

The appellant is the owner of a house in the Strand. On Christmas Eve 2005, when
the respondent was in the process of leaving the house, she lost her balance and fell
from a flight of stairs leading to the street causing her to sustain bodily injuries. In
due course the respondent instituted action for damages in the Western Cape High
Court contending that the appellant had negligently failed to protect that portion of
the stairs from which she had fallen with a railing that would have prevented her fall.
When the matter came to trial, the issue of the appellant’s liability was decided as a
separate issue. The trial court concluded both that the appellant had been negligent
and that she had failed to establish contributory negligence on the part of the
respondent. It thus issued an order declaring the appellant to be liable to the
respondent for whatever damages she might have suffered as a result of the injuries
sustained by her in the incident.

The appellant appealed to a full court. In doing so she accepted that she had been
negligent but argued that the trial court had erred in not finding contributory
negligence on the respondent’s part. Her appeal was dismissed but, with special
leave, she appealed to the Supreme Court of Appeal contending, once again, that
the respondent’s own negligence had contributed to her fall.

It appears from the record that the respondent had lost her balance immediately
after having closed a gate across the stairs. There was no evidence as to what had
caused her to do so. The Supreme Court of Appeal held there are a myriad of
potential reasons why persons might lose their balance. It therefore concluded that
the fact that the respondent had lost her balance and fallen did not give rise to any
inference of negligence on her part. The reason why she had fallen was thus
unexplained and, in these circumstances, contributory negligence on her part had
not been proved.

The appeal was therefore dismissed, with costs.

---ends---