THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 488/2021
In the matter between:

THE MEMORABLE ORDER OF TIN HATS                                             APPELLANT
and
KENNETH PAUL ELS

RESPONDENT

Neutral citation:
The Memorable Order of Tin Hats v Kenneth Paul Els (488/2021)
[2022] ZASCA 99 (22 June 2022)
Coram:
PLASKET, CARELSE and HUGHES JJA and TSOKA and MAKAULA
AJJA
Heard:
23 May 2022
Delivered:  22 June 2022
Summary: Delict – negligence – omission to install second handrail on flight of stairs
– liability for wrongfulness – appellant under a duty to the public and its members to
ensure their safety – no causal connection between incident and omission.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Lamont J, Meyer
J and Harrison AJ sitting as a court of appeal):
(1) The appeal is upheld with costs, such costs to include the costs of two counsel.
(2) The order of the full court is set aside and replaced with an order in the following
terms:
‘(a) The appeal is upheld with costs.
(b) The order of the trial court is set aside and replaced with an order in the
following terms:
“The plaintiff’s claim is dismissed with costs, including the costs of the expert
witness, Mr André Fullard.”’
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Hughes JA (Plasket and Carelse JJA and Tsoka and Makaula AJJA concurring)

[1] The appellant is, the Memorable Order of Tin Hats (the M.O.T.H), a voluntary
association and brotherhood of former South African soldiers. One of the premises of
the M.O.T.H, is the M.O.T.H Hall, situated at the corner of 16th Street and 2nd Avenue,
Parkhurst, Johannesburg, which was opened on 12 November 1955. This two storey
building, is occupied by a school in the main hall area on the ground floor. The
basement area is occupied by the M.O.T.H which utilises it as a pub for recreational
gatherings of its members and the public. To access the building, the occupants of the
school use the main entrance of the building on the eastern façade. The M.O.T.H uses
the entrance on the western façade of the building to gain access to the basement.
Importantly, on exiting the basement, there is a two-step stairway directly outside. It is
this route from the pub on the basement level to the parking area on the ground level
that is at the centre of this dispute.

[2] The respondent, Mr Kenneth Paul Els, often frequented the pub, though he was
not a member of the M.O.T.H. On 18 January 2014, he went to the pub to consult with
a client. Whilst busy with his consultation, one of the members, Mr Pat Levengs, sought
assistance to leave the premises of the pub and proceed to the parking lot. It was a
regular occurrence that, as Mr Levengs was wheelchair-bound, he sought assistance
from the patrons to get him to the parking area. It was also common cause that Mr Els
had assisted him on many occasions. On the day in question and during the process
of assisting Mr Levengs, Mr Els was injured. I shall outline the circumstances of the
accident in detail below.

[3] Mr Els instituted action proceedings for delictual damages arising from the injury
he sustained. His claim was premised on the negligence of the appellant in the
following relevant respects:
‘…
5.3  it/they unlawfully and/or wrongfully failed to provide adequate hand rails at staircases;
5.4  it/they unlawfully and/or wrongfully failed to provide any regulation compliant on and off
ramps to allow for safe wheelchair access/ingress/egress or from the M.OT.H. Hall;
5.5  it/they unlawfully and /or wrongfully failed to provide for handrails on both sides of
staircases;
5.6  it/they unlawfully and or wrongfully failed to ensure that each tread step is of the same
height and does not exceed 170mm;
5.7 it/they unlawfully and wrongfully failed to make every effort to provide safe
access/ ingress/ egress facilities to the M.O.T.H Hall;
5.8 it/they unlawfully and /wrongfully failed and/or omitted to take any reasonable measures or
action; to avoid the reasonably foreseeable incident, which could have been avoided
through the taking of reasonable, care, skill, effort and /or precautionary measures, which
it/they could and should have taken, yet unlawfully and/or wrongfully failed to take.’

[4] In essence, Mr Els’ case is that his delictual claim arose from the unlawful and
wrongful failure or omission of the M.O.T.H to take reasonable measures to avoid a
foreseeable incident that resulted in the damages he suffered as a result of his injuries.

[5] The matter came before Twala J who granted a separation of issues in terms of
rule 33(4) of the Uniform Rules of Court. Thus, the matter proceeded on the merits and
quantum was held over. Twala J found 90% in favour of Mr Els and refused an

application for leave to appeal. The M.O.T.H petitioned this Court and was granted
leave to appeal to the full court of the Gauteng Division, Johannesburg. The full court,
per Lamont J, Meyer J and Harrison AJ concurring, dismissed the M.O.T.H’s appeal.
Dissatisfied, it applied for special leave to appeal. These proceedings are with the
leave of this Court, special leave having been granted.

[6] Briefly, the events of 18 January 2014 are as follow.  As already alluded to, Mr
Els visited the pub to consult with a client, Mr Scott Cheney, who is a member of the
M.O.T.H. According to Mr Els, during the course of his consultation, Mr Levengs called
from outside of the pub, for his assistance to help him up the flight of two stairs en
route to the car park. He testified that it was common practise for him to assist Mr
Levengs to exit the pub en route to the car park.

[7] He testified that as he exited the pub with Mr Cheney in tow, he found Mr
Levengs with two other patrons, Mr Paul Jansen and Mr Kenneth Swartz who were
trying to assist him. According to his evidence, he had assisted Mr Levengs to exit the
pub on prior occasions, but had used another route. This was his first attempt at this
staircase en route to the car park, as he had never been at this specific area. On arrival
he observed that the wheelchair and Mr Levengs were jammed between the step and
the outer wall. It is common cause that Mr Levengs sitting in that wheelchair weighed
120 kilograms.

[8] Having assessed the situation, Mr Els deduced that ‘[i]t was impossible to turn
the wheelchair because of the lack of space and probably because of his weight too,
it was jammed. The only reasonable way to end the problem was to continue with the
manoeuvre of what they were trying to do, and that is to walk this wheelchair up the
steps to get to the top of the stormwater sloot [storm water drain]’.

[9] Mr Els testified that, having been called to assist by Mr Levengs, he went there
on his own accord to assist as he had done on previous occasions. Through his
testimony it emerged that he had ‘no idea what happened’. He stated that although ‘I
do not know exactly what happened…I believe I lost my balance’. Further, in advancing
an explanation of what he believed transpired he stated that: ‘[t]here was a lot of huffing

and puffing, and I do not know exactly what went wrong, but it would seem that I lost
my balance. I could not get my foot out . . .’. He ended up falling on his back and losing
consciousness, with Mr Levengs and his wheelchair on top of him.

[10] Mr Cheney’s evidence was that he and Mr Els held onto the back of the chair,
while Mr Jansen and Mr Swartz held the front. It transpired according to Mr Cheney
that the incident occurred as a result of the fact that ‘[t]hey were pushing and Mr
Kenneth Els’ foot got stuck between the [first] riser of that staircase and the wheelchair’.

[11] Mr Els identified the M.O.T.H’s negligence as being two-fold. He stated that
‘…their negligence I would perceive as not having steps which were safe in the first
place. But in the second place they should have had ramps there, which there are
now’.

[12] Both Mr Jansen and Mr Swartz testified that Mr Levengs did not specifically call
on Mr Els for help and usually when Mr Levengs sought assistance, volunteers were
sought from the pub. Further, both testified, which evidence was not challenged, that
they had on many occasions assisted Mr Levengs up the stair case in question without
any incident occurring. In addition, both were adamant that Mr Els hooked or caught
his foot on the step and fell backward.
‘Mr Jansen: …Then we pulled Pat onto the first step and then again, one, two, three, go and
then up the second and then the plaintiff hooked his foot on the step and fell over backwards.’
‘Mr Swartz: When the wheels were on the first step and when he went back on the second
step his back foot caught the back step- and he fell backwards with the wheelchair and
obviously he was trying to protect the old man, then he went down and he held the wheelchair
on top of him.’

[13] What emerges from the evidence, on the respondent’s version, is that the
wheelchair was stuck and in an attempt by the group to free it, Mr Els lost his balance,
while his foot was jammed. This resulted in him falling backwards and sustaining his
injuries.

[14] The gist of the M.O.T.H’s case is that the full court erred in holding that it was
liable in delict for the damage suffered by Mr Els. The evidence did not, according to
it, establish negligence, legal causation or wrongful conduct on its part.

[15] The trial court found that the M.O.T.H owed a duty to protect its patrons against
harm (duty of care) from stairs which did not have railings and that such breach had
caused harm to Mr Els. Furthermore, had a wheelchair ramp been built and rails placed
at the staircase, Mr Els’ claim would not have materialised.

[16] The full court on appeal concluded: ‘The appellant had a duty to protect its
members and guests from harm which could be caused by the steps and should have
facilitated the navigation of the steps by providing rails, ramps or signage …The
appellant was negligent in failing to take the appropriate steps to render the hazard
safe’.

[17] It is well established that negligence arises from positive conduct which causes
physical harm which raises a presumption of wrongfulness. However, with an omission
as opposed to positive conduct, wrongfulness is not presumed, and for wrongfulness
to be established reliance falls upon a legal duty. This duty arises from public and legal
policy considerations. This case rests on the liability attracted for an omission on the
part of the M.O.T.H. In these circumstances, a different approach than that of positive
conduct is applicable, in addressing wrongfulness for the omission or failure to do
something.1

[18] An omission per se is not wrongful unless it is considered to go against legal
policy or public considerations, which dictate that a plaintiff be compensated for the
loss suffered as a result of such omission. Thus, the approach alluded to above,
involves a further enquiry, that being whether there was a legal duty that gave rise to

1 The South African Hang and Paragliding Association v Bewick [2015] ZASCA 34; 2015 (3) SA 449
(SCA); [2015] 2 All SA 581(SCA) para 5; Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) para12;
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC) paras
22-25.

delictual liability.2 Put differently an omission does not necessarily attract liability, only
if it was culpable would it do so.3

[19] As aptly stated by Brand JA in The South African Hang and Paragliding
Association v Bewick: ‘[s]ince wrongfulness is not presumed in the case of an omission,
a plaintiff who claims on this basis must plead and prove facts relied upon to support
that essential allegation (see eg Fourways Haulage SA (Pty) Ltd v SA National Roads
Agency 2009 (2) SA 150 (SCA) para 14).’4

[20] The duty to prove negligence by conduct or omission lies on Mr Els, as the
plaintiff in the trial, as it is trite that he who alleges must prove. Staircases by their very
nature are dangerous to traverse, more so, if safety features are lacking and in this
instance a second handrail was absent. Thus, even though the staircase, having only
one handrail was practical and useable, as per the expert reports, it was not completely
safe for use by the M.O.T.H’s members and the public, abled or disabled. It can
therefore be accepted that the M.O.T.H’s omission in ensuring that the staircase was
safe for use by its members and the public was a catalyst to cause potential harm and
no reasonable steps were taken to safeguard its members and the public from this
harm.

[21] The M.O.T.H conceded that it had a legal duty to take reasonable steps to
ensure the premises, inclusive of this staircase, were safe for its members and the
public. Thus, a negligent omission on its part can be accepted to have infringed on the
policy and legal convictions of the public, as the appellant owed a duty to the public
and its members to ensure the safe use of the staircase. This conduct was wrongful
as the negligent omission resulted in harm, which with reasonable care could have
been avoided. It is thus reasonable that this conduct gives rise to delictual liability. All
things considered thus far, this is a classic case as stated by Brand JA in Trustees,

2 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461
(SCA) paras 13-14; The South African Hang and Paragliding Association para 7.
3 Kruger v Coetzee 1966 (2) SA 428 (A).
4 The South African Hang and Paragliding Association para 6.

Two Oceans Aquarium Trust5, where ‘. . . duty of care’ in English Law ‘straddles both
elements of wrongfulness and negligence’.

[22] In this case, even on the assumptions above, the critical issue is that of
causation. The question to be answered is what caused Mr Els to fall backwards on
the staircase. He said that he did not know why he fell but he thought that he lost his
balance and his foot got stuck whilst they were in the process of transferring Mr
Levengs in his wheelchair. The witnesses for the M.O.T.H agreed that he tripped and
fell backwards.

[23] Despite the fact that the precise manner of the accident is not clear, it is
apparent that while helping Mr Levengs, Mr Els overbalanced, tripped and fell
backwards, with Mr Levengs and his wheelchair falling onto him. As stated above the
combined weight of Mr Levengs and his wheelchair was estimated by the witnesses to
be in the region of 120 kilograms. I am prepared to accept for purposes of this judgment
that the M.O.T.H’s omission to install a second handrail on the stairs was negligent
and wrongful.

[24] That, however, is not the end of the enquiry. The element of causation also had
to be proved by Mr Els. In my view, he failed to prove a culpably causative relationship
between the omission and the harm. It is more probable than not that, when Mr Els
overbalanced and fell, a handrail on his side of the stairs would not have averted the
harm. Even if he had been able to grab onto such a handrail, the force of 120 kilograms
falling onto him from above, would have broken his grip – and he would have fallen
and injured himself despite it being present. That he would still have fallen even if the
handrail had been there was conceded on his behalf during argument.

[25] On an examination of the evidence the conclusion that I have reached is that
the M.OT.H’s negligent omission and the wrongful conduct were not the catalysts for
the unfortunate accident. Mr Els failed to prove that they were more than likely the

5 Trustees for the Time Being of Two Oceans Aquarium Trust v Kantey & Templer (Pty)Ltd [2005]
ZASCA 109; [2007] 1 All SA 240 (SCA) para 11.

cause of the harm.6 The result is that the appeal must succeed. Costs ought to follow
the result, including the costs of two counsel in the appeal.

[26] Consequently, the following order is made:
1 The appeal is upheld with costs, such costs to include the costs of two counsel.
2 The order of the full court is set aside and replaced with an order in the following
terms:
‘(a) The appeal is upheld with costs.
(b) The order of the trial court is set aside and replaced with an order in the
following terms:
“The plaintiff’s claim is dismissed with costs, including the costs of the expert
witness, Mr André Fullard.”’

___________________
W Hughes
Judge of Appeal

6 Za v Smith and Another [2015] ZASCA 75; 2015 (4) SA 574 (SCA); [2015] 3 All SA 288 (SCA) para 30
and the cases mentioned therein.

APPEARANCES

For the Appellant:
Adv. C H Van Bergen SC

Adv. T Pillay
Instructed by:
RIC Martin Inc, Sandton
McIntyre Van Der Post, Bloemfontein

For the Respondent:
Adv. C Ascar
Instructed by:
Dyason Attorneys, Johannesburg
Aucamp & Cronje Attorneys, Johannesburg
Symington & De Kok, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

22 June 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
The Memorable Order of Tin Hats v Kenneth Paul Els (488/2021) [2022] ZASCA 99 (22 June 2022)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with costs including the
costs of two counsel, an appeal against the decision of the Gauteng Division of the High Court of South
Africa, Johannesburg (the high court).
The appellant was, the Memorable Order of Tin Hats (the M.O.T.H), a voluntary association and
brotherhood of former South African soldiers. One of the premises of the M.O.T.H, was the M.O.T.H
Hall, situated at the corner of 16th Street and 2nd Avenue, Parkhurst, Johannesburg. This was a two
storey building with the basement area occupied by the M.O.T.H, which utilized it as a pub for its
members and the public. In order to exit the basement there was a two-step stairway directly outside.
It is this route from the pub on the basement level to the parking area on the ground level that is at the
centre of this dispute. The respondent, Mr Kenneth Paul Els, often frequented the pub, though he was
not a member of the M.O.T.H. On 18 January 2014, he went to the pub to consult with a client. Whilst
busy with his consultation, one of the members who was wheel-chair bound, sought assistance to leave
the premises of the pub and proceed to the parking lot. It was during that process of assisting the
member that the respondent got injured.
The respondent instituted action proceedings for delictual damages arising from the injury he sustained.
The delictual claim arose from the unlawful and wrongful failure or omission of the M.O.T.H to take
reasonable measures to avoid a foreseeable incident that resulted in the damages he suffered as a
result of his injuries. The high court found 90% in favour of Mr Els and refused an application for leave
to appeal. The M.O.T.H petitioned this Court and was granted leave to appeal to the full court of the
Gauteng Local Division, Johannesburg. The full court, dismissed the M.O.T.H’s appeal. Dissatisfied, it
applied for special leave to appeal. These proceedings were with the leave of this Court, special leave
having been granted.
The critical issue was that of causation. The question to be answered was what caused Mr Els’ injuries.
According to his testimony, he did not know why he fell but he thought that he lost his balance and his
foot got stuck whilst they were in the process of transferring the member in his wheelchair. The
witnesses for the M.O.T.H agreed that he tripped and fell backwards.
The SCA held that despite the fact that the precise manner of the accident was not clear, it was apparent
that while helping the member, Mr Els overbalanced, tripped and fell backwards, with the member and
his wheelchair falling onto him. The combined weight of the member and his wheelchair was estimated
by the witnesses to be in the region of 120 kilograms. The SCA held that for the purposes of this
judgment it would accept that the M.O.T.H’s omission to install a second handrail on the stairs was
negligent and wrongful. That, however, was not the end of the enquiry. The element of causation also
had to be proven by Mr Els. The Court found that he failed to prove a culpably causative relationship
between the omission and the harm. It was more probable than not that, when Mr Els overbalanced
and fell, a handrail on his side of the stairs would not have averted the harm. Even if he had been able
to grab onto such a handrail, the force of 120 kilograms falling onto him from above him, would have

broken his grip – and he would have fallen and injured himself despite it being present. On an
examination of the evidence the conclusion that the SCA reached was that the M.OT.H’s negligent
omission and the wrongful conduct were not the catalysts for the unfortunate accident. Mr Els failed to
prove that they were more than likely the cause of the harm. Consequently, the appeal was upheld.

~~~~ends~~~~