MUNCIPALITY – DUTY TO MAINTAIN STRUCTURES
Du Toit v Mangaung Municipality [2021] ZAFSHC 242
Plaintiff was walking with her husband when she stepped on a water meter chamber. The structure gave way and she fell, hurting her leg. In her claim she alleges she was injured because of the negligence and breach of duty of care of the municipality, through its employees. The municipality denied negligence or breach of duty of care and in the alternative pleaded contributory negligence and voluntary assumption of risk (volenti non fit injuria).
De Kock AJ discusses the evidence that there was sidewalk space to allow pedestrians to walk either side of the chamber; why plaintiff chose to walk over the structure instead of over the grass; and the case law on municipal negligence and their duty to maintain and repair structures to which the public have access.
The municipality is found liable to compensate plaintiff in full for her proven or agreed damages.
[22] The structure as already alluded to is situated in a residential area. The broken structure posed a danger to the public. The Court is persuaded that the broken structure indeed constituted a trap to a pedestrian. The foreseeability test is satisfied in that it emerged from the Defendant’s witnesses’ evidence that the structure can be damaged by vandalism, a motor vehicle or corrosion.
ADMISSIBILITY – BLOOD ALCOHOL CERTIFICATE
Hall v S [2021] ZAWCHC 231
Mr Hall was convicted in the magistrate’s court of driving a motor vehicle while his blood alcohol exceeded the legal limit of 0,05 grams per 100 mililitres. Mr Hall had disputed that that the blood specimen was correctly obtained, sealed, handled, or analysed. He now appeals against his conviction.
Montzinger AJ discusses how Mr Hall was stopped by the police and the processing of the blood sample; the evidence of the traffic officer; the time when the blood sample was drawn; the demonstration by the officer as to the security of the seal on the container that holds the tube with the blood sample; whether the appellant’s blood was obtained within the two-hour period; whether a registered medical practitioner drew the appellant’s blood; whether the State proved the chain of custody of the blood sample beyond reasonable doubt; and whether the certificate for the calibration of the measuring instrument is admissible evidence.
* See at [40]-[49] on certificates in terms of s 212 of the Criminal Procedure Act and the reliance on the S v Ross case.
The appeal is dismissed. (Goliath DJP concurred.)
[49] For the reasons expounded on above we find that S v Ross cannot be relied on as support for the proposition that evidence on the issue of the calibration of measuring instruments must be on affidavit. The legal position in this division is rather as per the S v Van der Sandt and later the S v Mouton judgments. We are accordingly of the view that the appellant’s reliance on S v Ross cannot be sustained. This ground of appeal must therefore fail.
RELOCATION TO NEW ZEALAND – CONSENT OF BIOLOGICAL FATHER
AK v LKG [2021] ZAGPJHC 675
Applicant is a clinical psychologist and obtained employment in New Zealand to start work on 31 January 2022. She urgently seeks an order terminating the biological father’s rights of guardianship of the five year old daughter, under ss 18(3)(c)(iii) and (iv) of the Childrens Act, to enable her to relocate to New Zealand.
Dippenaar J discusses the relationship of the parties and the psycho forensic assessment report; that the respondent refused consent for the relocation; urgency; whether the application is premature and an expert report is required; the motives of the application for relocation; the applicant’s entitlement to pursue her career and her new life; the child’s best interests; and costs.
An order is granted that certain specific parental responsibilities and rights of the respondent in respect of guardianship be terminated. Applicant is granted sole guardianship for consent to the relocation and respondent’s consent for documents for the relocation is dispensed with.
The respondent is directed to pay the costs of the application.
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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