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29 De Jure 379 (1996)
Cape Town Municipality v Butters 1996 1 SA 473 (C)

handle is hein.journals/dejur29 and id is 387 raw text is: 
Onlangse regspraak 379


Cape Town Municipality v Butters
1996 1 SA 473 (C)
Liability for omission - wrongfulness - negligence


I Introduction
This case affords a good example of the delictual liability of a municipality
for failing to take steps to prevent members of the public from suffering
injury on public premises. In addition it demonstrates clearly that the
modern South African law of delict still maintains its rejection of the
doctrine that municipalities are immune against claims arising from their
failure to keep streets, roads and public amenities in general under their
control, in a safe condition, which doctrine had held sway for many de-
cades and was effectually laid to rest only in the not so distant past (see
Neethling, Potgieter & Visser Law of Delict (1993) 59; Neethling, Potgieter
& Scott Case Book on the Law of Delict (1995) 179 188; cf Dendy 1993
Annual Survey 251).
  The relevant facts can be summarised as follows: The Cape Town Munici-
pality (appellant; defendant) is the owner of an extensively used parking lot
in a busy shopping area. This parking area lies on the banks of the canalised
Liesbeek River (at which spot the scenery has definitely changed drastically
since Jan van Riebeeck cum suis cultivated their vegetable patches there).
With the exception of a kerbstone, there is no barrier between the parking
area and the river canal. On a rainy evening, in failing light, Mr Butters
(respondent; plaintiff) had parked his car facing the canal, with its nose
protruding over the earlier-mentioned kerbstone. Wishing to go to the other
side of his vehicle after having previously alighted from it, he opted to walk
round the nose along a narrow, uneven grass-covered ledge running along
the side of the river canal. On this ledge he slipped, lost his footing and
plunged to the floor of the canal, sustaining considerable injuries. In a
subsequent action he succeeded in recovering some damages, after the
judge (Thring J) ordered an apportionment of damages due to his own
contributory negligence. It is against this judgment that the defendant
lodged an appeal to the full court.


2 Judgment of the Court a Quo
It is not our intention to render an in-depth discussion of the ratio deci-
dendi of Thring J's judgment in the court a quo (Butters v Cape Town Mu-
nicipality 1993 3 SA 521 (C); see Dendy 1993 Annual Survey 251-), but
rather to point out the main reasons advanced by the judge for his find-
ings, in order to provide a background for our evaluation of the full court's
subsequent judgment.
   In the first instance the court had to dispose of the defendant's argument
that it was not obliged to protect people against the consequences of their
own negligence: it was submitted on behalf of the defendant that the hazard
which confronted the plaintiff was not of a disguised or concealed nature,
but that the danger was clear and apparent and that the well-established rule

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