“The duty of care does not end at the city gates; it lies in every uncovered pit and unattended path.”

A recent High Court judgment (Yende v City of Johannesburg Metropolitan Municipality and Another) offers important insights into the evolving jurisprudence on municipal liability for injuries caused by defective public infrastructure. The case highlights how courts weigh the public's right to safe infrastructure against the operational constraints faced by municipalities.

The plaintiff sustained injuries after falling into an uncovered stormwater manhole on Chris Hani Road, Soweto, while walking to catch a taxi. She suffered a fractured right ankle, which required surgery and an extended hospital stay. The matter proceeded on the issue of liability only, with damages (quantum) to be determined at a later stage.

The plaintiff’s claim was based on negligence, which required her to prove all the elements of negligence on a balance of probabilities.

In response, the defendants denied any legal duty to maintain the manhole. Alternatively, they argued that if such a duty did exist, it was subject to the limitations of manpower and available resources.

The plaintiff's evidence confirmed that the incident occurred during the day. She conceded that she had been multitasking, walking briskly while looking for a taxi. The defendants led evidence that the Johannesburg Roads Agency (JRA) had both proactive and reactive maintenance plans for manholes. The JRA also reported limited resources and relies on members of the public to report infrastructure defects. Manhole covers, according to the evidence, are inspected twice a year.

The court acknowledged that a municipality’s legal duty is not absolute and must be assessed in light of its capacity, particularly funding and staffing. However, it found that the defendants had conceded the legal duty to cover and barricade manholes, and were negligent in fulfilling this duty. A reasonable person in the position of the JRA would have taken proactive, reasonable steps to prevent harm, particularly on a road with high pedestrian traffic such as Chris Hani Road, where the risk of injury was foreseeable.

Insofar as the defence based on manpower and resources was concerned, the court was unable to consider it, as it had not been put to the plaintiff and no supporting documentary evidence had been discovered.

The court held the defendants liable to the plaintiff. However, it also found that the plaintiff had contributed to the incident. Given her own admission that she had been walking briskly and multitasking, and taking into account the clear weather and unobstructed pavement, the court concluded that she had failed to keep a proper lookout. She was found to be  contributorily negligent. The court therefore apportioned liability, holding the defendants jointly and severally liable for 50% of the plaintiff’s proven or agreed damages.

This judgment confirms that there is no blanket liability for municipalities in cases involving defective infrastructure. Each case must be considered on its own facts. Plaintiffs are also expected to take reasonable care for their own safety.

Importantly, where relevant and properly presented, evidence of a municipality's budgetary or resource constraints may help displace a finding of negligence and causation.

Key takeaways for both the public and municipalities include: 

• Municipalities have a legal duty to take reasonable, proactive steps to ensure the safety of public infrastructure, especially in high-foot-traffic areas.
• This duty is not absolute and must be evaluated in light of available resources, but municipalities must produce credible evidence to support any limitation.
• A failure to act, even in the absence of an absolute duty, may still amount to wrongful and negligent conduct where the risk of harm is foreseeable.
• Contributory negligence remains an important consideration; members of the public also have a duty to take reasonable care for their own safety.

Written by Rethabile Shabalala, Senior Associate, Nosiphiwo Rala, Trainee Attorney & Londiwe Mazibuko, Candidate Attorney at Webber Wentzel