In Cenprop Real Estate (Pty) Ltd v Holtzhauzen [2022] ZASCA 183 (19 December 2022), the SCA held an owner of a shopping mall and the entity controlling the mall liable for failing to take reasonable steps to prevent a slip and trip that occurred on a rainy day.
On the rainy morning of 1 June 2013, Ms Holtzhauzen visited the Goodwood Mall to draw money from an ATM. On her way to the ATM, and whilst carrying her 11-month-old baby, she slipped and fell on the wet tiled floor resulting in a fractured elbow.
Ms Holtzhauzen sued Cenprop Real Estate (Pty) Ltd (Cenprop), the management company in charge of the mall and Naheel Investments (Pty) Ltd (Naheel), the mall owner, for the damages she sustained during the fall.
The SCA had to consider three issues:
- was Ms Holtzhauzen's fall due to her own negligence;
- had Cenprop and Naheel discharged their duty of care to keep the premises safe by employing independent contractors (referred to as the Chartaprops1 defence); and
- were Cenprop and Naheel indemnified from liability based on a disclaimer notice at the mall's entrance.
First issue: Negligence
The SCA accepted Ms Holtzhauzen's evidence that the floors were wet due to the rain, and when she noticed this, she proceeded slowly and carefully down the tiled corridor. Ms Holtzauzen testified that she wore rubber sole boots on the day and that she proceeded with further caution as she had her child in her arms.
The SCA held that the slippery wet tiles posed a danger to Ms Holtzhauzen and ultimately found that there was no basis to hold her negligent in any way.
Second issue: Chartaprops defence
Cenprop argued that they had taken steps to prevent the harm by appointing independent contractors to clean the corridors and manage spillages. The SCA held that solely hiring a cleaning company, however, would not suffice as a reasonable measure for the following reasons:
- the extra attention required to keep floors clean on a rainy day was not covered in the scope of work provided to the cleaning company;
- Cenprop and Naheel gave very cryptic and vague evidence as to the appointment and competence of the cleaning company. This was distinguishable from Chartaprops case where it was held that the duty of care was discharged by the employment of a competent contractor.
- the make of the tiles used in the mall directly implicated Cenprop and Naheel. The architectural experts agreed that this tile could be considered slippery underfoot when wet. The selection of tile could not be placed at the foot of the cleaning company.
Third issue: disclaimer notice
There was no evidence that the disclaimer notice was visible when the incident occurred and therefore the SCA rejected this defence.
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