IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 29/2011
In the appeal between:
MINISTRY OF PUBLIC WORKS
AND TRANSPORT 1STAPPELLANT
THE ATTORNEY GENERAL 2ND APPELLANT
SAMSON MACHORA RESPONDENT
CORAM : S.A.MOORE, JA
: DR S. TWUM, JA : I.G. FARLAM, JA
FOR THE APPELLANTS : S. KHULUSE,
FOR THE RESPONDENT : M.E. SIMELANE
Delict – Negligence – Injuries sustained by respondent when he fell into manhole from which cover had been stolen – whether negligence on part of the Ministry proved.
 The appellants in this matter, the Ministry of Public Works and Transport and the Attorney-General, appeal against a judgment delivered by Sey J, sitting in the High Court, in which she gave judgment in favour of the respondent, Samson Machora, in an amount of E481,000.00
 The amount awarded was in respect of damages claimed by the respondent as compensation for injuries he sustained when he fell into an uncovered manhole near the Police Headquarters in Mbabane. The learned judge ordered that the damages awarded were to be paid by the first appellant, which, it was common cause on the pleadings, was responsible for the maintenance and
repair of the road and pavement surfaces in the part of Mbabane where the respondent was injured.
 The evidence lead at the trial established that the respondent, who was walking on the pavement near the public Headquarters on 30 June 2005, heard a motor vehicle braking sharply behind him and a commotion of some kind. When he turned back to see what was happening he fell into an uncovered manhole situated just outside the Police Headquarters and injured his right hand. According to his evidence, which the trial court accepted, he suffered serious pain as a result of his injury and not realize that his wrist was broken. He went to the hospital the next day when a plaster of Paris cast was applied, which was removed on 11 August 2005. He was incapacitated for six months and suffered severe pain for about three months. He is left with residual pain during cold weather.
 He later instituted action against the appellants claiming E500,000.00 as damages. The amount claimed was made up as follows:
E20,000.00 for future medical expenses
E300,000.00 for pain and suffering
E150,000.00 for loss of income and
E30, 000.00 for loss of enjoyment of amenities of life.
The judge a quo upheld the claim in full save for the amount in respect of future medical expenses where she accepted the submission of counsel for the respondent that E1,000 would be sufficient under this head.
 Although as will appear from what I say later in this judgment about the merits of respondent’s claim it is unnecessary to deal in detail with the injuries the respondent suffered and its effects, it is desirably to record that Mr. M. Simelane, who appeared for the respondent conceded, very fairly, that the damages awarded were substantially above the range of award normally regarded as appropriate in cases of this kind.
 In his particulars of claim the respondent apart from alleging that the first appellant was responsible for the maintenance of that part of the city where he was injured (which, as I have said, the appellants did not deny), went on to allege that the first appellant was under a duty to ensure that the manhole in question was always covered. He alleged further that it ‘knew of the existence of the hole’ (by which I take it was meant the uncovered manhole) I and foresaw the imminent danger that would result due to the lack of a cover and ‘was negligent in that it failed to take reasonable precautions to guard against any danger befalling the [respondent]’.
 In their plea the appellants after admitting the first appellant’s responsibility for the maintenance of the area in question, denied that the first appellant was obliged to ensure that the manhole always had a cover. They alleged that regular maintenance and repair of some parts of the streets in the City of Mbabane was done by the first appellant and added that it had never been done negligently. They went on to allege that despite regular maintenance and repair of the relevant streets and pavement surfaces ‘increased acts of vandalizing make it practically impossible for the first [appellant] to keep them reasonably safe for users, regard being that to the fact that maintenance takes time and money.’
 In paragraph 5 of the plea the appellants pleaded as follows:
‘(1) …[D]espite [the] regular maintenance and repair of the street and pavement surfaces it was practically impossible to keep them reasonably safe for users all the time, [and] the first [appellant] could not reasonably have foreseen that the cover had been removed.
(2) In the absence of knowledge that the … cover had been removed the first [appellant] could not reasonably have been expected to take precautionary measures to avert danger.’
 At the trial it was not denied that the respondent had fallen into the manhole and been injured as he alleged.
 The appellants led only one witness, Mr. Isaiah Jobe Mthethwa, the Principal Roads Engineer: Maintenance, who testified on the issue of negligence.
 He said that among his responsibilities was maintenance of the public roads to ensure that they are always in good condition. He stated that he recalled maintaining the road next to the Mbabane Police Headquarters. He told
the court that inspectors of works inspect roads all over the country and submit monthly reports to him. The inspectors checked the condition of the roads and also the manhole covers to see that they were intact: that is to say, that they were closed so that they would not be a danger to the public. He said that, if he remembered correctly, the routine maintenance on the section where the respondent was injured had taken place a week before the respondent reported to his office that he had been injured. He stated that after he had received a report of the incident he had the manhole temporarily closed, and thereafter a concrete cover was put on. Prior to receiving the report he was not aware that the manhole cover had been removed.
 Under cross-examination he said that the cover, which had been in that position for over twenty years, was made of steel and had been installed in such a way that it was impossible to take it out (by which, I take it, he meant that it could only be taken out with difficulty).
 He explained that his staff replaced the steel cover with a concrete one because it was realized that steel covers were being stolen, as he put it, ‘overnight’ and taken to a place (presumably a scrapmetal dealer) in Matsapha which did recycling.
 Counsel for the respondent asked:
‘Were these covers being stolen in the road you have mentioned before court?’
‘My Lord this one was the first one to be stolen.’
Counsel then asked:
‘How long had this stealing of covers been going on in other regions?’
The reply was:
‘My Lord, after the report, the Ministry had then inspectors to inspect the material from Ngwenya to Manzini.’
 The judge then intervened and asked:
‘Does it answer the question? The question was how long has the stealing of covers from other regions being going on.’ He has answered the question. Please answer the question.’
 The witness replied:
‘My Lord I think that it happened in a space of two to three weeks as we have monthly reports.’
 That was the last answer in cross-examination. There was no re-examination. The judge then referred to the monthly reports the witness received from the inspectors and asked if the witness had a report on this particular region. The witness replied that was no report which implied that there was anything going wrong and explained that there was a report that everything was in good condition. He added: ‘it did not report about the damage’, by which I assume he meant that the report said nothing about the cover having been taken.
 In her judgment the trial judge referred to the test for negligence (culpa) contained in the judgment of Holmes JA inKruger v Coetzee 1966 (2) SA 428 (A) at430, which reads as follows:
‘For the purposes of liability culpa arises if ?
a diligens paterfamilias [reasonable man] in the position of the
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss: and
(ii) would take reasonable steps to guardagainst such occurence;
the defendant failed to take such steps.’
She also referred to the fact that a copy of The Swazi Observer dated Tuesday 5 July, 2005, showing the open manhole into which the respondent had fallen was produced by the respondent and admitted in evidence as a exhibit.
 After summarizing the evidence of the respondent and Mr. Mtsetfwa, the judge continued:
‘ In my view, the conclusion that flows from the evidence detailed above is that there is a real possibility that the manhole in question may not have been inspected, or even any observation made of it, for substantial periods of time, stretching possibly over a number of months. Although Mr. Mtsetfwa had alludedto the existence of monthly reports compiled by roads inspectors, the Court, however, was notavailed the opportunity of seeing any of these reports. In this regard I must state that I am not impressed by Mr. Mtsetfwa’s postulation that the cover could have been in situ at the time that his department carried out the routine road maintenance in the area and that the theft had happened in a space of three weeks after their monthly reports.
 The evidence adduced by the plaintiff was that he fell into the manhole on June 30, 2005. It is worthy of note that the photograph in Exhibit 4, which was taken on July 5, 2005, depicts that the hole itself, still then without a cover, was relatively readily discernible. No report that the cover was missing was received by the 1stdefendant, a fact confirmed by Mr. Mtsetfwa; therefore, either the fact of the missing cover was not observed by any of the 1stdefendant’s roads inspectors, it observed, it was not reported.
 I am constrained to conclude that the steps taken by the 1stdefendant, which embraced only monthly reports (if those reports in fact occurred) to avert the danger, did not comply with the test referred to in Kruger v Coetzee (supra). Moreover, in terms of the authorities cited earlier, it was incumbent on the 1stdefendant to have put a system in place where effective observation of an uncovered drainage hole was a more regular occurrence. Thisthey omitted to do and it is no defence that thecover was stolen. See Van Eeden (formerly Nadel) v Minister of Safety & Security 2002 4 All SA 346 (SCA) where the Court held as follows:
‘an omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm suffered by the plaintiff. The test is one of reasonableness. A defendant is under a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent the harm.’
 Later in her judgment she said:
‘ Judging from the conspectus of the totality of the evidence adduced in the present’ instance, it appears to me established beyond disputation that the 1stdefendant owed the plaintiff a duty of care to ensure that the manhole which was erected in the middle of a foot path was covered at all times. The 1stdefendant should have foreseen the reasonable possibility of a pedestrian in the position of the plaintiff falling into the gaping manhole and injuring his person and should have taken reasonable steps to guard against such occurrence. I hold the same to be a fact and I also find thatthe 1stdefendant’s failure to take steps to cover the open manhole was negligent.
 On a balance of probabilities, I am satisfied that the plaintiff has discharged the onus of proving the 1stdefendant’s negligence. In the circumstances, I find that the 1stdefendant is liable to compensate the plaintiff in respect of the whole of the damagesuffered by him arising out of the injuries sustained by him in the incident which is the subject of these proceedings. I so hold.’
 Mr. S. Khuluse, who appeared on behalf of the appellants contended that an application of the test for negligence set out in Kruger v Coetzee leads to the conclusion that the first appellant’s servants were not guilty of negligence in this matter. He submitted that the first appellant’s servants could not have foreseen the possibility of the respondent or any other member of the public falling into the open manhole. He referred to the fact that the manhole had been fitted with a secure steel cover when it was constructed and that the first appellant’s servants had no reason to anticipate that it could constitute a source of danger at any time unless it was damaged as a result of ordinary wear and tear which had not occurred at that stage. He submitted further that it was not reasonably foreseeable that it would be stolen. The cover had been there for more than twenty years and such an occurrence had not been experienced previously. It was also clear, so he argued, that the first appellant’s servants were not aware that the manhole was not covered when the respondent fell into it.
 The regular monthly inspections of all national roads by the first appellant’s inspectors were resubmitted, sufficient in the circumstances. A system of daily inspection of the roads would have been cumbersome and costly and could not reasonably have been expected of the first appellant in the circumstances. Mr. Simelane, who as I have said appeared for the respondent, did not take issue with much of what Mr. Khuluse had submitted. He argued however, that a reasonable man does not sit on his laurels. He has to adopt to changing circumstances. He contended that once the first appellant’s servants became aware of the fact that manhole covers were being stolen and taken to Matsapha for recycling could no longer rely on monthly inspections. He relied in this regard on the passage in the evidence of the first appellant’s witness quoted in paras  to  above, which indicated that the situation had changed and that it was necessary as a matter of urgency in order to protect persons in the position of the respondent, to substitute manhole covers which would not be stolen by scrap metal thieves.
 In the alternative he argued that if the court was of the view that reports made by the inspectors were material, the case should be remitted to the trial court for further evidence thereon.
 I have several problems with the judgment of the court a quo. I do not think the judge was justified in finding that there was a real possibility that the manhole in question may not have been inspected or even any observation made of it, ‘for substantial periods of time stretching possibly over a number of months.’ This ‘possibility’ was not put to Mr. Mtsetfwa when he testified. As far as the judge’s reference to the fact that the reports were not made available to her, it is relevant to point out that she did not ask to see them nor did Mr. Simelane ask for them (which he could have done) when Mr. Mtsetfwa was in the witness box. If it was intended to suggest that there were not monthly reports submitted by the inspectors or that they did not say what he said they did, that should have been put to him so that they could been produced and, if necessary, the relevant inspectors could have been called. It is important to note in this regard than what the inspectors said was not hearsay because it was not led to prove the truth of what they said but to prove what information Mr. Mtsetfwa had at his disposal on the strength of which he carried out his responsibilities as the principal roads engineer responsible for maintenance.
 I also think that there was no basis for rejecting what the judge called Mr. Mtsetfwa’s ‘postulation’ that the cover was in place during the inspection which took place before the respondent fell into the manhole and that the theft took place a relatively short time after the last inspection. The judge was mistaken in saying that the witness spoke of a period of two or three weeks. In fact he said that if he remembered correctly it was a week. (The two to three week period related to another aspect of the case to which I shall refer later.)
 The judge’s finding (in para  of her judgment) that either the fact that the cover was missing was not observed by one of the inspectors or, if it was observed, it was not reported is also erroneous. It was based on the fact that it appeared from the photograph of the manhole published in The Swaziland Observer on Tuesday 5 July 2005 that ‘the hole itself, still then without a cover was relatively readily discernible.’ Mr. Mtsetfwa said that within a day after the incident involving the respondent was reported to him the hole was temporarily closed and a contractor was asked to close it (by which he obviously meant, permanently). We do not know when exactly the respondent reported the incident to the ministry. It is probable that he did so on 4 July 2005, the day before the photograph of the manhole was published in The Swazi Observer. (If it had been after that the ministry would have learnt of the problem in the newspaper.) The respondent fell into the manhole on Thursday 30 June 2005 at about 3 p.m. The next day, Friday 1 July 2005, he went to the hospital, where he was examined, sent for a x-ray and later, as has been said, had a plaster of Paris cast (the date it was published) applied. The photograph must have been taken before 5 July 2005, which would have been before the ministry had the manhole temporarily closed. It follows that the fact that it was open on or before 4 July 2005 does not prove that the hole was open when the inspection immediately prior to the respondent’s mishap took place.
 I am also unable to agree with the judge’s finding that ‘the steps taken by the first [appellant], which embraced only monthly reports ( if those reports in fact occurred) to avert the danger did not comply with the test referred to in Kruger v Coetzee. As appears from what has been said above, until the ministry became aware of the fact that manhole cover thefts were taking place it cannot be said that they should reasonably have foreseen that the covers would be stolen. Wear and tear was the danger they had to guard against and regular monthly inspections were clearly sufficient for that purpose.
 It has to be borne in mind in this context that the manhole cover in question was the first one stolen in this area. The fact that stealing of covers had on the evidence, been taking place for about two to three weeks in other regions, with the stolen covers being recycled in Matsapha, was not enough to impose a duty on the first appellant immediately to substitute non-metallic covers on every manhole in Swaziland or to see to it that every manhole, even though covered, was fenced about in some way to prevent someone falling in should its cover subsequently be stolen. It is not possible in my view to find that programme of this kind had to be commenced and completed within the two to three week period referred to.
 I now turn to Mr. Simelane’s alternative submission that the case should be remitted to the trial court for further evidence about the contents of the reports Mr. Mtsetfwa received from the inspectors. I do not think that this request can be acceded to. It was open to Mr. Simelane to ask the witness to produce the reports to which he referred: he chose not to do so.
 The ordinary rule on applications to have cases re-opened for further evidence was stated as follows in Kottler v Jordaan 1930 T PD 466 as follows:
‘Ordinarily a Court will not give leave to a litigant to have a case re-opened for the purposes of calling further evidence if, after having closed his case, he finds that his case has been insufficiently presented.’
 The same rule must apply where the evidence sought can be elicited by cross-examination of the other party’s witnesses.
 No special circumstances are present to take the case out of the ordinary rule stated above. See further on this point Commissioner of Police and the Attorney-General v Pesco Services (Pty) Ltd ( civil case No. 61 of 2009, a decision of this Court delivered on 28 May 2010, which is not yet reported but available on the internet on the website of swazilii.org), at paras  to .
 In the circumstances I am satisfied that the respondent failed to establish negligence on the part of the first respondent’s servants and it follows that the appeal must be allowed with costs. In my view the correct order in the court a quo should have been one of absolution from the instance.
 Accordingly the following order is made:-
‘The appeal is upheld with costs.
The order of the court a quo is set aside and replaced with the following order: ‘Absolution from the instance is granted with costs.’
JUSTICE OF APPEAL
I agree _____________________
JUSTICE OF APPEAL
DR. S. TWUM
JUSTICE OF APPEAL
Delivered this the …….. day of November 2011