With a growing number of ‘slip and trip’ cases being referred to our courts, property owners must understand what they need to do to avoid liability for injuries sustained on their property. In this article, we examine the recent case of Ngwenya vs Accelerate Property Fund (2022/13159) [2024] ZAGPJHC 880 to explore the latest rulings regarding property owner liability.

In the Ngwenya case, the Plaintiff, Ms Ngwenya, instituted a claim for damages against the Defendant, Accelerate Property Fund, the managing agent of the premises at which the plaintiff tripped and fell. The plaintiff averred that the injuries she sustained when she tripped and fell over a piece of metal skirting, were a direct result of the Defendant's failure to ensure that the property was safe to the general public and that the Defendant had failed to conduct regular inspections to ensure that the premises were safe.  

In considering the matter, the Court reiterated the legal precedent that an omission or failure to act would only be wrongful if there was a legal duty on a person to have acted positively. Such a duty will be found to exist if it would have been reasonable to expect such a person to have taken steps to prevent harm to another. The Court concurred with the case of Kruger v Coetzee 1966 (2) SA 428 and confirmed that to find liability in the case of an omission or failure to act, it must first be proven that the reasonable person in the position of the Defendant would have foreseen the possibility that their conduct may cause harm to another. Secondly, it must be shown that a reasonable person would have taken reasonable steps to guard against such harm materialising. And finally, it must be shown that the Defendant had failed to take such steps. 

In the Ngwenya case, the Court found that the Plaintiff had failed to provide sufficient evidence to show that a reasonable person in the position of the Defendant would have acted any differently than the Defendant had. The Defendant had displayed various disclaimers and warning signs throughout the premises, and which signs the Plaintiff had been aware of. Accordingly, the Court found that the Plaintiff had not discharged her burden of proof to show that the Defendant was liable for damages, and the claim was dismissed.

Property owners should note that to avoid liability for injuries sustained by the public on their premises, they must always take active and reasonable steps to prevent opportunities for harm. Disclaimers and warning notices, although not a silver bullet for liability, are important and can contribute to showing that a property owner has taken reasonable steps to ensure the safety of persons on their property.


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