The municipality had argued that Madubane was contributorily negligent because he knew about the manhole and its dangers.
The eThekwini Municipality has been found fully liable for injuries sustained by a KwaZulu-Natal man who fell into an open manhole during load shedding in June 2019.
Judge Pieter Bezuidenhout of the KwaZulu-Natal Division of the High Court in Pietermaritzburg ruled that the municipality failed in its duty to ensure the manhole was properly covered.
The incident occurred on 6 June 2019 at approximately 7:45pm in Ward 5, Inanda, when Thamsanqa Wilson Madubane was walking to a nearby shop to purchase a candle during load shedding.
According to Madubane’s testimony, the area was in total darkness when he fell into the uncovered manhole, with his entire body going into the opening and a steel rod inside penetrating his leg.
Long-standing hazard ignored
Evidence presented to the High Court in Pietermaritzburg revealed that the manhole had been left open for months before the incident.
Photographs taken by Madubane the following morning showed the open manhole on the pavement close to a fence, filled with garbage, and remnants of red danger tape that had previously cordoned off the hazard.
“Previously, red tape had been placed across the manhole, but on the evening when he went to the shop, it was no longer there,” Madubane’s testimony stated. He explained that the tape “was used to alert the people about the open manhole.”
Madubane, who walked the route three to four times a week, told the court he was in a hurry because “it is dangerous in the area, it was dark, and he had to get to the shop to purchase a candle due to the loadshedding.”
After being pulled out of the manhole by others, he said he proceeded to the shop, purchased a candle, and returned home, where his wife treated and bandaged his wounds.
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Municipality’s defence rejected
The municipality’s defence centred on claims that it had no knowledge of the uncovered manhole and had not received any reports about it.
Bharatary Govender, a senior manager in the engineering and stormwater maintenance departments, testified that rural areas, such as Inanda, were inspected approximately once every six months, with the last inspection conducted before the incident in January 2019.
Govender told the court that once a complaint was received about a manhole, “it is repaired within ten days.”
He stated that no complaint had been received about this particular manhole and that he had no record of one, though he produced no documentary evidence to support this claim.
However, Bezuidenhout noted that the municipality’s witnesses “had no personal knowledge of the incident” and relied on protocols established in 2024, with no direct evidence about procedures in 2019.
The judge found that Govender “could not explain the red tape which was visible on the photographs, indicating that it must have been cordoned off at some stage.”
Court findings on negligence
In his judgment, Bezuidenhout emphasised the municipality’s clear duty of care.
“It is therefore uncontested that Defendant has a duty to ensure that the manhole is covered, but it failed to do so,” he wrote.
“It is uncontested that it was open for some time, which was a danger to the community.”
The judge cited the recent Supreme Court of Appeal case of Johannes Diederick Le Roux NO v The Nelson Mandela Municipality, which dealt with similar circumstances. In that judgment, the court held that “if the municipality failed to ensure that the drain was properly covered and failed to prevent injury then such failure would be wrongful.”
Furthermore, Bezuidenhout rejected the municipality’s argument about limited resources, stating: “The fact that Defendant may have limited resources, which was not the evidence led by Defendant but was submitted, is not a defence to its duty to ensure that the manholes are covered.”
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No contributory negligence found
The municipality had argued that Madubane was contributorily negligent because he knew about the manhole and its dangers, having passed it three to four times a week. However, Judge Bezuidenhout dismissed this defence.
The judge noted that while Madubane was aware of the open manhole, “it was previously covered with danger tape and was therefore visible.”
On the evening in question, “due to load shedding, it was very dark and he was unable to see it as the tape had been removed.”
“In the circumstances, taking into account the evidence and the conditions that evening, it cannot be found that there was contributory negligence by Plaintiff,” Bezuidenhout concluded.
The judge found Madubane to be “a good witness whose demeanour was good and he gave his evidence straightforward and conceded issues at times,” while the municipality’s witnesses, though truthful, “had no personal knowledge of the manhole” and “produced no documents that it was not reported.”
The case proceeded only on the issue of liability following a previous court order. The quantum of damages will be determined separately.
Bezuidenhout ordered the municipality to compensate Madubane 100% for proven or agreed damages and to pay the costs of the action.
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