The terrible and harrowing tale of an 18 year old mildly intellectually impaired woman can be read in the judgments of the high court (Bridgman NO v Witzenberg Municipality and others) and the appeal judgment of Witzenberg Municipality v Bridgman NO and others of 3 December 2019.
Both the lower and appeal court had no hesitation in determining negligence on the part of the municipality and found that if the minimum number of guards had been in place and if there had been proper patrols in relation to the squash court, and more visible and pronounced access control the opportunity for wrongdoing would have been diminished and it was more likely than not that the rape would not have occurred.
It was misconceived by the municipality to argue that harm in the form of rape had to be foreseen. That is not our law. It is sufficient that the general nature of serious criminal conduct with attendant consequences is what ought to be foreseen. The precise nature of the harm need not.
Ms L together with her adoptive parents and their biological daughter had been residential guests at Pine Forest Resort, Ceres owned and controlled by the Witzenberg Municipality.
Ms L had been given permission by her parents to play on her own in the playground close to their unit at the resort. Whilst at the playground she was forcefully and physically led away by three minors who gained access to the squash court on the resort where she was brutally sexually assaulted and raped. The squash court formed part of the resort’s recreation hall. The two boys who actually participated in the rape were convicted and sentenced accordingly.
The child’s court-appointed curator and Ms L’s parents sued the municipality civilly for damages on behalf of their daughter. Rather bizarrely the municipality in defending the action issued a third party notice against the parents seeking a contribution from them alleging that they were negligent in failing to properly supervise their daughter and failing to exercise reasonable care.
The evidence was clear that there had been prior security lapses at the resort known to the municipality. There had been reported incidents and break-ins and an incident involving a complaint of assault. The municipalities’ own documents showed a concern by officials of the threat of some greater harm than that which had already been experienced.
Only two private security guards were in attendance at the resort, when it was common cause that at least four guards were required with at least two to patrol the grounds on the resort on an hourly basis. The evidence was uncontested that the squash courts were locations of choice for wrongdoing.
The municipality’s proposition that the parents were contributorily negligent was given short shift. The municipality had given comfort to residents that it was serious about security at the resort and that security guards would pay attention to patrolling the area. The municipality bore the duty to take appropriate steps to safeguard visitors and residents to the best of its ability and did not do so. It was adding insult to injury to attempt to land the parents with liability.
The outcome would have been no different if the claim was against a private resort owner in the circumstances set out.
Resort owners, hoteliers, bed and breakfast owners and the like all owe a duty of care to residents and visitors to take reasonable steps to safeguard their guests’ safety.