In a November judgment in Lakay v Minister of Justice & Another 2022 ZAWCHC 221, the court confirmed that the occupier of a property has a legal duty to prevent foreseeable harm to persons visiting the property. In determining liability, a factor which the court would take into account is whether the steps taken by a defendant to prevent the harm after the harm has occurred were easy to take and affordable in the circumstances.

The claimant sued the defendants for damages resulting from the injuries that she sustained when she tripped and fell on the uneven surface of the pathway while entering the visitors’ section of the defendants’ prison.

The claimant alleged that the defendants were negligent in that the defendants failed to ensure that the pathway did not pose any potential hazard to members of the public, that the pathway was kept in a suitable state of repair and any uneven surfaces were suitably signposted with warning signs and any uneven surfaces on the pathway were timeously repaired.

The defendants alleged that the pathway existed in the same condition for years and did not cause or result in any other incidences. The defendants also relied on the fact that the claimant had used the pathway more than once and that in the circumstances, she had associated herself with the risk.

The court decided that the defendants’ failure to take reasonable steps to prevent the incident would be wrongful if the defendants were under a legal duty to prevent the harm. In considering whether a legal duty exists, the determination is whether it was reasonable to expect the defendants to take reasonable steps to prevent the harm.

The court found that the defendants as organs of state were constitutionally obliged to ensure the safety of members of the public who utilised the pathway. There was only one pathway, which the members of the public had no other option but to utilise.

After the incident occurred, the pathway had been repaved and was safe to use. In light of the defendants paving the pathway after the incident, it appeared that it could have been easily done before and there were no reasons given why it was not done before. The defendants therefore had a legal duty to prevent the incident.

The court further found that in light of the “everyday use and disintegrated state of the pathway, it would have been reasonably foreseeable that the pathway posed a danger to those using it and that it was only a matter of time before someone tripped and/or fell because of the uneven and loose surface which characterised the pathway”.

This judgment is a reminder that in circumstances where there are reasonable steps available to a defendant to prevent foreseeable harm, the defendant is obliged to take such steps because the failure to do so may render the defendant liable. Where the reasonable steps are taken after the harm occurs, and the steps are easy to take and affordable, a defendant is expected to take such steps to prevent foreseeable harm from occurring.