This blog was co-authored by William Hayne, Candidate Attorney.

In December 2024, the High Court dismissed a claim for damages by the claimant, who slipped and fell at the entrance of a toilet in a shopping complex. The claimant alleged that the defendant was responsible for the area where the incident occurred and failed to ensure it was safe for patrons. The central issue in this case was whether the defendant had control over the area where the claimant fell. The court dismissed the claim, finding that the defendant did not have control over the area where the incident occurred and was not responsible for maintaining it. Further, that the claimant should have joined the owners of the complex and the property management company as parties to the case.

On 30 January 2021, the claimant visited the defendant, a gambling establishment, and used the toilet facilities located in a separate building connected by a corridor. As the claimant was leaving the toilet, she stepped on a wet and torn cardboard box placed at the bottom of the stairs, causing her to fall and sustain injuries, including a fractured right tibia and injuries to both ankles. The claimant alleged that the cardboard box was placed there by the defendant’s employees to absorb water from a leak in the roof.

The claimant argued that the defendant’s employees were responsible for cleaning and maintaining the toilet area and that the defendant had control over the premises. The defendant, however, contended that the area where the incident occurred was a common area and not under their control. They argued that the responsibility for maintaining the area lay with the complex’s management and not with them.

The primary legal issue was whether the defendant had control over and responsibility the area where the claimant fell Essentially, the court had to determine if the defendant owed a duty of care to the claimant.

The court examined the evidence presented by both parties, including testimonies from the claimant, the defendant’s employees, and other witnesses. The court found that the area where the incident occurred was a common area used by multiple tenants and not controlled by the defendant. The court noted that the defendant’s employees cleaned the toilet area as a business decision to ensure it was clean for their patrons, but this did not establish control over the premises.

The court considered the issue of non-joinder, as the claimant had not joined the owners of the complex or the property management company as parties to the case. The court held that these parties had a direct and substantial interest in the matter and should have been joined to determine the responsibility for maintaining the common areas.

The court’s decision highlights that tenants may not be held liable for incidents occurring in common areas unless they have control over those areas or are aware of and failed to deal with a danger to their patrons. The proper inclusion of all parties responsible for maintaining premises is necessary to ensure a fair determination of liability.

Malindi v Gold Vally Lounge (2021/28721) [2024] ZAGPPHC 1328 (18 December 2024)