In a recent April 2025 case, the court examined the liability of the defendants for injuries sustained by the plaintiff after falling into an open stormwater drain. The court concluded that the defendants’ conduct was wrongful and negligent, and that the defendant, the Johannesburg Municipality and Johannesburg Road Agency were liable for 50% of the plaintiff’s proven or agreed damages, acknowledging the contributory negligence on the part of the plaintiff.

The plaintiff testified that she was walking fast on the pavement, looking for a taxi, when she fell into the open stormwater drain. She described the stormwater drain as square-shaped and dark, situated on the pavement without any signs or warnings. The plaintiff was helped out of the stormwater drain by passersby and was taken to a hospital, where she underwent surgery for her broken ankle.

The second defendant, represented by a manager at the agency, contended that they had a maintenance plan in place, including proactive and reactive measures to address defects in their infrastructure. However, they admitted that the stormwater drain was only covered on 5 August 2020, after the plaintiff’s incident. The defendants argued that their legal duty was subject to the availability of manpower and resources and pleaded contributory negligence on the part of the plaintiff.

The court found that the defendants had a legal duty to maintain the cover of the stormwater drain. The defendants’ failure to barricade the open stormwater drain or provide adequate warnings was said to amount to wrongful conduct whereas that failure related to negligence not wrongfulness. The court found that the plaintiff’s injury was directly caused by the defendants’ failure to cover the stormwater drain, barricade the area, or provide adequate warnings.

The court concluded that the defendants’ wrongful omission to cover or barricade the stormwater drain was negligent. A reasonable person in the position of the defendants would have taken reasonable preventative steps to avoid harm. The court noted that the defendants’ proactive inspections and the acknowledgment that stormwater drain covers are often stolen or vandalized indicated that the defendants could reasonably foresee the risk of injury from an uncovered stormwater drain. Therefore, the defendant’s failure to prove that they had taken the required steps to prevent such harm constituted negligence. No evidence was led by the defendants of the extent of any financial and personnel constraints that prevented them from taking such steps.

The court also considered the issue of contributory negligence. The plaintiff admitted that she was walking fast and multitasking, which may have contributed to her fall. The court noted that the plaintiff did not provide a clear explanation of how she failed to see the open stormwater drain, despite the sunny conditions and visible pavement. The court concluded that the defendants were liable jointly and severally for 50% of the plaintiff’s proven or agreed damages. There is no discussion why both defendants should be liable when the road agency is responsible for the maintenance of roads & drains. It is a poor judgment but sets out some useful principles from other decisions.

Yende v City of Johannesburg Metropolitan Municipality and Others (53968/2021) [2025] ZAGPJHC 392 (22 April 2025)