This blog is co-authored by Daniel Kariithi, a candidate attorney.

A November 2025 judgment of the High Court confirmed that negligence is a legal determination, not a matter of self-admission, and must be objectively assessed on the facts. Further, it held that interference by an appeal court with a trial court’s evaluation of evidence is only permissible in exceptional circumstances.

The claim arose when the respondent fell in the parking area of premises owned by appellant, after stepping into an indentation in the tarred surface. In the trial court, the appellant pleaded contributory negligence on the basis that the respondent failed to keep a proper look out. The court rejected the defence. It held that the respondent could assume the surface was reasonably safe for pedestrians and found the appellant negligent for failing to maintain the parking area. The court drew an adverse inference from repairs undertaken after service of the summons, considering them indicative of prior negligent maintenance.

On appeal, the appellant submitted that the trial court erred in finding negligence, and that the post-incident repairs were consistent with existing maintenance practices and did not warrant an adverse inference.

The appeal court was required to determine: (i) whether the respondent’s fall was attributable to a defect in the parking surface; (ii) the existence and scope of the appellant’s duty of care to patrons and whether a failure to maintain the parking area in a reasonably safe condition constituted wrongfulness and negligence; (iii) whether any negligent breach was causally linked to the fall; and (iv) whether the trial court’s findings reflect a material misdirection that warrants intervention from the appeal court.

The appeal court held that interference in a trial court’s assessment of oral evidence is only permissible in exceptional circumstances and that an appellant must show adequate grounds for the appeal court to interfere. The appeal court addressed whether the appellant breached its duty to maintain the parking area in a reasonably safe condition. It held that the defect was foreseeable and preventable, and routine inspections did not absolve liability. The appellant’s ignorance, arising from inadequate inspections, was rejected as a defence. Causation was established through the “but-for” test, confirming that the injury would not have occurred but for the unrepaired defect. The appeal court further found no contributory negligence, emphasising that patrons are entitled to assume premises are safe and need not exercise hypervigilance. Finally, it held that the trial court did not err on its findings on the facts of law. The appeal was dismissed.

This judgment reinforces that negligence is an objective legal conclusion requiring reasonable foreseeability and preventative action. Further, it reinstates that an appeal court may only overturn a trial court’s findings where a clear misdirection or material error is demonstrated. The degree to which the claimant is contributorily negligent is a question of fact in each case.

Gamlam Investments (Pty) Ltd v Coetzee (Appeal) (A108/2025) [2025] ZAWCHC 569 (25 November 2025)