18 Jan 2024


by Felicia Christian, Partner, Durban,

Some of the objectives of local government include the provision of services to communities in a sustainable manner and the promotion of a safe and healthy environment. The case of City of Cape Town v Mtyido[1] depicts how the City of Cape Town fell short in this instance.

Nqulelwa Mtyido fell into an open manhole on 17 October 2013 as she was walking along a public road within the municipal area of the City of Cape Town (“the City”). She sued the City for damages arising from her injuries. The trial court found that the employees of the City wrongfully and negligently failed to take steps to prevent the incident. The City appealed to the full Court of the Western Cape Division of the High Court, however, the appeal was dismissed with costs. On appeal to the Supreme Court of Appeal, the Court considered the evidence led before the trial court and the probabilities.   

It is trite law that a legal duty may arise where a party has prior knowledge of a potentially dangerous situation. Mtyido’s case was that a legal duty of care arose because the City had knowledge of the existence of the open manhole which was reported to its employee previously, and did nothing to cover the manhole. The legal convictions of the community require that where the City had knowledge of an open manhole, the failure to cover the hole within a reasonable time, resulting in possible injury to the public, would be wrongful.       

During the trial, the City criticised the witness that reported the open manhole to its employee indicating that he had not complained more than one time and that he did not advise his neighbours, but as the Court correctly pointed out, why should he? He took the trouble of reporting a dangerous situation to an employee of the City and discharged his self-imposed public duty.    

In dealing with the City’s fear that if liability is imposed on it, it would open the floodgates to endless claims, the Court commented that each claim must be scrutinised and dealt with on its own facts in the judgment delivered on 1 December 2023, and the SCA dismissed the appeal with costs.

The recent catastrophic flooding experienced across South Africa has resulted in destruction to roads and critical infrastructure and the impact of the judgment in City of Cape Town v Mtyido together with public policy requires swift action by municipalities across the Country to restore damaged infrastructure and secure the safety of its citizens.



[1] 2023 JOL 62061 (SCA).