What happens if someone is injured or killed, or suffers some other form of loss on your property? Three recent court cases highlight your risk of liability for any potential dangers that you don’t take reasonable steps to avoid.
Case 1: The landlord, the holiday let and the visitor who fell from the stairs
“The lack of protection on the garage side of the stairs below the gate was an inherently dangerous state of affairs ….” (Extract from judgment)
Letting out your holiday home to a tenant may be a lucrative option if you are holidaying elsewhere, but consider what happened to this landlord –
Case 2: Developer and HOA liable for a father’s manhole mishap
“A person who creates a situation which could cause a foreseeable injury to another person's property or person, should take reasonable steps to guard against such occurrence” (Extract from judgment)
Our next case is set in a residential estate which hosted a New Year’s Eve party featuring a fireworks display.
The estate’s developer and HOA (Home Owner’s Association) were sued in the High Court by a father who, having taken his children to see the fireworks, left the party at about 11 p.m. and fell into an open manhole. He needed stitches for a 12cm cut on his leg.
The facts surrounding the incident were hotly disputed, but the High Court in the end found that –
The Court accordingly held the developer and HOA negligent and liable for the father’s damages.
Case 3: The tragic case of the toddler and the fish pond
“…..an infant is afraid of nothing and in danger of everything when left to his own devices” (Quoted in the judgment)
This case issues a strong warning to parents of young children as well as illustrating how a property-owner’s liability can be managed -
Dismissing the claim, the Court held that whilst clearly the owners had a legal duty to take reasonable steps to protect the child from harm or injury on their property, the warning they had issued to the parents was sufficient for them to have complied with that duty. The owners were entitled to expect the parents to supervise their child accordingly. It would place an unfair duty on property owners said the Court, and would discourage social interaction, to expect an owner “to go beyond reasonable means in order to make his or her property safe”.
Importantly, although the pond was held to be a deviation from the approved building plans the deviation was only a “minor” one, and it was constructed before strict new safety regulations for pools and ponds came into effect.
So as a property owner, what should you do?
Maintenance defaulters won’t be pleased with new amendments to our Maintenance Act, signed into law on 9 September and aimed at making it easier to enforce payment of arrears.
In particular the provision for defaulters to be registered with credit bureaus, a move aimed at preventing defaulters from getting more credit until they settle all arrears, has been widely welcomed. Note however that, despite media reports to the contrary, it will only come into force on a future date still to be gazetted.
A recent Labour Appeal Court (LAC) judgment throws light on the knotty problem of how far an employer can go to protect itself from employee misconduct with “zero tolerance” policies.
The supermarket, the supervisor, and the undeclared deodorant
The bottom line
A zero tolerance policy is fine where circumstances warrant it, but dismissal for non-compliance must be appropriate in the particular circumstances.
If you think you have a good legal case but can’t afford to pursue it, the Contingency Fees Act may have some good news for you. In an attempt to provide access to justice for all, it allows attorneys and advocates to enter into a “no win, no fee” agreement with you, and for you to agree on a “success fee” higher than the normal fee would be.
Success fees and the Constitutional Court cases
A word of caution
Don’t forget that if you lose your case, you may still be in for certain “direct expenses” and will certainly risk having to pay the opposing side’s legal costs – discuss this with your attorney before deciding what is best for you.
Red tape, lack of funding and compliance with legislation continue to be the main challenges faced by most Small Medium Enterprises (SMEs) in South Africa – according to a latest survey conducted by the South African Institute of Chartered Accountants (SAICA). Access the full “2015 SME insights report” at http://www.saica.co.za/Portals/0/documents/SAICA_SME.PDF
THE OCTOBER WEBSITES: STRESSED? RELAX FOR TWO MINUTES …..
Stress is good – up to a point. See the “Stress Curve” and “How to Deal with Stress in Your Life in 6 Effective Ways Including Tapping into Your Mind” on MindRestart’s website at http://mindrestart.com/deal-stress-life-6-effective-ways-including-tapping-mind/.
For a quick fix – turn your sound on and go to “Do Nothing for 2 Minutes” at http://www.donothingfor2minutes.com/
Here’s something else to help you relax (and hopefully celebrate!). The Guardian has an in-running digital wallchart of the Rugby World Cup with fixtures, tables, pools, venues, teams and more on their website at http://www.theguardian.com/sport/ng-interactive/2015/sep/07/rugby-world-cup-2015-digital-wallchart Remember to compensate for British Summer Time which, until 25 October, is one hour ahead of our SA Standard Time.
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