The legal duty of a Municipality in injuries arising from the public's use of public infrastructure has been a subject of constant debate in our courts. The issue was considered in the recent judgment of Thamsanqa Wilson Madubane v Ethekwini Municipality, where the KwaZulu-Natal Division of the High Court, Pietermaritzburg, held the Municipality liable for injuries sustained by Mr Madubane after he fell into an uncovered manhole at night and during loadshedding. The court found that the Municipality had a duty of care to ensure public infrastructure was safe and that its failure to cover the manhole constituted negligence.
Mr Madubane fell into the manhole on 6 June 2019 while walking to a nearby shop to purchase a candle. At the time of the incident, the area was in total darkness due to loadshedding, and the manhole, which has previously been cordoned off with red tape, was no longer marked. A steel rod inside the manhole penetrated Mr Madubane's leg, causing injuries as documented in photographs submitted to the court.
The Municipality argued that it had no knowledge of the open manhole, that inspections were conducted every six months and that it had limited resources. However, the court found this defence insufficient. Evidence showed that the manhole had been left open for months and had previously been reported to a local councillor. The Municipality’s own witnesses lacked personal knowledge of the manhole and failed to produce records confirming that no complaints had been received. There was also no evidence to support the lack of resources defence, which was introduced for the first time in argument.
Crucially, the court emphasised that it was undisputed that the Municipality had a responsibility to ensure the manhole was properly covered yet failed to do so. The evidence confirmed that the manhole had remained open for an extended period, posing a clear risk to the public. Photographs submitted also showed that the warning tape had at some point been placed around the manhole. The Municipality’s failure to fulfil its duty, which it admitted, amounted to negligence, making it liable for any injuries resulting from the uncovered manhole.
On the issue of contributory negligence, the court found that Mr Madubane was not at fault. Although he was aware of the manhole’s location, the absence of a warning tape and the darkness made it impossible to avoid. During his cross-examination, he was also not asked why, given his knowledge of the manhole, he had not walked on the road surface instead of the pavement on the day in question. There was consequently insufficient evidence to support contributory negligence.
The court ordered the Municipality to compensate Mr Madubane in full for any proven or agreed damages and to pay the costs of the action.
This judgment reinforces the principle that Municipalities must take reasonable steps to maintain public infrastructure and respond to reported hazards. Documentary evidence demonstrating the steps taken is also crucial. If the defence has limited resources, this should be supported by credible evidence.
