THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 1326/2016

In the matter between:

GEOFFREY STEDALL FIRST APPELLANT

LINDA STEDALL SECOND APPELLANT

and

CLINT PATRICK ASPELING FIRST RESPONDENT

MANUELA WALTRAUT URSULA SECOND RESPONDENT
ASPELING NO

Neutral citation: Stedall v Aspeling (1326/2016) [2017] ZASCA 172

(1December 2017)

Coram: Cachalia, Leach, Petse and Mocumie JJA and Ploos van Amstel
AJA

Heard: 15 November 2017

Delivered: 1 December 2017

Summary: Delict: claim based on negligent omission: young child falling into
swimming pool: necessity to show landowner’s omission to secure gate in pool
fence wrongful: child under parental supervision: wrongfulness and negligence
of landowner not established.
 2

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town
(Donen AJ sitting as court of first instance):

1 The appeal is upheld, with costs, such costs to include the costs of two
counsel.
2 The order of the court a quo is set aside and replaced with the following:
‘The plaintiffs’ claim is dismissed with costs, including the costs of two
counsel.’

________________________________________________________________

JUDGMENT
________________________________________________________________

Leach JA (Cachalia, Petse and Mocumie JJA and Ploos van Amstel AJA
concurring)

[1] This appeal has its origin in a tragic accident that occurred on 27 July
2004 at the appellants’ home in Constantia, Cape Town when the respondents’
30 month old daughter, C, fell into a swimming pool. Although she did not
drown, by the time she was discovered floating face down in the pool she had
suffered severe brain damage. In due course, the respondents sued the
appellants in the Western Cape Division of the High Court, claiming damages
they alleged both they and C had suffered due to negligence on the appellants’
part.
 3

[2] The minutes of a pre-trial conference held in April 2015 record that the
parties agreed ‘to separate the merits and quantum’. Presumably their reference
to ‘the merits’ meant that the court would be called upon to determine issues
relevant to liability. Despite this Court having regularly warned of the necessity
to clearly identify what issues are to be separately decided under Uniform Rule
33(4), and to obtain a formal separation order, there is nothing in the record to
indicate that this was done. Nor was any mention made in opening of the
separation of issues. None of this is acceptable for the reasons set out, inter alia,
in Adlem v Arlow 2013 (3) SA 1 (SCA) para 5 and the authorities there cited.

[3] In any event, the court a quo recorded in its judgment that ‘only the
merits are in issue at this stage’, before proceeding to hold that the accident had
been due to the joint negligence of the appellants and the second respondent. It
apportioned blame on the basis that the appellants were twice as culpable as the
second respondent, so that any of the damages capable of being apportioned fell
to be reduced by a third. The order it made attempting to reflect this is not
unattended by procedural difficulties, but those need not be discussed for
purposes of this judgment. With leave of the court a quo, the appellants appeal
to this Court against this order. The essence of their appeal is that they ought not
to have been held liable for any of the claims made against them.

[4] I turn to the facts. It is common cause on the pleadings that the appellants
are either ‘individually or jointly’ the owners or the persons in control of their
home in Constantia where the accident occurred. It consists of a large double-
storied house set in a two acre property to the south of a public road. The house
faces north. Access is gained by way of a driveway that extends from a gate in
the northwest corner of the property in a southerly direction down the western
border before swinging around to form a parking area to the south of the house.
To the southwest of the house is a large swimming pool, fully enclosed by a
 4

fence. Within this enclosure is a tool-shed, presumably used for the storing of
garden tools. There are two gates, one to the north and the other to the eastern
side of the pool enclosure, which allow access to the pool. In a wing on the
western side of the house is a lounge that opens through a glass sliding door
onto a patio to the north of the house. Persons seated in the lounge can see
through this door onto the patio.

[5] The second appellant and the second respondent were members of a
prayer group which met weekly at the appellants’ home on Tuesday mornings.
The second respondent was often accompanied by C who, during the course of
the meeting, would generally play with her toys and puzzles seated on the floor
of the lounge while the adults prayed, sang and discussed matters of religion.
Sometimes C, bored with her play-things, would toddle out onto the patio and
play, but within sight of the adults in the lounge.

[6] According to the second respondent, on several occasions during earlier

visits she had not only observed that the swimming pool gate had been left open
but that she had remonstrated with the second appellant and asked her to ensure
that it was kept closed. On one previous occasion, the first respondent had
accompanied the second respondent, and he and C had gone into the pool
enclosure where there was a slide next to the pool. He testified that C had
enjoyed playing on the slides in a public park, and so he allowed her to go down
the appellants’ slide although he warned her she must not go anywhere near it
without adult supervision. He also testified that on that occasion the gate
leading to the pool was open.

[7] On the fateful day of the accident, the second respondent and C were
given a lift to the appellants’ home by another member of the prayer group. On
that day as well, C spent most of the prayer group meeting playing with her toys
 5

on the floor of the lounge but, at a late stage she went outside onto the patio.
Whilst in the second respondent’s sight, C was in no danger. Unfortunately,
however, the woman who had brought them to the house wished to leave early,
and another member of the prayer group offered to give the second respondent
and C a lift home. The second respondent took her up on her offer and, leaving
C to her own devices, went to the parking lot behind the house in order to
transfer a baby-seat from the car in which they had arrived to the motor vehicle
that was to take them home.

[8] The exercise did not go as smoothly as had been anticipated as the seat
did not fit easily into the second vehicle. After a while, the second respondent,
whom the evidence establishes was a devoted and careful mother, became
nervous and went back to see what C was up to. She went through the lounge
onto the patio calling for C by name. When she received no answer and she
could not see the child, she panicked and shouted to the other members of the
prayer group, who were then in the kitchen with the second appellant who was
making pancakes. They scattered to help look for the child.

[9] The second appellant immediately dropped the pan she was using and ran
out onto the patio and, then, around the house to the swimming pool. The
second respondent followed her. At the pool they found C lying face down in
the water. Whether she had gone there to play on the slide one does not know,
and it is idle to speculate on what had motivated her to going off on her own,
something she had not done before. In any event, the second respondent leaped
into the pool and lifted C out of the water. She was rushed to a nearby hospital
for treatment but, as I have mentioned, had by then suffered severe and
permanent brain damage.
 6

[10] The above description of these tragic events was that of the second
respondent. Sadly, before the trial, the second appellant fell down the stairs at
her home and suffered a major head injury. As a result, she was confined to a
wheelchair and unable to testify. Whether she would have been able to elucidate
any of the issues, one does not know. The court a quo, however, found that C
would not have been able to unlatch the gate on her own and that the gate must
either have been open or at least unlatched for her to have gained access to the
pool. I did not understand the appellants to challenge this conclusion. What they
did challenge was the trial court’s further conclusion that, in all these
circumstances, they should be held liable for damages in delict.

[11] As is apparent from its judgment, the court a quo regarded negligence as
the essential issue that fell to be decided. Consequently it confined itself to the
inquiry whether the appellants’ failure to secure the swimming pool gates so
they could not be opened by a young child, and the second respondent’s failure
to keep C under constant observation, constituted negligence as determined by
the well-known test in that regard – namely, whether a reasonable person would
in the circumstances have foreseen that C might be injured by falling into the
pool, and taken reasonable steps to avert such harm. However, in doing so, it
appears to have overlooked the requirement often stressed by both this Court
and the Constitutional Court, particularly in recent years, that wrongfulness is
also an essential and discrete element which has to be established for delictual
liability to ensue – see eg Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 12; Minister
of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12; ZA
v Smith & another 2015 (4) SA 574 (SCA) para 15; Country Cloud Trading CC
v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC) paras
20-21 and MTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 76 (SCA) paras 12
and 17 – this list is not meant to be exclusive.
 7

[12] In so far as the element of wrongfulness is concerned, Khampepe J said in

Country Cloud 1 that it functions ‘as a brake on liability’ and that conduct is not
to be regarded as wrongful if public or legal policy considerations determine it
would be ‘undesirable and overly burdensome to impose liability’. In similar
vein, in Le Roux & others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) para 122 the
Constitutional Court said:
‘(I)n the context of the law of delict: (a) the criterion of wrongfulness ultimately depends on a
judicial determination of whether — assuming all the other elements of delictual liability to
be present — it would be reasonable to impose liability on a defendant for the damages
flowing from specific conduct; and (b) that the judicial determination of that reasonableness
would in turn depend on considerations of public and legal policy in accordance with
constitutional norms. Incidentally, to avoid confusion it should be borne in mind that, what is
meant by reasonableness in the context of wrongfulness has nothing to do with the
reasonableness of the defendant's conduct, but it concerns the reasonableness of imposing
liability on the defendant for the harm resulting from that conduct.’ [Footnotes omitted;
emphasis provided].

[13] As our courts have regularly stressed, the fact that an act is negligent does
not make it wrongful. Thus in Minister of Law and Order v Kadir 1995 (1) SA
303 (A) at 320B-C, Hefer JA said ‘I think it may be stated with equal certainty
that society's legal convictions do not demand every [negligent]2 omission to be
branded as wrongful and in effect that retribution be exacted from the
wrongdoer by holding him personally liable for loss suffered’. The words
emphasized in the passage in Country Cloud just quoted thus stress the need to
ensure that wrongfulness and negligence are recognised as separate and discrete
elements as, if they are not and negligence is elevated to the determining factor,
they would be conflated. Should that occur, the safeguard of regarding

1
Para 20-21.
2
My insertion.
 8

wrongfulness as a separate requirement would be lost. In explaining the danger

of confusing the two elements, Brand JA stated the following in Za v Smith: 3
‘It should be readily apparent that if the test for wrongfulness is whether it would be
reasonable to have expected the defendant to take positive measures, while the test for
negligence is whether the reasonable person would have taken such positive measures,
confusion between the two elements is almost inevitable. It would obviously be reasonable to
expect of the defendant to do what the reasonable person would have done. The result is that
conduct which is found to be negligent would inevitably also be wrongful and vice versa . . .
But where the confusion will indeed make a difference is where negligence —
properly understood or under the guise of wrongfulness — is found to have been established.
In that event it will lead to the imposition of liability without the requirement of wrongfulness
— properly understood — being considered at all. The safety valve imposed by the
requirement of wrongfulness — as described by the Constitutional Court in Country Cloud
Trading CC — will simply be discarded. If that were to have happened, for instance in
[Telematrix and Kadir 4] the defendants in those cases would have been held liable, despite
the ultimate conclusion arrived at by this court in those cases that, for reasons of public and
legal policy, it would not be reasonable to impose delictual liability on them.’

[14] In order to avoid such confusion and the conflation of the two elements,
this Court has now determined that foreseeability of harm, a critical requirement
of negligence, should find no place in the inquiry into wrongfulness – see
Country Cloud Trading CC v MEC, Department of Infrastructure Development
2014 (2) SA 214 (SCA) para 27, as read with MTO Forestry para 18 where this
Court said:
‘It is potentially confusing to take foreseeability into account as a factor common to the
inquiry in regard to the presence of both wrongfulness and negligence. Such confusion will
have the effect of the two being conflated and lead to wrongfulness losing its important
attribute as a measure of control over liability.’

[15] Moving to a different issue, in contrast to a positive act which causes

physical harm to a person or property, a negligent omission, as relied on by the
3
Para 19.
4
Full citations quoted in the judgment are omitted for present purposes.
 9

respondents, is not necessarily regarded as prima facie wrongful. Consequently

in Van Duivenboden, Nugent JA stressed that a negligent omission should only
be regarded as being wrongful ‘if it occurs in circumstances that the law regards
as sufficient to give rise to a legal duty to avoid negligently causing harm’. 5

[16] The use of the phrase ‘legal duty’ in these circumstances means no more
than that the omission must not be wrongful as judicially determined in the
manner referred to above ie involving criteria of public and legal policy
consistent with constitutional norms – see Hawekwa Youth Camp v Byrne 2010
(6) SA 83 (SCA) para 22. Importantly, the concept is not be confused with the
English law concept of ‘a duty of care’ which encompasses both wrongfulness
and negligence. Indeed, F D J Brand, the author of the judgment in Hawekwa,
has stated extra-curially6 that reference to a ‘legal duty’ has been no more than
an attempt to formulate a practical yardstick as to when policy considerations
will require legal liability to be imposed – a sentiment approved by this court in
MTO Forestry.7 This is particularly important to bear in mind in the present
case where, as appears below, the parties have referred to various older South
African authorities as well as decisions in foreign jurisdictions.

[17] There is another matter relevant to the dispute before this Court. As an
omission is not prima facie unlawful the respondents, on particularising their
claim, should not only have alleged that the negligent omissions upon which
they relied had been wrongful, but pleaded the facts upon which reliance was
placed in support of that contention. Indeed in Kadir this Court stated that the
facts pleaded ‘in support of the alleged legal duty represent the high-water mark
of the factual basis on which the Court will be required to decide the question’.8
Conspicuous by its absence in the particulars of claim, however, was even a
5
Para 12.
6
F D J Brand ‘Aspects of wrongfulness: A series of lectures’ (2014) 25 Stellenbosch LR 451 at 455.
7
Para 14.
8
At 318I-J.
 10

bare allegation of wrongfulness on the part of the appellants. All that was
alleged was the alleged negligent failure to take reasonable steps to ensure that
the swimming pool gate was closed or properly secured.

[18] Counsel for the respondents attempted to persuade us that it was implicit
in the pleading that the alleged negligence of the appellants had been wrongful.
But not even on a generous interpretation of what was pleaded, can this be
found. This is an issue that should have been raised before the court a quo; but it
was not, and both sides proceeded to litigate seemingly oblivious to the fact that
a necessary element of liability had not been mentioned in the pleadings.

[19] In his heads of argument before this Court, counsel for the respondents
objected to the appellants, in their notice of appeal, having raised the fact that
the court a quo had ‘overlooked’ the fact that as C had been accompanied by her
mother they were entitled to rely on the latter to look after her. This, he
complained, had never been pleaded by the appellants, and if it had been
evidence could have been led ‘to show why appellants could not in the
circumstances have relied on second respondent’s presence at the house to
negative their defence’. All of this overlooks that it was in fact the respondents
who bore the onus to allege and prove wrongfulness, and that the appellants
were not called on to establish a ‘defence’ to a claim based on wrongfulness that
had not been levied against them.

[20] In any event, during the course of cross-examination it was put to the
second respondent that the appellants had been entitled to assume that she,
devoted as she was to C, would not leave her child unattended. Moreover, it is
hard to imagine what further evidence could have been led relevant to how the
accident had occurred on the day in question. In these circumstances, the only
way in which justice can be done to the parties is to determine the issue of
 11

wrongfulness without reference to the allegations made in the court a quo and in
the light of the facts placed on record.

[21] Turning to that issue, when asked why the failure to secure the swimming
pool gate should be regarded as wrongful, counsel for the appellant argued that
it was reasonably foreseeable that an unattended child might gain access to the
swimming pool and be injured. But as I have already attempted to point out, that
puts the cart before the horse as foreseeability should not be taken into account
in considering the question of wrongfulness. Moreover, on the respondents’
own case, C was not an unattended child. She was brought onto the premises, to
the knowledge of all, in the care of her doting and careful mother. It is on this
basis that the issue of wrongfulness must be considered, rather than on the
premise that she was an unattended child who had free rein to roam wherever
she wanted on the property.

[22] The issue then becomes whether, when a toddler is brought to the private
premises of a homeowner in the custody and supervision of her parent, the
homeowner should be held liable if the custodian parent, momentarily
distracted, allows the child out of her sight – and the child is then injured when
falling into a swimming pool of which her mother was aware. The test for this is
whether in these circumstances, and in the light of constitutional norms,
including in particular the necessity to protect the best interests of a child, the
failure to ensure that the swimming pool gate was secured so it could not be
opened by a toddler not only ‘evokes moral indignation, but also that the legal
convictions of the community demand that it be regarded as wrongful and that
the loss be compensated by the person who failed to act positively’ 9 – or
whether it would be over-burdensome to impose liability.

9
Kadir at 320A-C.
 12

[23] In seeking to persuade us that the issue ought to be decided against the
appellants, counsel for the respondents hung his argument largely upon the
judgment in Hirschman NO & Hirschman v Kroonstad Municipality 1914 OPD
37. In that case it was shown that the municipality used to dump coals from its
power station on a piece of immovable property. Although those coals were
supposed to have been slaked, this was not always effective and live coals that
could not be detected during the day often ended up on the ash heap. The claim
arose from a child traversing the property having burnt his foot when he stood
on a live coal. The court found the live ashes on the ash heap constituted a
concealed source of danger to anyone who happened to be there. The evidence
also established that the land in question was not fenced off and the general
public especially children, often went onto it. This was known to municipal
officials. The court concluded that in these circumstances, placing ashes on an
open, unfenced and unprotected piece of ground close to a public street, without
taking any precautions to avoid accidents, amounted to an act of negligence.
The municipality was therefore held liable for damages suffered by the child in
consequence of his burns.

[24] I must immediately comment that, as appears from what to set out in Za v
Smith10 (a case in which a person had been injured by slipping on ice concealed
under snow) the judgment in Hirschmann was given at a time where liability for
omissions was confined to certain defined categories, one of which was that
those in control of dangerous property had a duty to render it reasonably safe for
those who could be expected to visit it – and that although things have changed,
those categories have not become entirely irrelevant. However, in Za v Smith,
Brand JA went on to find that wrongfulness had been established as, apart from
the fact that the defendants were in control of the property, which held a risk of
dangers for visitors, they had made the property available to members of the

10
At para 20.
 13

public for a fee in order to allow them to use four wheel drive motor vehicles to
drive a route designed to lead directly to the dangerous area.

[25] The respondents also relied upon the recent decision of this Court in Van
Vuuren v eThekwini Municipality (1308/2016) [2017] ZASCA 124 (27
September 2017). In that matter a young child came to be injured when pushed
by a child behind him whilst using a municipal beachside pool slide. It was
accepted that the slide itself was safely constructed but that it could lead to a
dangerous situation if a child was pushed and came down the slide in an
awkward position. In these circumstances, this Court was called on to deal with
the question of wrongfulness and whether there was a legal duty to supervise
and control access to the slide. Bearing in mind that a child’s best interest is of
paramount importance, as enshrined in s 28(2) of the Constitution, that the
parents of children using the slide were not allowed entry to the facility itself
and were therefore unable to control the actions of their children, and that
children were allowed to use the slide in a chaotic manner, this Court concluded
that the municipality owed a legal duty to avoid negligently causing harm to
persons in the position of the injured child.

[26] Hirschman and Van Vuuren both concerned situations in which there was
public access to potentially dangerous places by children who might not be in
the custody and care of a supervising adult. And in Hirschman and Za, the
injury suffered was due to a concealed danger of which the victim was unaware.
The facts of those cases differ substantially from the present. They are a far cry
from the scenario of a toddler being taken to a private home as a guest in the
care and under supervision of her mother who knew of a potentially unguarded
swimming pool on the premises. They are thus wholly distinguishable from the
present facts and of limited assistance in the task at hand, and certainly do not
set a precedent for the appellants being held liable.
 14

[27] In seeking to persuade us that there was no wrongful omission by the

appellants, their counsel relied heavily upon the decision in BS v MS & another
2015 (6) SA 356 (GP). In that matter the father of a child who had sustained
brain damage after falling into a fishpond on the defendants’ property, instituted
a claim for damages on behalf of his injured child founded on an alleged
omission to render the fishpond safe. The claim was dismissed, with the court
concluding that the defendant’s warning in regard to the danger of the fishpond,
taken together with the reasonable expectation that the child’s parents would
supervise her, were sufficient to discharge the legal duty resting on them not to
expose persons on their property to harm or injury.

[28] Unfortunately, the reasoning of the court in reaching its decision is

somewhat confused. It fell into the trap of failing to separate the issue of
wrongfulness from that of negligence, and seems not to have appreciated the
distinction between a duty of care as envisaged in England and echoed in older
cases in this country – such as Cape Town Municipality v Paine 1923 AD 207
to which it referred – and the modern concept of a legal duty associated with
wrongfulness. Consequently, although the result may have been correct, the
reasoning by which it was reached is of little help. Nevertheless it is of
assistance to the extent that in circumstances not dissimilar to the present, a
court held a defendant not liable.

[29] Significantly, similar claims have also failed in other jurisdictions. For
example, the English decision in Phipps v Rochester Corporation [1955] 1 All
ER 129 (QB) is instructive. The facts differed from the present in that it
involved a claim on behalf of a child of tender years who fell into a trench on a
building site, and the matter was further complicated by the requirements
English law doctrine of licence. However, after dealing with a number of cases
in which it had been held that if a child of tender years is not capable of
 15

appreciating danger it ought not to be allowed to be unattended, Devlin J

stated: 11
‘But the responsibility for the safety of little children must rest primarily on the parents; it is
their duty to see that such children are not allowed to wander about by themselves, or, at the
least, to satisfy themselves that the places to which they do allow their children to go
unaccompanied are safe for them to go to. It would not be socially desirable if parents were,
as a matter of course, able to shift the burden of looking after their children from their own
shoulders to those of persons who happen to have accessible bits of land. Different
considerations may well apply to public parks or to recognised playing grounds where
parents allow the children to go and accompanied in the reasonable belief that they are safe.’
(My emphasis.)

[30] This decision was referred to and relied upon in the England and Wales
Court of Appeal in Bourne Leisure Ltd t/a British Holidays v Marsden [2009]
EWCA Civ 671. In that case a small child fell into a pond at a camping site
operated by the appellant after wandering away from his parents who were
momentarily distracted in conversation. A statutory provision obliged the
appellant to take such care is in all the circumstances was reasonable to see that
a visitor would be reasonably safe and, in regard to children, to expect they
would be less careful than adults. Despite this, the appellants were held not to
be liable.

[31] We were also referred to a number of American decisions in which

claims brought as a result of small children falling into swimming pools were
dismissed: in particular, Workman v Dinkins 442F. Supp. 2d 543; Horace Ex
Rel, Horace v Braggs 726 So 2d 635 (1998); Englund v Englund 615 N.E. 2d
861 (III. App. Ct. 1993); O’Clair v Dumelle, 735 F. Supp. 1344 (N.D. III. 1990)
and Wilford v Little 144 Cal. App. 2d 477 (1956). No point would be served in
setting out a detailed analysis of the facts, circumstances and reasoning in each
of these decisions. Suffice it to say that common to all is the sentiment that
11
At 143G–I.
 16

where small children are in the care and under the supervision of their parents
whilst visiting the home of another, the duty to keep the child safe lies upon the
latter and the homeowner should not be held liable in the event of the child
falling into a swimming pool when the parent is distracted.

[32] I am acutely aware of the pitfalls of relying too heavily upon decisions in
foreign jurisdictions for the reasons already mentioned. But all of these cases
are of persuasive value and seem to me to reflect public and legal policy of this
country as well, namely, that it would be unreasonable – in the sense of
reasonableness as explained by the Constitutional Court in Country Cloud – to
impose liability upon the owner of a residence should a small child in the care
of her mother wander off when the mother is briefly distracted and accidentally
fall into a swimming pool of which the mother is aware. To hold otherwise
would be to expect the host to provide greater supervision than the parent itself.

[33] In all the circumstances, I am of the view that the respondents failed to
establish the element of wrongfulness on the part of the appellants. That being
so, their claim must fail on this basis alone, and the appeal must succeed.

[34] Strictly speaking, this renders it unnecessary to consider the question of

the alleged negligence on the part of the appellants. I therefore do not intend to
discuss this topic in any detail, but for completeness I feel I should mention that
on this leg as well the respondents failed to establish their claim.

[35] In considering the question of reasonableness and foreseeability of harm,

a reasonable person in the position of the second appellant would have realised
that the child was in the custody of the second respondent, that the latter was a
doting parent and had always kept the child under close observation, and that
she was aware of the potentially open or unlatched gate at the swimming pool
 17

on the property. The child was the primary responsibility of the second
respondent, and it would have been reasonable to assume that she would have
continue to keep the child under observation and not to allow her to roam free.
There is no absolute duty upon a landowner to ensure that any person upon his
property will not be injured in some way. The sources of potential danger to a
toddler in a normal domestic household and garden are numerous, and no
homeowner can be expected to guard against all the harm that might befall a
young child. On the other hand, a homeowner can reasonably expect that a child
will be supervised and guarded from harm by its supervising parent, and would
not foresee that the parent would be distracted whilst caring for its child.
Moreover, it must also be remembered that a reasonable person is neither a
timorous faint-heart always in trepidation of harm occurring but, rather,
ventures out into the world, takes reasonable chances, takes reasonable
precautions to protect his or her property and person and expects others will do
the same – see Herschel v Mrupe 1954 (3) SA 464 (A) at 490E-F.

[36] In the context of the facts of this case, a reasonable person in the position
of the appellants was entitled to expect that C would be looked after by her
mother whilst at their home that day. There was nothing to alert either of the
appellants to the fact that she had been left unattended on the patio. It seems
from the evidence that at the brief time the second respondent became distracted
by the matter of the baby-seat, the second appellant was busy making pancakes
in the kitchen and was in no position to observe C’s movements. The suggestion
in the respondents’ heads of argument that the second appellant’s action in
immediately running to the swimming pool justified the probable inference that
she had seen C heading that way and that she knew the gate at the pool was not
secured, is not sustainable and, wisely, I did not understand counsel for the
respondents to persist in this allegation.
 18

[37] In the light of these circumstances, and although it is not necessary to

discuss the question of negligence in any greater detail, in my view, the
respondents failed to establish that negligence on the part of the appellants led
to C being injured. This does not imply that the second respondent was
negligent in this tragic affair. As stressed in a number of the authorities already
mentioned in similar circumstances, accidents unfortunately do happen. But the
fact that an accident happens does not mean that someone must be held liable.

[38] In all the circumstances, the court quo erred in holding the appellants
liable in damages arising out of C having fallen into their swimming pool. The
appeal must therefore be upheld.

[39] In the result it is ordered:

1 The appeal is upheld, with costs, such costs to include the costs of two
counsel.
2 The order of the court a quo is set aside and replaced with the following:
‘The plaintiffs’ claim is dismissed with costs, including the costs of two
counsel.’

______________
L E Leach
Judge of Appeal
 19

Appearances:

For the Appellant: C W Jordaan SC (with him M J M Bridgman)

Instructed by: Cliffe Decker Hofmeyr Inc, Cape Town
Pieter Skein Attorneys, Bloemfontein

For the Respondent: R A Brusser SC

Instructed by: John O’Leary Attorneys, Cape Town
Webbers Attorneys, Bloemfontein