The gap between the Court Aquo's decision v the SCA decision on Kenneth Paul Els V The Memorable Order of Tin Hats v Kenneth Paul Els (M.O.T.H.) (241/2017) (2019) ZAGPJHC 77 (7 March 2019).

Kenneth Paul Els, A 55-Year-old member of the Memorable Order of Tin Hats (Moths), a social club for former members of the army, instituted a delictual claim for damages arising from an injury, he sustained when he fell on the premises of Moth, while assisting a wheelchair-bound person (Who is now deceased). and fell on his back with the wheelchair and the person on it falling on top of him”.


The Defendant (Moth) owed the Plaintiff duty of care, in that it had a duty to protect its patrons from harm caused by the steps which were not protected by railings/ramps. His claim was essentially based on unlawful and wrongful failure or omission of the MOTH to take reasonable measures to avoid a foreseeable incident that resulted in the damages he suffered as a result of his injuries.


Judge Twala “I agree with [Els's argument] that the defendant had a duty to protect its patrons from harm to be caused by the steps which were not protected by railings, and it was in breach of that duty … I hold the view that, had the defendant built the ramps for the wheelchair and put rails next to the steps to protect the patrons, the incident involving the plaintiff would have been avoided,” said the judge.

He further remarked that “I hold the view therefore that the Plaintiff was negligent to some extent, in not taking the necessary precautions to avoid the inherent danger when assisting the deceased”, thus, ordered 10% contributory negligence on the part of the Plaintiff. Because of this, Judge Twala ruled that the Moths were liable to compensate Els for 90% of his proven damages, and to pay for the cost of the action.


The Defendant has taken the matter on appeal on the basis that, there is no causal connection between the actual incident and Omission (Failure to act).

The Appeal was Upheld with costs.


First and foremost, a delictual liability requires, amongst other things, a factual causal link between wrongful and culpable conduct, on the one hand, and loss suffered on the other. There must also be legal causation; the loss must not be too remote.

The test for factual causation is whether the act or omission of the defendant/Respondent has been proved to have caused or materially contributed to the harm suffered.

Factual causation is proven by a ‘demonstration that the wrongful act was a causa sine qua non of the loss‘, also known as the ‘but-for' test.

In this case, amongst other things, the respondent, testified that “although I do not know what happened I believe I lost my balance”.

Other witnesses, (Mr Jansen and Mr Swartz) testified that, the deceased, did not specifically call the Respondent for help and that when he usually sought assistance, volunteers were sought from the Pub and further testified that, they had on any occasions assisted the deceased up the stairs in question without any incident occurring, they were both adamant that the Respondent hooked or caught his foot on the step and fell backwards. (The court found that this evidence was not challenged).

The court further remarked that, what emerged from the evidence on the Respondent's version was that, the wheelchair was stuck and in an attempt to free, the Respondent lost his balance, while his foot was jammed. This resulted in him falling backwards and sustain his injuries.

In Lee v Minister for Correctional Services. [4] Where the defendant has negligently breached a legal duty and the plaintiff has suffered harm, it must still be proved that the breach is what caused the harm suffered. 

In Mashongwa v PRASA, the Constitutional Court settled the law on this aspect. It pointed out that the imputation of liability to the wrongdoer depends on whether the harmful conduct is either too remotely or sufficiently closely connected to the harm caused.

In Fourway Haulage SA (Pty) Ltd v SANRAL[2008] ZASCA 134;  2009 (2) SA 150 (SCA) Brand, JA cautioned in paragraph [34] that the factors normally applied to consider legal causation “should not be applied dogmatically, but in a flexible manner so as to avoid a result which is so unfair or unjust that it is regarded as untenable.”

In Van Duivenboden  the SCA held in paragraph [25]  that “a plaintiff is not required to establish the causal link with certainty, but merely that the wrongful conduct was probably a cause of the damage.  This calls for “… a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than an exercise in metaphysics.”  (emphasis added).

The learned judge concluded in paragraph [73] as follows: “A court ultimately has to make a finding as to whether causation was established on a balance of probabilities on the facts of each case.  Causation will not always follow whenever a wrongful and negligent omission is shown.”


It is trite law that he who alleges must prove, it is clear from Respondent's version that he failed to prove nor establish that his injuries stem from / were directly linked to the Omission or were as a result of the omission on the part of the Applicant, in essence, there was no causal connection whatsoever between the Omission (the Applicant's alleged failure to build the ramps for the wheelchair and to further put rails next to the steps to protect the patrons) and the injuries sustained by himself, thus, the Applicant could not have foreseen nor avoided it, the incident in question would have occurred with or without the rails/ramps.

We, therefore, concur with the SCA decision, as In the absence of such evidence (Establishment of Causal Connection), the imposition of wrongfulness on the part of the Applicant would be unjustified.

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