OPINION: Take care of your tenants’ safety or you could pay
A tenant who suffers injury due to the landlord’s negligence can sue for damages for personal injury. The onus lies with the tenant to show the landlord must be held blameworthy for causing the injury due to negligence or disregard for the safety of others.
To prove a person was negligent or at fault (culpa), it must be shown that a diligent person would have foreseen the reasonable possibility that his conduct would cause injury to another person in his property and cause him patrimonial loss, that is, incurring financial loss, such as medical expenses.
The diligent person would therefore take the necessary precaution or reasonable steps to prevent this.
The courts apply certain principles to establish if the landlord is liable for the injury. In other words, what did the landlord do or fail to do, and, was this conduct unlawful? Also of importance is to establish whether the landlord owed the tenant a legal duty to ensure his or her safety.
The court will then examine whether the landlord’s conduct was unlawful, in that it was intentional or the result of his negligence.
A landlord is responsible for ensuring safety for all users of the property as stated by Judge Wallis (in Swinburne v Newbee Investments (Pty) Ltd  4 All SA 96 [KZD]): “It is the owner’s legal duty to ensure that the premises are safe for those who use them. That is so whether one is dealing with trespassers, invitees or others who may have a right to enter, such as tenants. There are a number of instances where our courts have imposed upon an owner of property such a legal duty in relation to the condition of stairs and staircases.”
In Naidoo v Trustees for the Time Being of the Habib Arbee Family Trust  ZAKZDHC 38, judgment was handed down on May 12, 2015 regarding a tenant who fell and was injured.
Basmathy Naidoo and her husband, who rented a flat at 183 Alpine Road, Springfield, Durban, fell through a concealed skylight on the roof garden on November 10, 2008 and landed inside the neighbour’s bathroom. As a result she sustained injury to her spine, fractures to her lower limbs, general bodily bruises, cuts and fractures.
Naidoo instituted legal action in October 2010, holding the landlord responsible for her injuries due to negligence.
The landlord, the Trustees for the Time Being of the Habib Arbee Family Trust, represented by a Mr Arbee, objected to Naidoo’s claim for damages of R429000. He argued Naidoo had knowledge of the glass skylight and the danger it posed and, consequently, she was the author of her misfortunes.
She ought not to have entered or walked through this area, let alone hung clothes above it. In doing so, she endangered herself by standing on the skylight or what appeared to be a vent. This was a dangerous and imprudent action which she should have avoided.
Arbee denied the landlord placed the steel poles to secure the washing lines. No one was allowed to hang clothes on the roof garden or to use the roof top.
From the evidence presented, especially by the landlord’s witnesses, Judge Yvonne Mbatha said there was clear indication of frequent presence of people on the rooftop.
Arbee was aware from a complaint he received from a supermarket owner about Naidoo hanging her washing over the air conditioners’ compressors that caused problems to the supermarket.
“These were all the signs,” the judge said, “that should have made him aware of the ticking time bomb. Irrespective of these signs, he still did not put any warning signs either at the entrance, the floor, walls or any other place on the rooftop warning people of a potential danger of walking on the glass skylights. The danger was not only to the tenants but on anyone who had access to the rooftop.”
The judge found the landlord was at fault that led Naidoo to suffer damages. Naidoo did not act negligently and she would not have suffered injuries if the landlord took reasonable and necessary precautions to prevent injury.
The judge ruled in the tenant’s favour, ordering the landlord to pay her such damages as either agreed or as she may establish at trial. The landlord was also ordered to pay the tenant’s legal costs.
A landlord must inform tenants and others who have access to the property of any potential danger. He or she must take reasonable steps to prevent or reduce the risk of injury.
Failure to do so may result in negligent behaviour and damages awarded against the landlord.
Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity. For advice, contact Pretty Gumede or Loshni Naidoo on 0313046451 / [email protected] or [email protected]