Pick 'n Pay Retailers (Pty) Ltd v Maria Williams and Another

On 13 November 2017, Mrs Maria Williams was shopping at a Pick 'n Pay store in N1 City Mall, Goodwood, Cape Town, when she slipped and fell on an oily-orange substance on the floor in aisle 5 (approximately the size of an A3 piece of paper according to Mrs Williams, or a two-rand coin according to Pick 'n Pay). She sustained injuries to her left hip and left acromio-clavicular joint. Pick 'n Pay had engaged Bluedot as an independent contractor under a Cleaning Service Agreement to clean and maintain the store premises. No Pick 'n Pay employee or cleaner was visible in the immediate vicinity at the time of the fall. The incident was brought to the attention of Pick 'n Pay by a field marketer employed by a third party, not by Pick 'n Pay staff. Mrs Williams sued Pick 'n Pay for damages. Pick 'n Pay denied liability, alleging Mrs Williams' own negligence and/or contributory negligence, and alternatively sought indemnity from Bluedot. The Western Cape High Court found Pick 'n Pay liable. Pick 'n Pay's application for leave to appeal was refused by the High Court and by two judges of the SCA. Pick 'n Pay then applied for reconsideration under s 17(2)(f) of the Superior Courts Act.

• Whether Pick 'n Pay discharged its duty of care to customers by engaging an independent contractor (Bluedot) for cleaning services
• Whether Pick 'n Pay was negligent in failing to ensure the premises were reasonably safe for customers
• Whether the Chartaprops defence applies to absolve Pick 'n Pay of liability for the negligence of an independent contractor
• Whether the High Court erred in holding Pick 'n Pay liable in delict
• Whether the application for reconsideration under s 17(2)(f) of the Superior Courts Act should be granted on the basis that a grave failure of justice would otherwise result or the administration of justice may be brought into disrepute

The application for reconsideration in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013 was dismissed with costs. The High Court's finding that Pick 'n Pay was liable in delict to Mrs Williams was upheld.

The occupier or owner of retail premises owes a non-delegable duty to members of the public lawfully on the premises to ensure that reasonable steps are taken to guard against foreseeable harm. While operational tasks such as cleaning may be delegated to an independent contractor, the responsibility to ensure that care is actually taken cannot be delegated. The mere engagement of a competent contractor does not discharge the occupier's duty; the occupier must also implement adequate systems of supervision, monitoring, and oversight to ensure that the contractor performs its duties to a reasonable standard. A failure to do so constitutes negligence where harm results. In applying the Kruger v Coetzee test, once a plaintiff establishes a slip and fall due to a spillage on the defendant's premises and shows that reasonable care was taken for their own safety, a prima facie case of negligence is established. The onus then shifts to the defendant to adduce evidence rebutting the inference of negligence. If the defendant fails to show that reasonable preventative measures were taken, liability follows.

The Court noted that the determination of whether a diligens paterfamilias would have taken steps to prevent harm, and what steps would be reasonable, must always depend on the particular circumstances of each case, and no hard and fast rule can be laid down (citing Kruger v Coetzee). The Court also observed that Pick 'n Pay's 'mule train' system, which required employees to perform multiple tasks simultaneously (cleanliness checks, expiry monitoring, and price verification), was inherently flawed and could compromise the ability to detect small hazardous spillages. The Court commented on the revised test under s 17(2)(f) of the Superior Courts Act (as amended in 2024), noting that the threshold for reconsideration is stringent and that the provision is not intended to afford disappointed litigants a further opportunity to reargue their case. The Court reiterated that s 17(2)(f) applications are not a 'parallel appeal process' and should not be used as 'additional bites at the proverbial appeal cherry'.

This case clarifies the scope and limits of the Chartaprops defence in South African delict law, particularly in 'slip and fall' cases involving retail premises. It reaffirms that while an occupier may delegate operational functions (such as cleaning) to an independent contractor, this does not absolve the occupier of the underlying duty to ensure that reasonable care is actually taken to protect lawful visitors. The judgment emphasizes that a non-delegable duty arises where the occupier has an ongoing obligation to ensure public safety. The decision reinforces the principle from Langley Fox that, as between the occupier and the public, the duty of care rests on the occupier, regardless of contractual indemnity arrangements with third-party service providers. The judgment also provides guidance on the application of s 17(2)(f) of the Superior Courts Act following its 2024 amendment, confirming the high threshold required to justify reconsideration and that such applications are not intended as a 'parallel appeal process'.