Pick 'n Pay Retailers (Pty) Ltd v Maria Williams and Tradesoon 1020 (Pty) Ltd t/a Bluedot

On 13 November 2017, the first respondent, Mrs Maria Williams, slipped and fell on an oily substance on the floor of the applicant’s store at N1 City Mall, Goodwood. She sustained injuries to her left hip and shoulder. The applicant, Pick ’n Pay Retailers (Pty) Ltd, had engaged the second respondent, Tradesoon 1020 (Pty) Ltd t/a Bluedot, as an independent contractor to clean the store under a Cleaning Service Agreement. Mrs Williams sued Pick ’n Pay in the Western Cape High Court, which on 1 September 2023 found Pick ’n Pay negligent and liable for her damages, and granted a declaratory order that Bluedot indemnify Pick ’n Pay. Pick ’n Pay’s applications for leave to appeal to the full court and then to the Supreme Court of Appeal (SCA) were refused on 31 October 2023 and 21 February 2024 respectively. Pick ’n Pay then applied for reconsideration in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013, which was referred to a panel of three judges.

• Whether the decision of two judges of the SCA refusing leave to appeal should be varied under s 17(2)(f) of the Superior Courts Act 10 of 2013.
• Whether a grave failure of justice would result or the administration of justice be brought into disrepute if leave to appeal were not granted.
• Whether the high court erred in holding Pick ’n Pay delictually liable for Mrs Williams’ injuries despite having engaged an independent contractor for cleaning.
• Whether Pick ’n Pay discharged its own duty of care to ensure the premises were reasonably safe, or whether it was entitled to rely on the 'Chartaprops defence' regarding independent contractors.
• Whether the high court misdirected itself in its factual findings concerning the duration of the spillage and the causative negligence.

The application for reconsideration in terms of s 17(2)(f) of the Superior Courts Act is dismissed with costs.

A property owner’s personal duty of care to lawful visitors to maintain premises in a reasonably safe condition is not delegable merely by engaging an independent contractor; the owner must take reasonable steps to supervise and monitor the contractor’s performance. Where a patron proves a slip-and-fall caused by an unattended spillage while exercising reasonable care for her own safety, the owner bears an evidentiary burden to rebut the inference of negligence, which it fails to discharge if it cannot demonstrate that its preventative systems were reasonable and effective. The test for negligence remains the two-stage inquiry in Kruger v Coetzee: foreseeability of harm and failure to take reasonable steps to guard against it. Reconsideration under s 17(2)(f) of the Superior Courts Act requires proof of circumstances in which a grave failure of justice would otherwise result or the administration of justice may be brought into disrepute, and does not permit mere reargument of factual or legal conclusions with which the applicant disagrees.

Observations on the operational inefficiencies of Pick ’n Pay’s 'mule train' system, which combined cleanliness checks with unrelated tasks such as price verification and expiry monitoring, thereby compromising hazard detection. Comments that the contractual indemnity between Pick ’n Pay and Bluedot was immaterial to Mrs Williams’ delictual claim. Remarks that the high court’s judgment had attracted academic criticism and that few reported cases applied Chartaprops to slip-and-fall facts, but that these factors did not constitute exceptional circumstances warranting reconsideration.

This judgment reinforces that a shop owner or occupier cannot escape delictual liability for unsafe premises simply by delegating cleaning or maintenance to an independent contractor. It clarifies the distinction between vicarious liability for an independent contractor and the owner’s personal, non-delegable duty to take reasonable steps to ensure the premises are safe, including monitoring and supervising contractors. It also affirms the approach in Probst and Cenprop regarding the shifting evidentiary burden in slip-and-fall cases, and provides guidance on the stringent threshold for s 17(2)(f) reconsideration applications in the SCA, emphasising that the provision is not a parallel appeal process.