A municipality can be held liable if it fails to repair dangerous public infrastructure of which it is or should be aware and someone is harmed as a result. A September 2025 Supreme Court of Appeal judgment has confirmed that a municipality can be held legally responsible for injuries or death caused by an uncovered stormwater drain that it knew about but failed to repair.
For years residents had reported that a drain in a public street stood open and filled with water. Despite these warnings, the drain remained uncovered. One afternoon in September 2014, a toddler fell into the drain and drowned. The parents, acting through a curator, sued the municipality for damages.
The court rejected the doctrine of “municipal immunity” for municipalities and confirmed that this doctrine no longer forms part of our law. In determining whether a municipality is liable, one needs to consider the ordinary delictual principles (namely conduct, wrongfulness, fault, causation and harm). Whether a breach of legal duty arises that constitutes wrongfulness will depend on the legal convictions of the community. In South African law, it is accepted that where there is a duty to act or to exercise special care to avoid injury to others, then the person concerned is liable for the damages caused.
The court explained that a municipality’s failure to fix a known danger is wrongful if the community would expect the municipality to act. The law asks whether it is fair and reasonable to hold the municipality responsible, especially when the risk is obvious and the municipality has a duty to protect people’s rights and safety.
The court also clarified that wrongfulness (as determined by the legal convictions of community) and negligence (whether the municipality acted as a reasonable authority would) are separate questions, even though they sometimes overlap when someone fails to act. A reasonable municipality would have foreseen the risk of a child falling into an open drain and would have taken simple steps to prevent it, such as covering the drain or putting up a barrier. Once the municipality was alerted to the danger, public and legal policy demanded that it act.
The court found that the child’s death was directly caused by the open drain. The law does not require absolute certainty, only that it is more likely than not that the municipality’s failure led to the harm. Had the drain been secured, the child would not have drowned. The omission was therefore both the factual and legal cause of the death.
The municipality argued that the parents were partly to blame because they left the child in the care of a 15-year-old relative. The court dismissed this defence, stating that entrusting a toddler to a responsible teenager for a short period is commonplace, and the real cause of death was the municipality’s failure to eliminate an obvious public hazard.
This decision confirms that municipalities have a clear duty to address known public safety hazards. Municipalities should put reporting and swift repair protocols in place.