Authored by Amber Lawlor.
In August 2026, the High Court held a property owner liable for injuries sustained by a minor child, who was eight years old at the time, after a heavy sliding gate became dislodged and toppled onto him, finding that property owner had failed to take reasonable steps to ensure that the gate was reasonably safe.
The minor was injured in September 2017 when a gate at the premises where he and his mother were living became dislodged and fell onto him as they entered the property. He sustained serious injuries, including a severe head injury and a fractured right femur. The minor’s mother alleged that the gate was unsafe because it lacked adequate safety mechanisms, including a stopper and guides, and that the property owner had failed to take reasonable steps to prevent the gate from toppling.
The property owner denied liability and maintained that a stopper and guide had been fitted to the gate and that it had been in good working order. He alleged that the incident was caused by the manner in which the gate was closed, contending that the minor had pushed the gate with sufficient force to cause the stopper to break and the gate to derail. He further sought a contribution from the minor’s mother, alleging that she had failed to properly supervise the minor when he was closing the gate.
The court accepted evidence from the minor’s mother’s witnesses that the gate was heavy, difficult to operate and had previously fallen or nearly fallen on other occasions. An expert who inspected the gate testified that safety stops and guides were necessary to prevent derailment and tipping and that the gate’s design and movement created a foreseeable risk of injury, particularly where children might be present. Although the expert accepted that not all of the standards relied upon were legally binding on the property owner, he maintained that the gate should nevertheless have been fit for purpose and designed to guard against foreseeable risks.
The court found that the property owner’s own evidence materially undermined his version regarding the safety mechanisms. While he maintained that a stopper had been fitted, his evidence ultimately established that a bracket, rather than a proper stopper, was in place at the time of the incident. The court found that a bracket is not a stopper and accepted that the requisite safety mechanisms were not in place.
The court further held that an owner or person in control of premises has a legal duty to take reasonable precautions to protect persons whose presence on the premises is reasonably foreseeable from foreseeable risks of injury. Applying the test in Kruger v Coetzee, the court found that a reasonable person in the property owner’s position would have foreseen the possibility of injury and would have taken reasonable steps to prevent the gate from derailing and toppling.
The property owner’s claim against the minor’s mother for a contribution was dismissed. The court found that there was no evidence supporting the allegation that the minor had closed the gate dangerously or that the minor’s mother had failed in a duty to supervise him. The property owner was accordingly held liable for the minor’s damages.
This judgment serves as a reminder that property owners may be held liable where a dangerous feature of a premises creates a foreseeable risk of injury and reasonable precautionary measures are not taken. It also highlights the importance of maintaining effective safety mechanisms and proper maintenance records, particularly where a property owner relies on the condition of premises to defend a delictual claim and the need to have adequate public liability insurance in place.
O.S.N obo R.J v Chilwan (8617/2019) [2026] ZAWCHC 448 (25 August 2026)