City loses court case against Cell C over stadium damage

THE City has lost its court bid to claim damages against Cell C over damage to the Cape Town stadium. 

The Western Cape High Court ruled that the debt had prescribed, and the claim was dismissed with costs. 

According to court papers, the issue dates back to 2015 when the City gave Cell C permission to access the stadium to install infrastructure for its customers. 

Cell C had contracted Huawei to do the installation work. 

“On November 18, 2015, the (City) discovered extensive damage to the external façade of the stadium which was caused by a metal panel which had dislodged from gridline 50 on level 6 of the stadium and which fell on or through the façade, damaging the same.

"At all material times it was (Cell C’s) duty to ensure that the installation was done without any harm or damage to the stadium and inasmuch as the damage was caused by (Huawei), alternatively, the third, alternatively the fourth defendant’s action, it remained the duty of (Cell C) to ensure that no damage was done to the stadium and it could not rid itself of this duty by appointing a contractor,” court papers read. 

The City’s main claim was against Cell C with an alternative claim against Huawei and the other sub-contractors separately, in the event that the court found that they were independent contractors and that Cell C could not be held liable for any of their actions.

However, both Cell C and Huawei invoked a special plea of prescription.

They argued that the cause of action arose on November 18, 2015 and that the summons instituting the proceedings was served on them after the three year prescription period.

“The (City’s) claim would prescribe within a period of three years as it falls within the ambit of section 11(d) of the Prescription Act. In his opening statement counsel for (Cell C) submitted that the (City) sought to impose strict liability on it in terms of its pleaded case. This rendered the actual identity of the defendant / entity who caused the damage irrelevant. Furthermore, Cell C submitted that as the (City) discovered the loss on November 18, 2015 and served its summons on November 21, 2018, (the City’s) claim against it had prescribed.” 

Lawyers for Huawei argued that there were no grounds on which the City could succeed. An ICS service engineer for Huawei testified and that he was responsible for the network provision. 

The engineer compiled a report on the day of the incident at the stadium. It was recorded that on November 18, 2015 the stadium management stated that the damage was caused by Huawei’s contractors as they worked on location. The report contained Huawei’s denial that they were responsible for the damage and concluded that there was no conclusive proof in respect of who was responsible for the damage.

A City employee testified that while he was aware of a theory that a cherrypicker from another company could have caused the damage, “no one placed any credibility in the theory”. 

He said that there was one of four entities (Cell C, Huawei and the other subcontractors) which could be liable for the damage and that he held a meeting with representatives of all four entities on November 18, 2015. 

However, according to court papers, the employee never asked which contractor replaced the panel and who was responsible for supervising the work on level 6.

Judge Haily Slinger found: “The evidence has shown that the (City) could have ascertained the minimum facts it needed to institute proceedings by directing three simple questions to the parties present at the meeting held on November 18, 2015 on the site. The plaintiff had simply to ask, ‘who did what when’. There was no reasonable explanation for the failure to do so.  

“Based on the papers filed on record and the evidence presented, it is evident that nothing changed in the plaintiff’s knowledge pertaining to the incident from November 18, 2015 and November 21, 2015. The plaintiff instituted proceedings against the defendants with the same total of knowledge it had on November 18, 2015.  Therefore, prescription started to run on November 18, 2015, which meant that the plaintiff’s summons had to be served on the defendants by November 18, 2018."

City spokesperson, Luthando Tyhalibongo, said: “The City is studying the judgment and looking at its options.”

Cape Times