South African malls face a legal threat

South African malls face heightened legal risk over slip-and-fall incidents during the festive season, with recent court rulings showing that specific parties are responsible for shopper safety.

For malls and shopping centres, festive season shopping means a surge in foot traffic, extended trading hours, and seasonal decorations.

As a result, the risk of slips and falls increases significantly, explained Webber Wentzel senior associate Rethabile Shabalala and associate Maano Manavhela.

“Wet floors from summer rains, misplaced merchandise, and hurried shoppers all contribute to a spike in personal injury claims during this period,” Shabalala and Manavhela said.

South African courts continue to grapple with the issue of legal responsibility in preventing injuries caused by slip-and-fall incidents in public spaces.

“The duty of care owed by mall owners and their appointed contractors remains a recurring point of contention, particularly in determining what constitutes reasonable measures to ensure shopper safety,” they said.

This issue was recently brought into focus in the legal matter of Verna Mershall Manuel v Supercare Services Group.

This case arose after the claimant slipped on a chip in a walkway and fractured her wrist on 9 November 2016 at Zevenwacht Mall in Cape Town.

At the time, the mall was owned by Investec Properties and managed by Broll Property Group. It was being cleaned by Supercare Services Group under a service agreement.

“The claimant alleged that both the property manager and the cleaning contractor owed her a legal duty to ensure the mall’s surfaces were kept free of hazards,” Shabalala and Manavhela said.

She argued that their failure to detect and remove the chip constituted negligence. “She initially sued both parties, but later withdrew her claim against the property manager, leaving the cleaning contractor as the sole defendant,” they said.

According to Shabalala and Manavhela, this strategic decision proved fatal to the plaintiff’s case, as it eliminated the party with primary responsibility for hazard detection.

Determining liability

The cleaning contractor argued that its responsibility for detecting and continuously monitoring the premises for spillages was expressly excluded under the Master Service Agreement (MSA) concluded with the property manager.

The MSA only required the cleaning contractor to clean up spillages when notified, Shabalala and Manavhela explained.

“CCTV footage showed that the chip fell just 15 seconds before the incident, and cleaners responded promptly thereafter,” Shabalala and Manavhela said.

The Western Cape Division of the High Court dismissed the claim. It found that the MSA was binding and excluded any duty on the cleaning contractor to monitor or detect spillages.

“The court held that the cleaning contractor could not be liable for failing to perform a duty it was not contractually obligated to undertake,” they said.

“It further noted that, given the short timeframe between the chip falling and the accident, no reasonable cleaning system could have prevented the incident.”

The court emphasised that the primary responsibility for ensuring safety rested with both the property manager and the mall owner.

Shabalala and Manavhela explained that the appeal court examined whether the court a quo had misinterpreted the contractual obligations and the existence of a legal duty.

“The appeal court confirmed that the deeming provisions in the MSA were effective and that the cleaning contractor’s role was limited to cleaning upon notification, not continuous monitoring,“ they said.

The court emphasised that liability for negligent omissions hinges on the existence of a legal duty, which was absent in this case.

“It reiterated that public policy does not support imposing liability on a contractor for duties expressly excluded by contract, particularly where the managing agent retained responsibility for hazard detection,” they explained.

“The court reaffirmed that mall owners and managing agents bear the ultimate responsibility for maintaining safe premises.”

While they may delegate cleaning functions to contractors, Shabalala and Manavhela said such delegation must be reasonable and supported by clear contractual terms.

What South African malls should do

“The court clarified that the duty to provide a safe environment cannot be shifted entirely in circumstances where public policy dictates otherwise,” Shabalala and Manavhela said.

In this case, the appointment of the cleaning contractor was reasonable, and its exclusion from monitoring duties was clearly outlined in the contract. This made it inappropriate to hold the contractor liable.

“This three-tier structure, owner, managing agent, and service contractor, is typical in commercial property operations and creates complex liability chains that insurers must navigate when assessing coverage and exposure,” they said.

Shabalala and Manavhela warned that mall owners and managing agents should ensure that agreements explicitly define responsibilities, as any ambiguity in this regard creates exposure for all parties.

“Where hazard detection duties are excluded from contractor agreements, owners and managing agents must implement independent monitoring systems to mitigate the risks,” they said.

“This might include dedicated personnel, enhanced CCTV monitoring with active observation, or regular inspection protocols.”

They added that underwriters should request copies of all agreements concluded between property owners and their service providers to assess the extent of risk properly.

This is particularly true in cases where cleaning contractors have contractually limited their liability or exposure to specific risks.

“Even with delegation, owners and managing agents should maintain oversight mechanisms to ensure contractors perform their allocated responsibilities in a competent and diligent manner,” they said.