Festive Season Spike: Who’s liable in slip and fall claims?

• Holiday crowds heighten slip-and-fall risks in malls nationwide.
• Courts clarify liability between owners, managers and contractors.
• New judgment shows contracts, not assumptions, decide legal responsibility.

Who really carries the risk in slip and fall claims?

With December crowds surging through South Africa’s malls, slip-and-fall incidents rise sharply. Wet floors, rain-tracked entrances, misplaced merchandise, and extended trading hours all increase the likelihood of injury and the possibility of legal claims.

This makes it essential for property owners, managing agents, cleaning contractors and insurers to understand exactly where legal responsibility sits. Recent case law provides that clarity.

According to Rethabile Shabalala (Senior Associate) and Maano Manavhela (Associate) at Webber Wentzel, the courts have now reinforced that liability depends on contractual obligations, not assumptions.

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“The festive season always exposes gaps in operational oversight,” they note, “and this ruling confirms that risk allocation must be explicitly defined. Courts will not impose duties that a contractor has contractually excluded.”

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A Festive Season injury leads to a landmark decision

‍The case Verna Mershall Manuel v Supercare Services Group (Pty) Ltd stems from a slip-and-fall on 9 November 2016 at Zevenwacht Mall in Cape Town.

The claimant slipped on a chip lying in a walkway and fractured her wrist. At the time:

• Investec Properties owned the mall
• Broll Property Group was the managing agent
• Supercare Services was the cleaning contractor under a Master Service Agreement (MSA)

The claimant alleged that both the property manager and the contractor owed her a duty to keep the mall’s surfaces hazard-free. She later withdrew her claim against the property manager leaving only the cleaning contractor to defend the action.

This proved decisive.

Case Findings: No duty means no liability

‍Supercare argued that the MSA excluded any obligation to monitor or actively detect spillages. Their role was to clean up only once notified by the property manager.

Two crucial facts shaped the court’s view:

1. CCTV footage showed the chip fell only 15 seconds before the claimant slipped.
2. Cleaners responded almost immediately once notified.

The Western Cape High Court dismissed the claim. It held that:

• The MSA expressly excluded monitoring duties.
• The contractor could not be liable for failing to perform a duty it never agreed to.
• No reasonable cleaning system could have prevented an incident occurring seconds after a hazard appeared.
• The primary duty of care rested with the property manager and mall owner, not the contractor.

The appeal court upheld the decision, confirming that public policy does not support imposing a legal duty where one is clearly excluded by contract.

Owners still carry the ultimate duty

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“This judgment underscores that mall owners and managing agents cannot outsource responsibility blindly,” says Shabalala. “Cleaning contractors can only be held liable for duties they have expressly undertaken. If monitoring is excluded, then owners must implement independent systems.”

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Manavhela adds: “Hazard detection must be properly resourced. If contractors are not contractually responsible for inspection, owners and managing agents must plug that gap through dedicated staff, enhanced CCTV oversight, or routine inspection protocols.”

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This decision highlights the three-tier structure typical in commercial property owner, managing agent, contractor and the complex liability chains that arise.

Practical guidance for owners, managers and insurers

‍The courts have reinforced several principles:

• Contracts rule: Liability follows contractual obligations.
• Monitoring must be assigned: If not delegated to contractors, owners/managers must implement separate inspection systems.
• Delegation ≠ abdication: Cleaning duties can be outsourced; legal responsibility for safe premises cannot.
• Insurers should audit agreements: Underwriters must review all contracts to understand exposures and exclusions.

Ambiguity between parties increases the likelihood of disputes and costly litigation.
With holiday crowds returning in full force, malls face elevated risk. The Zevenwacht Mall judgment delivers a clear message: Slip-and-fall liability depends on what each party agreed to and what they didn’t.

Owners and managing agents must ensure their contracts, oversight mechanisms and monitoring systems align with the realities of festive-season trading. Effective risk management begins long before an incident occurs.

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