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Published Date: July 21, 2022

Most taverns are notoriously known for their unsafety and violent activities. Serious assaults, bar fights, and sometimes deaths are not necessarily unheard of in taverns. Most societies have come to accept such occurrences at taverns. As a consequence of this acceptance, most incidents are not reported. In recent weeks, South Africa has seen a worrisome rise in mass deaths at taverns. These, unlike isolated incidents of violent behaviour, are particularly worrying because they are happening at a mass scale and within a short space of time. Within the past few weeks, several incidents of tavern deaths have occurred including the death of 21 children at Enyobeni, Eastern Cape, 15 people in Soweto, Gauteng, and 4 in Pietermaritzburg, KwaZulu-Natal. Furthermore, 8 were seriously injured in the Pietermaritzburg shooting. Again, in Eastern Cape, there was a separate assault incident which led to the death of a 19-year-old teenager. Importantly, these are merely the reported cases, and in an extremely violent society like South Africa, it would not be surprising if there are many further serious assaults and deaths occurring at taverns. As frequent as they are, it would be irresponsible for society to accept such incidents as “normal”, and not work towards addressing this issue. We have laws in place that purport to prevent such incidents from occurring at taverns, and to hold perpetrators responsible as well as to compensate victims. It is, therefore, necessary to consider the legal position in this regard.

Violent incidents at taverns ordinarily result in criminal cases. Thus, one ordinarily sees criminal charges such as murder (e.g., Griebenow v S), assault with intention to cause grievous bodily harm, assault, intimidation, harassment, etc. For purposes of this piece, however, the focus is mainly on the civil law recourse. Taverns owe a legal duty of care towards their customers (in the premises). To succeed with a negligence claim, victims need to prove on a balance of preponderance that the tavern failed to meet a legal duty to keep customers reasonably safe from foreseeable harm, and such failure, resulted in injury (or death). In determining the extent of the legal duty and what harm was foreseeable, the courts are guided by well established legal principles as well as the prevailing circumstances of the case. In an incident like the Enyobeni incident, for example, documentary proof such as incident and investigation reports, survivors’ evidence and testimonies, eyewitnesses, etc. will prove pivotal in any legal claim that may flow from such incident. On the mass shooting incidents like that of Soweto and Pietermaritzburg, documentary proof, eyewitnesses, etc. will be critical. Importantly, with the shootings, the history of violence in the surrounding areas and the specific establishments may be relevant. This is so because the prevalence of violent activities in close vicinity should inform the nature and extent of security measures to be put in place. If, for example, violence at those establishments (or similar establishments in close vicinity) is prevalent and the security measures were minimal or non-existent, the court will most probably find that particular establishment legally liable.

In addition, taverns’ duty of care extends to what is being served at that particular establishment. Although this duty is not “absolute”, they need to take reasonable steps to ensure whatever they serve is safe for consumption. Incidents such as customers slipping and falling are prevalent. Thus, if one slips and falls and suffers injury as a result, the establishment may be held liable for such. Similarly, it is possible to hold the tavern legal responsible for injuries emanating from bar fights, etc. The overriding principle is that such establishments must put in place reasonable measures in place to ensure safety of customers. Be that as it may, it is imperative to bear in mind that not all sorts of claims will succeed. There must be a thorough and careful investigation of the facts and unique circumstances surrounding each case/incident, and the establishment has to be found to have breached a legal duty of care to succeed.

There are various civil law claims that may stem from such incidents. Where the victim himself/herself has sustained injuries (but not fatal), they may institute a personal injury claim where they can claim for various head of damages, depending on the nature and extent of injuries. Where a “breadwinner” has died, the dependants may claim for loss of support and funeral expenses. In a case where a minor child has died, parents/guardians may claim for emotional trauma, funeral expenses (and, sometimes, medical expenses).

Whilst taverns should be permitted to operate freely given their role in the economic growth of communities, it is important that the safety of customers is protected. Where an establishment has fallen short of what is required of it insofar as safety measures are concerned, the necessary legal ramifications should flow, accordingly.

Mtho Maphumulo
Senior Associate | Litigation Attorney

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