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[2016] ZASCA 20
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MEC for the Department of Public Works, Roads and Transport v Botha (20811/2014) [2016] ZASCA 20 (17 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 20811/2014
In
the matter between:
THE
MEC FOR THE DEPARTMENT OF PUBLIC
WORKS,
ROADS AND
TRANSPORT
APPELLANT
and
LORETTA
BOTHA
RESPONDENT
Neutral
citation
:
MEC for the
Department of Public Work, Roads and Transport v Botha
(20811/2014)
[2016] ZASCA 20
(17
March 2016)
Coram
:
Leach and Swain JJA and Fourie AJA
Heard
:
11 March 2016
Delivered:
17 March 2016
Summary:
Delict – tree
falling across public road – public authority responsible for
safety of road users – liability of
public authority for loss
and damage caused by a tree falling onto a public road – court
a quo erring in imposing a wide
general duty upon public authority in
the absence of relevant evidence – imposition of duty not
necessary for just determination
of case.
Order
On
appeal from:
Eastern Cape Local Division of
the High Court, Port Elizabeth
(Tshiki J sitting
as court of first instance).
The
appeal is dismissed with costs.
JUDGMENT
Swain
JA
(Leach
JA and Fourie AJA concurring):
[1]
On 2 August 2006 the
late Louis Bartholomeus Botha (the deceased) was driving at night
along the R62 road between Joubertina and
Kareedouw in the Eastern
Cape during a very severe storm accompanied by heavy rain and strong
winds. Trees were uprooted and fell
across the road. Tragically the
deceased’s vehicle collided with a fallen tree, the trunk
penetrating the cabin of his vehicle
and causing his death.
[2]
The widow of the
deceased, Ms Loretta Botha (the respondent), instituted action in the
Eastern Cape Local Division, Port Elizabeth
against the MEC for the
Department of Public Works, Roads and Transport in the Eastern Cape
(the appellant). She did so in her
personal capacity and in her
capacity as the mother and natural guardian of a minor child, Bart
Petrus Botha, born of her marriage
to the deceased. She claimed
damages from the appellant suffered as a result of the loss of
support provided by the deceased to
them both. The respondent alleged
that the death of the deceased had been caused entirely by the
negligence of employees of the
appellant, acting within the course
and scope of their employment in a number of respects.
[3]
The trial court (Tshiki
J) by consent directed that the issue of liability be determined
initially with the quantum of the respondent’s
damages to be
determined, if necessary, at a later stage. The trial court found
that the appellant’s employees had failed
to prevent harm to
the deceased when they should have done so. It held that their
omission was negligent, wrongful and the factual
cause of the death
of the deceased.
[4]
The factual findings of
the trial court upon which this conclusion was based were twofold.
Firstly, the appellant’s employees
had failed to maintain the
road by removing trees ‘that constantly grow and cause a
potential danger to road users’.
Secondly, they failed to close
the road in time before the collision occurred. The present appeal is
with the leave of the trial
court.
[5]
The first finding of
the trial court was based upon an allegation by the respondent that
employees of the appellant negligently
allowed or did not prevent
trees from growing in such proximity to the road surface, as to
create a risk of obstruction if they
fell onto the road. The second
finding of the trial court was based upon an allegation by the
respondent that the employees of
the appellant failed to close the
road, when it was apparent that use of the road posed a risk to life.
[6]
On the evidence,
however, a determination of the appeal falls within a far narrower
compass, based upon the allegation made by the
respondent in the
Particulars of Claim that the employees of the appellant failed
within a reasonable time, or in such a manner,
so as not to endanger
the life of road users, to remove the tree in question. This
allegation was based upon the evidence of Mr
Daniel de Vos, called by
the respondent, to establish that employees of the appellant were
aware of the presence of the tree in
the road. He testified that they
were engaged in what turned out to be an unsuccessful attempt to
remove the tree from the road
surface which they abandoned some time
before the collision.
[7]
The
trial court accepted the evidence of Mr De Vos and found it was
supported by the probabilities. It accepted his evidence that
well
before the accident the appellant’s employees were at the scene
of the accident, knew about the tree and were in the
process of
removing it from the road. It also accepted his evidence that the
trunk of the tree had been cut before the collision
after the tree
had fallen onto the road.
[1]
On
a conspectus of all of the evidence the finding of the trial court
was undoubtedly correct, as fairly conceded by counsel for
the
appellant. This renders it unnecessary for present purposes to
analyse in any further detail the evidence led at the trial
in
respect of the appellant’s denial of having knowledge of the
tree. The appeal must accordingly fail.
[8]
Although not necessary
for the determination of the appeal it is, however, necessary to say
something about the finding of the trial
court that a general duty
rested upon the appellant ‘to maintain the road by removing the
trees that constantly grow and
cause a potential danger to the road
users. . .’
[9]
A great deal of
evidence was led by the respondent regarding the alleged duty of care
on the part of the appellant to identify and
remove trees growing
alongside a public road, which may pose a risk of falling onto the
road surface and causing danger to passing
motorists.
[10]
Mr Roodt, an engineer
specialising in road safety stated that the Roads Department were
obliged to identify and remove any tree,
even outside the road
reserve, of a sufficient height that if it fell it would obstruct the
road surface. In addition, representatives
of the Roads Department
should be able to recognise a hazardous tree based on its type, its
distance from the road as well as its
height and shape. They should
also examine the conditions of the ground and the roots at the base
of the tree and if uncertain
as to the stability of the tree, refer
it for further investigation.
[11]
Mr Bergh, an engineer
also specialising in the maintenance and safety of roads, stated that
representatives of the Roads Department
should have removed the tree
that caused the accident before it fell across the road. They should
have had a systematic programme
of eliminating trees which could
potentially be blown over in a storm, resulting in the obstruction of
the road.
[12]
In
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 23, Nugent JA stated the following:
‘
The
classic test for negligence as set out in
Kruger
v Coetzee
has
since been quoted with approval in countless decisions of this Court:
whether a person is required to act at all so as to avoid
reasonably
foreseeable harm and, if so, what that person is required to do, will
depend upon what can reasonably be expected in
the circumstances of
the particular case. That enquiry offers considerable scope for
ensuring that undue demands are not placed
upon public authorities
and functionaries for the extent of their resources and the manner in
which they have ordered their priorities
will necessarily be taken
into account in determining whether they acted reasonably.’. .
.
(Footnote omitted.)
[13]
No evidence of the cost
to and the difficulty of taking precautionary measures by the
appellant, to avoid or reduce the risk of
trees falling across public
roads and thereby causing danger to passing motorists was led by the
appellant. In the absence of this
evidence the imposition of such a
duty upon the appellant, which was not necessary for the just
decision of the case, was accordingly
unjustified.
[14]
It is ordered that:
The
appeal is dismissed with costs.
K G
B Swain
Judge
of Appeal
Appearances:
For
the Appellant:
A Beyleveld SC (with M Simoyi)
Instructed
by:
The
State Attorney, Port Elizabeth
The State Attorney,
Bloemfontein
For the First Respondent:
G J Scheepers
(with W R Du Preez)
Instructed
by:
Van
Zyl Le Roux Attorneys, Pretoria
Honey
Attorneys, Bloemfontein
[1]
It did not,
however, find that this conduct of the appellant’s servants
constituted a ground of negligence in itself, but
rather relied upon
it in support of the conclusion that the road in the area where the
accident occurred should have been closed
without delay.