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2024
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[2024] ZAFSHC 40
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L.J.DT and Others v Member of the Executive Council Department of Police, Roads and Transport, Free State Province (4312/2021) [2024] ZAFSHC 40 (12 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
CIVIL LAW – Delict –
Pothole
–
Plaintiff
alleging that vehicle struck pothole in rain – Daughter
injured and vehicle written off – Dispute around
existence
of pothole – Inspection in loco revealed pothole that had
been filled – Probabilities favour version
of plaintiffs –
Most probable inference that pothole caused accident –
No
novus
actus interveniens
–
Harm suffered by plaintiffs reasonably foreseeable – Causal
nexus existed between accident and pothole
– Defendant
liable for 100% of proven or agreed damages.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. 4312/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
L[…]
J[…] D[…] T[…]
1
ST
PLAINTIFF
M[…]
D[…] T[…]
2
ND
PLAINTIFF
L[…]
J[…] D[…] T[…] N.O.
(In
his capacity as the biological father and guardian of
I[…]
C[…] D[…] T[…] )
3
RD
PLAINTIFF
and
THE
MEMBER OF THE EXECUTIVE COUNCIL:
DEPARTMENT
OF POLICE, ROADS AND TRANSPORT,
FREE
STATE PROVINCE
DEFENDANT
CORAM:
GUSHA, AJ
HEARD
ON:
11, 12 & 14 APRIL 2023, 27-29 NOVEMBER 2023
DELIVERED
ON:
12 FEBRUARY 2024
[1]
This
is a claim for payment of damages resulting from a motor vehicle
accident which occurred on the 1
st
April
2021 on the Theunissen and Winburg Road (R708).
[1]
[2]
The parties agreed to
separate the issues and defer quantum for later adjudication.
Accordingly, I am called upon to adjudicate
only on the merits.
Essentially the court is called upon to adjudicate whether, in the
circumstances of this case, the damage must
rest where it falls or
whether the defendant is liable for the plaintiffs’ proven or
agreed upon damages.
[3]
The germane and
undisputed facts are that on the said date the 2
nd
plaintiff was the driver of a 1999 Land Rover TD 5
with registration P[…]. With her in the vehicle was her minor
daughter,
I[…]. The road they travelled on was wet as it had
been raining at the time. It is further not disputed that she was
involved
in an accident whilst driving the said vehicle. As a result
of the accident she and her daughter sustained injuries and her
daughter
was transported from the scene for medical treatment. The
vehicle she drove was written off due to the extensive damage it
sustained.
[4]
It is further not in dispute that at all material
times the 1
st
plaintiff
was the owner of the motor vehicle.
[5]
The
parties however hold divergent views on what the cause of the
accident was. It is the plaintiffs’ pleaded case that the
accident occurred when the 2
nd
plaintiff
drove through a pothole on the road, lost control of the vehicle and
it overturned.
[2]
[6]
The
defendant denies the averments made in the plaintiffs’
particulars of claim in this regard and specifically denies the
existence of any pothole(s) on said road.
[3]
The defendant further pleaded, that in the event its defence as
alluded failed, then the accident occurred as a result of the 2
nd
plaintiff’s
negligence.
[4]
As this claim was
not pursued at trial, save for the order I make at the end, nothing
more needs to be said thereabout.
[7]
It is further the
plaintiffs’ stated case that the defendant had a duty of care
towards the plaintiffs and all other road
users travelling on the
R708, which duty included the duty to;
“…
2.4.1.
provide safe roads;
2.4.2.
take all steps reasonably necessary and possible to prevent the
possibility of an accident due to unsafe
road conditions;
2.4.3.
maintain the road in such a condition as to prevent the occurrence of
accidents as a result of potholes;
2.4.4.
to provide and maintain a level, solid road surface free of potholes;
2.4.5.
sufficiently warn the plaintiffs and users of the road of an uneven
toad surface containing potholes.”
[8]
With regards to the duty of care it owed as
averred by the plaintiffs, I reproduce herein the defendant’s
plea without emendation;
“
Save
to admit the allegation in this paragraph, the Defendant specifically
pleads that the said duty of care and maintenance of
public roads was
rendered within the financial and operational resources available to
the Defendant’s department.”
[5]
[9]
This defence however was
not persisted with at trial. It is accordingly therefore not in
dispute that the defendant owed a legal
duty to members of the public
using the R708 to take reasonable steps to inspect, repair and
maintain the R708 and to ensure that
it was safe for travel thereon.
[10]
Manifestly,
the plaintiffs’ claim is predicated upon the alleged omission
on the part of what in effect is a public authority.
In order to be
successful, the plaintiffs must prove on a balance of probabilities
that the omission relied upon was negligent,
wrongful and must prove
factual and legal causation.
[6]
Put differently, this court must first decide whether the plaintiffs
have established if there was an omission in relation to the
harm
that forms the basis of their claim. Then, assuming that the
plaintiffs establishes such an omission, this court must then
decide
whether the omission on the part of the defendant was wrongful.
Thereafter this court must consider whether, in the particular
circumstances of the case, there was fault on the defendant’s
part. Assuming there is, this court must then consider whether
the
plaintiffs have established both factual and legal causation in
relation to the harm they suffered. In respect of the question
of
legal causation, whether as a matter of public policy, the defendant
should be held liable for the harm in the circumstances
of the case.
[11]
It is against this backdrop that the court is
called upon to adjudicate whether the accident in question and
resulting damages were
as a result of the negligence of the
defendant.
[12]
The
test for negligence is trite and has been traversed sufficiently by
our courts over the years and no benefit will be served
by repeating
it here.
[7]
[13]
It is
furthermore trite that a negligent omission, unless wrongful will not
give rise to delictual liability. In
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer
(Pty)
Ltd
2006 (3) SA 138
(SCA)
Brand
JA, at 144A-C, para 10,
[8]
explained the requirement of wrongfulness as follows:
‘”
Negligent
conduct manifesting itself in the form of a positive act causing
physical damage to the property or person of another
is prima facie
wrongful. In those cases, wrongfulness is therefore seldom
contentious. Where the element of wrongfulness becomes
less
straightforward is with reference to liability for negligent
omissions and for negligently caused pure economic loss (see
eg
Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) ([2002]
3 All SA 741)
in para [12]; Gouda Boerdery BK v
Transnet
2005 (5) SA 490
(SCA) ([2004]
4 All SA 500)
in para [12]).
In these instances, it is said, wrongfulness depends on the existence
of a legal duty not to act negligently. The
imposition of such a
legal duty is a matter for judicial determination involving criteria
of public or legal policy consistent
with constitutional norms…”
[14]
In an endeavour to discharge the onus so placed on
them, the plaintiffs presented the evidence of the following
witnesses: Mrs.
M[…] D[…] T[…], the 2
nd
plaintiff and the driver of the vehicle, Mr R[…]
D[…] T[…] (D[…] T[…] Snr), Mr L[…]
D[…]
T[…], the 1
st
plaintiff and owner of the said vehicle.
[15]
As the
dispute between the parties centers around the existence or not of a
pothole on the R708 at the time of the fateful accident,
I shall for
purposes of this judgment concentrate only on that aspect and very
briefly so. The 2
nd
plaintiff
testified that she was familiar with the R708 as she often travelled
thereon as a passenger. On the morning of the 1
st
April
2021 day whilst driving on the R708, she kept below the requisite
speed limit
[9]
as it rained
heavily at the time, in fact it rained since the previous evening.
Whilst driving she drove through something and
lost control of the
vehicle, it skidded and veered off the road and ultimately
overturned. At the time of the accident she did
not know nor see what
she drove through, she was only informed after the fact that she in
fact drove through a pothole.
[16]
Her cross examination mainly centered on the
existence of the pothole. Most importantly she was incessantly
quizzed on whether she
definitively knew, that which she drove
through was a pothole. She conceded and testified that she was
informed after the fact
by her father-in-law that she hit a pothole.
She was however adamant that the reason she lost control of the
vehicle was as a result
of something she drove through, and that it
was probable that because the road was wet she may not have seen the
pothole.
[17]
Mr
D[…] T[…] Snr testified that the 1
st
plaintiff
is his son, the 2
nd
plaintiff
is his daughter-in-law and that their minor daughter I[…] was
his granddaughter. He was called to the scene after
the accident,
accordingly, but he did not witness the accident. He testified about
the condition he found the vehicle in as well
as the condition the
2
nd
plaintiff
and his granddaughter were in upon his arrival. As he wanted to
ascertain what may have caused the accident he went to
the scene the
following day. Thereat he took photographs depicting the R708 and its
condition at the time.
[10]
He
observed skid marks on the road and same led him to an oval hole in
the
middle of the road. He observed that the hole has some water and
small stones in it. He testified that albeit he took the photographs
a day later, he was certain that, that was the point where the
accident occurred as he still could observe skid marks on the road
surface.
[18]
He further testified that he was well
au
fait
with the R708 as he regularly
travelled thereon. He testified that the pothole had been
there for some time and was only
repaired in August 2021.
[19]
During cross examination he conceded that as he
had not witnessed the accident he could not state as a fact that the
cause thereof
was a pothole.
[20]
The 1
st
plaintiff testified largely about the condition of
the vehicle before and after the accident. He further testified with
regards
to how the accident affected him and his family. He too did
not witness the accident and also arrived after the fact. I shall
therefore
not take his evidence any further than I have as the
aforementioned remained uncontroverted.
[21]
This was the sum total of the plaintiffs’
case.
[22]
During the
proceedings the defendant requested that the court hold an inspection
in loco
at the R708 at the
point where the accident occurred. With regards to the pothole and
the road surface I made the following observations
and later placed
same on the record;
(a).
on the road surface was an oval looking pothole which had since been
filled in.
(b).
There were broken inverse barrier lines on the road surface. Which
indicated that no overtaking
was allowed from the direction
Theunissen heading to Winburg but that same allowed from the opposite
direction Winburg heading
to Theunissen and that further no
overtaking was allowed after the turn off heading to Strydenburg
farm.
[23]
Both counsel did not
quibble with the observations made and placed on the record.
[24]
In
rebuttal of the claim, the defendant presented the evidence of
Sergeant Pule. He testified that he was in the employ of the South
African Police Service (SAPS) and that he attended to the accident
scene on that fateful day and compiled the accident report and
the
sketch plan. Upon arrival at the scene he observed that the road was
wet as it had rained the previous evening. He observed
the road
surface and surroundings in an endeavour to ascertain what the cause
of the accident was. Based on his observations he
compiled the
accident report.
[11]
In it he
noted the road surface as a wet bumpy tarmac road with good road
markings. He testified that upon his observations he
did not see any
pothole at the point where the accident is alleged to have occurred.
He testified that he too knew the road very
well as he regularly
travelled thereon.
[25]
During cross
examination he conceded to making some errors in his report, amongst
others, an incorrect depiction of the barrier
line and not depicting
where the vehicle’s roof rack landed. He further conceded that
he observed no road signs, and, or
markings warning motorists to
decrease driving speed on account of the road condition. He remained
steadfast that there was no
pothole and that if there was, he would
have observed it when he was at the scene. He testified that albeit
it rained, according
to him, that stretch of the
road
was such that it did not hold water, the water spilled to the side of
the road
.
[26]
This was the sum
total of the defendant’s case.
[27]
As
stated elsewhere in this judgment, both parties’ case stands,
and or, falls by whether the court finds that a pothole was
present
on the road and that same was the cause of the accident. As evident
from the evidence led, the court is on this aspect
confronted with
two opposed versions. The approach by our courts to deal with
irreconcilable differences is trite and needs no
restating here.
[12]
[28]
I harbour no doubt in my mind that the plaintiffs’
witnesses were honest and credible witnesses. None sought to
exaggerate
and or tailor their evidence, both Messers. D[…]
T[…] readily conceded that they did not witness the accident.
Where
concessions were warranted they readily made such concessions.
I further hold the view that the 2
nd
plaintiff equally was an honest witness, she did
not conceal the fact that she did not know what she drove through,
stating only
that she drove through
something
. Juxtapose this to the
defendant’s witness, a trained and experienced police official
who by his own admission committed
fundamental errors in his
compilation of the accident report.
[29]
In casu
I hold
the view that the probabilities favour the version as advanced by the
plaintiffs. In my view, regard
being had to
the position where the pothole was allegedly located; the alleged
size and shape of the pothole; the fact that it
rained heavily the
previous evening, such that the road was still wet on that fateful
morning; the observations of a filled in
pothole during the
inspection
in loco,
the
inescapable conclusion must be that the alleged pothole was indeed
there at the time of the accident and was there for some
time prior
the accident. It is further probable that same, as a result of the
heavy rains, was concealed to road users as it was
in all probability
filled with water.
[30]
In the
circumstances, I hold the view that the defendant failed in its duty
of care by not repairing the pothole, and or, placing
warning signs
warning road users of the hazard. I further hold the view that a
diligens
paterfamilias
in
the position of the defendant would have foreseen that it was
reasonably possible that a road user, such as the 2
nd
plaintiff,
would suffer injury should the defendant fail to take steps to render
the road safe by repairing the pothole or providing
adequate warning
of the said hazard. I further hold the view that by failing to repair
the pothole or to mitigate the risk, the
defendant in view of its
admitted duty of care, was negligent and that in accordance with the
approach in
Za
v Smith
[13]
,
the other elements of delictual liability are assumed. Thus the
omission to repair the pothole or to mitigate the risk was wrongful
as the defendant was in control of the road and responsible for its
maintenance and should have recognized the risk posed to road
users
by the pothole.
[31]
Having
found negligence and wrongfulness on the part of the defendant, I now
turn to deal with the aspect of causation. Causation
in the law of
delict gives rise to two rather distinct problems. The first is a
factual one and relates to the question as to whether
the negligent
act or omission in question caused or materially contributed to the
harm giving rise to the claim. If it did not,
then no legal liability
can arise and
cadit
quaestio
.
If it did, then the second problem becomes relevant, viz. whether the
negligent act or omission is linked to the harm sufficiently
closely
or directly for legal liability to ensue or whether, as it is said,
the harm is too remote. This is basically a juridical
problem in
which considerations of legal policy may play a part.
[14]
[32]
A
plaintiff is not required to establish the causal link with certainty
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.
[15]
[33]
On the
proven facts it is manifest that the accident, factually, occurred as
a result of the 2
nd
plaintiff
driving through the pothole resulting in her losing control of the
vehicle. Albeit this was disputed; I could find no
basis to reject
the 2
nd
plaintiff’s
evidence that she drove through something. On the proven facts and
the probabilities
viz
;
the road was wet, it was raining heavily and she drove below the
speed limit; the observations during the
inspection
in loco
of
a filled in pothole; the skid marks depicted on the photographs and
sketch plan, what else could have caused the accident? In
the
circumstances of this case the most probable inference to draw is
that the pothole caused the accident.
[16]
[34]
In
casu
there
was no
novus
actus interveniens,
the
harm suffered by the plaintiffs was reasonably foreseeable and it
cannot be said that the negligent omission was too far removed
or
remote from the harm suffered. On the proven facts I am, on a balance
of probabilities, satisfied that a causal
nexus
existed
between the accident and the pothole. Accordingly, there is no reason
not to hold the defendant liable for the harm suffered
by the
plaintiff.
[17]
[35]
In conclusion with regards to whether as a matter
of public policy, the defendant should be held liable for the harm in
the circumstances
of the case, in deciding as I do, that the
defendant should be held liable as a matter of public policy, I can
do no better than
the remarks of the court in
Mashongwa
v Passenger Rail Association of South Africa
2016
(3) SA 528
(CC)
;
"[41]
The standard of a reasonable organ of state is sourced from the
Constitution. The Constitution
is replete with the phrase that the
State must take reasonable measures to advance the realisation of
rights in the Bill of Rights.
In the context of socio-economic rights
the availability of resources plays a major part in an enquiry
whether reasonable steps
have been taken.
I can think of no reason
in principle or logic why that standard is inappropriate for present
purposes. Here, as in the case of
socio-economic rights, the choice
of steps taken depends mainly on the available resources. That is why
an organ of state must
present information to the court to enable it
to assess the reasonableness of the steps taken
. (my emphasis)
…
[68]
No legal system permits liability without bounds. It is universally
accepted that a way must
be found to impose limitations on the
wrongdoer's liability. The imputation of liability to the wrongdoer
depends on whether the
harmful conduct is too remotely connected to
the harm caused or closely connected to it.
When
proximity has been established , then liability ought to be imputed
to the wrongdoer provided policy considerations based on
the norms
and values of our Constitution and justice also point to the
reasonableness of imputing liability to the defendant."
[Emphasis added.]
[36]
Accordingly, I make the following orders;
1.
The defendant is liable for 100% of the plaintiffs’ proven or
agreed damages resulting from
the accident which occurred on the 1
st
April 2021.
2.
The defendant shall pay plaintiffs’ taxed or agreed party and
party costs in respect
of the merits which costs shall include, where
applicable, the reasonable fees for travelling, accommodation,
preparation and reservation
for the plaintiffs’ attorney and 1
counsel.
3.
The defendant’s counterclaim / claim in reconvention is
dismissed.
NG
GUSHA, AJ
On
behalf of the plaintiffs’
Adv.
HJ Van Der Merwe
Instructed
by:
Symington
De Kok Attorneys
BLOEMFONTEIN
On
behalf of the defendant:
Adv.
TL Manye
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
[1]
The
R708 which resorts under the control of and management by the
defendant.
[2]
Index
– pleadings page 7 para4.3.
[3]
Supra
at
page 29 para 8.
[4]
Ibid
at
page 31-38.
[5]
Ibid
at
page 30 para 11.
[6]
Van
der Merwe v MEC Public Works, Road and Transport and
another
[2019]
ZAFSHC 6
(28
February2019)
at para [16]).
[7]
Kruger
v Coetzee
1966
(2) SA 428 (AD).
[8]
See
also
McIntosh
v Premier, KwaZulu-Natal and another
2008
(6) SA 1
(SCA).
[9]
She
drove at 80 kilometers per hour.
[10]
Index:
Plaintiffs’ Trial Bundle pages 43-56.
[11]
Supra
fn. 9
at pages 5-8.
[12]
StellenboschFarmers’
Wnery Group Ltd. and Another v Martell & Cie SA and Others
(
427/01)
[2002] ZASCA 98
(6 September 2002).
[13]
Za
v Smith
2015
(4) SA (SCA) at para 21.
[14]
Minister
of Police v Skosana
1977
(1) SA 31
(A) 34D-H,
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680 (A)
[15]
Minister
of safety and security v Van Duivenboden
2002
(6) SA 431
(SCA) at 25.
[16]
Cooper
and another v Merchant Trade Finances
2000
(3) SA 1009
(SCA) at 1027F-1028D).
[17]
Loots
v MEC for Transport, Roads and Public Works
(587/20140
[2018] ZANHC 60 (5 September 2018).