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[2024] ZAFSHC 67
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Mphuthi v Maluti-A-Phofung Local Municipality and Others (4143/2018) [2024] ZAFSHC 67 (29 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
4143/2018
In
the matter between:
SAMUEL
MPHUTHI
and
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
THABO
MAFUTSANYANE DISTRICT
MUNICIPALITY
MEMBER
OF THE EXECUTIVE COUNCIL:
POLICE,
ROADS & TRANSPORT, FREE STATE
PROVINCE
Plaintiff
First
Defendant
Second
Defendant
Third
Defendant
CORAM:
PR CRONJÉ, AJ
HEARD
ON:
5 – 6 SEPTEMBER 2023, 8 SEPTEMBER 2023, 4 DECEMBER 2023
DELIVERED
ON:
29 FEBRUARY 2024
JUDGMENT
BY:
PR CRONJÉ, AJ
BACKGROUND
[1]
On 29 August 2015, the Plaintiff who was then 40 years old, was the
driver of an Opel
Corsa bakkie (“
the
vehicle
”)
on a road under the jurisdiction of the Third Defendant. A
number of grounds of negligence is pleaded,
inter
alia
the
failure by the Third Defendant to ensure that the road was reasonably
safe for road users; failure to take reasonable and routine
inspection of the condition of the road; ensuring that the road was
reasonably free from potholes and dangerous variations; failing
to
take steps to maintain the road; allowing the road to deteriorate to
a condition that is unsafe; failing to comply with
National Guidelines
[1]
relating to the maintenance of roads; failing to take steps to ensure
that the road was reasonably safe for road users; failing
to warn
road users of the condition of the road and the presence of potholes;
failing to erect relevant signage of the condition
and speed that
vehicles should travel when using the road; failing to close the road
in circumstances where it was not safe for
use; and failing to take
reasonable steps to comply with the duty of care.
[2]
At inception of the trial, the parties agreed that the merits and
quantum should be
separated. This judgment therefore only deals
with the question of whether the Third Defendant was negligent.
PLAINTIFF’S
CASE
[3]
The Plaintiff was at date of the accident employed as a principal at
Manthatisi Secondary
School where he taught Grade 10 – 12.
The weather conditions were fine, the sky was clear, and there was no
rain. He
was alone in the vehicle and on his way to fetch wood. He
travelled the road approximately 2 – 3 times prior to the
accident.
At the stage when the accident occurred, he was
driving approximately 80 km/h when he saw two big potholes following
each other
approximately 70 – 80 centimetres (cm) apart. He
estimated that they were 30cm deep. It is common cause that
there
was no road signage in respect of the condition of the road,
the prescribed speed limit or a donga in the vicinity.
[4]
He could not state what the circumference of the potholes were, but
they were “
big enough”
and very deep. He saw the
potholes when they were approximately 5 – 10 metres from him.
He swerved to his left in an attempt
to avoid them as he would be
unable to safely drive over them. As soon as he started to
swerve to the left, he realized that
there was a donga and that it
would be fatal to him if he does not swerve back. The edge of donga
was approximately 1 metre from
the margin of the road. If he
succeeded avoiding the potholes, the vehicle would not have
overturned. If it was required
to drive around them, it would
have meant that he had to drive on the outside of the road surface.
After he swerved back, he heard
a loud noise when his right rear
wheel hit the potholes. He initially did not recall much and
regained his consciousness
after a few minutes. He was lying
upside down in the vehicle and had his seatbelt on. He could
not move his arms or
legs.
[5]
In cross-examination he testified that he is used to driving on
gravel roads as he
grew up on a farm. He last used the road
eight to ten months before the accident and travelled approximately
80 – 90
km/h on the day. Before arriving at the place of the
accident, he did not have to use the brakes and he did not apply the
brakes
when he saw the pothole as he thought that it would be safe to
go around them. He saw the potholes first when he was
approximately
2 metres from them and stated that he could not
remember that he testified in chief that it was 5 – 10 metres.
He was asked to show a point in Court of how far he was from the
potholes and after measurement it was established that it could
have
been 7 metres. According to him, the first pothole was 10 cm
deep.
[6]
When asked to indicate how big the first pothole was, he estimated it
to be 48 x
33 x 10cm. The second pothole could be 63 x 32
x 10cm. The two potholes followed each other and the distance
between
them were approximately 50cm or less. He conceded that
he initially said it was 30cm deep. He later stuck to 10cm or
more when a ruler was used.
[7]
He did not proceed to drive over the potholes with his wheels on
either side as he
realized that his vehicle was small and he would
rather avoid them by going around them. According to him, the
potholes were
more to the left. He did not attempt to pass to
the right as he saw a minibus driving behind him before and decided
that
it would be the safest to keep to the left. The road
reserve was safe for him to pass. He instinctively move to the
left when there is a problem though there may be a larger portion of
the road available on the right. He had a split second
to
decide what manoeuvre to apply.
[8]
He conceded that it is not unknown that there are potholes in road
surfaces. One should
apply caution and need to be vigilant. He
grew up on a farm and is aware that road surfaces may be uneven and
there may be
loose gravel. A cautious driver should be on the
lookout and would drive at a speed to negotiate loose gravel or
uneven road
surfaces. A cautious driver would also allow enough
time to avoid an accident. He at all times attempted to be
cautious
and at the speed he was driving could meet any eventuality.
When he saw the donga, he thought that his life will end and he
must
have swerved quickly to the right as far as he could. Looking
at a photo he conceded that he would not have driven into
the donga.
[9]
Mr Solomon Makhubu testified that he worked for a firm of attorneys
in 2016, and was
requested to attend the scene of the accident with
the Plaintiff. The first pothole was 60 x 30 x 25cm, the second
60 x 40
x 15cm, and the third pothole
[2]
was 30 x 50 x 10cm. From the outer left side of the first
pothole to where the grass starts can be approximately two metres.
The distance between the grass and the donga can be between 50cm and
one metre.
[10]
Mr Boshanka Lelimo testified that he was a farmworker and close to
the scene of the accident.
In the area of the accident, the
road was made up of gravel with potholes. They were approximately
48cm in circumference and approximately
37cm deep.
THIRD
DEFENDANT’S CASE
[11]
The Defendant called Mr Nicolas Moloi. He is a senior road
superintendent, employed since
2008. His duties are the monitoring,
supervision and inspection of roads that is approximately 562
kilometres long, which includes
tar and gravel roads. He was
referred to a worksheet that shows the type of activity performed on
the road, the date thereof,
the kilometres covered, the metre reading
and product/used remarks. Provision is made for signature of
the supervisor, the
foreman, the mechanic and Mr Moloi.
[12]
On 13 May 2015, normal blading was applied from kilometres 6 –
10 and it is also indicated
that there was a diesel problem.
From 6 – 8 July 2015, normal blading was applied. The document
is signed by the supervisor,
foreman and Mr Moloi. On 10 July 2015,
one Mr ML Motsie apparently travelled 44 kilometres on the road for
inspection. The
form is signed by Mr Motsie, the transport
officer and the departmental transport officer at the head office.
On 20
August 2015
[3]
, Mr Motsie
apparently travelled on the road to check on the grader. The
document is signed by Mr Motsie, but not by the departmental
transport officer. No log sheet or document indicating that
Mr Moloi inspected the road was presented and he did not
testify.
[13]
Mr Moloi applies his signature to the worksheet to confirm that the
work was done. He conceded that
he did not do a road inspection
on 10 July 2015, nor on 20 August 2015. Notwithstanding stating that
he also does road visits,
no logbooks were presented. He agreed
that a pothole of 25cm would create a dangerous situation, as would
10cm. It
is easy to put up road signs warning users of the
condition of and dangers in the road, and it is reasonably cheap to
do so.
He agreed that there was a donga in the vicinity where
the vehicle overturned, but disagreed that the donga could be 1.5
metres
from the road surface. It was not necessary to warn road users
as the donga was far from the edge of the road. If the donga
was 1.5 – 2 metres from the road surface, it would have
justified a road sign.
[14]
It was not necessary on the day of the accident to have a warning
road sign as the road was in
a good condition. The Third
Defendant thereafter closed its case.
ARGUMENTS
[15]
Mr Zietsman SC, for Plaintiff, argues that Mr Moloi made various
concessions in cross-examination,
inter alia
that he could not
describe the condition of the road when the accident occurred as it
was too long ago, that it is the responsibility
of the foreman to
check whether the work as indicated on the worksheets were properly
executed, that he did not check whether the
work as indicated in the
worksheets were executed, that a pothole of 25cm deep creates a
fairly dangerous situation and even one
of 10cm deep would create a
dangerous situation, that it is fairly easy and relatively cheap to
put up road signs to warn motorists
of dangerous situations, that the
Third Defendant’s responsibility to maintain the road is not
only limited to the road surface,
but also the road reserve, and if a
driver approaches an area in the road where a dangerous situation is
present, including dongas,
warning signs are to be put up.
[16]
He submits that there is no basis to reject the evidence of all the
Plaintiff’s witnesses
regarding the existence of potholes as
well as the existence of the donga in the road reserve. There
is no basis to find
that both potholes did not cause a dangerous
situation to the Plaintiff.
[17]
No contributory negligence should be attributed to the Plaintiff.
The Court should guard
against adopting an armchair approach in
holding that the Plaintiff’s decision to swerve to the left, as
opposed to swerving
right, constitutes contributory negligence.
The Plaintiff seeks that the attendance of Mr Solomon Makhubo and Mr
Lelilo be
declared necessary witnesses.
[18]
Ms Wright, for the Third Defendant, relies on
McIntosh
v Premier KwaZulu-Natal and Another
,
[4]
where it was stated that it is necessary to enquire whether, in the
circumstances of a particular case, the alleged omissions can
be said
to be wrongful. The differentiation between wrongfulness and
negligence has been affirmed by the Constitutional Court
in
Loureiro
and others v iMvula Quality Protection (Pty) Ltd
:
[5]
“
[53]
…
The
enquiries into wrongfulness and negligence should not be conflated.
To the extent that the majority judgment of the Supreme
Court of
Appeal did not distinguish between these, it is incorrect. The
wrongfulness enquiry focuses on the conduct and goes to
whether the
policy and legal convictions of the community, constitutionally
understood, regard it as acceptable. It is based on
the duty not to
cause harm – indeed to respect rights – and questions the
reasonableness of imposing liability. Mr
Mahlangu’s subjective
state of mind is not the focus of the wrongfulness enquiry.
Negligence, on the other hand, focuses
on the state of mind of the
defendant and tests his or her conduct against that of a reasonable
person in the same situation in
order to determine fault.
[54]
I begin with the enquiry into wrongfulness, because ‘[n]egligent
conduct giving rise to damages is not ….
actionable per
se. It is only actionable if the law recognises it as
unlawful’.”(Footnotes omitted)
[19]
Simply because the accident occurred on a stretch of road for which
the Third Defendant is responsible,
does not lead to an
inference that it is to be blamed for damages. A Court should be
cautious not to be led by sympathy considerations.
[6]
A sensible judicial approach to all the relevant facts and
circumstances should be adopted.
[7]
[20]
The photographs, taken more than seven and a half years after the
accident were taken from an angle which
does not allow for
comparative observations similar to what the Plaintiff would have
made. There were discrepancies between the
distance from which he saw
the potholes when he realized that they were in front of him.
[21]
The mere fact that there is no person to dispute the version of the
Plaintiff, cannot of necessity
lead to an inference that his version
can be accepted. His testimony was presented more than 8 years
after the accident,
he suffered severe injuries and it can reasonably
be assumed that his memory became tainted over time. Human
observation
is notoriously fallible.
[8]
[22]
Mr Lelilo did not witness the accident, but stated that it is a
gravel road with potholes where
a 5litre container could fit in.
He contradicted the Plaintiff regarding the number and size of the
potholes. He only
supports the Plaintiff’s version in
respect of potholes in the area.
[23]
Mr Moloi testified that light grading of roads does fix potholes and
notwithstanding that he
did not recall the condition of the road at
date of the accident, stated that the road was in a good condition.
He was adamant
that he has never seen potholes as deep as those
described by the Plaintiff and his witnesses on gravel roads.
No signs were
put up as the road was in a good condition.
[24]
The Plaintiff failed to show how long prior to the accident the
potholes were present. Potholes
on a gravel road in rural areas
cannot be described as indicative of a negligent breach of a duty to
maintain the road and the
condition of gravel roads changes over
time. It cannot be expected that the road would be in a perfect
condition at all times.
DISCUSSION
[25]
In respect of the condition of the road, only the Plaintiff and Mr
Lelilo was of assistance.
The Plaintiff drove on the road on
two occasions and on all accounts found it to be in a fair
condition. He was never faced
with potholes on that road prior
to the day and Mr Lelilo’s evidence that there were potholes in
the area does not in my
view imply that the Plaintiff was aware of
them. Although the speed limit is 80 km/h, the fact that he may
have travelled
at 90 km/h, does not mean that it made a
difference in respect of what he was confronted with and what steps
he took.
[26]
The Plaintiff was the only person in his vehicle on the day and I
accept that he was confronted
by, on his version, two potholes.
Even if there were three or more, his decision to take evasive action
was premised on the
two that he saw. It is true that his
estimations of size and distance differed during evidence in chief
and cross-examination.
It was only after a ruler and tape
measure was used (objective instruments) that he affirmed what he
believed to be correct.
He presented the best evidence of what
he was confronted with.
[27]
The photos are indeed not noticeably clear in respect of where
exactly on the road surface the
potholes were and what area was
available to the left and to the right of the potholes. He may
even have been able to pass
over the potholes if he kept a straight
line. A Court has to be cautious of adopting an armchair
approach. A wrong
decision by a party is not always met with
rejection of a claim.
[28]
By way of analogy, the court in
Sekhokho
v S
[9]
,
in the context of sudden emergency
[10]
,
held:
“…
'One
man many react very quickly to what he sees and takes in, whilst
another man may be slower. We must consider what an ordinary
reasonable man would have done. Culpa is not to be imputed to a man
merely because another person would have realized more promptly
and
acted more quickly. Where many have to make up their mind how to act
in a second or in a fraction of a second, one may think
this course
the better whilst another ma
[sic]
prefer that. It is undoubtedly the duty
of every person to avoid an accident, but if the acts reasonably,
even if a justifiable
error of judgment he does not choose the very
best course to avoid the accident as events afterwards show, then he
is not on that
account to be held liable for culpa.’ “
[29]
Even if grading took place at the place where the accident occurred,
the grader driver or foreman
did not testify as to the effect of the
grading. The worksheet does not indicate that grading took
place at the scene of
the accident.
[30]
Bearing in mind that the Plaintiff drove the road at least twice and
was satisfied that it was
in a fair condition and not posing any
dangers, I cannot find that driving at 80- 90 km/h was negligent and
that it contributed
to the accident. I accept that the
Plaintiff may have been able to safely negotiate the potholes if he
drove over them (discounting
the third pothole which did not play a
role in his decision), or may have safely passed on the left and
right-hand side of the
potholes. Avoiding the armchair
approach, the Plaintiff cannot be criticized for electing to pass the
potholes on the left,
as it is not only a rule of the road to keep
left, but also that it was the safest choice that he, confronted with
the potholes,
made. Although the donga played a role in his
decision to swerve sharply right thereby hitting the pothole with the
right
rear wheel, the donga in itself did not contribute to the
accident. It can however, not be stated that he did not harbour
a reasonable fear that his vehicle may fall into the donga.
[31]
It can be accepted that the State cannot inspect every kilometre of
every road in South Africa
on a daily basis. However, it did
decide to grade the road and it can therefore reasonably be accepted
that it was aware
of the condition of the road. The fact that
the grader driver and the foreman did not testify in respect of the
exact circumstances
reigning on the date of accident, places the
Plaintiff’s version on what he was confronted with
undisputable. It would
create a dangerous precedent to absolve
the State from negligence and liability purely on the basis of the
distance it has to maintain
roads.
[32]
Given the fact that the Plaintiff would have been able, acting
reasonably to have passed to the
left, over and to the right of the
potholes, some negligence can be attributed to him. I attribute
a larger portion of the
negligence to the Third Defendant.
[33]
In respect of the credibility of the Plaintiff, I accept that his
evidence, bearing in mind to
that it was presented approximately
eight 8 years after the accident, was credible and reliable. He
made a good impression.
Mr Lelilo’s credibility cannot be
faulted and even though he did not contribute much to the merits, he
did give an explanation
as to what the condition of the road was in
the area. Mr Mokhobo’s evidence was of no real assistance
and I do therefore
not make any credibility findings in respect of
him. In respect of Mr Moloi, it can be said that he, as
supervisor, tried
to explain what the Third Defendant does in respect
of maintenance of roads. He was however, not directly involved
in the
maintenance of the road and the worksheets does not really
assist in indicating that the Third Defendant did what it reasonably
could to maintain the road and keep it free from dangers. I
deem Mr Moloi’s evidence as neutral in respect of credibility.
CONCLUSION
[34]
It is unfortunate that it has become the norm to place an onerous
duty on drivers of vehicles
in South Africa to be aware that there
may be potholes in road surfaces and to accept that the State
argues
[11]
that it does not
have the ability to inspect all roads or have funds to remedy
defects. It would sanction a
laissez-faire
attitude.
[35]
The Plaintiff admitted that one should apply caution and need to be
vigilant as there may be
potholes, he grew up on a farm and is aware
that roads may be uneven and there may be loose gravel and a cautious
driver should
be on the lookout. This can, however, not absolve the
State from complying with its obligations. In respect of an error of
judgment,
Fisher AJ in
Fourie
v Road Accident Fund
[12]
held that:
“…
a
course of action, depending on the circumstances, may be justified if
no other acceptable means be available for avoiding the
collision and
that the conduct of the driver having to take such a decision should
be examined within the context of the extreme
circumstances in which
he finds himself and not in the placid atmosphere of a courtroom and
with reference to the so-called after-acquired
knowledge (see the
remarks generally of Van den Heever J (as he was then) in Cooper
v Armstrong
1939 OPD 140
at 148)
.”
[36]
The law does not call for perfection. What it calls for is reasonable
conduct. The concept of
the reasonable person is not that of a
timorous faint-heart always in trepidation lest he or others suffer
some injury. On the
contrary, he ventures out into the world, engages
in affairs and takes reasonable chances.
[13]
In
International
Shipping Co (Pty) Ltd v Bentley
[14]
,
Corbett
CJ, in dealing with the issue of whether wrongful conduct was the
factual cause of loss, held:
“
The
enquiry as to factual causation is generally conducted by applying
the so-called ‘but-for’ test, which is designed
to
determine whether a postulated cause can be identified as a causa
sine qua non of the loss in question. In order to
apply this
test one must make a hypothetical enquiry as to what probably would
have happened but for the wrongful conduct of the
defendant. This
enquiry may involve the mental elimination of the wrongful conduct
and the substitution of a hypothetical course
of lawful conduct and
the posing of the question as to whether upon such a hypothesis
plaintiff's loss would have ensued or not.
If it would in any event
have ensued, then the wrongful conduct was not a cause of the
plaintiff's loss; aliter, if it would
not so have ensued. If the
wrongful act is shown in this way not to be a causa sine qua
non of the loss suffered, then
no legal liability can arise.
In
keeping with the onus in civil matters, 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’.
””
[37]
I conclude that the conduct of the Third Defendant was wrongful and
negligent. The public, and motorists
specifically, can expect that
the State comply with, if not its statutory duties, then a duty of
care. Taxpayers fund the Third
Defendant to comply with its duties,
it has the power and resources available to comply with its
obligations, and shifting an onerous
duty on motorists would be
against public policy. I am satisfied that the test on negligence was
satisfied.
[38]
The lack of maintenance of roads within the jurisdiction of
innumerable municipalities, and the knowledge
thereof, does
unfortunately not absolve motorists from appreciating the possibility
of dangers. Balancing the competing negligent
conduct and failure of
a duty of care by the Third Defendant with the marginal failure of
the Plaintiff to execute a safer manoeuvre,
leads me to attribute
negligence to the respective parties where the Plaintiff was 20%
negligent and the Third Defendant 80% negligent.
[39]
In
South
British Insurance
Co,
Ltd
v Smit
[15]
it was held:
“
From
the very nature of the enquiry, apportionment of damages imports a
considerable measure of individual judgment: the assessment
of the
degree in which the claimant was at fault in relation to the damage
is necessarily a matter upon which opinions may vary.
In the words of
Lord Wright in British Fame (Owners) v Macgregor (Owners),
1943
(1) A.E.R. 33
at
p35: ‘It is a question of the degree of fault, depending
on a trained and expert judgment considering all the circumstances
and it is different in essence from a mere finding of fact in the
ordinary sense. It is a question, not of principle, but of
proportion,
of balance and relative emphasis, and of weighing
different considerations. It involves an individual choice or
discretion, as
to which there may well be difference of opinion by
different minds’.”
[40]
In respect of costs, I am of the view that ordering costs in
accordance with contributory negligence would
not serve justice. The
Plaintiff was substantially successful. Most of the evidence and time
spent in Court can be attributed to
the Plaintiff.
[41]
I borrow from the judgment in
Fourie
supra
where
the Court held that to reserve costs pending judgment on the
issue of the quantum of damages will as such detract from
the great
advantage which is conferred by a separation in terms of rule 33(4)
of the Uniform Rules of Court. It was patently clear
during the trial
that Plaintiff had sustained serious bodily injuries. No purpose will
be served in reserving any order as to costs
at this stage.
[42]
Wherefore the following orders are made:
ORDER:
1.
Both the Plaintiff and the Third
Defendant were negligent in causing the accident.
2.
Negligence of 20% is attributed to the
Plaintiff and 80% to the Third Defendant.
3.
Mr Boshanki Ernest Lelilo is declared a
necessary witness.
4.
Third Defendant is liable for payment of
the Plaintiff’s costs in respect of the merits. Costs are not
apportioned.
PR
CRONJÉ, AJ
Counsel
for Plaintiff:
Adv
PJJ Zietsman SC
Attorneys
for Plaintiff:
Honey
Attorneys
Bloemfontein
Counsel
for Third Defendant:
Adv
GJM Wright
Attorneys
for Third Defendant:
State
Attorney
Bloemfontein
[1]
No
evidence or argument was tendered in respect of this ground.
[2]
This
differed from the two potholes the Plaintiff saw.
[3]
Approximately
9 days before the accident.
[4]
2008
(6) SA 1
(SCA) at para [14] – [16]; see also
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430 E;
Van
Eeden v Premier van die Provinsie van die Vrystaat en Andere
1999 JDR 0550 (O).
[5]
2014
(5) BCLR 511 (CC).
[6]
Broude
v McIntosh and Others
1998 (3) SA 60
(SCA) at 75 B – C.
[7]
Mkhatswa
v Minister of Defence
2000 (1) SA 1104
(SCA) at [23];
Oppelt
v Department of Health, Western Cape
2016 (1) SA 325
(CC) at [107].
[8]
State
v Mthetwa
1972 (3) SA 766 (A) at 768A;
Stellenbosch
Farmers' Winery Group Ltd. and Another v Martell & Cie SA and
Others
(427/01) [2002] ZASCA 98.
[9]
[2010]
ZAGPPHC 103.
[10]
Which
is not the case of the Plaintiff.
[11]
This
was not the case of the Plaintiff or argued by Ms Wright.
[12]
[1999]
3 All SA 661
(O) at 670
.
[13]
Herschel
v Mrupe
1954
(3) SA 464
(A)
at 490F.
[14]
1990
(1) SA 680 (A) at 700F-H, quoted in
Charter
Hi (Pty) Ltd and Others v Minister of Transport
[2011] ZASCA 89 at [49]
[15]
1962
(3) SA 826
(A)
at 837 F-H quoted in
Fox
v RAF
[2018] ZAGPPHC 285 at [15].