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[2011] ZASCA 38
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MEC for Transport for the Province of KwaZulu-Natal v Eastman and Others (680/09) [2011] ZASCA 38 (28 March 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 680/09
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR
TRANSPORT FOR THE PROVINCE OF
KWAZULU-NATAL
..................................
Appellant
and
JOHN MURRAY EASTMAN
...........................................................................
First
Respondent
JANE CHARLOTTE EASTMAN
................................................................
Second
Respondent
ROBERT MITCHELL
.....................................................................................
Third
Respondent
______________________________________________________________
Neutral citation:
The MEC
for Transport of KwaZulu-Natal v Eastman & others
(680/09)
[2011] ZASCA 38
(28 March 2011)
CORAM:
Navsa, Malan, Tshiqi, Seriti JJA and Plasket AJA
HEARD:
2 March 2011
DELIVERED:
28 March 2011
SUMMARY:
Claim for damages flowing from motor vehicle landing in culvert ─
against driver for being negligent ─ driving
at an excessive
speed in wet weather on rural road ─ against Member of
Executive Council for Transport for Province of KwaZulu-Natal
on
basis that badly maintained roads caused or contributed to accident ─
evidence showed speed to be sole cause of accident
─
apportionment by court below between two defendants set aside.
______________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
KwaZulu-Natal
High Court (Pietermaritzburg) (Balton J sitting as court of first
instance).
1. The appeal is upheld with costs,
including the costs of two counsel to be paid by the three
respondents jointly and severally,
the one paying the others to be
absolved.
2. The cross-appeal is dismissed with
costs, including the costs of two counsel.
3. The order of the court below is set
aside and substituted as follows:
‘
(a) The
first defendant is held to be solely liable for the cause of the
accident.
(b) The claims of the first and second
plaintiffs and the first defendant as against the second defendant
are dismissed.
(c) The first and second plaintiffs
and the first defendant, jointly and severally, are ordered to pay
the second defendant’s
costs of suit, including:
(i) the qualifying fees and expenses
of the second defendant’s expert witnesses;
(ii) reserved costs;
(iii) the costs of two counsel.’
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Malan, Tshiqi, Seriti JJA
and Plasket AJA concurring)
[1] When Mr John Eastman and his wife
Jane, who are Australian nationals, travelled to South Africa during
March 2005 to attend
a wedding, they could not have imagined the
disaster that would befall them. On Monday 21 March 2005, returning
from a visit to
the top of the Sani Pass (overlooking the Lesotho
border) and travelling towards Himeville, the motor vehicle they
occupied as
passengers left a gravel road and landed in a donga. The
accident rendered Mr Eastman a paraplegic and both Mrs Eastman’s
arms were badly broken. Mr Robert Mitchell, a retired professor, who
was the driver of the vehicle, is also Australian.
[2] During May 2005, Mr and Mrs
Eastman instituted action in the Pietermaritzburg High Court against
Mr Mitchell as first defendant
and the Member of the Executive
Council for Transport for the Province of KwaZulu-Natal (MEC) as
second defendant, claiming damages
for the consequences flowing from
the aforesaid accident. The basis of their claim against Mr Mitchell
was that the accident
was due to his negligence in that he failed to
keep a proper lookout, drove at an excessive speed, failed to keep
the vehicle under
proper control and failed to avoid the accident
when, by the exercise of reasonable care, he could and should have
done so.
[3] The basis of Mr and Mrs Eastman’s
claim against the MEC is that his employees were negligent in that
they had failed in
their legal duty to properly maintain the roads
under his control, which included the Sani Pass road (the P318), on
which they
had been travelling. They alleged that the employees of
the MEC were aware that the road in question became extremely
slippery
during inclement weather and that a dangerous donga existed
next to the road. Mr and Mrs Eastman alleged that the accident was
caused by the negligence of the MEC’s employees, who not only
failed to properly maintain the road, causing it to become extremely
dangerous when wet, but also failed to erect signs warning of the
state of the road and a barrier to prevent vehicles from sliding
into
the donga.
[4] The action was opposed by both
defendants and the matter proceeded to trial before Balton J. It was
agreed between the parties
that the merits should be decided first
and that the question of quantum should stand over. The court
directed accordingly. After
hearing evidence the learned judge
concluded that the MEC had failed to satisfy the court that he had
taken reasonable steps to
maintain the road, which led to it being
excessively dangerous. She held that the MEC ought to have erected
signs to warn motorists,
particularly tourists, of the condition of
the road in wet weather and furthermore that motorists ought to have
been warned of
the dangerous donga alongside the road.
[5] Balton J had earlier concluded
that Mr Mitchell had been travelling at 50 kilometres per hour, which
she held was excessive
in the prevailing conditions. Having regard to
the conclusion she reached in respect of the MEC’s failure to
maintain the
roads and to erect road signs warning motorists about
the hazards, she went on to apportion negligence between the two
defendants
and made the following order:
‘
(i)
The first defendant is directed to pay to the plaintiffs 30% of their
proved damages.
(ii) The second defendant
is directed to pay to the plaintiffs 70% of their proved damages.
(iii) The first and
second defendants are directed to commensurately pay the plaintiffs’
costs, with such costs to include
the plaintiff’s airfare to
and from Australia.’
[6] The MEC, with the leave of the
court below, appealed against the correctness of the conclusions
referred to above and the order
set out in the preceding paragraph.
Mr Mitchell, with the leave of the court below, cross-appealed on the
basis that the court
below erred in attributing any negligence to
him, alternatively, that the apportionment of blame in relation to
him should be reduced
to 10 per cent.
[7] Before us, counsel on behalf of Mr
Mitchell restricted his case to one instance of negligence on the
part of the MEC’s
employees, namely, the failure to maintain
the road causing it to become extremely dangerous when wet. For
reasons that will become
apparent that was a wise decision by
counsel. It is now necessary to consider the material parts of the
evidence to determine the
cause of the accident.
[8] On the fateful day the journey by
the Eastmans, up the road towards the top of the Sani Pass from
Himeville was uneventful.
The vehicle in which they drove was a 4x4
double cab bakkie (the vehicle), with an attached fibre glass canopy.
En route they stopped
at a quad bike centre where they hired quad
bikes. Mr and Mrs Eastman and the owner of the quad bike centre drove
ahead on quad
bikes and were followed by the vehicle. Mr Mitchell’s
wife sat in the passenger seat alongside him. Ms Paula Kinnane was a
passenger who sat in the rear seat. Mr Mitchell’s daughter,
Jenny, the bride-to-be, was also in the vehicle. The section
of the
road above where the quad bike centre is located is described as
typical four-wheel drive country. It is less so below the
quad bike
centre. On the way up, following the advice of the owner of the quad
bike centre, Mr Mitchell engaged the four-wheel
drive mechanism.
[9] Mr and Mrs Eastman and the
remainder of their party returned to the quad bike centre after their
visit to the top of the pass.
On the way up, the road had been dry
and weather conditions were clear. Before they travelled down towards
Himeville, the owner
of the quad bike centre had advised them to
disengage the four-wheel drive, indicating that the road below was
not ‘too bad’.
At the quad bike centre, because of the
limited space in the double cab, it was decided by the others that Mr
Eastman would sit
in the rear bin under the canopy. On the way down
to the quad bike centre, for approximately three kilometres, they had
experienced
ten minutes of light drizzle.
[10] In his testimony in the court
below Mr Mitchell stated that because of the rain he had travelled at
approximately 30 kilometres
an hour. According to him, he had
experienced no problems at all until they approached the area where
the vehicle left the road.
They had come over a slight crest onto a
fairly straight part of the road when the vehicle started sliding to
the left. In order
to correct the vehicle he steered to the left, as
one is required to in those circumstances. He might have touched the
brakes lightly
but the vehicle headed across the road and went off
the verge and fell into the donga. He was up to his waist in the
water. It
is common cause that a water culvert alongside the road had
degenerated and had been eroded to form the donga.
[11] The canopy had come off the
double cab and had been flung 12-15 metres away from the vehicle. Mr
Eastman who was in the rear
bin of the double cab was half-in and
half-out of the vehicle. He had broken his back. Shortly after the
vehicle had plunged into
the donga people arrived to offer
assistance. Peter Bodman, a local farmer, arrived and summoned his
wife, Sandy, a nurse, to come
to assist. Only Mr and Mrs Eastman had
sustained serious injuries.
[12] It is necessary to record that Mr
Mitchell has extensive experience of driving on gravel roads in a
range of vehicles. He was
well aware of the dangers that gravel roads
in general pose in wet weather conditions. Mr Mitchell accepted that
as a rule, significantly
greater care and lower speeds are required
when travelling on gravel roads. The common consensus appears to be
that in wet conditions
a safe speed on gravel roads in general,
including the road in question, is 30 kilometres per hour.
[13] Against Mr Mitchell’s
testimony needs to be weighed the evidence of Mrs Eastman, who
described how she sat behind Mrs
Mitchell on the left-hand side and
how their daughter, Jenny, sat in the middle of the backseat, between
her and Paula Kinnane.
Mrs Eastman stated that she was contemplating
securing a seatbelt because she had felt a ‘little unsafe’
due to the
speed of the vehicle and the bumpiness of the ride. The
most significant part of her evidence is that when they came over the
crest
approaching the area where the vehicle left the road, Mrs
Mitchell turned to her husband and yelled his name. In response, he
looked
towards her for a few seconds and then looked back. At that
moment she felt the vehicle slide. Shortly thereafter the vehicle
rolled
and she felt the impact as it fell into the ditch.
[14] Under cross-examination, Mrs
Eastman was adamant that Mrs Mitchell had shouted her husband’s
name
before
the vehicle started sliding. The following part of
her evidence bears quoting in full:
‘
I
think it was more the speed that she was concerned, that she called ─
I think she felt he was driving too fast and that’s
why she
called his name, and then the ─ when he looked at her ─
as he looked back there was ─ this start of a
sliding
sensation.’
[15] Importantly, at that point,
counsel representing Mr Mitchell turned to
his client to take instructions and
said the following immediately thereafter:
‘
Yes,
Mr Mitchell’s recollection is not much different from yours.
His evidence will be that his wife shouted first and it
was virtually
the next moment that he hit the patch of slipperiness which caused
the vehicle to go out of control.’
[16] Mr Eastman’s evidence on
the question of the speed of the vehicle is equally important. He
testified about how he had
been voted by the others to sit in the
rear of the vehicle. When he was asked whether he could comment on
the speed he said the
following:
‘
I
can say that I was uncomfortable with the speed that we were
travelling. . . . But I can’t put a number on it, no.’
Mr Eastman repeated that observation.
In my view, Mr Eastman attempted to be as fair as possible. He
conceded that being in front
of the vehicle would have made an
assessment of the speed much easier and that the bumpiness might have
contributed to his discomfort.
[17] In response to a question from
the court about whether he had felt uncomfortable about the speed at
which the vehicle was travelling,
Mr Eastman said the following:
‘
The
speed, yes, that the vehicle was travelling with me being in the back
of the car with no seatbelt on, and I ─ just before
the
accident I had thought about making my thoughts known to somebody in
the back by banging on the back of the car, but that was
a little ─
that was too late because we started sliding off the road.’
[18] Under cross-examination by
counsel representing the MEC Mr Eastman testified about how he
had experienced sitting in the
rear bin of the vehicle as they drove
towards the accident scene:
‘
I
felt uneasy with the ─ you get ─ I had ─ I got ─
you get a feeling when a car is driving too fast ─
when a car
is travelling at a speed that you are not comfortable with, and
that’s the feeling I got.’
Soon thereafter he said the following:
‘
I
thought of alerting the driver, but if you’ve ever sat in the
back of one of those cars it’s not something that’s
easily done.’
[19] In the insurance claim form it is
stated that the driver was travelling between 30 and 40 kilometres
per hour at the time that
the accident occurred. In that form the
impression is created that the vehicle started sliding on a curve in
the road rather than
on the straight part as testified to in court by
Mr Mitchell.
[20] In his statement to the police,
Mr Mitchell stated that it had been raining and the road had become
quite wet and slippery.
There was clearly an attempt to create the
impression that it was the heavy rain that had caused the road to
become wet and slippery
which resulted in the loss of control of the
vehicle. In court he gave the impression that it was drizzling and
that the vehicle
started sliding unexpectedly mainly due to the
condition of the road.
[21] The fact that the vehicle
sustained fairly extensive damage at the front, coupled with the fact
that the canopy came off and
was flung 12-15 metres away from the
vehicle is more consistent with the evidence of Mr and Mrs Eastman
that the vehicle was
travelling fast enough to cause them concern.
More damning though, is the uncontradicted evidence of Mrs Eastman
that Mr Mitchell’s
wife was concerned enough to shout his name.
Her inference about Mrs Mitchell’s concern at the speed at
which the vehicle
was travelling appears wholly justified. Mrs
Mitchell was not called as a witness and it must be inferred that her
evidence would
not be at variance with that of Mrs Eastman.
[22] The evidence of the
reconstruction experts who testified was not very useful. However, Mr
Opperman, who testified on behalf
of Mr Mitchell and was rightly
critical about the experiments conducted by Ms Badenhorst who
testified on behalf of the MEC, nevertheless,
when pressed for his
estimation of the speed at which the motor vehicle was travelling,
ventured an estimate of 50 kilometres per
hour. The assumptions he
relied on were conservative and were favourable to Mr Mitchell.
[23] An examination
of the record of proceedings in the court below reveals that the
conclusion of the court below that Mr Mitchell
was not an impressive
witness is well-founded and his evidence that he was travelling at 30
kilometres per hour was rightly rejected.
The court was correct in
accepting the evidence of Mr and Mrs Eastman to the effect that
Mr Mitchell drove fast enough to
cause them discomfort and unease.
There is no doubt in my mind that the speed at which Mr Mitchell
drove was excessive in the circumstances
and he was thus negligent.
The speed at which he drove was a cause of the accident. The question
that remains is whether it was
the sole cause. Is there a substance
to the complaint of the respondents that there was a lack of
maintenance of the road in question
on the part of the MEC to the
extent that it was excessively dangerous and contributed to the
accident?
1
[24] To answer the question in the
preceding paragraph it is necessary to consider the evidence in
regard to the condition and maintenance
of that part of the road on
which the accident occurred and then to determine whether it
contributed to the accident. A range of
witnesses, including a number
of local residents, testified about their historical dissatisfaction
with the state of the P318,
particularly the lower part leading
towards Himeville.
[25] A major incident on which the
respondents relied to demonstrate how treacherous the road was,
occurred in December 1998, more
than seven years before the incident
presently being considered. On that occasion, Dr Lindsay, a
general practitioner in the
Himeville area, had lost traction while
travelling to the Sani Pass Hotel on the P318, in the opposite
direction to which the respondents
were travelling. When he lost
traction he left the road and ended up in the culvert.
[26] The ire of the local community,
concerning the condition of the P318 and what they considered to be
the lack of response on
the part of officialdom, was directed chiefly
at Mr Victor Kimmince, the district superintendent. According to Dr
Lindsay, he had
complained to Mr Kimmince about the condition of the
road at that time.
[27] Mr Peter Bodmann, a dairy farmer
in the Underberg Himeville area, who was one of the first on the
scene after the accident,
testified. His farm is situated just off
the P318. He was familiar with the road on which the accident had
occurred. When it was
dry one could safely drive at 60 kilometres per
hour. According to Mr Bodmann, when the road got wet it transformed
and the surface
became like glass, causing cars to slide.
[28] Mr Bodmann belonged to the local
Community Watch. He testified that he had raised the general
condition of the P318 at meetings
on a regular basis. The concern was
that the surface was not very good in wet weather. When asked who the
complaints were raised
with, he was unable to say how and to whom the
complaints were communicated. He had not personally spoken to Mr
Kimmince concerning
the condition of the road.
[29] Mr Bodmann conceded that the
Department of Transport graded the roads occasionally but was adamant
that they did so irregularly.
He testified, without reference to a
specific date, that he had gone off the road on one occasion and
referred to a doctor, presumably
Dr Lindsay, who had on another
occasion gone off the road. Describing how it had come about that his
own vehicle had left
the road, Mr Bodmann testified that he had gone
through a ‘red patch’, which he had misread and
consequently had slipped
off the road surface.
[30] Under cross-examination, Mr
Bodmann was unable to contradict police statistics that showed that
between 2003 and 2006, on the
road in question, there had been only
one accident, which resulted in serious injuries. That accident is
the one under consideration.
He accepted that in general, gravel
roads, when exposed to rainfall, become particularly slippery.
[31] Significantly, Mr Bodmann was
referred to photographs taken in May 2005, before the entire road was
resurfaced. According to
him, they demonstrated a lack of hardening
or gravel and reflected that there was only soil on the road, which
in wet weather became
slippery and dangerous. It is the same
photographs which experts in the court below testified showed a
typical gravel road. The
photographs themselves show an extensive
gravel surface with shiny parts which appear to be the parts that
cause slipperiness on
gravel roads when wet.
[32] Mrs Sandra Bodmann, who is a
qualified nurse, also testified. According to her, that part of the
road on which the accident
occurred was passable in dry conditions
and one could comfortably drive on it. Like her husband, she
considered that part of the
road particularly to become extremely
treacherous when wet. She testified, without reference to a date,
that she had ‘slipped
severely in some cases’ but had not
actually gone off the road surface. She stated that her mother had
slipped off the road
on a number of occasions. Once again, the court
was not told when this had occurred. Mrs Bodmann testified that
there had
been occasions when she and her husband had pulled tourists
off the edge of the road with their tractor. She conceded that the
Department of Transport had occasionally graded the road, normally
after complaints had been lodged. Mrs Bodmann attended monthly
disaster management meetings at which she had raised complaints about
the P318.
[33] Mrs Bodmann conceded that at
times the whole of the P318 became slippery. When she was questioned
about the areas of the road
on which she had slipped she identified
two other areas apart from the area where the accident had occurred.
However, she did state
that she had once slipped in that vicinity.
[34] According to Mrs Bodmann, she had
assisted her mother after the latter’s vehicle had slipped off
the road at another
location. She was unable to identify the other
area about which her mother had reported to her. Mrs Bodmann’s
response
to the suggestion by counsel representing the MEC, that the
number of accidents on the relevant section of the road prior to
March
2005 was few and far between, is instructive:
‘
Yes,
I think you would be wrong.’
That response can hardly be considered
emphatic.
[35] Mrs Bodmann was unaware of any
accidents on that stretch of the road between January and March 2005.
She stated that from personal
knowledge she knew of only one accident
from the time that she and her husband started living in the area up
until the time of
the accident. That was an instance where someone
went off the road and landed in a maize field. That incident too was
not located
in time.
[36] Mr Brett Deavin, who at the
relevant time provided a private ambulance service, arrived at the
accident scene after being contacted
by Community Watch to transport
the Eastmans to hospital. He testified about how the section of the
road where the accident had
occurred became treacherous when wet. He
spoke of incidents over the years where trucks and buses got stuck.
Under cross-examination
he testified that he had no personal
knowledge of a single motor vehicle accident on that stretch of the
road. Mr Deavin stated
that he had knowledge of one instance, in
December 2004, where a vehicle got stuck in the mud in that vicinity.
He had no personal
knowledge of any report having been made to the
Department of Transport concerning that incident. Importantly, he
accepted that
there was no basis for the court to accept that this
part of the road was akin to an ice rink in inclement weather.
[37] I do not intend to canvass every
detail of every complaint concerning the P318. It is clear that the
Sani Pass Hotel which
is situated between the area where the accident
occurred and the top of the Sani Pass complained to the Department of
Transport
on a number of occasions that tourist buses and their
clients’ vehicles were getting stuck in the mud on their way to
the
hotel. They were lobbying for the road to be surfaced with tar.
Farmers also complained about their vehicles getting stuck on the
P318. It is clear that heavy vehicles like buses and trucks churn up
the road in wet weather conditions and cause muddy conditions.
[38] It is true that Mr Kimmince did
not appear to be a particularly efficient administrator. He certainly
was not a meticulous
record keeper nor was he particularly responsive
to the local community. It does not necessarily follow that he was
informed that
this specific stretch of the road required immediate
attention, nor does it follow that that particular stretch of road
was a death-trap.
[39] It is common cause that on 18
March 2005, three days before the accident occurred, Mr W S Bennett,
a regional engineer and
Mr Kimmince’s superior, in
response to written complaints concerning the Sani Pass road, went
out to inspect the road
with Mr Kimmince. Mr Bennett concluded that,
because of the heavy rainfall in the preceding months the road had
deteriorated. Generally
he thought that the greater deterioration had
occurred in slightly steeper areas towards the top of the pass caused
mainly by heavy
vehicles churning up the road because of the
gradient. Mr Bennett thought that it was an opportune time to
upgrade and re-gravel
the entire road. We know that this was
ultimately done a few months after the accident.
[40] It is necessary to record that
the Department of Transport’s records reflect that an extensive
part of the P318 was re-gravelled
during 2000. Regrettably, the
records do not indicate exactly which parts were re-gravelled. Nor do
the records reflect which parts
were subject to patch re-gravelling
in the intervening period, it not having been in dispute that patch
gravelling had occurred
from time to time.
[41] It must be borne in mind that
there is an extensive network of roads to be maintained by the
department. Seventy-five per cent
of the roads in the province are
gravel roads and subject to deterioration due to traffic and weather
conditions. The gravel road
network for which Mr Bennett and
Mr Kimmince hold responsibility extends to 1 200 kilometres.
[42] As stated in para 7 above,
counsel representing Mr Mitchelll advisedly restricted Mr Mitchell’s
case against the MEC
to one instance of negligence, namely, the
failure to maintain the road. It is clear that Mr Mitchell was aware
that gravel roads
are dangerous when wet and that speed on gravel
roads had to be reduced under those circumstances. A board indicating
that the
road was slippery when wet would not have been news to him.
Insofar as the lack of a barrier to prevent egress from the road is
concerned it is unclear that more extensive injuries might not have
resulted if such a barrier had existed. Furthermore, the erection
of
such a barrier on one or both sides of the road narrows the width of
a road and may cause greater potential danger than the
harm it seeks
to prevent.
[43] The onus of
proving the allegations concerning the inaction or omission of the
MEC’s employees, in relation to the maintenance
of the roads,
rested on the Eastmans.
2
The court below
erred in approaching the matter on the basis that the MEC had failed
to show that his department had maintained
the road thereby failing
to prevent the dangerous situation complained of.
[44] In my view, the evidence does not
establish that the section of the road on which the accident occurred
was, at the material
time, a death trap or resembled an ice rink. The
photographs taken during May 2005, before the re-gravelling exercise,
do not reveal
a road that is atypical of gravel roads.
[45] Mr Bodmann meticulously kept a
record of monthly rainfall. His statistics were unchallenged. It is
important to consider the
rainfall figures supplied by Mr Bodmann for
the months January to March 2005. The rainfall figure for January was
286 mm, for February
344 mm and March 181 mm. In the two months
preceding the accident rainfall was far greater than in March. In
that time, there were
no accidents or incidents in which vehicles
slipped off the road. For a few hours on the day in question,
immediately following
the accident, the presence of cars and the
movement of people in the vicinity might have caused approaching
motorists to be more
careful. However, during the remainder of the
day the tempo of the rain increased. One would expect motorists
coming over the crest
to have experienced even worse road surface
conditions than did the Eastmans and their party. There were no other
incidents on
that stretch of the road for the remainder of that day
or on any other day in March or in the preceding months, when
rainfall was
heavier. It should be borne in mind that statistics
compiled many years before the incident in question showed that 200
vehicles
per day used the Sani Pass road. It was accepted by all that
that figure would have increased appreciably by the time the accident
occurred. This means that thousands of vehicles would have travelled
over that stretch of road during the wet-weather-season. The
only
vehicle that left the road during that time was the one driven by
Mr Mitchell.
[46] Immediately before the vehicle
started to slide, Mr and Mrs Eastman and significantly, Mrs Mitchell,
all had cause to be concerned
about the speed at which the vehicle
was travelling. It is no mere coincidence that the vehicle started
sliding at the time that
their anxiety was heightened. To my mind,
that evidence is decisive. The conclusion is ineluctable that it was
the speed at which
Mr Mitchell was driving that caused the vehicle to
slide off the road. It is the speed that passengers were startled by
that distinguished
this vehicle’s passage from others on that
stretch of the road. Mr Mitchell was negligent in not reducing his
speed to meet
the exigencies of the prevailing conditions.
[47] There is no acceptable evidence
that any omission on the part of the employees of the MEC caused or
contributed to the accident.
In this regard the Eastmans and Mr
Mitchell failed to discharge the onus resting on them. The court
below, in my view, erred in
not holding Mr Mitchell solely
responsible for the accident.
[48] For the reasons set out above the
following order is made:
1. The appeal is upheld with costs,
including the costs of two counsel to be paid by the three
respondents jointly and severally,
the one paying the others to be
absolved.
2. The cross-appeal is dismissed with
costs, including the costs of two counsel.
3. The order of the court below is set
aside and substituted as follows:
‘
(a) The
first defendant is held to be solely liable for the cause of the
accident.
(b) The claims of the first and second
plaintiffs and the first defendant as against the second defendant
are dismissed.
(c) The first and second plaintiffs
and the first defendant, jointly and severally, are ordered to pay
the second defendant’s
costs of suit, including:
(i) the qualifying fees and expenses
of the second defendant’s expert witnesses;
(ii) reserved costs;
(iii) the costs of two counsel.’
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: V I Gajoo SC
I T Stretch
Instructed by
The State Attorney KwaZulu-Natal
The State Attorney Bloemfontein
For 1
st
and 2
nd
Respondents: J J Wessels SC
Instructed by
Munro Flowers & Vermaak
Johannesburg
Claude Reid Inc Bloemfontein
For 3
rd
Respondent: J
Marais SC
Instructed by
Deneys Reitz Incorporated Pencarrow
Park
Webbers Bloemfontein
1
In
terms of s 9 (1) of the KwaZulu-Natal Provincial Roads Act 4 of
2001, the MEC is, within available financial resources, responsible
for the construction of provincial roads. In terms of s 9(3) of
that Act the MEC is not liable for any claim or damages
arising from
the existence, construction, use or maintenance of any provincial
road, except where the loss or damage was occasioned
by the wilful
or negligent act or omission of an official. It is undisputed that
within such resources the MEC has a responsibility
to obtain optimal
road safety standards within the province.
2
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) para 31.