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[2016] ZAGPPHC 529
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Neethling v Polokwane Local Municipality (9627/2014) [2016] ZAGPPHC 529 (24 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 9627/2014
24/6/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
√
In
the matter between:
JOHANNES
PETRUS
NEETHLING Plaintiff
and
POLOKWANE
LOCAL
MUNICIPALITY Defendant
JUDGMENT
PETERSEN
AJ:
INTRODUCTION
[1]
On the 22 July 2012 at approximately 17h15pm, the Plaintiff rode his
off-road motorcycle along an area between the tarred public
roads
known as Landdros Mare Road (otherwise known as the N1 highway) and
Marmer Street, Polokwane
("the ground portion' )
when he
fell into a concrete lined drainage canal traversing the ground
portion. He sustained several injuries, including a fracture
of the
right knee joint, a fracture of the tibia and fibia, psychological
shock and various lacerations, abrasions and bruises.
SEPARATION
OF ISSUES IN TERMS OF UNIFORM RULE 33(4)
[2]
At the commencement of the trial, pursuant to an agreement reached
between the parties at the pre-trial conference, I granted
an order
separating the merits of the matter from quantum.
THE
ISSUES
[3]
The Plaintiff alleges:
(1) That there was a
legal duty on the Defendant in respect of the Plaintiff and other
members of the public to have identified
the drainage ditch as a
hazard or potential hazard to users of the ground portion;
alternatively to ensure that if the ground portion
constituted a
hazard or potential hazard to have taken reasonable steps to prevent
the said users from using same or to warn the
users and/or intended
users of the said hazard or potential hazard.
(2) The breach of the
alleged legal duty on the Defendant is said to have occurred in one
or more or all of the following respects:
It failed to maintain,
alternatively properly maintain the said ground portion when it could
and should have done so; As a result
the grass had grown over the
ground portion resulting in the unprotected ditch not being
visible/detectable creating an uneven
and/or unstable surface which
was a hazardous situation for users and/or intended users of the said
ground portion; No warning
signs and/or other preventative measures
aimed at preventing the users and/or intended users of the said
ground portion from using
the said hazardous or potentially hazardous
ground portion and/or aimed at warning the said users of the said
hazardous or potentially
hazardous ground portion were erected or
taken by the Defendant whilst the Defendant could and should have
done so; The Defendant
failed to prevent the incident when by the
exercise of reasonable skill and care the Defendant could and should
have done so.
[4]
The Defendant essentially denies each and every allegation by the
plaintiff.
ISSUES
OF COMMON CAUSE AND THE ISSUE IN DISPUTE BETWEEN THE EXPERTS
[5]
The Plaintiff and Defendant relied on the evidence of expert
witnesses, Professor Alex Theo Visser and Mr Willie Renier du Preez
respectively. The expertise of the experts was not placed in issue
and I am satisfied that the experts were duly qualified to render
their expert opinions in this matter. A joint meeting between the
experts held on the 06 May 2016 preceded the trial. The discussions
revealed the following issues of common cause and issues in dispute.
I hasten to add that the issues of common cause between the
experts,
as will be demonstrated in the evidence of the Plaintiff, are
conceded.
[6]
It is common cause:
(1)
that the ground portion or green area between the R101 (N1/Landros
Mare Street) and Marmer Street is not a public area for use
by
vehicles; and
(2)
the evidence and photographs does not demonstrate the lateral
position of the motorcycle prior to its entrance into the storm
water
ditch.
[7]
The only issue in dispute:
(1) According to
Professor Visser hazard signs are not required as the ground portion
is not a general public driving area and it
has become custom for
such signs to be stolen or removed. He holds the view that the
guardrail and parapet wall along the N1 offers
protection to
pedestrians and vehicles.
(2) According to Mr du
Preez given the indicated point of entry, basically in the centre of
the drainage ditch, there was not enough
indication that there was a
hazard.
THE
EVIDENCE THE PLAINTIFF
[8]
The evidence of the Plaintiff, Johannes Petrus Neethling, in summary
is that he possesses a licence to ride the off road motor
cycle in
question. The motor cycle was not roadworthy at the time of the
incident. At the time of the incident he was with his
son who was
riding a different off road motor cycle en route from his home to a
small business owned by the family close to an
industrial area. The
direction of travel he took along the ground portion ("veld"
as he describes it) was down the centre.
It was the first time he had
ever driven on the said ground portion. As he· rode his off
road motor cycle at a speed of
approximately 50-55km/h he could not
see the drainage ditch as the area was dry and level with grass.
There were no visible warning
signs. When he saw the drainage ditch
he applied his front brakes and when he realised he was going to fall
he applied his back
brakes. He kept the motor cycle up, decreased his
speed but his leg still hit the ditch.
CONCESSIONS
BY THE PLAINTIFF IN CROSS EXAMINATION
[9]
The Plaintiff made the following concessions in cross examination:
(1) that he lived 3km
away from the scene of the incident and he only crossed 3 areas of
public road riding on the shoulder of the
road.
(2) that the street
barrier kerbs erected along Marmer Street serve as an indication to
motorists that they are not allowed to drive
onto the ground portion
although he entered the ground portion where there were no kerbs;
(3) that the ground
portion was not a road and was not meant for use by the public.
(4) that he whilst he was
a trespasser on the ground portion, other vehicles used the ground
portion and the said ground portion
appeared to him to be safe.
(5) whilst it his initial
evidence that he could not see the distinct green portion where the
drainage ditch was from his vantage
point on the motor cycle some
20-30 paces away he conceded that because of the length of the grass
sticking out from the ditch
he would have seen it from some 20m away.
(6) when driving in his
motor vehicle along the road every two weeks he had seen the
guardrail which was meant to protect traffic
from "something".
He had never thought it could be a ditch and at most a culvert to
prevent motor vehicles from going
down that area. It was for this
reason that he therefore rode down the middle of the ground portion
because he knew that the guardrail
signalled danger.
(7) whilst other
motorists drove on the ground portion he had not followed their
tracks but had rode down the centre and he could
not dispute that the
area used by other motorists was some 350m from the ditch.
THE
PLAINTIFF'S EXPERT WITNESS
[10]
Mr du Preez's evidence on the issues in dispute in brief is that in
his opinion warning signs should be erected drawing attention
to the
drainage canal because of heavy duty trucks which utilise the ground
portion as a crossing.
THE
DEFENDANT'S WITNESS
[11]
The evidence of Jack Goto Papu, Superintendent Roads and Stormwater
for the Polokwane Municipality, in my view, on evidence
on the issues
in dispute assisted only in providing the measured distance from
where trucks illegally utilise the ground portion
to where the
incident occurred, penning it at 307m. Notwithstanding his evidence
that he has lived in Polokwane all his life and
regularly drives past
the ground portion where he has only ever seen heavy duty trucks
utilising the ground portion he readily
conceded on the photographic
evidence taken shortly after the incident that the ground portion was
not only utilised by heavy duty
trucks but bakkies and sedans as
well.
THE DEFENDANT'S EXPERT
WITNESS
[12]
The evidence of Professor Visser on the issues in dispute is simply
that there was no need to place warning signs where accidents
are not
meant to occur. He holds the view that the guardrail along the road
is sufficient to alert road users/motorists of the
danger where the
drainage ditch is situated.
THE ARGUMENTS
[13]
At the conclusion of evidence, Counsel for the Plaintiff addressed
closing argument from the Bar whilst Counsel for the Defendant
provided Short Heads of Argument. I have carefully considered the
arguments and deal with the authorities cited insofar as they
are
relevant to the peculiar facts of this matter in the evaluation of
the evidence.
THE ONUS IN A CIVIL
MATTER
[14]
It is trite law that the Plaintiff bears the onus to prove his case
on a balance of probabilities. The onus in the present
matter
succinctly stated is whether the Plaintiff has proven the breach of a
legal a duty on the part of the Defendant to ensure
that the ground
portion did not constitute a hazard or potential hazard to the
Plaintiff as a user of the ground portion or other
users or that if
found that the ground portion constituted a hazard or potential
hazard to the Plaintiff or other users to take
reasonable steps to
prevent the Plaintiff and other users from using the ground portion
or warning them of the said hazards or
potential hazards.
THE
LAW
[15]
In
Cape
Town Municipality v Bakkerud
[1]
the legal duties of municipalities were clarified and set out as
follows:
"[28]
There can be no principle of law that all municipalities have at all
times a legal duty to repair or to warn the public
whenever and
whatever potholes may occur in whatever pavements or streets may be
vested in them.
[29]
It is tempting to construct such a legal duty on the strength of a
sense of security engendered by the mere provision of a
street or
pavement by a municipality but I do not think one can generalise in
that regard. It is axiomatic that man-made streets
and pavements will
not always be in the pristine condition in which they were when first
constructed and that it would be well-nigh
impossible for even the
largest and most well-funded municipalities to keep them all in that
state at all times. A reasonable sense
of proportion is called for.
The public must be taken to realise that and to have a care for its
own safety when using the roads
and pavements.
[30]
It is not necessary, nor would it be possible, to provide a catalogue
of the circumstances in which it would be right to impose
a legal
duty to repair or to warn upon a municipality.
Obvious cases
would be those in which difficult to
see
holes
develop in
a
much used street or pavement which
is frequently
so
crowded that the holes are upon
one
before
one
has had
sufficient opportunity to
see
and to negotiate
them. Another example, admittedly extreme, would be a crevice caused
by an earth tremor and spanning a road
entirely. The
variety of
conceivable situations which could
arise is infinite(my emphasis).
"
[16]
It is accepted that an omission on the part of the defendant is
wrongful if the defendant is under a duty to act positively
to
prevent the harm suffered by the plaintiff. In
Van
Eeden v Minister of Safety and Security
[2]
,
the Court restated the test of reasonableness in the event of an
omission, holding that a defendant is under a legal duty to act
positively to prevent harm to the plaintiff if it is reasonable to
expect of the defendant to have taken positive measures to prevent
harm.
[17]
In
Minister
van Polisie v Ewels
[3]
a
change in our law was heralded when an omission was regarded as
unlawful conduct when the circumstances of the case are of such
a
nature that the omission not only incites moral indignation but also
that the legal convictions of the community deemed that
the omission
ought to be regarded as unlawful and that the damage suffered ought
to be made good by the person who neglected to
do a positive act.
[18]
In
Kruger
v Coetzee
[4]
,
the
test for proving negligence was set out as follows:
"For the purposes of
liability
culpa
arises if -
(a) a
diligens
paterfamilias
in the position of the defendant –
(i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b) the defendant failed
to take such steps.”
[19]
The test for proving negligence has withstood judicial scrutiny over
the years and has been restated in numerous judicial pronouncements
for the last 50 years. A careful reading of the case law demonstrates
that requirement
(a)
(ii) is sometimes overlooked. The question
to be begged on this requirement is whether a
diligens
paterfamilias
in the position of the person concerned (defendant
in casu)
would take any guarding steps at all and, if so, what
steps would be reasonable. This question in my view can only be
answered by
having regard to the particular circumstances of each
case (the peculiar facts
in casu).
A study of our municipal
cases generally shows the futility of seeking guidance from the facts
and results of previously decided
cases. Whilst reference to
previously decided cases is a useful tool for comparative analysis it
very often yields no cogent answers
to the peculiar facts of any
case.
EVALUATION
OF THE EVIDENCE
[20]
The Plaintiff conceded that he was a trespasser on the ground
portion. Notwithstanding this concession the Defendant itself
had at
the time of the incident and as the evidence demonstrates 4 years on,
allowed either "trespassing" on the ground
portion or
possible violation of road traffic ordinances in allowing heavy
articulated vehicles, LDV's, sedans, pedestrians and
vendors to be
present on the ground portion. In my view therefore nothing turns on
the argument that the Plaintiff was a trespasser
on the ground
portion.
[21]
In my view the narrow issue which forms the basis of the plaintiff's
claim is whether or not there was a legal duty on the
Defendant at
the time of the incident in the peculiar circumstances of this matter
to have taken steps to prevent harm to the Plaintiff.
The crisp
question is: (1) whether the defendant should have foreseen the
possibility of the plaintiff falling into the drainage
canal injuring
him in his person and (2) failed to take reasonable steps to guard
against such occurrence.
[22]
The line of travel embarked upon by the plaintiff with his off road
motor cycle on the real evidence (photographs of the scene
of
incident) was not a course ordinarily undertaken by the other
unlawful users/trespassers of the ground portion. On the totality
of
the evidence, the plaintiff's actions on the day of the incident was
both unique and an isolated incident in some 20 years of
the
existence of the ground portion.
[23]
It is common cause that the Plaintiff was not a road user on the
ground portion on the date of the incident and the ground
portion
where the incident occurred was not a road in the ordinary sense. The
ground portion where the incident occurred was not
frequently used.
The drainage canal or ditch was sufficiently identified to road
users. The Plaintiff on his own account was a
regular user of the
adjoining N1 road and aware of the guardrail along the area of the
drainage canal, indicative of a hazard to
road users.
Notwithstanding this knowledge the Plaintiff
thought
that
the position of travel he embarked upon would evade the danger which
he perceived the guardrail to be warning of, to his mind,
being a
culvert.
[24]
The Plaintiff in my view, on his own account, created the danger for
himself when he negligently embarked on using the ground
portion with
his unroadworthy off road motor cycle whilst being aware of the
hazard informed to road users on the adjoining N1.
[25]
Notwithstanding the Plaintiff's negligence the question of any
possible contributory negligence on the part of the Defendant
cannot
be overlooked. The position of the drainage canal on the ground
portion as it traverses the adjoining N1 and Marmer Road
as source of
danger is important to establish the extent of the risk of preventing
harm. A reasonable municipality would only neglect
such risk if it
had some valid reason for doing so. The Defendant's case simply
stated is that the ground portion where the incident
had occurred is
not meant for public use and there is accordingly no legal duty on it
to have forewarned the Plaintiff and/or other
users of the existence
of the drainage canal on the ground portion. I reiterate what was
said at paragraph (30] of
Bakkerud
supra: " ...
Obvious
cases
would be those in which difficult to see holes
develop in
a
much used street or pavement which is
frequently
so
crowded that the holes are upon
one before one has had sufficient opportunity to see and to negotiate
them
(my underlining). Another example, admittedly
extreme, would be
a
crevice caused by
an earth tremor and spanning
a
road entirely
(my underlining).
[26]
The peculiar facts of this matter are distinguishable from the
situation where a street (road) is frequently crowded or used
that
one would not have sufficient opportunity to negotiate any holes or
crevices that may have developed. In my view, it cannot
be said that
the Defendant should reasonably have foreseen that the Plaintiff
would ride his off road motor cycle on the path he
took, thereby
causing injury to his person when he fell into the drainage canal.
The Defendant took sufficient steps through a
guardrail to warn or
alert road users of the N1 of a hazardous situation on the adjoining
ground portion.
[27]
The Court accordingly finds that the negligence of the Plaintiff was
the sole cause of the incident; that there was no legal
duty on the
Defendant to prevent the harm caused to the Plaintiff in the peculiar
circumstances of the incident; and there was
accordingly no
contributory negligence on the part of the Defendant.
[28]
In the circumstances I order:
(1) The Plaintiff's claim
on the merits is dismissed with costs, including;
(2) The preparation and
qualifying fees of the defendant's expert, Professor Alex Theo
Visser, inclusive of costs of preparing his
report; and
(3) Costs of Senior
Counsel.
_________________
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Appearances:
On
behalf of the Plaintiff: Advocate J van der Merwe
Instructed
by Thomas Grobler Attorneys
On
behalf of the Defendant: Advocate P.P. Delport
Instructed
by Savage, Jooste and Adams Inc.
DATES
HEARD: 11 May 2016 and 12 May 2016
DATE
OF JUDGMENT: 24 June 2016
[1]
2000 (3) SA 1049
(SCA) at 1060-G para (28] [30]
[2]
2003 (1) SA 389
(SCA) at para [9]
[3]
1975 (3) SA 590
(AD)
[4]
1966 (2) SA 428
(A) 430E-H