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[2013] ZAFSHC 51
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Moqhaka Munisipaliteit v Claassens (A180/2012) [2013] ZAFSHC 51 (28 March 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A180/2012
In
the appeal between:-
MOQHAKA
MUNISIPALITEIT
.................................................
Appellant
and
IDE CLAASSENS
................................................................
Respondent
_____________________________________________________
CORAM:
C J
MUSI, J
et
MOLOI, J
_____________________________________________________
HEARD ON:
18 FEBRUARY 2013
_____________________________________________________
DELIVERED ON:
28 MARCH 2013
_____________________________________________________
JUDGMENT
_____________________________________________________
K.J. MOLOI, J
[1] The appellant is
Moqhaka Municipality, a local government structure established under
the provisions of the
Local Government: Municipal Structures Act No
117 of 1998
. The appellant appeals against the judgment for damages
of the magistrate, Kroonstad, in favour of the respondent herein.
[2] The respondent
instituted a claim against the appellant for damages caused to her
motor vehicle in Suidweg, Kroonstad, when
her motor vehicle hit a
pothole on the tarmac damaging two of the vehicle’s tyres and a
stone guard on 17 January 2011. The
claim was for payment of the
amount of R9 466,56.
[3] In its plea, the
appellant denied that the incident happened. In the alternative the
appellant pleaded that the negligence of
the respondent caused the
damages to her motor vehicle. In the further alternative it pleaded
that its negligence, if any, did
not cause the damages. In further
alternative it pleaded that if the court found that it was negligent
and that its negligence
caused the incident, then, in that event,
that the respondent was contributorily negligent.
[4] After evidence of the
respondent and her witnesses the magistrate found no contributory
negligence on the part of the respondent
based on the ground that the
appellant closed its case without giving evidence to prove the
contributory negligence on the part
of the respondent. The magistrate
assessed the respondent’s damages as follows:
A set of “Stone
Guards” R5 414.00
Labour 300.00
Wheel alignment 150.00
Two tyres at R460.00 each
920.00
TOTAL
R6 784.00
[5] In the grounds of
appeal it was contended that the magistrate erred in finding that the
respondent was not contributorily negligent
and that she had not
proved the quantum of her damages. Before the appeal was heard the
appellant applied for extension of the
grounds of appeal to include
the fact that the trial court erred in finding for the respondent
when she had failed to allege and
prove that the appellant had a
legal duty to keep the said road in a state of good repair; that the
failure of the appellant to
repair the road was wrongful and resulted
in the respondent suffering damages; and that the trial court ought
to have granted absolution
from the instance as a result. This
application was not opposed and was consequently granted.
[6] On the question of
the respondent’s negligence and/or her contributory negligence
it was contended by Mr Pienaar that
the fact that the appellant
failed to give evidence to that end was of no consequence as held by
the magistrate. It was contended
that the respondent, in her
evidence, conceded that in general the street surfaces in Kroonstad
were in a poor state of repair
and abounded in potholes; with regard
to South Road that the respondent knew of the existence of the
pothole in question as she
had seen it some months before and
expected it to have worsened over time. It was also contended that
the speed of 60 – 65
km/h at which she travelled, was excessive
and led to her failure to avoid the pothole that caused the damage to
her vehicle. Moreover,
the respondent had conceded that it was not
right for her to drive at that speed in the circumstances bearing in
mind that the
respondent was aware of the poor state of the road at
that point.
[7] The fact that the
appellant failed to give evidence is of no consequence in determining
the respondent’s negligence as
that finding could be made with
reference to the evidence placed on record by the respondent and
other witnesses. What is, however,
disturbing is that the appellant
was aware of the state of disrepair of the roads in Kroonstad and the
said road where the incident
occurred, in particular, and had been
aware of that for a number of years before the incident. Despite the
existence of that dangerous
situation which could result in damages
to the vehicles of the road users, the appellant allowed the
situation to persist and,
indeed, worsen, the potholes multiplying
and becoming bigger and deeper. The appellant’s attitude
towards this consciously
created situation was that those using the
road must exercise care and avoid hitting the potholes with their
vehicles. According
to the respondent she lived all her life in
Kroonstad and knew about the pothole at the place of the incident;
she was driving
her vehicle at 15h45 that day and could not see the
said pothole until it was too late; when she saw the pothole she
noticed that
next to it there was another pothole which made it
impossible for her to swerve away to avoid it as doing so would
result in her
hitting the other pothole nonetheless and that there
were no warning signs indicating the existence of potholes in that
road.
[8] A prudent
municipality would ensure that potholes in its roads were covered as
soon as it became aware of their existence and
not place a burden on
the road users to take evasive action to avoid hitting them and
consequently damaging their vehicles. In
this case there was evidence
that the damage such as was caused to the respondent’s vehicle
would happen even if the vehicle
was moving at 30 km/h or even 10
km/h. The issue of the speed at which the respondent was moving
becomes academic much as care
must always be exercised to avoid
hitting the pothole she knew was there. The question of the second
pothole near the one hit by
the respondent made it difficult, if not
impossible, for the respondent to have taken evasive action even if
she was moving at
10 km/h.
[9] In section 152(1)(b)
of the Constitution of the Republic of South Africa Act No 108 of
1996, it is stipulated that one of the
objects of local government is
“to ensure the provision of services to communities in a
sustainable manner”. Schedule
5 Part B of the said Constitution
mentions “municipal roads” as one of the responsibilities
of local government making
it one of the services the municipality
must perform on a sustainable basis. The keyword here is
sustainable
.
The
New Shorter Oxford English Dictionary
states that to
sustain
is ‘to cause to continue in a certain state;
maintain at the proper level of standard. Maintain or keep going
continuously;
sustainable
as ‘being able to be
maintained at a certain rate or level’ and sustainer means “a
person or thing which sustains,
upholds or maintains something; a
supporting structure.
Collins Cobuild English Dictionary
says
sustainable means “plan, method or system can be continued at
the same pace or level of activity without harming its
efficiency and
the people affected by it”.
[10] From the above it
becomes clear that the appellant had a legal duty to keep the road in
a good state of repair
ex lege
. The additional defences raised
by the appellant, namely that the respondent failed to allege (in her
summons) and prove that the
appellant had a legal duty to keep the
roads in a good state of repair on a sustainable basis and that the
failure of the appellant
to do so would result in the respondent
suffering damages, were matters that should have been addressed by
way of an exception
or pleaded in the magistrate’s court. That
was, however, not the case, the appellant conceded at the hearing of
the appeal.
They were brought forward at appeal stage as an
afterthought.
[11] As to the question
of the respondent’s quantum, the magistrate took into account
the evidence of the experts who testified
as to the costs of new as
against retreaded tyres; the actual costs of the stone guard which
could not be repaired by any means;
the actual costs of the wheel
alignment which was an absolute necessity to be done and the actual
labour costs, that was not disputed.
This exercise brought the
magistrate to a reduced sum of R6 784,00 as opposed to the
original amount of R9 446,56 claimed
with regard to the new
tyres the respondent had claimed.
[12] The appellant relied
heavily on the case of
Cape Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) at 1060D where the following was stated:
“
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.”
Furthermore, the
appellant referred to the same case at 1060E – F where the
following was stated:
“
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-high 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 roads and pavements.”
The appellant was hereby
attempting to have the respondent liable for contributory negligence.
[13] The fact is that the
facts of this matter are not the same as those in the
Cape Town
Municipality
case above. In this case the appellant itself
told that it was aware, and for a long time for that matter, that the
roads within
its area of responsibility were in a terrible state of
repair and that it had a number of claims pending against it caused
by the
potholes that are worsening by the day; that it is using that
fact as a defence against such claims and thus proud of that state
of
affairs, that the public have virtually no roads to travel on and if
they do, they must bear the costs of damages occasioned
by the roads,
defeating the very purpose they are created for,
viz
to keep
the roads user-friendly on a sustainable basis. The appellant offered
no explanation or excuse why its roads over extended
period of time
are allowed to deteriorate in that manner. This was not the case in
the
Cape Town Municipality
case. The following except
from the same case at 1060F – G (par [30]) indicates the point:
“
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 warn upon a municipality.”
This, in my view, is one
such case where such a legal duty should be imposed. The
municipality’s attitude is unpalatable and
creates,
deliberately so, a dangerous situation for any road user and it seems
to pride itself therein. It brandishes the bad state
of its roads as
a defence while doing nothing for many years to have the roads
repaired.
[14] I can find no fault
with the magistrate’s handling of the matter and the appeal
must fail.
Consequently the APPEAL
IS DISMISSED with costs.
____________
K.J. MOLOI, J
I concur and it is so
ordered.
___________
C.J. MUSI, J
On
behalf of appellant: Adv C.D. Pienaar Instructed by:
Naudes
BLOEMFONTEIN
On
behalf of respondent: Adv M.D.J. Steenkamp
Instructed
by:
Quinton
Grimbeek Attorneys
BLOEMFONTEIN
/spieterse2