Kruger v Mangaung Plaaslike Munisipaliteit and Another [2008] ZAFSHC 155 (19 December 2008)

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[2008] ZAFSHC 155
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Kruger v Mangaung Plaaslike Munisipaliteit and Another [2008] ZAFSHC 155 (19 December 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 5001/2008
In the case between:
M C KRUGER
1
st
Applicant
E W KRUGER
2
nd
Applicant
and
MANGAUNG PLAASLIKE
MUNISIPALITEIT
Respondent
_____________________________________________________
JUDGMENT:
RAMPAI, J
_____________________________________________________
HEARD ON:
13 NOVEMBER 2008
_____________________________________________________
DELIVERED ON:
19 DECEMBER 2008
_____________________________________________________
[1] The matter came by
way of motion proceedings. The applicants
seeks a mandatory interdict against the respondent. They apply for
an interim order whereby the respondent is directed to erect
a
protective concrete wall or a rail guard on the street pavement in
front of their residential property within seven days pending
the
outcome of a traffic impact study which the respondent must
commission within sixty days of such order. The respondent opposes

the application.
[2] The
applicants and their two minor children live at 66 Lilac Avenue,
Gardenia Park in Bloemfontein. The family purchased the
property on
the 28 February 1998. The property is situated at the point where
Wildeals Avenue intersects Lilac Avenue. Wildeals
Avenue is a tarred
and straight street approximately 750m long. At its one end is a
liquor bar called “The Bucket” and at
the other end the couple’s
house. Between these two landmarks, there is no street which
intersects Wildeals Avenue. The are
two schools in the street,
namely:- Hoërskool Jim Fouché and Laerskool Jim Fouché.
[3] The
couple’s property is situated right at the T-intersection as one
drives from the bar. There is one “stop marking”
painted on the
surface of the road at the intersection. Besides this stop road
marking, there are no stop signs or traffic lights
erected in
Wildeals Avenue. There are no speed walls.
[4] Precisely
when the liquor bar down the street started doing business in the
neighbourhood does not appear. But comments made
from the court bar
by the two lawyers indicated that the applicants were already
residing there at the time the liquor bar opened
its doors for the
first time for business. Ever since then eight motorists have driven
through the concrete wall fencing the property
of the applicants.
The first of such driving incidents occurred on the 8
th
April 2004 whereas the last on Sunday the 18 May 2008. On every
occasion, the concrete wall was damaged. The coupled suffered

damages. Although the comprehensive insurer paid the repair costs,
every time the couple had to fork out R1000 insurance excess
in
respect of each claim.
[5] The
applicants allege, on account of such driving related incidents, that
the respondent has created a dangerous situation through
its omission
to put in place appropriate and adequate physical traffic measures on
the particular road in order to ensure that
motorists who use it, can
safely do so.
[6] The applicants
further alleged that the respondent has a statutory legal duty:
“…
om die nodige
veiligheidsmaatreëls op die betrokke pad aan te bring …”
and a statutory legal
duty:
“…
om my en die tweede applikante,
wat in die betrokke area woonagtig is, se belange te beskerm.”
[7] In the answering
affidavit, the respondent denied the existence of the alleged
statutory duties but admitted that:
“
12.2 Respondent
het wel ‘n plig om te verseker dat paaie welke onder sy jurisdiksie
val veilig is, maa
r
is dit my submissie dat daar wel voldoende maatreëls op die
betrokke pad is om die veiligheid van padgebruikers te verseker.”
The
essence of the respondent resistance is grounded on the contention
that there are currently adequate traffic measures on the
road
concerned to ensure the safety of road-users and that the road
per
se
is not dangerous to the general public using it as the applicant
alleged.
[8] The
question in the case is whether the current traffic safety measures
in place on the street concerned are adequate or not
to make it safe
for use.
Mr. Coetzer, counsel for
the applicant, answered the question in the negative but Mr. Nel,
counsel for the respondent, answered
it in the affirmative.
[9] A
cursory overview of the law through caselaw is necessary to ascertain
the existence or otherwise of a legal duty. In
CAPE
TOWN MUNICIPALITY v BAKKERUD
2000 (3) SA 1046
SCA at paragraph 31 Marais JA said the following
about the dual nature of the onus which rests on the claimants:
“
It will be for a
plaintiff to place before the court in any given case sufficient
evidence to enable it to conclude that a legal
duty to repair or to
warn should be held to have existed. It will also be for a plaintiff
to prove that the failure to repair or
to warn was blameworthy
(attributable to culpa).”
[10] It
is a salient principle of law that where a municipality neglects to
take reasonable measures to prevent harm to public road
users, such
negligent municipality can be held delictually liable. To ascertain
whether the traffic measures in place at the time
the harm was
suffered were reasonable and therefore adequate depends on the
peculiar circumstances of each case. There is no hard
and fast rule.
The judicial enquiry entails value judgment based on the weighing up
of a variety of factors. In
NGUBANE
v SOUTH AFRICAN TRANSPORT SERVICE
[1990] ZASCA 148
;
1991 (1) SA 756
(AD) the following considerations were highlighted:
“
As regards the
requirement in para (a) (ii) above in this judgment, it is
acknowledged that reasonable steps are not necessarily
those which
would ensure that foreseeable harm of any kind does not in any
circumstances eventuate. The contributor (Prof J C van
der Walt) in
Joubert (ed) The Law of South Africa vol 8 sv 'Delict' para 43 at 78
comments in this regard that:
'Once it is
established that a reasonable man would have foreseen the possibility
of harm, the question arises whether he would
have taken measures to
prevent the occurrence of the foresseable harm. The answer depends on
the circumstances of the case. There
are, however, four basic
considerations in each case which influence the reaction of the
reasonable man in a situation posing a
foreseeable risk of harm to
others: (a) the degree or extent of the risk created by the actor's
conduct; (b) the gravity of the
possible consequences if the risk of
harm materialises; (c) the utility of the actor's conduct; and (d)
the burden of eliminating
the risk of harm.'”
[11] In
PRETORIA
CITY COUNCIL v DE JAGER
1997 (2) SA 46
(AD) at 56 E – H, Scott JA said the following about
the hazard on the road:
“
It is a matter
of common experience that the municipalities of larger towns and
cities are regularly obliged to undertake road works
involving the
digging of holes and trenches in roadways and pavements. There are
few such works that are not fraught with some
danger. This much is
known to the public and municipalities are entitled to expect some
reasonableness on the part of pedestrians
once their attention has
been drawn to the work in progress and the existence of danger. No
doubt there are situations in which
something more than a mere
warning fence is required. The circumstances may be such as to
require a protective barrier of the kind
suggested by counsel which
would all but exclude the possibility of a pedestrian falling into an
excavation. But I think it would
be unrealistic and expecting too
much of municipalities with pressing and more worthy demands being
made on their generally limited
financial resources to have to incur
the expenditure of establishing in every case a protective barrier of
such a kind as to physically
prevent pedestrians from gaining access
to or falling into holes or trenches of the kind with which this case
is concerned.”
[12]
In
that case there were excavations in the street. The city council of
the municipality warned the public about the danger the
excavation
posed. Despite the warning, the respondent fell into the excavation
and got injured. On appeal the court held that
the steps taken to
warn the pedestrians about the hazard were adequate and that the
municipality was not required to incur further
expense to ensure that
pedestrians did not fall into the excavations.
[13] The
general principle is that where a reasonable actor in the shoes of a
municipality would not have done more than was actually
done in a
given case, no negligence can be attributed to the defendant
municipality. The converse is also true. Where a reasonable
person
in the same position as the municipality would have acted differently
by doing more than was actually done then negligence
may be imputed
to such a municipality.
[14] It
is common cause that previously the road had no traffic signs besides
the stop road marking and the two pedestrian crossings
in front of
the schools. However, there is currently a reflective chevron board
right in front of the property of the applicants.
It appears that
all the eight incidents complained of occurred during night-time.
There is hardly any similar incident which
occurred during day-time.
Therefore, it seems legitimate to deduce that the measure which the
respondent had in place regulate
the flow of traffic reasonably well.
The street apparently has a heavier traffic volume during day-time
than during night-time.
Now, if such measures can efficiently and
properly regulate traffic flow during day-time there is no logical
explanation why they
can be said to be wanting during night-time.
[15] None
of the incidents can be purely attributed to any hazard on the road
itself. It is certainly not the case of the applicants
that any of
the vehicles that crashed into the concrete fence were forced to take
an evasive action to avoid a hazardous obstacle,
condition or
situation on the road such as: a deep pothole – Graham’s case
supra
;
or a huge falling rock – Bakkerud’s case
supra
,
or a deep excavation – De Jager’s case
supra
.
In the instant case, none of the road-users involved in any of the
crashes blamed the respondent municipality for their vehicular
damage
or bodily injuries. It would seem that, all of them, without an
exception, realised that human behaviour and not physical
hazard on
the road coupled with inadequate measures was the exclusive cause of
their damage or injury. In my view there is virtually
no connective
tissue between the misfortune of the applicants and the alleged
omission of the respondent to take adequate measures
in order to
ensure the safety of the users of the particular street. I am of the
view that the current measures are reasonably
adequate and that the
street is reasonably safe for any careful and considerate user.
[16] The
applicants are endeavouring to have the respondent compelled to
protect them as individual(s) against criminal transgressions

committed by the thirds. The risk of crime is a general risk shared
by all –
SAAIMAN
AND OTHERS v MINISTER OF SAFETY AND SECURITY AND ANOTHER
2003 (3) SA 496
(O). The respondent cannot be held liable for the
crimes. Here we are not concerned with the sort of a situation that
obtains
where a municipality has actively created a dangerous
situation on the road but subsequently failed to take appropriate
measures
to guard against possible harm to the members of the general
public. The right which the applicants claimed they have is, in
these
circumstances, very obscure, if it exists at all. On eight
different occasions the applicants were adversely affected by the
driving
incidents. Their concrete fence was damaged. However, in
none of those crashes did any of the offending motor vehicle forage
so deep into their property as to cause damages to their house or
injury to any family member. The likelihood of the applicants
or
their children becoming injured during such frolic incidents appears
to be relatively slim seeing that the majority, if not
all of them,
happened during night-time.
[17] Neither
in their founding affidavit or replying affidavit did the applicants
quantify their damages. Their exact financial
loss has been limited
to a total of R8 000,00 in respect of insurance excess, viz R1 000 x
8 incidents. This is so because their
long term property insurers
paid the undisclosed repair costs. The applicants fear, and they
have sound reason to be anxious,
that similar crashes will probably
take place again in the future. However, it is important to make the
observation that the applicant
have suffered no irreparably harm so
far, through any of the crashes complained of.
[18] Although
they are apprehensive about possible repetition of similar incidents
in the future, I am not persuaded that their
apprehension is
reasonable. There is nothing to suggest that they will suffer
irreparable harm unless the respondent takes steps
to protect them
against such acts of interference. The law does not, by way of an
interdict, protect every one merely because
her right has been and is
likely to be infringed again irrespective of the magnitude of the
harm. It is only a right threatened
by the harm that cannot be
repaired afterwards which deserves the protection of the remedy which
an interdict affords. In my view
the applicants have also failed to
establish the second requisite for the grant of a final interdict.
[19] The
applicants have all the right to recover full compensation for the
damages occasioned by the negligent driving from the
negligent
drivers involved. They may also elicit the help of the South African
Police Service to vigilantly patrol this particular
street especially
on Friday and Saturday nights. It seem that visible and regular
police patrols over the weekends may well have
significant positive
impact on the reduction of criminal driving patterns, which according
to the applicants themselves, are largely
attributable to either
drunken driving or excessive speeding or both.
[20] In
principle the applicants in collaboration with the respondent may
also work out and implement some constructive measures
to address the
problem. The respondent has already extended a helping hand by
undertaking to erect rail-guards in addition to
the reflective
chevron board, reflective painted stone-kerbs and stop road marking
at the intersection. The respondent has demonstrated
its willingness
to co-operate by doing speed measuring study exercise in the street
concerned. Furthermore, the respondent has
already undertaking to do
some further traffic study to assess how best the problem affecting
the applicants can be addressed.
It follows from all these that it
cannot be convincingly contended, as Mr. Coetzer did, that the
applicants have no alternative
ordinary and effective remedy other
than the interdict. In my view they are not remediless. It seems to
me that they have a few
ordinary remedies available. Therefore I
find that the applicants have failed to prove the third requisite of
a interdict, interim
or final.
[21] The
primary relief sought by the applicants is that a protective concrete
block be erected by the respondent on the pavement
parallel to their
concrete fence. The respondent is agreeable provided such protective
concrete block is erected on the pavement
but as close as possible to
the fence of the residential property of the applicants, or better
still, on the property and not on
the pavement alongside the erf
boundary. However, the applicants will have nothing of those
options. They insisted that the protective
concrete block should be
erected on the pavement and on the pavement only, way off their fence
and right at the edge of the Lilac
Avenue. According to the
respondent the measure demanded by the applicants is not practically
and legally feasible regard being
had to the circumstances of the
intersection. Firstly the space between the fence and the edge of
Lilac Avenue is too narrow.
To erect a protective concrete block
there, in accordance with the wish or demand of the applicants would
breach the safety specifications
and requirements.
[22] If
so erected the protective block would create a hazardous condition
for motorists driving in Lilac Avenue. Should a motor
vehicle in
Lilac Avenue veer off the street in a desperate attempt, to avoid a
child or another motor vehicle speeding up in Wildeals
Avenue towards
the intersection without an indication of a driver’s intent to obey
a stop sign, it would crash into the side
of the proposed protective
block. The consequences might be too ghastly to contemplate. The
erection of the protective block
on the edge of the street would
greatly expose the respondent to the serious risk of civil action,
should an accident occur occasioned
by the protective block which was
not strictly erected in accordance with legal specifications.
[23] Moreover,
the respondent also mentioned that the protective concrete blocks
were not designed to be used as perpendicular barriers
to prevent
motor vehicles from moving forward. The protective concrete blocks
were designed to prevent motor vehicles from the
hazards of deviating
sideways on the road and dangerously encroaching on the wrong side,
which was why such protective concrete
blocks were erected parallel
and not perpendicular to the road. The underlying idea for the
parallel use of such protective barriers
is primary to protect those
actually mobile on the public road and certainly not to protect the
interests of those sleeping in
their private homes.
[24] In
the replying affidavit the applicants alleged that elsewhere in the
city the respondent was using protective concrete blocks
but was
unwilling to use them in Wildeals Avenue to protect them as
residents. They cited Wilcock Road as an example. However,
Mr.
Coetzer could not argue that the protective concrete blocks there
were used contrary to the purpose for which they were designed,

namely parallel and not perpendicular to the road. The crux of the
matter is that protective concrete blocks are essentially supposed
to
be used to protect the driving public against the stray motor
vehicles with the least possible risk of harm to straying drivers

themselves. They are not intended to protect residents sleeping in
their homes off the road.
[24] There
are numerous intersections in the city very similar to the one we
here concerned with. Therefore, there is nothing unique
about the
geographic situation of the property of the applicants. There is no
evidence to suggest that all T-intersections
in the city are, to the respondent’s knowledge, bedevilled by
endless crashes. It has not been established therefore, that a

reasonable person would have foreseen the harm to the applicant.
This is the first leg of the enquiry – Prof J C van der Walt:
T
he
Law of South Africa
,
Volume 8, Delict, par 43. Such incidents were unheard of before 8
April 2004. Once the first leg has been proven, then the second
leg
of the enquiry kicks in. Here the question is whether a reasonable
person who has foreseen the possibility of harm would have
taken
appropriate measures to prevent such foreseeable harm from
eventualising. In
casu
the second question of the enquiry does not arise.
[2
5] Let
us, nonetheless, suppose that the applicants have successfully jumped
over the first hurdle and that they are now facing
the second hurdle.
In that event, it cannot be contended with any serious measure of
conviction: firstly, that the respondent’s
conduct in constructing
the intersection without simultaneously erecting a perpendicular
protective barrier on the edge of the
trafficable surface of the
street was an omission which created a high degree of the crash risk
because the incidents are apparently
a new phenomenon; secondly that
the gravity of the possible consequence if the risk of harm
materialises, was of a high magnitude
because the impact of the
recorded incidents has been minimal; thirdly, that the respondent’s
conduct in constructing intersections
of this sort is an important
public utility designed to facilitate free and safe flow, of traffic
and its public advantages are
not eclipsed by its particular
disadvantages which really stem from the misuse and fourthly, that
the burden of eliminating the
risk of harm is economically
affordable. If the respondent is compelled, on demand, to eliminate
the risk of future harm by erecting
protective barrier, a floodgate
of similar demands will be opened. The costs therefore will be
unaffordable by the respondent
and many other municipalities. The
four basic considerations of the second leg of the enquiry are not
met -
NGUBANE’S
case
supra.
[26] The
applicants will be wise to accede to the respondent’s proposal.
They cannot dictate terms and have the protective barrier
erected
according to their wishes and expose the respondent to a far greater
risk of harm. To erect a protective barrier in such
a perpendicular
manner to the motor vehicles travelling up Wildeals Avenue would
seriously endanger the lives of many road users.
Certainly it would
be unrealistic and expecting too much of municipalities with often
pressing and more worthy and deserving demands
being made on their
generally scarce financial resources to have t
o
incur the huge expense of constructing, not parallel protective
barriers but rather dangerous perpendicular barriers at every

T-intersection in order to physically protect high private security
walls of residents. Perhaps the respondent might also want
to
consider the merits and demerits of erecting one speed wall in
Wildeals Avenue near the intersection. Such a decision will,
of
course, be in the respondent’s free and absolute discretion. There
may well be exceptional situations in which a municipality
may decide
to do something more than already done. However, it will be wrong to
construe such an extra mile as a tacit admission
of a previous
omission to justify the inference that what was actually done was
inadequate.
[2
7] In
the circumstances I have come to the conclusion; that the applicants
have made out no case for the relief sought, be it an
interim or
final interdict; that the respondent has created no hazardous
condition in the street concerned which situation it has
failed to
control in order to protect the road users; that the acts of
interference complained of and against which the protective
relief is
demanded from the respondent, have nothing to do with a road which is
itself dangerous in any manner whatsoever, but
that such acts have
everything to do with unlawful human behaviour; that the respondent
has implemented reasonably adequate measures
in the street to make it
safe not only for the residents of the street but for the road users
in general including those who have
damaged the property of the
applicants; that the respondent does not owe any legal duty to any
individual resident which entitles
such resident to demand specific
individual protection of his proprietary interest from the respondent
for wrongs committed by
third parties off the road for whose actions
the respondent is not vicariously liable. I would therefore dismiss
the application.
[28] The
respondent has been successful in resisting the application. There
is no reason why the respondent as the successful party
should be
deprived of the fruit of its success.
[29] Accordingly
I make the following order:
29.1 The
application fails.
29.2 The
applicants are directed to pay the respondent’s taxed costs jointly
and severally, the one paying the other to be absolved.
______________
M. H. RAMPAI, J
On behalf of the
applicants: Adv. J. C. Coetzer
Instructed
by: L & V Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. J. Els
Instructed by:
E G Cooper Majiedt
Inc
BLOEMFONTEIN
/em