About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 200
|
|
Swart v Member of the Executive Council for Police, Roads and Transport (912/2018) [2024] ZAFSHC 200 (14 June 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
number: 912/2018
In
the matter between:
GERHARDUS
SWART
Plaintiff
and
MEC
FOR POLICE, ROADS AND
TRANSPORT
Defendant
HEARD
ON:
9 FEBRUARY 2024
JUDGMENT
BY:
RANTHO, AJ
DELIVERED
ON:
14
JUNE 2024
INTRODUCTION
[1]
The plaintiff
instituted a claim for delictual damages arising from the injuries he
allegedly suffered as a result of the motorbike
accident against the
Member of the Executive Council for Police, Roads and Transport for
the Free State Province (“the defendant”).
[2]
He claims the
damages in the amount of R1 200 000.00 (One Million Two Hundred
Thousand Rand) comprising of R100 000.00 for past
medical and
hospital expenses; R500 000.00 for future medical expenses; R300
000.00 for past and future loss of earnings or earning
capacity and
R300 000.00 for general damages.
[3]
As agreed
between the parties during the pre-trial conference held before
Daffue J on 25 April 2022, the trial proceeded for determination
of
merits only.
FACTS
[4]
It is the
plaintiff’s case that he was involved in a motorcycle accident
on 23 April 2016 at or near R716 Road off Ascott
Road, Viljoensdrift
(“R716 Road”) and suffered bodily injuries.
[5]
The essence of
the plaintiff’s claim is that the defendant is vicariously
liable for its employees’ failure to ensure
that there were
adequate warning signs in relation to prevailing potholes at R716
Road at the time. He claims that the said employees
failed to
properly maintain the road and take reasonable steps to avoid the
occurrence of accidents in circumstances where they
should have
exercised reasonable care.
[6]
According
to the plaintiff, there was a legal duty that rested on the defendant
to take reasonable steps to ensure his safety and
that of other road
users travelling on the R716 at the time. On that basis, he contends
that the defendant was negligent for having
breached this legal duty
and thus liable for the damages he allegedly suffered as a result of
the accident.
[1]
[7]
He alleges to
have suffered a complete transverse fracture of the right fibular
diaphysis with lateral displacement of the distal
fragment; comminute
intra-articular fracture of the right distal tibia with complete
tibiotalar joint subluxation and multiple
scaring resulting from the
accident.
[8]
The
defendant does not deny that the road in question fell under its
areas of operations at the time when the alleged accident occurred.
It is further not denied by the defendant that its employees were at
all material times responsible for planning, design, construction,
operation, rehabilitation and maintenance of the R716 Road.
[2]
However,
the defendant denies any liability towards the plaintiff and pleads
that the road was reasonably maintained, had adequate
warning signs
and not dangerous in the circumstances of this case.
[9]
The
defendant further denies the occurrence of the accident and submits
that, should the Court find that the accident did in fact
occur, the
said accident was caused by the plaintiff’s own negligence in
that the plaintiff:
[3]
[10]
drove the
motorcycle while being medically unfit to do so and injured himself
when he lost control of his motorcycle;
[11]
drove at a
high speed in light of the prevailing road conditions. Alternatively,
the plaintiff failed to properly consider the prevailing
road
conditions at the time, resulting in self-injury caused by him losing
control
of
the motorcycle;
[12]
steered the
motorcycle in a manner that was unsafe under the circumstances and
collided with another motorcycle, which collision
was the sole cause
of the plaintiff’s accident and injuries;
[13]
failed to ride
in a single file with other riders; to keep a proper lookout; to keep
a safe following distance with regard to speed
of other riders and
traffic conditions and to apply brakes during the accident.
[14]
Should
the Court find that the alleged accident had occurred, the defendant
pleads that the injuries sustained by the plaintiff
were a direct
result of plaintiff’s own making by failing to wear proper
safety clothing for riding a motorcycle.
[4]
ISSUE(S)
FOR DETERMINATION
[15]
The Court is
required to determine if the defendant is liable for damages
allegedly suffered by the plaintiff as a result of the
accident that
occurred on 23 April 2016.
[16]
Plaintiff’s
counsel submitted that the issue of contributory negligence as argued
by the defendant was neither placed before
the Court nor specifically
pleaded by the defendant. On that basis, she argued that this matter
be determined on the basis of the
plaintiff’s alleged sole
negligence as pleaded by the defendant.
[5]
[17]
The
then Appellate Division held in
AA
Mutual Insurance Association Ltd v Nomeka
1976
(3) SA 45
(AD
)
that,
provided the plaintiff's fault is put in issue, an apportionment need
not be specifically pleaded or claimed. The court further
held that,
if the plaintiff has alleged causative negligence on the defendant's
part or the driver of his/its vehicle and the defendant
has responded
by pleading causative negligence on the plaintiff's part, the Court
cannot consider the negligence of each separately
and in isolation.
One cannot disentangle the two. The one automatically involves the
other and the Court must necessarily apportion.
What is pleaded must
of course be followed up by an appropriate prayer. That, however, is
a matter of pleading. But once the parties
have embarked upon the
adduction of evidence on the issue as to whether plaintiff was
contributorily at fault, considerations relative
to pleadings are
relegated to the background.
[6]
[18]
Consequently, I am bound to follow
the approach adopted by the Appellate Division in
AA
Mutual Insurance Association
case
.
[19]
Defendant’s
counsel on the other hand, submitted that the plaintiff’s case
has to be decided on the basis of ‘
duty
of care
’
as opposed to ‘
negligence
’
because the plaintiff never pleaded this. He further submitted that
it is important to distinguish between the two concepts
because each
has a distinct meaning and specific ramifications in the context of
this matter.
[7]
[20]
It
is settled law that for the purpose of liability, negligence arises
if
a
diligens
paterfamilias
in the position of the defendant would foresee the reasonable
possibility of his conduct injuring another in his person capacity
or
property and causing him patrimonial loss; and would take
reasonable steps to guard against such occurrence; and the
defendant failed to take such steps.
[8]
[21]
The distinction between a claim
founded on the ‘
duty of care’
and the one based on ‘
negligence
’
was dealt with by the Supreme Court of Appeal (“SCA”) in
McIntosh v Premier of Kwazulu-Natal
and another
2008 (6) SA 1
(SCA)
as
follows:
“
[12]
The second inquiry is whether there was fault, in this case
negligence. As is apparent from the much-quoted dictum
of Holmes JA
in Kruger v Coetzee
1966 (2) SA 428
(A) at 430E - F, the issue of
negligence itself involves a twofold inquiry. The first is: was the
harm reasonably foreseeable?
The second is: would the diligens
paterfamilias take reasonable steps to guard against such occurrence
and did the defendant fail
to take those steps? The answer to the
second inquiry is frequently expressed in terms of a duty. The
foreseeability requirement
is more often than not assumed and the
inquiry is said to be simply whether the defendant had a duty to take
one or other step,
such as drive in a particular way or perform some
or other positive act, and, if so, whether the failure on the part of
the defendant
to do so amounted to a breach of that duty. But the
word 'duty', and sometimes even the expression 'legal duty’, in
this
context, must not be confused with the concept of 'legal duty in
the context of wrongfulness which, as has been indicated, is distinct
from the issue of negligence. I mention this because this confusion
was not only apparent in the arguments presented to us in this
case
but is frequently encountered in reported cases. The use of the
expression duty of care' is similarly a source of confusion.
In
English law ‘duty of care’ is used to denote both what in
South African law would be the second leg of the inquiry
into
negligence and legal duty in the context of wrongfulness. As Brand JA
observed in Trustees, Two Oceans Aquarium Trust at 144F,
duty of care
‘in English law ‘straddles both elements of wrongfulness
and negligence'.”
[22]
In
Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
and Another
2000 (1) SA 827
(SCA)
,
the SCA set out the discrete nature of the enquiry into the existence
of either fault or unlawfulness as follows:
“
[19]
In the course of the past 20 years or more this Court has repeatedly
emphasised that wrongfulness is
a requirement of the modern Aquilian
action which is distinct from the requirement of fault and that the
injury into the existence
of the one is discrete from the inquiry
into the existence
of
the other. Nonetheless, in
many if not most delicts the issue of wrongfulness is uncontentious
as the action is founded upon conduct
which, if held to be culpable,
would be prima facie wrongful. (Compare Lillicrap, Wassenaar and
Partners v Pilkington Brothers
(SA) (Pty) Ltd
1985 (1) SA 475
(A) at
497B - C.) It is essentially in relation to liability for omissions
and pure economic loss that the element of wrongfulness
gains
importance. Liability for omissions has been a source of judicial
uncertainty since Roman times. The underlying difficulty
arises from
the notion that, while one must not cause harm to another, one is
generally speaking entitled in law to mind one's
own business. Since
the decision in Minister van Polisie v Ewels
1975 (3) SA 590
(A) the
Courts have employed the element of wrongfulness as a means of
regulating liability in the case of omissions. If the omission
which
causes the damage or harm is without fault, that is the end of the
matter. If there is fault, whether in the form of dolus
or culpa, the
question that has to be answered is whether in all the circumstances
the omission can be said to have been wrongful
or, as it is sometimes
stated, whether there existed a legal duty to act. (The expression
'duty of care' derived from English law
can be ambiguous and is less
appropriate in this context. See Knop v Johannesburg City Council
1995 (2) SA 1
(A) at 27D - E.) To find the answer the Court is
obliged to make what in effect is a value judgment based, inter alia,
on its perceptions
of the legal convictions of the community and on
considerations of policy. The nature of the enquiry has been
formulated in various
ways. See, for instance, Minister van Polisie v
Ewels (supra at 597A - B); Minister of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1)
SA 303
(A) at 318E - H and the recent formulation, albeit in a
different context, in National Media Ltd and Others v Bogoshi at
1204D.
It is clear that the same facts may give rise to a claim for
damages both ex delicto and ex contractu so that the plaintiff may
choose which to pursue. But a breach of a contractual duty is not per
se wrongful for the purposes of Aquilian liability. (See
the
Lillicrap case supra at 496D–I and 499D-G.) Whether the
requirement of wrongfulness has been fulfilled or not will be
determined in each case by the proper application of the test
referred to above."
[23]
In
casu
,
the plaintiff pleads in his particulars of claim that the defendant
wrongfully and negligently breached its duty of care.
[9]
It
is therefore clear from the particulars of claim that for all intends
and purpose, the plaintiff relies on the alleged breach
of the duty
of care by the defendant. I am therefore in agreement with the
defendant’s counsel that the case before me as
pleaded should
be determined on the basis of alleged ‘
duty
of care
’
as opposed to ‘
negligence
’.
EVIDENCE
[24]
The plaintiff
presented his own testimony and that of Barend van der Merwe (“van
der Merwe”) in support of his case.
[25]
Defendant
presented the evidence of 4 (four) witnesses, namely, Nicholas van
der Walt (“van der Walt”), Rudolph Adrian
Opperman
(“Opperman”), Matshidiso Benediction Nakedi (“Nakedi”)
and Johan Adam Enslin Swanepoel (“Swanepoel”).
[26]
Opperman and
Swanepoel testified respectively in the capacity of expert witnesses
in support of the defendant’s case. The
plaintiff did not take
any issue with the two witnesses being confirmed as experts and
elected not to call his own expert witnesses
in that regard.
PLAINTIFF’S
EVIDENCE
Plaintiff’s
own testimony
[27]
The plaintiff
testified that he is a pensioner and was previously employed as a
member of the SAPS for a period of ten years.
[28]
He was
involved in the accident with his motorcycle on 23 April 2016 at R716
Road whilst being part of a pack of motorcyclists (“bikers”)
who had attended a church function at Viljoensdrift. He was in the
company of a ‘pillion rider’ at the time when the
accident occurred.
[29]
The bikers
rode their motorcycles in such a manner that there were little gaps
left in between them so as to prevent the other vehicles
from driving
in between them. Among the riders were those he referred to as
novices.
[30]
He could not
tell as to what the speed limit was on the road because there were no
signs available to indicate as such but estimated
that they had
travelled at a speed not exceeding 80 kilometres per hour.
[31]
While riding
behind the pack of bikers, the leader of the pack (referred to as
President) signalled them by way of what he called
‘
Harley
Aerobics
’
to indicate that there was a problem ahead and the bikers started
scattering around the road.
He
explained that, once there was a signal by the President, the bikers
had to stay on one side of the road due to oncoming trucks
and to
further
avoid
colliding with each other.
[32]
As the bikers
scattered around pursuant to the President’s signal, he had to
find the best way of getting out of the situation
without hitting
somebody on his side and ended up falling. He then ended up on a
portion of the road that had a pothole and lost
balance after his
motorcycle hit the pothole. This caused the front wheel of his
motorcycle to go through the pothole whilst the
rear wheel dropped
into the pothole because of its low suspension clearance from the
ground.
[33]
Due to his
weight and that of his ‘pillion rider’, the motorcycle
dropped and fell on his right-hand side whereupon
he sustained
injurie.
[34]
When asked
under cross-examination to explain as to what driving in a pack
entailed, he explained that they rode in a ‘
V-shape
formation
’
and not necessarily in a straight line such as how motor vehicles are
normally driven. This was to ensure that no vehicle
could come in
between the bikers.
[35]
He admitted
under cross-examination that it was required of them as riders to
drive in a straight line in order to be able to see
the vehicles
driving in front of them. However, he stated that the manner of
riding they adopted (i.e. ‘
V-shape
formation’
)
was a strategy to protect themselves from potential danger posed by
other vehicles on the road.
[36]
He
reported the accident that occurred on 23 April 2016 to the police on
2 July 2016, after his discharge from the hospital. He
further
referred to the sketch plan forming part of the ‘Police
Accident Report’ to depict the potholes that were prevailing
on
the road when the accident occurred. He stated under
cross-examination that he prepared the sketch plan contained in the
accident
report wherein the ‘
BRIEF
DESCRIPTION OF THE ACCIDENT
’
is recorded as follows:
[10]
“
I
was driving in the left lane travelling east on Ascot Road. Pothole
appeared and there was no way to swerve with oncoming traffic.
I went
through pothole and left the road.”
[37]
I need to make
a mention of the fact that the plaintiff’s version as contained
in the accident report differed from the version,
he gave during
examination in chief to the effect that he went through a pothole,
whereafter he fell and got injured when his motorcycle
dropped to the
surface due to its weight bearing.
[38]
In
the affidavit deposed to by the plaintiff on 23 September 2016, the
following is stated:
[11]
“…
My
front wheel struck a pothole causing my motorcycle to veer out of
control. We were thrown off the motorcycle.…”
[39]
Once again,
the plaintiff’s version as set out above differed from the
version he put forward earlier that he got injured
when the rear
wheel of the motorcycle got stuck in a pothole whereby, he fell on
his right-hand side. Under cross-examination,
he admitted that the
contents of his affidavit differed from the version he presented
earlier in his earlier testimony about how
the accident occurred.
[40]
The
plaintiff was further referred, under cross-examination, to the
inconsistency of his factual account of the accident as contained
in
the report of his Occupational Therapist.
[12]
It
is recorded in the said report that the plaintiff ‘
went
over a hump that had a large pothole behind
it,
which he hit at relatively low speed. His pillion rider fell off the
mo
torcycle
and sustained a head injury, and he lost his balance while trying to
get out of the hole and fell off, with the motorcycle
falling on
him
’
.
In response thereto, the plaintiff maintained that the report
contained the same version he gave but put in different words.
[41]
The plaintiff
further led evidence at length in relation to the potholes as
depicted in the photographs he alleged were taken from
the scene of
the accident. During cross-examination, the plaintiff informed the
Court that the photographs being relied upon to
depict the areas of
the road that had potholes were taken by one of the bikers named
Pieter Koekemoer (“Koekemoer”).
Sadly, Koekemoer was not
called in to give evidence in support of the plaintiff’s
version in this regard. I therefore find
the plaintiff’s
evidence in relation to the photographs not credible in the
circumstances of this matter.
[42]
The
plaintiff also testified under cross-examination that the information
given to the emergency personnel that attended to him
at the scene of
accident came from him. On being asked about the entry made in the
handover report completed by the emergency personnel
to the effect
that the accident resulted from collision between the motorbikes
[13]
,
he expressed his disagreement that such represented the factual
account he gave about the accident. Nevertheless, he elected not
to
place any evidence in rebuttal thereof.
Van
der Merwe’s testimony
[43]
Van der Merwe
testified that he was part of the bikers on the day of the accident
and rode behind the plaintiff as a road Captain
of the pack. He
stated that they were travelling at a low speed next to each other
when he suddenly noticed that the plaintiff
fell and stopped to
assist him (plaintiff).
[44]
He did not see
the President signalling the bikers of the danger because he could
not see what was happening in the front. He stated
that although it
was possible for a person who was not paying attention on the road to
have missed the President’s signal,
he was paying attention on
the road and saw that the plaintiff had fallen. He then realised
later that the plaintiff had hit a
pothole.
[45]
He
further testified that there were plenty of potholes on the road but
stated that he could not remember well. He indicated that
he did not
witness how the accident occurred but remembered that the plaintiff
did not collide with anyone.
[46]
Under
cross-examination, he was asked if he knew the person who took the
photographs of the accident scene but stated that he did
not see who
that person was. He further stated that he did not know about
Koekemoer.
[47]
He also
testified under cross-examination that he understood that the
motorcycles, like other motor vehicles, were required to drive
behind
each other. He stated that in their case, they were riding in a
staggered formation as a safety mechanism but did not know
that
riding in that way was deemed illegal.
[48]
Similar to the
plaintiff’s testimony, Van der Merwe’s evidence did not
take the plaintiff’s case any further because
he admitted that
he did not witness how the accident happened.
[49]
Consequently,
I find the plaintiff’s evidence with regard to the
circumstances under which the accident occurred to be of
little
assistance this Court and quite contradictory in many respects.
Moreover, his case seems to be heavily reliant on the fact
that the
accident was caused by the potholes as depicted from the photographs
whose probative value remains untested.
DEFENDANTS’
EVIDENCE
Van
der Walt’s evidence
[50]
Van der Walt
testified that he is currently employed at Vaal Park Hospital in the
Free State but worked for Netcare 911 in Vanderbijlpark
as Advance
Life Support Paramedic at the time of the accident.
[51]
In the normal
course of his duties, he attends to both traumatic and medical
emergencies relating to gunshots, road accidents and
chronic medical
conditions among others. Whenever called to the accident scene(s), he
normally starts by establishing what ‘
mechanism
of injuries
’
is in order to determine the patient’s cause(s) of injuries.
This in turn informs the kind of treatment that should
be
administered on the patient.
[52]
He testified
that he was the first person to arrive at the accident scene on the
date of the accident and rendered advanced life
support to the
plaintiff. He further testified that he also accompanied the
plaintiff to the hospital by ambulance following the
accident.
[53]
He
confirmed the handwriting on the ‘patient report’ handed
to the hospital when the plaintiff was admitted to be his.
The
said report recorded the mechanism of the injury as the accident
caused by collision between the two bikes.
[14]
He
further explain
ed
that the said document was normally completed from the time the
patient was transported from the accident scene or otherwise
the
hospital would not admit a patient without it.
[54]
He further
stated that the information recorded in the report indicating that
the plaintiff was riding a bike and bumped into another
bike, thus
sustaining injury to the right ankle could have
been
obtained from
one of his crew members or the plaintiff himself.
[55]
He
testified that on arrival at the hospital, he handed over a document
presenting a complaint
[15]
to
a nurse in the presence of the patient (i.e. plaintiff). As recorded
in the said document, the plaintiff bumped into another
bike and
sustained an injury to the right ankle. He stated that if the
plaintiff was not happy with the contents of the document,
he could
have objected to the contents thereof.
[56]
He was asked
under cross-examination as to how he remembered to have been the
first one to arrive at the scene of the accident other
than his crew
members, namely, Erasmus and Sibanyoni. He testified in response
thereto that, the fact that the hospital records
indicated that there
was administration of ‘
morphine
’
on the plaintiff, constituted sufficient proof that he was the
first one to arrive at the scene. Such was informed
by the fact that
administration of ‘
morphine
’
did not fall within the scope of Erasmus and Sibanyoni’s
duties.
[57]
When further
asked under cross-examination of the possibility that the mistake
could have occurred during the plaintiff’s
admission, he
testified that the paper trail kept by the hospital served as
evidence about the events of the day of the accident.
[58]
Defendant
submitted that Van der Walt’s version was consistent with the
plaintiff's own evidence that the bikers rode negligently
in a
staggered formation, which situation led to his (plaintiff) inability
to see what lied ahead on the road and ended up failing
to apply the
brakes upon receiving signal of the danger ahead from the President.
[59]
He further
referred to the plaintiff’s evidence about the moment of chaos
that ensued when they scattered after receiving
the President’s
signal about potential danger ahead. This was more so because the
plaintiff himself informed the Court of
the fact that there were
novices riding among the pack.
[60]
I am therefore
in agreement with the defendant’s submission that the only
probable version that was placed before the Court
was that the
accident resulted from motorcycles colliding with each other as
opposed to potholes as the plaintiff claims. More
so, the plaintiff
placed no evidence in rebuttal of Van der Walt’s version.
Opperman’s
testimony
[61]
Opperman
testified that he is a Civil Engineer by profession and a Senior
Researcher at the CSIR. He further stated that he received
extensive
training in Accident Reconstruction.
[62]
He attended to
a site inspection of the accident scene on 4 October 2022 in the
presence of both parties’ legal representatives.
In his
findings, he analysed a photo taken of what was reportedly a pothole
that caused the accident and compared it with what
he found on the
road during his inspection of the accident scene.
[63]
In his
analysis of the photograph said to be depicting the pothole that
caused the accident (i.e. photograph 5 in his report), he
described
the said photo as depicting a
shallow
surface failure because
it
was not deep and estimated it to have been between 14 and 15
millimetres. In his opinion, the shallow patch such as the one
depicted on photograph 5 did not qualify as one that could have
caused an accident.
[64]
He considered
that the plaintiff drove in a clear day with a speed limit of 80
kilometres per hour and thus he could have reduced
his speed by
applying the brakes. This, he found, could have reduced the
plaintiff’s speed from 80 to 40 kilometres per hour
within a
distance of 23 meters. In a distance of 6 to 7 meters, he held the
view that the plaintiff could have reduced his speed
to about 20
kilometres per hour.
[65]
Opperman
further testified that, to reduce his speed from 60 kilometres per
hour to 30 kilometres per hour, the plaintiff only needed
13 to 14
meters to reduce the speed
to
15
kilometres per hour.
[66]
He also
testified that it was virtually impossible for the motorcycle to get
stuck in such a shallow surface failure because same
was not deep
enough. That would have made it impossible for a motorcycle to stop
as the momentum of it would keep it moving. He
explained that if the
pothole was deep, it would have damaged the wheel but even so, the
motorcycle would not stop but kept on
moving. In his view, the laws
of physics would have been defied if a shallow surface such as the
one depicted on the photograph
succeeded in stopping a moving
motorcycle.
[67]
In summation,
Opperman’s evidence was that there were no potholes on R716
Road from what is depicted on the plaintiff’s
sketch but a
shallow road surface failure. His further view was that
the
plaintiff had ample opportunity to navigate himself through such
surface failure(s) on the road in order to avoid the accident
from
happening.
Nakedi’s
evidence
[68]
She testified
that she started her employment with the Department of Roads and
Transport (“Department”) in 2007 in the
capacity of a
‘Foreman’ until 2018 when she became appointed as a Road
Superintendent.
[69]
During her reign as a Foreman, she
was responsible for inspection, planning and supervision. Her duties
entailed among others, inspections
of the roads and planning on how
to address what was found to be hazardous during their inspections.
[70]
According to
her, the R716 Road was properly maintained and referred to the
maintenance sheets showing that there were permanent
repairs done on
the said road in October 2015. These records further reflected that
there was permanent fixing of potholes using
road-mix comprising of
cold asphalt and emulsion during the said period. They also reflected
regular inspections and that planning
of maintenance was done once in
every two weeks.
[71]
She explained
that there were some temporary repairs done in November 2015 on the
road using modified gravel as a safety precaution.
During December
2015, they attended to permanent fixing of the road involving big and
small potholes.
[72]
She testified
under cross-examination that the big potholes would normally receive
priority when planning on road maintenance was
done because those
were perceived to be dangerous. They deemed smaller potholes not to
be dangerous and such would normally be
attended to about two to
three times a month.
[73]
When asked
about the effects of what she deemed small and non-dangerous potholes
on the motorcycles, she explained that the small
potholes posed no
danger because the cyclists ordinarily rode on the side of the road
as opposed to the middle of the road where
potholes were mainly
prevalent. She further explained that if what was deemed to be small
potholes were found adjacent to the big
ones, such would also be
repaired together with the big ones.
Swanepoel’s
evidence
[74]
He testified
that he is a Civil Engineer with over 30 years of experience. He
works as a Contract Engineer for SNA Civil & Developmental
Engineers (Pty) Ltd and previously worked for the Department of
Public Works in Pretoria.
[75]
He
considered for the purpose of a factual background to the case: the
SAPS Accident Report; plaintiff’s affidavit; colour
photos
submitted by the plaintiff; the video recording taken of the accident
scene during the parties’ site visit; plaintiffs
particulars of
claim; District Investigation Report by Regional Engineer for Fezile
Dabi Region; Daily Worksheets for the road
in question and a complete
set of indexed notices by the plaintiff.
[16]
[76]
In his view,
the road was in good condition to travel at 80 kilometres per hour by
Harley Davidson Motorbike. There were road signs
indicating the speed
limit and some triangle signs indicating potential danger on both
directions of the road.
[77]
He questioned
the reliability of the Police Accident Report based on the fact that
such was compiled two and a half months after
the accident had
occurred. This was more so, given the fact that the person who
compiled the said report did not take trouble of
visiting the
accident scene.
[78]
He testified
that there were surface failures on the centre of the road by looking
at the photographs but those were not potholes.
He explained that the
surface failures are normally found at the centre of the road caused
by either ‘
cold
joint
’
or ‘
dry
joint
’.
According to him, this happens when the seal on the road does not
perform the way it was expected and thus resulting in
a surface
failure.
[79]
He further
stated it was difficult to determine the date and time of the surface
failures depicted on the said photographs. However,
in considering
the depths of the said failures as appeared on the photographs, it
could not have been long before the alleged accident
had occurred.
[80]
He testified
that in order to avoid water retention from occurring in the middle
of the road, the measures put in place included
the road being sealed
every ten years. In this case, he found the thickness of the road in
question to be around 30 millimetres,
which in his view, was safe to
drive through at a speed of 80 kilometres per hour.
[81]
He further
testified that the maintenance worksheets showed that the defendant
did what it could to keep the road in good condition.
In his opinion,
the defendant diligently maintained the road or otherwise there would
not have been any road left given the fact
that the road was
constructed some years ago.
[82]
He referred to
the ‘skid-marks’ that were visible on the left side of
the surface failure depicted attached as photographs
6 and 8 to his
report. In his opinion
, those
appeared to be
typical of a lock of a motorbike wheel involving serious sudden
brake. This in his view, pointed to an incident involving
people
riding too close to each other.
[83]
It was further
his opinion that the rider of a motorcycle that was responsible for
the skid marks must have lost control of it and
got involved in the
accident. He explained that it was dangerous for the bikers to ride
too close to each other because that resulted
in the height bike
distance getting reduced.
[84]
He testified
that it was likely that the plaintiff fell due to the bikers cycling
close to each other in a staggered formation because
such would limit
one’s ability to manoeuvre and increased the risk of accidents.
In his view, the plaintiff was either riding
at a high speed or lost
concentration
on the road or
otherwise he would have foreseen a pothole.
[85]
He
was referred to paragraph 5.22 of his report wherein he opined that
the fact that there was a passenger riding with the plaintiff
at the
time of the accident made the motorcycle to be unstable and more
difficult to control. According to him, this was due to
the fact that
the ‘centre of gravity’ of the motorcycle changes and
becomes higher from the ground under those circumstances.
This,
according to Swanepoel, would have a negative effect on the balancing
and handling of the motorcycle as the ‘centre
of gravity’
becomes even higher.
[17]
[86]
Although
Swanepoel attempted to give testimony on his understanding of the
Harley Davison Motorbike’s behaviour by looking
at the
photographs provided, he admitted under cross-examination that the
nature of his evidence in that respect was not of an
expert witness.
[87]
As already
indicated above, the plaintiff elected not to call any expert
witnesses to rebut the defendant’s expert evidence.
EVALUATION
OF MERITS
[88]
The plaintiff
bears the onus to prove the defendant’s liability on the basis
of the alleged breach of duty of care towards
him.
[89]
This matter is
centred around the issue as to whether the plaintiff suffered any
damages as a result of the conditions of the R716
Road on the day of
the accident. The Court is therefore called to evaluate as to
whether, on the basis of the evidence placed before
it by the
parties, the plaintiff succeeded in discharging the onus that rested
on him to prove his case on a balance of probabilities.
[90]
The plaintiff
took the trouble of testifying about the fact that the accident was
caused by the potholes on R716 Road. His only
source of evidence in
support of this allegation were the photographs allegedly taken of
the scene by someone he did not call to
come and confirm issues such
as the distance and/or angles from which the photos were taken among
other things.
[91]
The defendant
in turn procured independence evidence of expert witnesses, both of
whom found in their assessment of the facts that
there were no
potholes on the road in question. The plaintiff elected not to call
any expert(s) in rebuttal thereof.
[92]
I
am mindful of the fact that the Court should be cautious not to
accept the evidence of expert witnesses willy-nilly.
[18]
However,
one should take cognisance of the fact that expert witnesses
serve
a very useful purpose to the court by reason of their special
knowledge and skills; they are better qualified to draw
inferences
than the trier of fact. There are some subjects upon which the court
is usually quite incapable of forming an opinion
unassisted, and
others upon which it could come to some sort of independent
conclusion, but the help of an expert would be useful.
[19]
[93]
In the
circumstances of this matter, I find the evidence tendered by the two
experts to have been quite helpful to the Court in
many respects.
This is more so, considering the fact that the plaintiff only
reported the accident to the police more than two
months after it had
happened. Moreover, there was also no evidence of an
independent witness to the accident presented before
the Court for
evaluation.
[94]
The plaintiff
submitted that the evidence presented by the defendant did not
support the version that R716 Road was in a suitable
condition and
thus safe to use on the day of the accident. I do not seem to agree
with the plaintiff in this regard simply because
he failed to adduce
any evidence in rebuttal of Nakedi’s evidence about the regular
maintenance that were conducted on the
road. The fact that some of
the repairs happened a few days after the accident had occurred do
not convince me otherwise as the
plaintiff would like this Court to
find.
[95]
What also
remained undisturbed was the conclusion drawn by the two experts to
the effect that the road had mere surface failures
and not potholes
that could have caused the accident as the plaintiff claims.
[96]
Another
difficulty that confronted the plaintiff was Van der Walt’s
evidence that pointed to the record showing the plaintiff’s
injuries resulted from a collision between the motorbikes. This
evidence is consistent with the two experts witnesses who found
that
it was highly probable that the plaintiff’s accident resulted
from collision between the motorcycles when regard is
to the manner
of riding the bikers adopted (i.e. staggered formation). This
evidence was not subjected to rebuttal too.
[97]
As already
pointed out above, the plaintiff has done little to assist this Court
in understanding his case by placing different
versions about the
circumstances under which the accident occurred. More so, his second
witness, van der Merwe, admitted during
his testimony that he did not
even witness how the accident occurred.
[98]
As explained
by the Supreme Court of Appeal in
Stellenbosch
Farmers' Winery Group Ltd & another v Martell
I
& Cie SA &
others
(
427/01)
[2002] ZASCA 98
:
[5]
“
To come to a conclusion on the disputed issues a court must
make findings on (a) the credibility of the various factual
witnesses;
(b) their reliability; and (c) the
probabilities. As to (a), the court's finding on the credibility of a
particular witness
will depend on its impression about the veracity
of the witness. That in turn will depend on a variety of subsidiary
factors, not
necessarily in order of importance, such as (i) the
witness's candour and demeanour in the witnessbox, (ii) his bias,
latent and
blatant, (iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his
behalf,
or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability of
particular
aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other witnesses testifying about
the
same incident or events. As to (b), a witness's reliability will
depend, apart from the factors mentioned under (a)(ii), (iv) and
(v)
above, on (i) the opportunities he had to experience or observe the
event in question and (ii) the quality, integrity and independence
of
his recall thereof. As to (c), this necessitates an analysis and
evaluation of the probability or improbability of each party's
version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened with the onus of proof has
succeeded in discharging it…”
[99]
Accordingly, I
find that the plaintiff failed to discharge the onus that rested on
him to prove on a balance of probabilities that
the defendant failed
to exercise reasonable care to ensure that R716 Road off Ascott Road,
Viljoensdrift, was maintained and kept
in a safe condition for road
users.
COSTS
[100]
The general
rule is that the costs should follow the result, being the successful
litigant. I find no reason to deviate from this
general rule in the
circumstances of this matter.
ORDER
[101]
In the result,
I make the following order:
[102]
The plaintiff’s claim is
dismissed with costs.
M.R.
RANTHO, AJ
APPEARANCES:
On
behalf of plaintiff:
Adv
I. Sanders
Instructed
by:
A
Wolmarans Inc
On
behalf of defendant:
Adv
P. Mashihleho
Instructed
by:
State
Attorney Bloemfontein
[1]
Index:
Bundle
1, pp 12 – 13.
[2]
Index:
Bundle 1 at p 46
.
[3]
Index:
Bundle 1, pp 47 – 49.
[4]
Index:
Bundle 1, p 50.
[5]
Plaintiff’s
Heads of Argument
at
para 29.
[6]
At
55-D and 56-A.
[7]
Defendant’s
Heads of Argument at paras 3 and 6.
[8]
Kruger
v Coetzee 1966 (2) SA (A) at 430 E-F.
[9]
Index:
Bundle
1, p 12.
[10]
Index:
Bundle
6, p 6.
[11]
Index:
Bundle
6, p 2: (Re-typed Version).
[12]
Index:
Bundle
3, p 31.
[13]
Index:
Bundle
2, p 18.
[14]
Index:
Bundle 2 pg. 18.
[15]
Index:
Bundle
5, p 72.
[16]
Index:
Bundle
6, p 46.
[17]
Index:
Bundle
6, p 58.
[18]
Twine
and Another v Naidoo and Another
[2018] 1 All SA 297
(GJ) at para
18.
[19]
PriceWaterhouseCoopers
Inc and Others v National Potato
;
Co-operative
Ltd and Another
[2015] 2 All SA 403
(SCA) at para 97
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
1976
(3) SA 352
(A)
at 370G-H;
.