IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case Number: 1334/2017
In the matter between:
MASENGEMI PUSELETSO Plaintiff
and
MEC FOR POLICE, ROADS AND TRANSPORT Defendant
HEARD ON: 27-28 February 2024, 15-17 July 2024
CORAM : JORDAAN, AJ
DELIVERED ON: 27 March 2025
INTRODUCTION
[1] This is a merit trial , as certified in a pre- trial by Naidoo J held on the 03rd of
April 2023, in respect of a delictual claim for damages instituted by the
Plaintiff, Mrs Puseletso Masengemi, against the MEC of Police, Roads and
Transport, the Defendant, arising from injuries sustained in a collision which
occurred on the 29th of March 2014 on the R34 between Vrede and Memel ,
when the Plaintiff as the driver of a motor vehicle with registration numbers and letters, BH00HP GP collided into potholes on the road. (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. NO
2
THE PLEADINGS
[2] The Plaintiff alleges in her summons that the Defendant had a duty of care to
ensure that there were adequate warning signs on the R34 road between
Vrede and Memel to warn the Plaintiff and other road users of the dangers in the road and particularly of the potholes on the road.
1
[3] The Plaintiff further alleges that the Defendant wrongfully and negligently breached his duty of care and that as a result of that breach, the motor vehicle
collision occurred resulting in the injuries sustained by the Plaintiff.
2
[4] The particular basis that the Plaintiff alleges the Defendant and/or it
employees, acting in the course and scope of their duty with the Defendant were negligent, are the following: 4.1 The Defendant failed to ensure that there were adequate warning signs
on the R34 between Vrede and Memel, to warn road users, and more
particularly the Plaintiff of the dangers o n the road and more
particularly,
of the existence of potholes o n the said road;
4.2 The Defendant failed and/or neglected to properly maintain the R34
b etween Vrede and Memel;
4.3 The Defendant failed and/or neglected to take reasonable steps to
avoi d accidents on the said road in circumstances where it could and
should have done so, in the exer cise of reasonable care.
3
[5] The Defendant, in its plea, admitted that it was responsible for the planning,
design, construction, operation, control , rehabilitation and maintenance of the
provincial roads infrastructure.4 The Defendant also admitted that the R34
road between Vrede and Memel was a provincial road.5
1 Paginated Bundle 1: Particulars of Claim page 9 paragraph 5
2 Paginated Bundle 1: Particulars of Claim page s 9-10 paragraph s 6, 7 and 8
3 Paginated Bundle 1: Particulars of Claim page 9 paragraph 6
4 Paginated Bundle 1: P lea page 21 paragraph 4.1 and 5.2
5 Paginated Bundle 1: P lea page 21 paragraph 5.1
3
[6] The Defendant pleads that at all material times it reasonably, competently and
adequately discharged its responsibility for the planning, design, construction,
operation, control, rehabilitation and maintenance of the provincial road s
infrastructure.6
[7] The Defendant, i n response to the Plaintiff’s allegation that the Defendant at
all material times had a duty of care to ensure that there were adequate warning signs on the R34 between Vrede and Memel , to warn road users, and
in particular also the Plaintiff of the dangers in the road and more particular of
the potholes in the said road, to maintain the said R34 between Vrede and
Memel and to take reasonable steps to avoid accident on the said road, admitted the allegation.
7 The Defendant pleaded that it duly discharged this
duty and further pleaded that there were adequate warning signs of the
dangers in the road, more particularly that the defendant displayed signs warning motorists of the potholes in the road.
8 The Defendant further pleaded
that it duly discharged its responsibility in respect of the planning, design,
construction, operation, control, rehabilitation and maintenance of the provincial roads infrastructure.
9
[8] The Defendant denied that it breached its duty of care as alleged and pleaded
that:
8.1 it took all reasonable steps to maintain the road;
8.2 adequately want motorists using the road to be warned of the dangers
of potholes on the road; and
8.3. c autioned motorists using the road to limit the speed at which they
travelled on the road to 60 kilometer s per hour.
[9] While the Defendant admitted that the Plaintiff was involved in an incident and
the occurrence of the incident on the 29
th of March 2014, it denied that the
incident occurred in the manner pleaded by the P laintiff .10 It pleaded a general
denial that it breached its duty of care and pleaded that the Plaintiff was the
6 Paginated Bundle 1: Plea page 21 paragraph 4.2
7 Paginated Bundle 1: Plea page 22 paragraph 7.1
8 Paginated Bundle 1: Plea page 22 paragraph 7.2
9 Paginated Bundle 1: Plea page 22 paragraph 8.1
10 Paginated Bundle: Plea pages 23 paragraphs 10.1- 10.3
4
sole cause of of the incident, in that the plaintiff was negligent in one or more
of the following respects:
9.1 she drove at an excessive speed in the circumstances;
9.2 she failed to heed the signs warning of the presence of potholes;
9.3 she failed to keep a proper lookout ; and
9.4 she failed to avoid the incident when by the exercise of reasonable
skill
and care she could and should have done so.11
EVIDENCE FOR THE PLAINTIFF
[10] The Plaintiff testified that on the 29th of March 2014 her husband drove herself
and their two daughters from Van der Bijl Park in Gauteng to Newcastle to
visit family. While enroute, her husband stopped the vehicle for her, the
Plaintiff to drive while he and their two daughters remained as passengers in the vehicle.
[11] It was the Plaintiff’s testimony further that as she was driving on the R34 Vrede to Memel, her husband alerted her that there were potholes on the road
and she should thus drive carefully . Her evidence was that her visibility was
clear.
[12] The Plaintiff testified that as she travelled uphill with a curve in the road she
found potholes on the road- surface which she was able to navigate. It was her
testimony that she travelled at a speed of 60 kilometres per hour though there were no road signs indicating the speed limit and no signs indicating the presence of potholes.
[13] The Plaintiff ’s evidence proceeded that she successfully negotiated the
potholes, coming out of the curve, the road then declined. As she travelled
downhill she noticed a pothole, slowed the vehicle down further and
successfully negotiated around the pothole with the front wheels of the
vehicle, however the vehicle’s left rear wheel hit a pothole. It was her
testimony that because there were many potholes she cannot definitively say
11 Paginated Bundle: Plea pages 23- 24 paragraphs 10.3.1- 10.3.4
5
whether the left rear wheel of the car hit the same pothole that she averted
with the front wheels of the car or another pothole. This propelled her vehicle
to veer to the right lane, but she controlled the vehicle back into the left lane.
[14] It was her testimony further that on return to the left lane the motor vehicle
immediately hit a second pothole with the right front wheel. The steering
wheel sp un uncontrollabl e, she lost control of the vehicle and the vehicle
moved to the right side of the road and from the road onto the gravel
downwards until it landed with its front in a ditch and the rear of the vehicle
facing upwards towards the sky. She testified that they were transported to
hospital by an ambulance.
[15] During cross -examination the Plaintiff testified that she obtained her drivers ’
licens e in 2013. They travelled the road during December 2013 when they
visited family, but her husband drove the vehicle. He was familiar with th e
road conditions. She testified that it was the first time that she drove on th e
road and was not familiar with the road conditions.
[16] The Plaintiff refuted the presence of any road signs indicating the presence of
potholes or any warning and refuted the presence of any speed limit
signs.The Defense confronted the Plaintiff that their expert witness will testify
that from the point of the accident , if there were any potholes , it would have
been visible to a driver who would have been able to stop prior to hitting the
pothole to which the Plaintiff replied that she saw the pothole, reduced her
speed and successfully m anourvered around the potholes with the car’s front
wheels, but because there were so many potholes , the car’s rear wheel hit a
pothole, whether it was the same or a different pothole she could not say.
[17] The Plaintiff during cross -examination testified that the vehicle came to a
standstill five minutes after the second pothole was hit. During re- examination
she replied that she could be wrong about the estimated time.
[18] Mr. Ernest Masengemi, the Plaintiff’s husband, testified confirming her evidence that she drove on the R34 Vrede to Memel road. He forewarned her
6
to drive carefully as it was treacherous road due to the potholes. He testified
that the collision with a pothole occurred in the curve of the road. The Plaintiff
managed to control the motor vehicle back into the lane, when the second
impact with a pothole occurred and the steering wheel spun out of control.
[19] It was his testimony that the vehicle came to a standstill in open water
drainage pipes in the field, approximately 50 to 80 meters from the point of
impact. He testified the Plaintiff as the driver , can say at what speed she
drove the vehicle. H e can only estimate 60 to 80 kilometers per hour.
[20] During cross -xamination, he testified that his wife saw the first pothole and
manoevered around the approximately one meter in sized pothole. He
testified that he is from Newcastle, that he is familiar with the road conditions
and could forewarn his wife of the road conditions. It was his testimony that
between December , when he drove on the road and March 2014 when the
Plaintiff drove on the road, that the road had further deteriorated.
[21] It was his evidence that he usually dr ove them to Newcastle and could
therefore not say whether the Plaintiff drove on the road previously . It was
further his evidence that when he visited the scene of the accident during July
2014 he took photographs of the road which was significantly repaired.
[22] He denied that the second pothole was visible. It was his testimony that he did
not caution his wife not to exceed the speed limit, but rather informed her t o
drive carefully due to the road conditions.
[23] Constable Richard Nhlaphu testified that he attended the scene of the
accident in March 2014 and found that the vehicle had left the road. He testified that he is a police officer in that area and that the road condition was
poor. He was not sure of the speed limit, but testified that he thinks that there
is a speed limit sign of 120kilometers per hour at the T- junction. It was his
testimony that he did not recall seeing any signs warning the public about the
presence of potholes.
7
[24] During cross -examination he testified that he regularly attended accident
scenes on that road. H e works four day shifts and t his accident occurred on
the second day of his shift . He testified that he attended to another accident
on the 4th day of his shift on the same road. It was his evidence further that he
avoided collisions during his patrols because he drives 40 to 60 kilometers per
hour and he drives a 4 x 4 sports utility vehicle . When pushed it is because he
drove diligently, he asserted it was because he drove a 4 x 4 sports utitlity
vehicle.
[25] He further testified that he drew the sketch- plan of the accident, but did not
measure the size of the potholes as LCRC do measurements. It was his testimony that there were potholes on both sides of the road. It was put to him that the Defendant’s witness w ould testify that the potholes are visible, to
which he answered that he will not dispute his evidence as it would be his
version.
EVIDENCE FOR THE DEFENDANT
[26] Mr. Barry Grobbelaar testified that he has obtained M echanical Engineering
degree from the University of Pretoria in 1993. He visits accident scenes, consult witnesses, drafts reports and testifies thereon in court. He drafted a report in the instant case and testified in accordance with his report.
[27] It was his testimony that he received instructions in this case in approximately 2018 or 2019 and visited the scene in June 2019 with Constable Nhlapho and
the State Attorney and took photographs of the scene. The road surface was smooth then, five years after the collision, and the actual collision point was not known. Thus in 2019, it was a repaired road surface. In 2024 he was asked to draft a report, which he did.
[28] He testified that the road is a slight uphill and a gentle curve downwards. He
testified that he had no witness statements about the accident , did not have
the benefit of inspecting the damaged motor vehicle and Constable Nhlapho
could not explain the dotted line on the AR report. He thus could not say
whether the Plaintiff did or did not hit a pothole.
8
[29] He further testified without a photograph of the potholes showing its size, shape and depth, he cannot give an opinion how the potholes effected the collision . He could also not calculate the speed the vehicle was traveling when
approaching the pothole due to insufficient information and no photographs of the vehicle.
[30] The witness testified that it is possible that the Plaintiff travelled between 60 to
80 kilometers per hour and ended in an embankment 50 to 80 meters away as without evidence of the speed at which the vehicle collided wth the embankment, whether the vehicle was traveleling sideways or slightly
sideways, he cannot give an opinion at what speed the vehicle was traveling.
[31] It was his testimony that had there been no potholes, it is improbable that an
accident would have occurred.
[32] During cross -examination the witness conceded that even if there is a 100
meter visibility , it does not mean that potholes and other debris on the road
are visible and furthermore, the 100 meters is an estimation it was not
measured.
COMMON CAUSE FACTORS
[33] At the conclusion of the case the Defendant submitted the following as
common cause between the Parties:12
33.1 that the plaintiff was involved in a motor vehicle accident on the 29th
of
Marc h 2014 on the R 34 road between Vrede and M emel ;
33.2 that the plaintiff was driving a white Renault Megane;
33.3 that the Plaintiff was driving at a speed of 60 to 80 kilometers per
hour;
33.4 that when the Plaintiff saw the first pothole she slowed down and was
able to reduce her speed from traveling 60 to 80 kilometers per hour;
33.5 that the left rear tyre of the vehicle which was driven by the Plaintiff
12 Defendant’s Heads of Argument page 2 -3 paragraph 3
9
collided with a pothole; and
33. 6 that the Plaintiff sustained injuries on the day of the accident.
ISSUES FOR DETERMINATION
[34] The Court is required to determine:
34 .1 the manner in which the accident occurred; and
34 .2. w hether the defendant is liable for damages allegedly suffered by the
P laintiff as a result of the accident that occurred on the 29th of March
2014.
ONUS OF PROOF
[35] The Plaintiff bears the onus to proof on a balance of probabilities that the
Defendant negligently breached its duty of care, as the D efendant admitted
that it owes a duty of care to members of the public using provincial roads , to
reasonably monitor , inspect and maintain the R34 road, to ensure that
members of the public, road users and specifically the Plaintiff be warned of
the dangers in the road and more particularly of the potholes in the said road.
[36] The Defendant having pleaded that the occurrence of the incident was caused
by the sole negligence of the Plaintiff, bears the onus to proof that the P laintiff :
36.1 drove at an excessive speed in the circumstances;
36.2 that she failed to head the signs warning of the presence of potholes;
36.3 she failed to keep her proper look out; and
36.4 she failed to avoid the incident when by the exercise of reasonable
skill
and care she could and should have done so.
THE LAW
[37] It is trite that a Plaintiff must establish the five elements of delict, on a balance
of probabilities, to hold a defendant liable for delictual damages and if a Plaintiff fails to establish one of these elements, the claim cannot succeed.
13
13 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
10
[38] The five elements to be proven by a Plaintiff in a delictual claim were restated
in MTO Forestry (Pty) Ltd v Swart NO14 as: (1) the conduct (either act
or omission ); (2) wrongfulness; (3) fault (typically negligence); (4) causation;
and (5) that harm was suffered. Without the convergence of all these
elements delictual liability will not ensue.
[39] It is appropriate to have a short exposition of these elements which I embark
on, fortified by authority. In Steenberg v De Kaap Timber Pty Ltd
15 it was
stated that c onduct can take the form of a commission, where the defendant
actively did something like starting a fire or an omission, e.g. the failure to do
something like the failure to exercise proper control over a fire. In Minister of
Forestry v Quathlamba ( Pty) Ltd16 it was held that an omission can also be
committed where the defendant was under a legal duty, by virtue of its ownership or control of the property to take preventative action but failed to do so. A negligent omission , is only wrongful if it occurs in circumstances that the
law regards as sufficient to give rise to a legal duty to avoid negligently
causing harm .
17
[40] The issue of wrongfulness was considered in Kruger v MEC18, which
concluded that when a court considers the issue of wrongfulness, the
question is always whether the defendant ought reasonably and practically to have prevented harm to the plaintiff. It emphasised that in every case a court
must consider and balance inter alia the following factors: the foreseeability
and possible extent of harm; the degree of risk that the harm will materialise; constitutional obligations; the breach of a statutory duty; the interests of the defendant and the community; who has control over the situation; the availability of practical preventative measures and their prospects of success; whether the cost of preventing the harm is reasonably proportional to the harm; and whether or not there are other practical and effective remedies available.
14 2017 (5) SA 76 (SCA)
15 1992 (2) SA 169 (A)
16 1973 (3) SA 69 (A)
17 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
18 [2015] ZAWCHC 158
11
[41] The negligence element of delictual liability was in the case of Butise v City of
Johannesburg and Others19 held to normally resolves itself by embarking on a
threefold enquiry. Firstly is whether the harm was reasonably foreseeable,
secondly is whether the diligens paterfamilias would have taken reasonable
steps to guard against such occurrence, and thirdly is whether the diligens
paterfamilias failed to take those steps. The answer to the second enquiry is
frequently expressed in terms of a legal duty. In the case of Loureiro and Others v Imvula Quality Protection (Pty) Ltd
20 it was stated that in respect of
the element of negligence a plaintiff must also establish that the negligent conduct was such that the law recognises it as wrongful.
[42] The Appellate Division in the matter of International Shipping Co (Pty) Ltd v
Bentley21 set out the position in regard causation in the following terms:
“As has previously been pointed out by this Court, in the law of delict causation
involves two distinct enquiries. The first is a factual one and relates to the question as
to whether the defendant's wrongful act was a cause of the plaintiff's loss. This has
been referred to as 'factual causation'. The enquiry as to factual causation is
generally conducted by applying the so- called 'but -for' test, which is designed to
determine whether a postulated cause can be identified as a causa sine qua non of
the loss in question. In order to apply this test one must make a hypothetical enquiry
as to what probably would have happened but for the wrongful conduct of the
defendant. This enquiry may involve the mental elimination of the wrongful conduct
and the substitution of a hypothetical course of lawful conduct and the posing of the
question as to whether upon such an hypothesis plaintiff's loss would have ensued or
not. If it would in any event have ensued, then the wrongful conduct was not a cause
of the plaintiff's loss; aliter, if it would not so have ensued. If the wrongful act is shown
in this way not to be a causa sine qua non of the loss suffered, then no legal liability
can arise. On the other hand, demonstration that the wrongful act was a causa sine
qua non of the loss does not necessarily result in legal liability. The second enquiry
then arises, viz whether the wrongful act is linked sufficiently closely or directly to the
loss for legal liability to ensue or whether, as it is said, the loss is too remote. This is
basically a juridical problem in the solution of which considerations of policy may play
a part.”
19 2011 (6) SA 196 (GSJ)
20 2014 (3) SA 394 (CC)
21 1990 (1) SA 680 (AD) at 700 to 701
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[43] The Plaintiff must prove harm or damages. In this regard the Plaintiff has to
prove that personal injuries were suffered and this realised into losses in form
of example medical expenses, loss of earning capacity, or general damages
for pain and suffering.
EVALUATION
[44] The Court had the opportunity to observe the four witnesses as they testified
before Court and the Court found that their evidence was delivered chronologically, clearly and without any indication of bias for or against any Party before Court.
[45] All three witnesses for the Plaintiff testified that the road surface was not in a
good condition and was littered with potholes. The Defence witness, Mr. Grobbelaar, testified that he only saw the road surface five years after the collision , by which time the road surface and potholes were repaired. The
Defence in their heads of argument raised that the accident report drafted by
Cst Nhlapho depicts only one pothole contrary to the witnesses’ evidence,
however the author of the accident report was not confronted with this so that
he could answer why he drew only one pothole when his own evidence was that there were many potholes.
[46] The photographs in Bundle 4 and 5 show the degraded road surface with potholes, however the photographs were not taken during the incidence of the accident, these are phographs of February 2010 and July 2015.The photographs of July 2015 depict that the road is being resurfaced and tarred
and part of the road which has not been resurfaced yet, show the state of potholes and degradation. None of the photographs show any road signs
warning of potholes or the dangerous road conditions. This is in accord w ith
the evidence of the Plaintiff’s witnesses. No evidence to the contrary was presented by the Defense, notwithstanding their plea.
13
[47] The evidence of Mrs Masengemi and Mr. Masengemi with regard to the
presence of multiple potholes is corroborated by Constatble Nhlapho who
testified that the R34 is part of the route that he patrols and the road surface is
not good with many potholes and regular accidents, citing that during his four day shift in March 2014 he attended to two accidents on the same road. The
Defence admitted that the Plaintiff drove through a pothole with the car’s left
rear tyre and did not present contrary evidence that the car went through a second pothole.
[48] This Court is thus satified that on the evidence presented, the Plaintiff proved
the presence of potholes on the R34 between Vrede to Memel on the 29
th of
March 2014.
[49] The Defendant in their submitted common cause factors admitted that the
Plaintiff drove through a pothole. This evidence, in conjunction with the
evidence of Mrs Masengemi and Mr. Masengemi’s that the Plaintiff’s vehicle
indeed collided with two potholes in circumstances where the Defendant failed
to present evidence to the contrary , satisfied this Court that the Plaintiff
indeed proved that her vehicle collided with two potholes on the 29th of March
2014.
[50] The three witnesses in the Plaintiff’s case testified that there are no road signs
warning road users and members of the public and the Plaintiff in particular, of the dangers on the road and the presence of potholes. The Court bears in
mind that Cst Nhlapho patrol s that road on a regular basis and is an
independent witness , corroborating the Plaintiff and Mr. Masengemi in this
regard. The Defence witness presented no evidence of the presence of r oad
warning signs . This Court is thus satisfied that the Plaintiff proved the
absence of any road signs warning road users of the presence of potholes or
dangerous road conditions on the R34 between Vrede and Memel.
[51] The evidence of the Plaintiff is that she travelled between 60 to 80 kilometres per hour and reduced her speed when she noticed the first pothole and this is
14
admitted as a common cause fact by the Defendant. This Court thus accept s
that the Plaintiff travelled below the speed of 60 to 80 kilometers per hour.
[52] This only witness who testified on the possibility of a speed limit sign next to
the road is Cst Nhlapho who testif ied that the speed limit sign is close to the
T-junction of the R34 road, but he was not sure. It was his evidence further
that the speed limit indicated is either 100 or 120 kilometers per hour , he is
not sure. Except for the Defendant’s allegation, no evidence of the presence of a speed limit sign was presented. T he Court thus accept s the Plaintiff’s
evidence that there is no speed limit signs on the R34 between Vrede and
Memel that the Plaintiff drove on.
[53] The uncontroverted evidence of the Plaintiff is that she did not travel at an excessive speed and the Defendant presented no evidence to the contrary. Mr. Grobbelaar could not give an opinion on the speed at which the Plaintiff drove the vehicle and hit the potholes or embankment, due to l a ack of
material and evidence provided to him . The Defendant also admitted that at
the time of the collision the Plaintiff was traveling below 60 to 80 kilometres
per hour.The Defendant thus failed to present any evidence in support of their
allegations and prove that the Plaintiff drove the vehicle at an excessive
speed when she collided with the potholes on the road surface.
[54] The Defendant admitted that at all material times it had a duty of care to
ensure that there were adequate warning signs on the R34 between Vrede
and Memel, to warn road user s, and in particular the P laintiff of the dangers
on the road and more particular of the potholes on the s aid road, to maintain
the R34 road between V rede and Memel and to take reasonable steps to
avoid accident s on the said road. The Defendant pleaded that it duly
discharged its duty to display warning signs of the dangers on the road and
the presence of potholes on the road and further pleaded that it duly
discharged its responsibility in respect of planning, operation, control,
rehabilitation and maintenance of the provincial roads infrastructure. In the
circumstances this Court is satisfied that a legal duty has been established through the Defendant’s admission. In addition, having regard to the evidence
15
Cst Nhlapho of the incidence of road traffic accidents on the R34 and all the
viva voce evidence including Mr. Grobbelaar who testified that absent the
potholes it is improbable that an accident would have occurred, this Court is satisfied that wrongfulness has been acknowledged. The photographs in
Bundle 4 and 5 and the evidence of the three witnesses for the Plaintiff
however provide a visual depiction and oral evidence that belies these
pleadings of the Defendant who presented no evidence to prove the veracity
of their pleadings that they indeed fulfilled their duty i n this regard.
[55] In applying the test for negligence as established in the authorities herein
above, it is clear that a reasonable man in the position of the D efendant would
have foreseen the reasonable possibility that its conduct in failing to properly
maintain and repair the road on which the P laintiff travelled, and in allowing
that road to deteriorate to the condition depicted in the photographs contained in Bundles 4 and 5 of the trial Bundle, would result in a person, being the
Plaintiff in the instant case, being injured and suffering patrimonial loss in
consequence thereof. The reasonable man would have taken the appropriate
steps to guard against the occurrence of an accident, especially one as
serious as that which the P laintiff was involved in. It is patent that the
Defendant and/ or his employees failed to take the necessary steps to prevent
the damage and losses suffered by the Plaintiff , in circstances where the
Defendant had a legal duty to perform by the Defendant’s own admission and
judicial determination, having regard to the criteria of public and legal policy
consistent with constitutional norms . This Court holds the view, that the
accident was caused as a result of the poor condition of the road, which can
be attributed to the negligence of the D efendant in failing to maintain the road
and to ensure the reasonable safety of road users and in particular of the
Plaintiff in the instant case.
[56] This Court is satisfied that the Plaintiff proved their case in regard to the
manner of occurrence of the accident, that the Defendant was negligent and
that was the caus e of the accident. This Court holds the view that the Plaintiff
is entitled to recover 100% of her agreed or proven damages against the Defendant.
16
COSTS
[57] This Court s ees no reason to depart from the general rule that costs follow the
cause, hence the plaintiff is entitled to a cost order in her favour .
ORDER
[58] In the circumstances, the following order is granted:
58.1 The Court orders separation of merits and quantum in terms of Rule
33(4)
of the Uniform Rules of Court;
58.2 The defendant is liable to the plaintiff for 100% of her agreed or
proven damages, arising out of the injuries sustained in the motor
vehicle accident which occurred on the 29th of March 2014 on the R34
road between Vrede and Memel;
58.3 The Defendant is ordered to pay the plaintiffs costs of the action on a
party and party scale , including costs of Counsel on Scale B as well as
reasonable traveling and accommodation costs of the plaintiff and two
witnesses;
58.4 The Plaintiff, Mr. Masengemi and Constable Nhlapo are declared to
have
been necessary witnesses in respect of this trial .
M.T. JORDAAN
ACTING JUDGE OF THE HIGH COURT, BLOEMFONTEIN
Counsel for Plaintiff : Adv. A. Sander
Instructed by A Wolmarans Inc Attorneys
c/o E Horn Attorneys
Email: Sander5005@yahoo.com
Gerda@wolmaransinc.co.za
Counsel for Respondent : Adv S.F. Sibisi
Instructed by State Attorneys
EBester@justice.gov.za
17
Email: Sanele.Sibisi86@gmail.com
sibisi@rsabar.com