IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)


CASE NUMBER : 25026/2011
REPORTABLE

In the matter between

RASHIED ABRAHAMS PLAINTIFF

and

CITY OF CAPE TOWN DEFENDANT


JUDGMENT

Date of hearing: 14 March 2025
Date of judgment: 22 April 2025

BHOOPCHAND AJ:

1. The Plaintiff closes its case. Counsel bows before taking his place. The
Defence arises and utters a firm plea. Dismiss this claim, Milord, with poorly
concealed glee. The Plaintiff has failed to prove anything, if at all, and its case hangs
not on the certainty of the law but on a prayer and a wing. Why torment the
Defendant to further trial when the Plaintiff’s case has missed by a mile? It's
absolution we seek, from the instant case presented so weak. Absolution, you say? It

is hard to order, as a prima facie option , the main course could augment poor
starters frittered away , and the dessert may yet fall to the hapless opponent whose
case is seeming ly in disarray.

2. The Plaintiff claim ed damages from the Defendant arising from a motor
vehicle accident that occurred late at night on 16 July 2010 on the M5 Kromboom
Parkway . The M5 is a major arterial motor way that connects the City to its southern
suburbs. On the fateful night, Plaintiff lost control of his vehicle a fter it encountered
water on the roadway , spun and careered off the road into a tree. The accident
occurred on the stretch of the M5 between the Klipfontein on-ramp and the
Kromboom Road off -ramp. The Plaintiff was left paraplegic from his accident -related
injuries. T he matter proceeded to trial on the issue of liability alone. At the close of
the Plaintiff’s case, the Defendant applied for absolution from the instance.

3. The Plaintiff particularised a multi -pronged attack on Defendant’s alleged
wrongfulness and negligence . Plaintiff alleged that Defendant had to ensure that
water would not pool on the road surface and pose a threat to motorists using it .
Defendant had to ensure that the road was properly drained and that the storm water
drains alongside it had to be properly maintained . The Defendant had to ensure that
any person or entity employed, alternatively contracted to carry out the duties , would
do so speedily, properly and effectively and that the road surface would not endanger
anyone driving on it . Defendant had to ensure the safety of person s driving on the
road and take all reasonable steps to avoid such incidents . The Defendant failed in
each of these respects.

4. The Defendant pleaded that it was at all material times responsible for the
maintenance of the roadway and denied negligence. Defendant provided a plea in
the alternative and thereby sought an apportionment of liability if the Court found it
was negligent in some respec t, and its negligence contributed to Plaintiff’s damages .
The Plaintiff failed to wear his seat belt and was unrestrained when the accident
occurred. He drove recklessly and at an excessive speed, failed to keep a proper
lookout, another vehicle collide d with his car, and participated in illegal drag racing
with another motorist on the roadway. There was no indication that Defendant
intended to persist with its allegation that another vehicle had collided with Plaintiff’s
car or that Plaintiff was drag raci ng.

5. The trial in this matter began on 27 January 2025 . The Plaintiff led the
evidence of three lay and two expert witnesses. Ms Bronwyn Andre a Witbooi
(‘Witbooi’) witnesse d the accident. Mr Manyonga (‘Manyonga’) was the police officer
who attended the accident scene . Mr Mogamat Adiel de Villiers (‘de Villiers’) was an
ambulance assistant who arrived at the scene with his senior colleague to attend to
the Plaintiff , who was trapped in his vehicle. Mr Barry Grob belaar (‘Grobbelaar’)
testified as an accident and reconstruction expert. The final witness called by the
Plaintiff was Dr L D Roodt (‘Roodt’) , a Civil Engineer. Grobbelaar and the
Defendant’s equivalent expert, Mr John Craig (‘Craig’) compiled a joint minute as did
Roodt and the Defendant’s Engineer, Mr J C Krogscheepers (‘Krogscheepers’).

6. The Court has opted to examine the evidence presented at the trial out of
sequence to which it was presented, to provide the necessary context to where and
how the accident occurred. The testimony of Roodt provides the backdrop against
which the case for the Plaintiff is best understood. The land's topography, upon
which this stretch of the M5 traverses , the road design and drainage that ws
required, and the point where the Plaintiff’s vehicle lost control and careered into a
tree alongside the road, all impact upon the conditions that prevailed when the
accident occurred. Defendant sought to prove , in addition to the absenc e of water
on the roadway, that Plaintiff had not established a point whe re he lost control of his
vehicle to enable the Court to extrapolate whether the expert’s opinions about the
flatness of the road and the state of the drainage at that point were relevant to the
cause of the accident.

ROODT

7. Roodt testified that the stretch of the M5 b etween the Klipfontein Road on-
ramp and the Kromboom Road off -ramp first goes downwards and then up again.
The transition area has a flat spot measuring about twelve metres square. A flat
section on the road surface would encourage water to collect in this area . Ponding of
water on the road surface is extremely dangerous for two reasons: it can cause a
vehicle to aquaplane , initiatin g a total loss of traction and steering ability if the front
wheels point in any direction other than straight ahead. When the vehicle moves out
of the ponded area, the sudden availability of friction can lead to a sharp swerve and
subsequent loss of contr ol. The other possibility is that one of the front wheels can
strike the water before the other , causing unbalanced drag and leading to the vehicle
swerving out of control.

8. A road designer should endeavour to avoid the combination of zero
longitudinal gradient and zero crossfall. A pond depth of 15mm is sufficient to cause
hydroplaning , and a lesser depth will suffice if the tyres are worn out. Flat surfaces
on the road accumulate water , which must be drained e fficiently. The flow depth of
the water during a once -in-five-year storm should not exceed 6 mm, and the
minimum crossfall should be 2 degrees1. A once -in-five-year storm is a standard that
express es the risk of something happening.2 It has a one per ce nt chance of
happening. In drainage design, the preferred way is to say that if a certain event can
happen once every hundred years, it is a one -percent chance. So, if there is a one -
in-five-year storm, it means that every year, there is a twenty -per-cent chance of it
happening, i.e., when the 6mm is exceeded.

9. A knowledgeable and experienced road foreman or supervisory engineer who
inspects the road when wet would see water standing there. Roodt referred to a
Google Street View map of the road taken in 2013, which shows that th is stretch of
road remains wet after rain. The road rolls over to the flat area gradually from 30 to
60 metres away. The road is flat over quite a long distance , but manifests as a

1 A crossfall in road design refers to the gentle slope built into a road surface to help water drain
off. If the surface were completely level, rainwater could collect, creating puddles or flooding.
Engineers d esign roads with a slight tilt from the centre to the edges to prevent this . It is
analogous to a dinner plate : if it is perfectly flat, spilt water stays put. But if you tilt it slightly, the
water runs off towards the edge. That's essentially what crossf all does for roads . It directs
rainwater toward the sides so it can flow into drains or ditches, reducing the risk of water
pooling and making roads safer for vehicles.
2 The Court obtained a simplified explanation of a once -in-five-year storm for its own edification.
A "once -in-five-year storm" does not mean it happens exactly every five years —it just means
that, statistically, there's a 20% chance of such a storm occurring in any given year. Think of it
like rolling a dice with five sid es—each year, you roll the dice, and if it lands on a certain
number, that big storm happens. Some years, it might not occur at all; other times, it could
happen multiple years in a row. In the context of road flooding, this kind of storm is intense
enough to overwhelm drainage systems, cause rivers to overflow, and make roads temporarily
impassable. While it’s not the worst storm imaginable, it’s serious enough that cities prepare for
it with flood prevention measures.
problem over the 12-metre square area. A nyone with road design or maintenance
experience would have noticed that this road is flat over a long distance. The vertical
alignment over 132 metres is 0.06 per cent .

10. Roodt testified that t he road surface drainage over this area is inadequate.
The en gineers involved in this case all agree that the road is flat due to the sag
curve3 and the superelevation rollover4. The underlying principle in road safety is that
the road must be reasonably safe for the reasonable road user. The risk of ponding
in this area will take the road user by surprise. It is unexpected as 99.99 per cent of
the roads do not have ponding problems. The road stretch can be resealed with a
coarse overlay of aggregate (stones and bitumen) to mitigate the risks associated
with pondi ng. The Defendant would be responsible for this. The flat area may lead to
slow sheet flow5 when heavy rains occur. The depth of the sheet flow will depend
upon the intensity of the rainfall. The depth of water ponding will depend upon the
depth of sheet flow and its ability to flow off the road.

11. Water should flow off the road and into the stormwater drains and drain away
unless the stormwater d rains are blocked. The water should flow into the channel6,
which takes it to the catchpit and then through pipes to the manhole , and the other
pipes take the water under the road to the canal running on the western part of the

3 In road design, a sag curve is a vertical curve connecting a descending slope to an ascending
slope, forming a U -shape or "sag." It's typically used in areas like valleys or dips in the terrain.
These curves are crucial for ensuring smooth transitions between slopes, maintaining driver
comfort, and meeting safety standards
4 Superelevation in road design is the banking or tilting of a road surface, particularly on curves,
to help vehicles maintain traction and safely navigate turns at higher speeds. Imagine you're
running on a flat tra ck and suddenly need to make a sharp turn —you'd probably slow down to
avoid slipping. But if the track were slightly tilted, it would help you stay balanced while turning.
Roads work in a similar way! Engineers design curves with a gentle slope, raising th e outer
edge of the road higher than the inner edge. This helps counteract the sideways force that
pushes vehicles outward when they go around a bend. Superelevation improves safety by
reducing the risk of skidding or overturning, especially in wet conditi ons. It also enhances
driving comfort by making curves feel smoother and more natural. Tilt amounts depend on
factors like speed limits, vehicle types, and climate conditions.
5 Sheet flow refers to the thin, uniform layer of water that spreads out and moves across a
surface —like a road —without forming distinct channels or streams. Instead of water gathering
into defined rivulets, it spreads evenly, flowing as a shallow sheet. On road surfaces, sheet flow
usually happens after heavy rain when water c an't immediately drain away. The slope of the
road influences how the water moves —if the surface is level, water may linger and create
hazardous conditions, while a slight incline helps it flow toward drainage systems. Engineers
design roads with specific grades and surface textures to manage sheet flow and prevent
excessive pooling, which can lead to hydroplaning.
6 The channel is the concrete furrow or gutter built alongside part of this stretch of road and leads
water to a catchpit , which is a hole fr om where pipes drain the water to the stormwater pipes.
dual carriageway. Roodt bel ieves t he channel does not extend far enough as it stops
before the 12 m square area. Beyond this area in a northerly direction, the water ,
including that over the flat spot , has to flow past the grassed edge and into the
manhole with side inlets. Water wi ll always collect at a flat area until it rises high
enough and then pushes back on the road surface, first in the emergency lane and
then onto the lanes themselves. If the grass at the edge has dense growth, it can
prevent water from clearing the edge rap idly. Vegetation at the edge of the road
impedes the flow at that critical point where the water must run off the road. The
vegetation must also be managed to prevent edge buildup. The channel is there to
reduce the effect of vegetation impeding water flow off the road, but it does not
extend far enough north. The channel should at least extend to the pipes from the
manholes to make the runoff efficient. The combination of the superelevation roll off,
the sag curve, and the drainage is the perfect storm of contributing factors.

12. Roodt contended that the credibility of the accident statistics for this stretch of
road collected by the Defendant is suspect , as they make no reference to the
Plaintif f’s serious accident. He pondered about other small accidents that may have
occurred in this stretch of road. The catchpit has a double grid and it collects water
flowing over quite a distance from south to north, i.e. from the incline of the
Kromboom Road off ramp to the lowest point , which is at the grid. There is an
extensive row of alien trees alongside the channel. They drop leaves in winter, which
block the channel and the grid. If the grid inlet is not cleaned in a timely manner , it
will pack up quit e deep with debris. As the road authority, the Defendant has the duty
to maintain the drainage. They can contract people to do the task , but cannot
delegate responsibility. With over forty years of operating experience , the Defendant
should have known it w as required to maintain the stormwater drainage in the area,
independent of the accident statistics. Over the 45-year period since the road was
built, road inspectors, foremen, and maintenance staff should have driven on and
inspected the road for the dura tion of the rainy season for half of the year . They
should have seen the ponding of the road , as was evident in some of the
photographs included as evidence. Part of their duty is to ensure that ponding does
not happen. The Defendant need not wait for an accident statistic to do work that is
patently logical to do.

13. Roodt suggested that t he De fendant can remove vegetation and open up the
grid inlets to see if there is material that has accumulated in the catchpits. They can
ensure that the pipes in the catchpit are open. The pipes that carry the water are 200
and 250mm wide. The bore of the pip es is at high risk of blockage. Normally , a
stormwater drainage pipe would be 450 mm. Some municipalities and S ANRAL7 use
600mm pipes to enable workers to see through them and crawl inside to clean them ,
as they risk clogging up. Maintenance supervisors must go out , check and arrange
for the drainage system to be cleaned. These drains can be cleaned in various ways,
including high -pressure hosing. The Defendant is responsible for a huge network of
roads , and they must have the experience, knowledge and sk ills to maintain the
roads properly .

14. As for the trees alongside the road, which are just outside the clear zone
advised in the SANRAL manual, the Plaintiff’s expert stated that a road reserve is not
a botanical garden. It is a functional space, not a sp ace to create more hazards. The
expert referred to American studies , which found that accidents that occur away from
solid objects like trees are less severe because drivers can come to a stop or
manoeuvre back to their path of travel. The Americans developed the concept of a
clear zone or recovery area , and part of the research was to determine the area that
would be safe. They cited the figure of six metres. The SANRAL manual mostly
recommends 10 metres , depending on the recommended speed of the road and the
traffic volumes . Drivers can make mistakes , but they should not pay for it with their
lives. The expert advised a stricter approach to removing fixed objects

15. Roodt described a superelevation as the crossfall of a road adapted to the
curves' turning movements . The Defendant sought to pin Roodt down to the road
building and design standards and establish whether there was deviation from these
standards along the stretch of road implicated in the accident. Defendant suggested
to Roodt that his testimony, at least on the length of the channel and the clear area
of the verge, was an abstract ideal. The expert conceded that the latter were within
the acceptable standa rds. He elaborated on the need for plans to operate the road
and a regime of inspections and cleaning out , which i s a management issue

7 South African National Roads Agency Limited
involving the frequency and type of maintenance to be done to prevent the situation
from deteriorating to the extent that it is unsafe. Roodt asserted that t he Defendant
did not have a maintenance manual, hence it did not establish standards. SANRAL
has a generic road manual that has to be adapted to a particular situation. When it
comes to maintenance, there is no specific standard, but a certain engineering logic
and approach that should be in place to deal with maintenance to obviate problems.

16. Roodt elaborated on propositions put to him during cross -examination. He
accepted that there are two types of drainage in this section, namely the channels
and the catchpit and then the manholes with side inlets. The manholes are 40 cm
lower than the road surface , and the side inlets are even lower. The channel is in an
area where the topography or the contours of the land adjacent to the road are
higher than the road surface. The manholes cover the area where the land adjacent
to the road is lower. The expert explained it as an old river course in the topography
that creates a low point. The channel's purpose is to catch the water from the grass
and the road. If it were not for the channel, then the soil in that area , which is higher
than the road surface , would erode. The water flows down the channel through the
grid inlet into the catchpit. It would drain away , save for a blockage. The manholes
drain a sub -catchment area. In that area , a channel is not required. The expert
repeated his opinio n that the channel was stopped too short. It should have
continued up to the flat square on the road surface , i.e., for a further twelve metres.
The vegetation growing in this area that blocks the water from clearing the road edge
is a real problem. Roodt repeated that the channel should have been extended and
piped from an inlet into the pipe system. He accepted that the position regarding the
vegetation at the edge of the road was a matter of evidence. The expert stated that
his opinion was based on engin eering judgment and possibilities. He resisted the
proposition that his opinions were speculative. He accepted that the two types of
drainage were sufficient for the area and conceded that the flat square at the
transition point is not absolutely flat .

17. Roodt was examined on the need for t opographical surveys . He responded
that these surveys identify the lay of the land and are usually done in the design or
pre-construction phase of road building. Without catastrophic events like a road
caving in o r a rebuild, there would be no need for a topographical survey. Nor would
it be necessary, i f there is no record of accidents in the area or complaints from
members of the public or the authorities tasked with maintaining the road and
observing ponding . Roodt was reminded that he had requested accident data from
the Defendant for at least five years before the accident . He testified that he sought
this data to determine whether there was a statistical trend of accidents in this part of
the road. There was no data involving that stretch of the road. Accident data is one
of three ways a problematic road surface would come to the Defendant's attention
and warrant the road authority performing a topographical survey . The second
involves maintenance officials observing an issue ; the third is inform ation from
citizens who call in and lodge complaint s. Absent these three sources of information,
there would be no reason to undertake a topographical survey of a stretch of road
unless a substantial rebuil d is contemplated. Absent these methods, there would be
no way of knowing that the stretch of road is flat.

18. It is standard engineering practice to include a channel with a cut instead of a
fill. A cut is where the road edge is lower than the natural g round. A fill is where the
road edge is not lower than the natural ground. The channel and the grid inlet
provide for stops where the cut stops. The manholes are in a little gully, a historic
watercourse. At some point , one goes from cut to fill. The chann el ends where the
cut ends and the fill begins. Roodt conceded that t he end of the channel and the
start of a different form of drainage on this stretch of road accord with standard
engineering practice. He conceded further that w hen he testified about the shortness
of the channel, it would fall into the category of preferred best practices and not
standard practice. Roodt’s investigation did not extend to drainage or stormwater
analyses . Nor did he consider the issue of cuts and fills , which the Defendant raised .
Nor was there any reference to cuts and fills in the expert reports. The reference to
these concepts arose in the context of the length of the channel.

19. The Defendant enquired whether the expert had conducted a stormwater
analysis to d etermine the thickness of the sheet flow. Roodt testified that he used a
civil design program to check where ponding would occur relative to a certain rain
intensity. Water falling uniformly on a small area of road does not concentrate
immediately. It flow s like a sheet towards the lowest point. It will then begin
pondering or finding a channel through which it can flow . Sheet flow is just a flat
sheet. Depth of flow is something that occurs in a channel (not the roadside
channel), but depth of flow can als o manifest in channel formation . Sheet flow thus
can have an associated flow depth relative to the rain's intensity, the slope, and the
road texture . Ponding means there is no flow; the water has reached a standstill.
Ponding occurs where the water, flowin g in a sheet -like manner , comes to an area
that is now flat and the depth of the ponding will accumulate or increase if there is a
constant flow of water into it. Even in the ponding area, if the height of the water is
high enough and the edge is lower tha n the energy gradient, it will also start flowing
off. The pond is the water residue that has collected but not yet dissipated.

20. Flowing from the propositions relating to the lack of a stormwater analysis to
determine whether the thickness or depth conformed with the standard, and Roodt’s
testimony that sheet flow should not exceed 6 mm, the issue of dynamic aquaplaning
arose. Roodt testified that the ri sk of dynamic aquaplaning is directly proportional to
the depth of the water on the road , and the depth is affected by a wide range of
factors contributed to by the environment, geometric design, drainage design ,
maintenance, and the condition of the vehicle. The expert had assessed just one of
the factors, i.e., the flat area. The expert did not analyse the sheet flow, nor the
accumulation at the low point, at the flat area., or the drainage of the road. He did not
investigate the entire drainage system, whether the pipes were compliant or whether
the system was otherwise compliant. Roodt acc epted that he did no analysis or
calculations . He expressed opinions. He could not comment on the vehicle, the
driver's behaviour or the need to slow down in adverse weather conditions.

21. It was put to the expert that municipalities do not have endless r esources and
that they must act responsibly within their available budgetary resources. Roodt
replied that being proactive means doing routine things that follow patterns, like
trimming vegetation and cleaning drainage systems in the rainy season. All of that is
premised upon optimising resources. The Defendant found no quarrel with the
proposition that routine and reactive maintenance is required. It was put to the expert
that he had no evidence that routine maintenance did not happen, i.e., the verge was
not trimmed, and the pipes were not cleaned. The expert agreed that there was no
such detail, except that the whole case was based on water , witnessed by people
who were on the scene. It was put to the expert that he was not suggesting that
because there was a flat area, the drainage was inadequate. The expert replied that
there is a flat area, and certain drainage elements failed; therefore , the conclusion is
that they were inadequate.

22. Where there are extensive flat areas, water can be positioned. It f ollows that
the drainage is inadequate. It was repeatedly pointed out that the expert had not
actually measured whether his opinions were at odds with the standards. Roodt’s
stock reply was that it was his interpretation of the situation without quantifying. The
expert suggested that the diameter of the pipes was below the standard 400 mm
advised, i.e., 200mm and 250mm. One of the photographs suggested that the
diameter of one of the two pipes was 375mm, double the width suggested by the
expert. Many of the propositions put to Roodt in cross -examination were qualified by
excluding the absence of data collection, maintenance, and inspections.

23. The key features of Roodt’s testimony were that the des ign of th is stretch of
road, necessitated by the land topography , lent itself to water ponding . Drainage was
necessary over the flat surface of the road, which was not confined to the twelve -
metre square area but extended to over 30 to 60 metres northwards of the square.
The vertical alignment of the road over 132 metres was 0.06 per cent.8 There were
two types of drainage in this stretch of road: the channel and catchpit, and the
manhole with side inlets. The channel and catchpit were appropriate for the cuts in
the topography , and the manholes for the ar eas of fills. Water ponding on the road
surface probably arose from blocked drains or overgrowth of edge vegetation.

WITBOOI

8 Vertical alignment in road design refers to how the road changes in elevation along its length ,
going up and down. It's what gives a road its slopes, hills, and dips rather than being
completely flat. Engineers use vertical alignment to ensure the road is smooth, safe, and
comfortable for drivers. It includes gradients or slopes . which are s light inclines or declines that
help vehicles travel ef ficiently. Crests or high points w here the road reaches a peak, like the top
of a hill and sags or low points where the road dips down before rising again. Good vertical
alignment ensures visibility, improves drainage, and makes driving easier by avoiding sudden
steep climbs or drops. Without it, roads would feel much bumpier and could be unsafe,
especially in bad weather. A 0.06% vertical alignment refers to the gradient or slope of a road.
In simple terms, it means that for every 100 meters of road length , the elevation changes by
0.06 meters (or 6 centimet res). Since this percentage is very small, it indicates a very gentle
slope, barely noticeable to drivers. Engineers use such subtle gradients for smooth road
transitions, ensuring efficient drainage without creating steep inclines that could affect vehicle
performance or safety.

24. Ms Bronwyn Andrea Witbooi (‘Witbooi’) was a front-seat passenger in a tow
truck travelling behind Plaintiff’s vehicle on the night the accident occurred. The
driver of the t ow truck vehicle was Mr Richard Thompson (‘Thompson’) , who has
since passed on. They parked at Liesbeek Parkway and left when it began raining
heavily there. The two, headed home on the M5, heading southwards. It was dark
and drizzling slightly . They were a distance behind another whitish vehicle , but close
enough to see it. As they approached the Kromboom turnoff, Witbooi saw “a big
splash of water, a big plane of water ; it was just water” that she saw splashing
everywhere as the car encountered it and spun out of control and hit a tree on the
side of the road. Thompson pulled over to assist. She got out but was instructed to
remain in the vehicle. She testified that the entire left side of the road was filled with
water, right up to and over the middle line of the road. “It was one big dam, you could
say”. Witbooi called the emergency services. Thompson parked his vehicle ahead of
the accident scene. It was drizzling at that point. She got out but returned to the
vehicle on Thompson’s ins truction. Her further observations were from the vantage
of the van.

25. Witbooi visited the scene with Thompson in the same month. She was curious
as to why the accident occurred. She walked around and noticed the drain was full of
leaves and rubbish. She thought the clogged drains may have caused water to build
up on the road and contributed to the accident.

26. Under cross -examination, Witbooi explained why she returned to the accident
scene. The M5 in the accident area was a straight stretch of road. There were no
other vehicles involved. She had travelled the road many times. She had seen water
build up in that stretch but had never seen an accident there. They travelled about
100km/hr on the night of the accident . She estimated the car ahead of them was
doing the same speed, but she was unsure . Her affidavit was based on the
questions she was asked during the interview. She was shown photos of the road ,
but initially denied seeing any with blocked drains. The car ahead of them was
whitish i n col our. She concluded that the accident occurred through water on the
roadway , as she and Thompson experienced a similar situation on the M5 at another
location. They hit a whole lot of water on the road. Thompson lost control of the
vehicle and then crash ed into a pole.

27. On questioning from the Court, Witbooi testified that the car we nt across the
road when it hit the water. The car spun on the slow lane. From the left, it went to the
middle of the road onto the white line and spun its way back. It went halfway across
the road over the two lanes , then over the two lanes, and then it ca me back. When
she returned to the accident scene , she walked around and saw the drains
coincidentally. She did not go there specifically to see the drains. She saw two
manholes in the vicinity of the drain. The shallow drain alongside the road was
blocked.

MANYONGA

28. In his affidavit, Manyonga stated that it was pouring when he arrived , and the
road was wet. He completed the accident report form on 17 July 2010 at 01h20. He
also deposed to an affidavit on 17 July 2010 at 02h30. He parked behind the
ambulan ce. It was raining. It was pouring before the accident in Rondebosch East
and Belgravia. He described the road as a flat , tarred road. The road was full of
water covering both lanes. He and the paramedics struggled to walk in the water,
which extended from the grass into both lanes. Manyonga was invited to illustrate
the extent of the water he saw on a photograph forming part of the exhibits. He drew
a line depicting the extent of the water from just over the channel onto the grass next
to the light pole a nd onto the emergency lane and a fraction of the slow lane. This
photograph (page 155 of the bundle) shows an upright chevron sign about 1.5
metres high on the grass verge and alongside the channel at an angle to the tree
where the car eventually stopped. The photograph seems to have been taken
around about 12 September 2011 if the content of the affidavit covering it is correct.
Although Manyonga did not tick off the block provided for standing water in the
accident form he completed , he testified that there was standing water and the road
was wet. He deferred to the correctne ss of the accident form under cross -
examination.

DE VILLIERS

29. ER24 Ambulance Services e mployed de Villiers as a basic life supporter. He
was on duty the night the accident occurred and atten ded the scene to provide
emergency care to the Plaintiff with his senior partner , Andrew Coutts (‘Coutts’). The
ambulance parked in the emergency lane. As de Villiers got out, he realised he was
standing in water. The water was ankle -deep. He asked Coutts to move the vehicle
forward so they did not have to stand in the water. The water extended to the stipple
line, which split the two lanes to his right. De Villiers testified that the water was as
far as he could see, but hiaas focus was on the patient .

30. Under cross -examination , de Vill iers stated that he had been working at ER 24
for just over three years before attending t he accident. There were initially only two
emergency personnel, but Coutts asked for backup as the Plaintiff was trapped in
the car. Struan Reid, an advanced life supporter employed by another company ,
arrived to assist. The ambulance form noted that the patient was unrestrained. De
Villiers interpreted this to mean that the Plaintiff was not wearing his seat belt. The
form also stated that it was a motor vehicle accident at high speed , and the Plaintiff’s
vehicle was rear-ended . The witness could not remember wh ich of Coutts or Reid
filled out the form. The witness was asked about why he remembered the accident.
He had testified that he remembered the accident because of certain things. The
patient was trapped and unresponsive , and he was unable to assist. It spurred him
on to study further and become a rescue practitioner. An investigator contacted him
one year after the accident . The witness did not cite the water on the road surface as
a reason for remembering this accident. However, the transcript shows that his
testimony in this respect was incomplete.

31. The Defendant tested the independent recall of the three lay witnesses , given
that the accident had occurred fourteen years before their testimon y. They
underwent rigorous cross -examination , which exposed lacunae in their memory of
events and inconsistencies with the documentary evidence. Their evidence relating
to the presence of water on the slow and emergency lanes remained intact. In
particular, Witbooi’s evidence that the Plaintiff’s vehicle spun as it encountered water
on the slow lane and de Villiers ’ testimony that the water extended as far as he could
see were not seriously challenged . The Court is not required to make any credibility
findings at this stage .

GROBBELAAR

32. Mr Grobbelaar testified as an Accident Reconstruction specialist. The speed
limit on th e stretch of the M5 where the accident occurred is 100 km/hr. The damage
to the Plaintiff’s vehicle was on its left rear. The vehicle spun over 180 degrees
before slamming into a tree alongside the road. The presence of wat er on a road
surface is conducive to vehicle a quaplaning . The phenomenon depends upon ,
among others, the speed and weight of the vehicle and the type of thread, width and
pressure of the vehicle's tyres . Aquaplaning seldom occurs at speeds below 80
km/hr . If the water depth on the left-hand side were more than its right, the forces
acting on the vehicle would be unbalanced. The force acting on the left rearwards
would be more than on the right . An unbalanced force would cause an anticlockwise
moment. If the force is large enough, it would cause the vehicle to go into an
anticlockwise spin. There were no roadside signs warning drivers that the road was
slippery when wet.

33. The Plaintiff had approach ed this stretch of road at night. The wetness of its
surface would have swallowed up the headlights. It was unlikely that the driver would
have seen any puddles of water on the road surface in time or at all. The more
water a vehicle splashed up, the more wa ter there was to be displaced and the more
resistance the water would cause to the vehicle. Grobbelaar noted the crossfall of
the road slope d downward s from right to left at a point 35 metres from the tree
against which the car came to a rest. This point c orrespond ed to the grid inlet of the
catchpit situated on the road’s edge. He testified that a vehicle with less weight had a
greater chance of aquaplaning.

34. Grobbelaar then testified about the coefficient of friction and the conclusions
the Defendant’s ex pert reached based upon it s usage to show that the Plaintiff’s
vehicle could not have lost control in the vicinity of the northernmost catchpit on this
stretch of road . The coefficient of friction , in this instance , is the traction between the
tyre and the road surface. If there is a low coefficient of friction, the tyre will slide
more easily . The higher the coefficient of friction, the more grip the vehicle has. For
the Plaintiff’s car to have hit the tree, it would have e ncountered water about fifty
metres away from the inlet grid of the catchpit, about thirty -five metres away from the
tree, i.e., eighty -five metres north of the tree. The vehicle crossed from a tarred
surface covered with water over the concrete channel an d onto the grass. The
Defendant’s expert used a coefficient of friction of 0.5 to calculate where the spin
began. Grobbelaar criticised the approach of using a fixed coefficient of friction as it
did not consider the friction the wheels would have encounte red if they dug into the
grass verge. He referred to the flat area on the roadway. The northern most part of
the flat square is about sixty metres from the tree. There is an indentation on the
right driver’s door , the cause of which the experts disagree d on. The Defendant's
expert was of the view that the indentation occurred as the front door buckled
against the fender , pushing rearwards as it crumbled . Grobbelaar suggested that the
vehicle hit a pole on its way to its final resting position , causing the indentation. The
relevance of this suggestion was that the vehicle’s impact with a pole would have
further affected the coefficient of friction , and that using a constant coefficient of
friction would not be appropriate in the circumstances.

35. Defendant attempted to show under cross -examination of this witness that
Plaintiff had not proven where he lost control of his vehicle , the relevance of which
related to whether the flat square or the drainage of that part of the road was
relevant at all to the accident itself. Grobbelaar conceded , under cross -examination ,
that his theories were contingent upon the evidence tendered . The two theories he
proposed to explain how the accident could have occurred included a straight -line
aquaplaning , or a left -sided deflection, a so -called yaw. The latter would have
occurred if the left side of the vehicle alone encountered a puddle of water.

36. Grobbelaar was asked about perception -reaction , the time between seeing
and responding to a hazard . He testified that it is broken down to half a second to
perceive, half to decide what to do and half to act, an average total of one and a half
seconds. Aquaplaning becomes dangerous when the driver reacts, e.g., by braking
or oversteering . Grobbelaar was quizzed about how lon g it would have taken
Plaintiff’s vehicle to cover the flat area in th is stretch of the road . Grobbelaar
calculated the time by dividing the d istance travelled by the speed. If the Plaintiff was
travelling at 100km/hr , which had to be converted to metres p er second, i.e., 27.7
metres per second , and the flat area is ten metres , the vehicle would have travelled
over the flat area (10 divided by 27.7) in 0.4 seconds. The Defendant sought to
demonstrate that it would take less than the perception reaction time to travel over
the flat area identified by Roodt and Krogscheepers , and that the loss of control did
not necessarily happen at the grid.

37. The Plaintiff’s expert could not estimate where the loss of control occurred. If
the factors identified by the Plaintiff’s expert are incorporated into the coefficient of
friction, e.g., the sideways deviation of the vehicle, the grass verge, the concrete
channel, and a possible impact with a pole, the loss of control could have happened
at the grid. Grobbelaar’s theory, however, was that the loss of control of the vehicle
occurred more northerly of the grid. Too many variables were involved for him to
express an opinion on where the loss of control occurred. He was referred to Ms
Witbooi’s evidence in court, i.e., the car spun into the right-hand lane and then spun
into the left-hand lane across the grass and into the tree. The expert explained Ms
Witbooi’ s version to be that the rear would have appeared to have spun to the right
while the car was going forward and sideways towards the grass verge and the tree.

38. The crossfall to the emergency lane on the area of the road in line with the
tree where the vehicle finally came to a rest , which is south of the flat area, is 1.5 per
cent. The flat area has a crossfall of 0.2% towards both sides and vertically. The
more northerly part of the road cross falls from left to right. It was put to the expert
that wet grass has a coefficient of friction of 0.3, i.e. a lower coefficient of friction than
a tarred surface. If the tyres were digging into the verge, the muddy surface, then it
would change angle much more quickly. If the car hit a pole, like a chevron po le, it
would have had some effect on the trajectory the car followed. The expert repeated
that he raised all of these variables to argue that the Defendant’s expert could not
exclude that the car lost control in the area of the catchpit or in the flat area . His
position was that he could not determine where the car lost control, but neither could
Craig exclude that the car could have lost control in the area of the catchpit.

EVALUATION

39. A Plaintiff has to present a prima facie case comprising evidence relating to all
elements of the claim if it is to e vade an application for absolution , as the absence of
such evidence would constrain a Court from finding for the Plaintiff. A Plaintiff may
rely upon reasonable inferences that can be drawn from the evidence . Absolution at
the end of the Plaintiff’s case is granted sparingly, but if the circumstances dictate
that it should be ordered in the interests of justice, a Court should not waver in its
acquiescence. The test to be applied is not whether the evidence led by the Plaintiff
establishes what would finally be required to be proven, but whether there is
evidence upon which a Court applying its mind reasonably to such evidence can or
may, not, should or ought to find for the Plaintiff. Witness credibility plays a minimal
role in these circumstances , and evidence led , absent exceptional considerations , is
assumed to be true .9 A Court may also consider that a Plaintiff’s case may be
supplemented by evidenc e emerging during the Defendant’s case.10

40. The focus then shifts to the elements of delict that the Plaintiff had to prove ,
namely , conduct as either an act or omission that was wrongful and unlawful ,
committed either negligent ly or intentionally , which caused the harm or loss
complained of , and resulted in actionable harm, loss or damage.11 The Plaintiff’s
case and the evidence presented are premised on negligent omissions . An omission
is wrongful when it evokes moral indignation and the legal convictions of the
community , constitutionally understood, regard it as unacceptable .12

41. The Plaintiff put together a remarkably compelling case even though he could
not contribute due to amnesia for the accident induced by his injuries. Analysis of the
evidence will determine its sufficiency to prove the delictual elements . The Plaintiff
presented expert evidence on the flatness of the road between the Klipfontein on

9 Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G -H, Gordon Lloyd Page &
Associates v Riviera and Another 2001 (1) SA 88 (SCA) [2000] ZASCA 33 at para 2 , Marine &
Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26(A) at 37G -38A, Hartzer v D e Sousa
and Others 2015 JDR 1320 , Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T),
Atlantic Continental Assurance Co of SA v Vermaak 1973 (2) SA 525 (E )
10 Ruto Flour Mills supra at 310 A -B
11 MTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 76 (SCA) at para 12 , Neethling, Potgieter,
Visser, Law of Delict , 6th edition, Lexis Nexis, at pa ge 25
12 Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597A -B, Carmichele v Minister of Safety
and Security (Centre for Applied Legal Studies Intervening) [2001] ZACC 22 ; 2001 (4) SA 938
(CC); 2001 (10) BCLR 995 (CC) , Minister of Safety and Security v Van Duivenboden [2002]
ZASCA 79 ; [2002] 3 All SA 741 (SCA) , Loureiro and Others v Imvula Quality Protection (Pty)
Ltd [2014] ZACC 4 ; 2014 (3) SA 394 (CC); 2014 (5) BCLR 511 (CC) (Loureiro) at para 53
ramp and the Kromboom Road of f ramps in the southward direction. The road
surface enters a decline northward of the Klipfontein Road on-ramp and curves into
a flat stretch with superelevation and sag curves to a relatively flat area of about 12
metres square, the southernmost edge of which was about fifty metres north of the
tree that the Plaintiff’s car eventually abutted against after spinnin g off the road. The
design of the stretch of road is conducive to water pooling on the road surface unless
it is drained effectively.

42. Witbooi witnessed the accident and saw the car splash through a body of
water on the slow lane before it spun. Witbooi, Manyonga, and de Villiers testified
variously to pools, dams, and puddles of water, some ankle deep and about three
centimetres high, on the road surface, the emergency lane, and portions of the grass
verge. The evidence remained sufficiently intact after cross -examination. The Court
accepts that Plaintiff had elicited sufficient evidence of water pooling on the slow lane
in the line of Pl aintiff’s travel when the car spun off the road.

43. The drainage system was designed with the cuts and fills of the adjacent land
layout to drain the water off the road. A crossfall from right to left allows water to
drain to the left edge of the road. A ch annel conveys water from the Kromboom off -
ramp alongside the roadway to catchpits 200m apart. The northernmost of these
catchpits is about twelve metres short of the southernmost edge of the flat square on
the roadway. Further north of this catchpit and ne ar the flat square, excess water
should flow over the road's edge into a manhole with side inlets. The land’s
topography required two types of drainage to facilitate water flow off the road
surface.

44. The Engineers agreed that flat surfaces do creep into r oad design . Even then,
water should flow off the road into the stormwater drains and move away unless they
are blocked. The vegetation or edge growth on the roadside could prevent water
from rapidly flowing off the road into the lower ground and side inlet s of the
manholes . If the inlet to the catchpit is blocked , the water will flow to the lowest point ,
which is approximately 10 metres to its north. They agreed that it was not evident
when the accident occurred if the stormwater inlets' drains were effecti vely
maintained . Trees are growing alongside the road , and they shed their leaves. Water
ponding on the road surface would have been unlikely with the requisite
maintenance.

45. The Defendant accepted responsibility for maintaining the M5. The Plaintiff
could not prove that on the night of the accident, the edge vegetation was overgrown
or that the drains were blocked, but relied upon the court to make that inference.13
Expert evidence suggested that the car aquaplaned on ce it reached the water, but it
was acknowledged that aquaplaning itself would not cause the Plaintiff to lose
control of his vehicle. He had to do something else, like braking or oversteering , to
lose control of his vehicle. From this set of facts, the court must determine whether
the Plaintiff has proved the delictual elements encompassing the wrongful and
negligent omission that caused the accident and established the Defendant’s liability .
This case does not readily lend itself to identifying those elements.

46. The evidence is that a failure of monitoring and maintenance would lead to
blocked drains and overgrowth of edge vegetation. The Defenda nt’s omission s
relevant to this case are its alleged failure to ensure that the channels, c atchpits and
the side inlets of the verge manholes were clear ed and that the edge grass was cut
to allow effective water runoff. The Plaintiff could not prove that the drains were
blocked or that the grass was overgrown on the night of the accident. The Pl aintiff
requires the Court to infer negligence based on general maintenance failures. The
Court has no difficulty making the inference, as t he Defendant could not elicit or
suggest any other reason from the Plaintiff -appointed expert for the water to pond on
the road. The inference is reasonable in the circumstances.

47. The Court must assess whether the Defendant had a legal duty to maintain
the road and whether its failure was wrongful. Municipalities are constitutionally
mandated to m aintain roads and manage stormwater systems .14 The Municipality
cases exemplify the intersection between public and private law. The Defendant has
admitted, and correctly so, that it has a duty to maintain the roadway. Subordinate

13 The Plaintiff relied upon the res ipsa loquitor maxim to fill the gaps in the evidence that is
usually withi n the Defendant’s knowledge. The Plaintiff relied upon Naude v Transvaal Boot &
Shoe Manufacturing Co 1938 AD 379 at 398 -399 and other cases which expound on this
maxim. The Court does not consider it necessary to apply the maxim in this case.
14 Sections 155, 156, and schedules 4 and 5 of the Constitution, Act 108 of 1996
legislation was in place to further refine the ambit of that duty, but neither party relied
upon it. Any failure of the Defendant to maintain the road would thus be unlawful.
The question is whether the failure to monitor and maintain the road created an
unreasonable risk of harm.

48. The Court has to consider and balance a whole set of factors when
considering the element of wrongfulness. The foremost consideration is whether the
Defendant could implement reasonable and practical measures to pr event the harm
that ensued to the Plaintiff. The other considerations include, among others, the
foreseeability15 and possible extent of the harm; the degree of risk that the harm will
materialise; obligations imposed by the Constitution, breach es of statu tory dut ies; 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 .16

49. The Court is cognisant of the impracticality and cost implications of expecting
the Defendant to redesign the road , remove the flat area, and investigate and
improve the drainage system. The evidence has , however, identified the presence of
these defects and inefficiencies , and it is for the Defendant to establish whether they
are practical, reasonable, and cost -effective. This aspect of the case is still open for
the Defendant to present evidence on the adequacy of the drainage system and the
costs of reducing the risk along this stretch of r oad, like , for example , enlarging the
runoff pipes that carry water under the road surface to the canal running on the
western side of the roadway, or of resurfacing the road with an aggregate of bitumen
and coarser stone as the Plaintiff’s expert suggeste d.

50. From a reasonable and practical consideration, Defendant is eminently
capable of attending to the three factors identified by the Plaintiff -appointed
Engineer: trimming vegetation and cleaning drainage systems in the rainy season

15 The issue of whether foreseeability of harm should even factor in an analysis of wr ongfulness
has been raised in cases but the apex Court continues to list it as one of the factors that a
Court should consider under wrongfulness see e.g., Mushongwa supra .
16 Kruger v MEC, Transport & Public Works for the Western Cape and Another (1006 7/2011)
[2015] ZAWCHC 158 (29 October 2015 (Kruger v MEC ) at para 43
and effective monitor ing and maintenance of the road by Defendant’s road engineers
and maintenance personnel.17 These measures are premised upon optimising the
Defendant’s resources, and their costs are reasonably proportional to preventing the
risk of harm. A municipality must present information to the court to enable it to
assess the reasonableness of the steps taken . The Defendant expressed that it
found no quarrel with the proposition that routine and reactive drainage system
maintenance is required.

51. Having identified pr actical and cost -effective measures to avoid danger to
drivers using this stretch of road, the Court finds that the Plaintiff has placed
sufficient evidence before it to determine whether the Defendant’s alleged omissions
were wrongful and unlawful . The Co nstitution and statute obligate the Defendant to
maintain the roadway. Maintenance of the drainage of roadways is part of the
obligation. If there is a drain, a channel, or side inlets to a manhole, they have to be
cleaned. If roadside vegetation overgrows and obstructs the flow of water to
purpose -built manholes, they have to be trimmed. That is common sense. A failure to
do so is wrongful and unlawful , and the Court does not waver in making these
findings . Imposing liability on the Defendant would depend upon whether the Plaintiff
has established the two further elements of a delict : negligence and causation.

52. The negligence enquiry requires an answer to whether the Defendant could
have reasonably foreseen harm befalling Plaintiff due to water po nding on the road
surface from ineffective drainage. If it should have foreseen the harm, then should it
have taken reasonable steps to prevent the harm ?18 The Defendant had to foresee
the possibility that a failure to clean the channels, the catchpits, th e side inlets to the
manhole and the pipes leading to the manhole from the catchpit would cause pooling
of water on the road surface and pooling of water could injure a person in the
position of the Plaintiff and cause him patrimonial loss. The Defendant h ad to take
steps to ensure that the drains were clear and the roadside vegetation trimmed. The
evidence thus far before the Court is that the Defendant did not take reasonable

17 Kruger v MEC supra at para 43
18 Kruger v Coetzee 1966 (2) SA 428 at 430E -F: For the purposes of liability , culpa arises if —
(a) a diligens paterfamilias in the position of the defendant — (i) would foresee the
reasonable possibility of his conduct injuring another in his person or property and causing him
patrimonia l loss; and (ii)would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
steps to guard against the blockage of the drainage system or to ensure that wat er
could flow freely off the road into the side inlets of the manhole.

53. The Defendant cross examined the Plaintiff appointed Engineer on prevalent
patterns exposed by accident data and communications from the public to alert it to
hazards on particular st retches of road. The expert conceded that the accident data
did not record any accident on this stretch of road since 2005. However, he
contested the accuracy of data held by the Defendant that did not even list the
accident the Plaintiff was involved in. The Engineers agreed that the accident data
provided by the Defendant lacked sufficient detail, specifically the exact locations,
the actual causes of the accidents, the environmental conditions at the time of the
accident and its incompleteness.

54. Witbooi ’s evidence that she had seen water pooling on this stretch of the road
on previous occasions was uncontested. The other witnesses testified without
coercion about the flatness of this stretch of road. The Plaintiff -appointed Engineer
spoke of experienced road foremen who would recognise the road design and the
purpose -built drainage systems and ensure that appropriate measures were
implemented to avert the water hazard in winter months. The Defendant had 45
years of experience in administering this roadway . The evidence presented thus far
has triggered an onus on Defendant to explain its monitoring and maintenance
protocols if it intends to deflect the groundswell of negligen ce that Plaintiff has
presented to the Court. The Plaintiff has proven that the Def endant was negligent in
at least these aspects of his grounds of negligence. It is for the Defendant to present
countervailing evidence to displace this finding.

55. The inquiry then moves to the final element of delictual liability. Was the
ponding of water caused by ineffective monitoring and maintenance measures , the
factual cause of the accident? The Plaintiff presented evidence that water above a
certain depth on the road surface can cause aquaplaning in a straight line or result in
an anticlockwise mome nt of the vehicle if there is braking or oversteering. The
evidence raises questions about factual causation. Did the Defendant’s omissions ,
i.e, the failure to unblock the drains and to cut the grass, the direct cause of the
accident , or were they proximate causes to the ponding of water that caused the
accident? Did the Plaintiff’s reaction to aquaplaning contribute to the loss of control?

56. As for the issue of the Plaintiff’s reaction to encountering water on the road,
the Court has to consider that he was unable to augment this aspect of the evidence
as his injuries have rendered him amnesic for the events that preceded the accident.
The Cou rt can find on the available evidence that the Plaintiff would have taken
another step to cause his car to spin and career off the road and into the tree. The
additional action taken by the Plaintiff does not affect the determination of causation
at this stage.

57. In the enquiry on factual causation, the question that arises is whether the
harm would have nevertheless ensued, even if the omission had not occurred. The
Plaintiff had to establish that it was more likely than not, but for the Defendant’s
wrongful and negligent conduct, his harm would not have ensued. The Plaintiff did
not have to establish the causal link with certainty.19 The Plaintiff would not have lost
control of his vehicle if there had been no water pooling on the road re sulting from
drainage impediments. The application of the ‘but -for’ test20 is a matter of common
sense based on the practical way ordinary people's minds work against the
background of everyday life experiences. The evidence that the Plaintiff has
presente d permits the Court to find that the omission complained of was the
proximate cause of the accident , but that the direct cause was the ponding of water
on the road surface. If water had not ponded on the road surface, the accident would
not have occurred. The water would not have ponded if the drains were clear and the
grass verge cut.

58. Was the pooling of water and the ineffectual drainage system the legal cause
of the accident? The imputation of liability to the wrongdoer depends on whether the
harmful co nduct is too remotely connected to the harm caused or closely connected
to it. When proximity has been established, liability ought to be imputed to the
wrongdoer , provided policy considerations are based on the norms and values of our

19 Za v Smith and Another (20134/2014) [2015] ZASCA 75; 2015 (4) SA 574 (SCA); [2015] 3 All
SA 288 (SCA) (27 May 2015)
20 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700 E -H
Constitution, and j ustice also points to the reasonableness of imputing liability to the
defendant. The omission complained of is the proximate cause of the accident. As
addressed earlier under the wrongfulness enquiry, and without confu sing
wrongfulness with causation, the Court has considered what reasonable and
practical steps the Defendant had to take to avoid water pooling on the road surface.
In the circumstances, and at this stage of the trial, the Court would have had no
hesitation in finding that the omissions th us identified are the legal cause of the
accident.

CONCLUSIONS

59. When a court is asked to grant absolution from the instance and decides to
deny it, the court must strike a balance between analysing the evidence and law
sufficiently to justify its decision, while avoiding making definitive findings that could
constrain its final judgment after hearing the entire case . The finding of liability is not
automatic as it must be considered on a case -by-case basis, and a Plaintiff always
bears the onus, on the probabilities, to establish all the elements of a delictual
claim.21 It has done so . The onus is now upon the Defendant , and the Court has
emphasised this aspect in its findings, to deflect the m to the extent that the evidence
requires it to do so and thereby avoid liability . To escape liability, the Defendant has
to present countervailing evidence on its monitoring and maintenance plans and
whether the costs involved in reducing the risk of water ponding on this stretch of
road are prohibitive. The Defendant has suggested that it does not have the finances
to afford these interventions. The Defendant must also explain why it has not erected
signage to warn drivers of the risk in inclement weather conditions under the general
grounds of negligence particularised by the Plaintiff . It will also have the opportunity
to present its evidence on the alternate defence s raised in its plea relating to the
Plaintiff’s driving of his motor vehicle and contributory negligence .

60. The Court finds that the Defendant cannot prevail on its application for
absolution from the instance.


21 The National Employers’ General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440 D -441A
COSTS

61. The Defendant sought its costs and Counsel’s fees on the highest scale
permissible under Rules 67A and 69 of the Uniform Rules of Court if it prevailed in
this application for absolution. The Defendant belatedly argued that if the Court were
to dismiss its application, it should order costs to be costs in the cause. The
Defendant relied upon the case of MN v BN as authority for this submission.22 The
case reminds us that an application for absolution is part of the trial, and costs
should be in the cause, subject to the court’s discretion. The Supreme Court of
Appeal’s decision in Koukoudis supports the usual order that an unsuccessful
applicant is spared the application costs .23 Applications from the instance and their
preparations are part of the trial proceedings, and a specific order relating to these
costs seems superfluous. In MN v BN , the Court heard the whole matter and
dismissed the action, including the costs of the application for absolution . The Court
emphasised that the usua l order is that costs follow the result and that a successful
party should be awarded their costs . Still, it is entirely the Court’s discretion
exercised judicially after considering the facts peculiar to the case before it and , as a
matter of fairness to both sides, that informs its decision on costs.24 The Plaintiff
sought its costs and Counsel’s costs on the C scale. He contended that he had to
deal with a forced issue .

62. The Court does not relinquish its discretion on awarding costs in this matter.
The application for absolution was ill -conceived . Even though the Court facilitated
the parties acquiring the transcript of the proceedings, the Defendant does not seem
to have considered it fully. It is inexplicable how Defendant could argue that , at best
for Plaintiff , he had established prima facie that the road where the accident occurred
was wet. The Defendant then argued that the lay witness testimony amounted to no
more than that there was water on the road. The witnesses could not specify where
the water had pooled and to what extent in each location. The undisturbed evidence

22 MN v BN (210/2016) [2023] ZAFSHC 236; [2023] 3 All SA 809 (FB); 2023 (5) SA 519 (FB) ( 13
June 2023
23 Koukoudis and Another v Abrina 1772 (Pty) Ltd and Another 2016 (5) SA 352 (SCA) at para 56
24 Wanderers Club v Boyes -Moffat and Another 2012 (3) SA 641 GSJ at 643 I -J, MN v BN supra
at para 215, Gelb v Hawkins 1960 (3) SA 687 (A), at 694A, Graham v Odendaal 1972 (2) SA
611 (A)
was that Plaintiff’s vehicle encountered copious amounts of water that splashed to all
sides before it went into a spin and careered off the road.

63. This stret ch of road is flat over a t least eighty metres before the transition
square of about twelve metres occurs . The land topography includes the historical
river course at the flattest part of the roadway , which would have caused water to
flow natural ly before the roadway was built.25 Manyonga testified that there was
water that had encroached onto the grass. De Villiers spoke of water as far as he
could see. The witnesses were interrogated on their memory of an event fourteen
years ago, but they remained resolute about the water they encountered at the
accident scene .

64. The Defendant submitted that there was simply no evidence that the City was
negligent about the situation and the hazard the water may have posed. The
Engineers agreed that it was not evident that there was effective maintenance of the
stormwater inlets and drains at the time of the accident . If there had been effective
maintenance , it was unlikely that ponding would have occurred. The Defendant did
not provide any other explanation for the Plaintiff’s expert to consider about how the
ponding could have occurred. It began by relying upon rainfall records that had yet to
be introduced into evidence , which suggested that no rainfall had fallen in the area
for about two days before the accident. It then opportunistically suggested to the
Plaintiff’s Engineer that the pooling could have only occurred if substantial rain had
fallen.

65. The Defendant submitted that the Engineer’s testimony had not clarified what
the Defendant should have done and what it did not do. The Court is satisfied that
the Engineer had identified three practical and reasonable measures, among others,
that would have prevented water pooling on the roadway . These measures do not
require repetition except to say that the Defendant was alive to them and had elicited
some concessions after it had asked the expert to exclude these measures from
consideration .

25 See Pappalardo v Hau (63/08) [2009] ZASCA 160; 2010 (2) SA 451 (SCA) ; [2010] 2 All SA
338 (SCA) (30 November 2009) for a discussion of natural flow of water in a different context
before the ad vent of urbanisation and how a Court deals with this issue.

66. The Plaintiff’s case ended early on the fourth day of the trial, and an extra day
had to be arranged to hear the argument on this application. The Court had to await
the transcript, read it, and produce a judgment. The application was ill -conceived . In
the cir cumstances, the Court has exercised its discretion on costs , which is reflected
in the order that follows .

ORDER

1. The application for absolution is dismissed with costs.

2. The Defendant shall pay the Plaintiff’s taxed or agreed party and party
costs of the application for absolution and Counsel’s taxed or agreed fees
on scale C .

3. The parties shall approach the Court to arrange for the further conduct of
this matter.


________________________
Bhoopchand AJ
Acting Judge
High Court , Western Cape Division


Judgment was handed down and released to the parties by email on Tuesday , 22
April 2025.

Plaintiff’s Counsel: E Benade
Instructed by Adendorff Attorneys Inc
Counsel for the Defendant: M Maddison
Instructed by Clyde & Co .