Du Plooy and Others v Member of the Executive Council for Police, Roads & Transport: Free State Province (2965/2018 ; 31/2019) [2025] ZAFSHC 363 (20 November 2025)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy








IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN

Not reportable
Case no: 2965/2018

In the matter between:
TRACEY LEIGH DU PLOOY FIRST PLAINTIFF
CHANE-LEIGH DU PLOOY SECOND PLAINTIFF
MONIQUE DU PLOOY THIRD PLAINTIFF
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR DEPARTMENT OF POLICE,
ROADS & TRANSPORT: FREE STATE PROVINCE DEFENDANT

AND
Case no: 31/2019
In the matter between:
DAVID GREEN PLAINTIFF
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF POLICE,
ROADS & TRANSPORT: FREE STATE PROVINCE DEFENDANT

Neutral citation: Du Plooy and Others v Member of the Executive Council for Police,
Roads & Transport: Free State Province (2965/2018; 31/2019 )
[2025] ZAFSHC 363 (20 November 2025)
Coram: NTANGA AJ
Heard: 18 August 2025
Delivered: 20 November 2025
Summary: Delict – motorcycle accident – negligence – contributory negligence –
inadequate or absence of road signage.

______________________________________________________________________
ORDER
______________________________________________________________________
1.1 It is declared that the defendant is liable for 80% of the plaintiffs’ proven damages
as a result of the two motorcycles’ accident which occurred on 14 May 2018.
1.2 The defendant is ordered to pay the plaintiffs’ costs on a party -to-party scale,
including costs of counsel on scale B.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Ntanga AJ
Introduction
[1] The first plaintiff , together with the second and third plaintiffs , instituted action
against the defendant under case number 2965/18 for damages arising from duty of
care in respect of the maintenance and upkeep of public roads within the defendant’s
jurisdiction.

[2] Mr Green also instituted action against the defendant under case number 31/2019
for damages arising from duty of care in respect of the maintenance and upkeep of
public roads within the defendant’s jurisdiction.

[3] As the three actions share the same fa ctual background and the same issues of
law and facts, it was agreed that it would be convenient for all the two actions to be
heard together. An order was granted on May 5, 2022, for consolidation of the two
separate actions.

[4] The plaintiffs’ claim arises from an accident of two motorcyclists which occurred on
April 13, 2018, at or near the T-junction of Minaar Street and Wonderfontein road within
the jurisdiction of the defendant.

Issues for determination
[5] This Court is enjoined to determine the merits of the damages to be awarded to
the plaintiffs. The Court must determine whether: (a) the defendant wrongfully failed to
provide adequate signage on the road; (b) whether such wrongful failure was negligent;

(c) whether such wrongful and negligent conduct causally contributed to the accident;
and (d) whether the motorcyclists were contributory negligent.

Background
[6] In their particulars of claim, the plaintiffs averred that, on or about May 14, 2018
and at or near the T -junction of Minaar and Wonderfontein Road, a public road within
the jurisdictional area of the defendant, at approximately 23h00 a motor vehicle accident
occurred when a red and black Kawasaki motorcycle bearing registration number: C[...],
driven at the time by Mr Adriaan Marthinus Du Plooy and a black Suzuki Motor Cycle
with registration number: C[...]2, driven at the time by Mr David Green.

[7] The plaintiffs aver that the accident was caused by the defendant’s wrongful and
negligent breach of its duty to maintain the public road, specifically the T -junction of
Minaar and Minaar Street, a public road within the jurisdictional area of the defendant,
and to take all reasonable steps to pre vent damage and or harm to road users. The
defendant’s failure or breach was wrongful and negligent in one or more of the following
respects:
‘8.1 failed to have in place any warnings signs at or near the intersection of Minaar and Minaar
Streets, Sasolburg District;
8.2 failed to have in place at the said place any advance warning signs;
8.3 failed to have in place at the said place any warning signs;
8.4 failed to have in place at the said place any road markings;
8.5 failed to have in place at the said place in advance of the said place any clear,
unambiguous appropriately positioned warning signs or road markings;
8.6 failed to have in place the following signs and or road markings:
8.6.1 warning of T-junction ahead;
8.6.2 warning to reduce speed;
8.6.3 stop sign at T-junction;
8.6.4 chevron at T-junction;
8.6.5 warning sign at island;
8.6.6 stop street road markings; and
8.6.7 road markings on kerb of island.’

[8] The plaintiffs averred that , as a direct consequence of the breach , the accident
caused the death of Mr Adriaan Martinus Du Plooy as a result of injuries sustained in
the accident.
[9] The plaintiffs further averred that , as a result of the breach of duty of care, Mr
David Green sustained the following bodily injuries:
(a) fracture of the left lower leg (tibia/fibula);
(b) head injury;
(c) laceration of left leg; and
(d) bruises and abrasions.

The plaintiffs’ case
[10] The plaintiffs called Mr David Green as their first witness who testified that the
accident occurred on or about April 13, 2018. He testified that , on the day of the
accident, he was riding a Suzuki Motorbike called Boulevard 1800 from a function fro m
Jackies’ place on the Vaal River . He was travelling on his own motorbike, and Mr Du
Plooy was riding his own motorbike. Mr Green was on the left -hand side, and they were
staggered in the manner on which they travelled. Mr Du Plooy was on the right -hand
side in front in the left-hand lane. Mr Du Plooy was travelling in front, and Mr Green
was at the back, and they were four to five meters apart. Mr Du Plooy was leading the
way because Mr Green was not familiar with the place. Regarding visibility, he testified
that it was very dark, and he could not see anything, except the lights. The only lights
were from their motorcycles, and they were travelling at 60 k ilometres (km’s) per hour.
They were travelling to the northern direction of the road, from the bottom to the top of
the road. After the accident , they landed more to the top of the road. At the end of the
crossing, there is a ditch, Mr Du Plooy was lying in the ditch, and he was lying further to
Mr Du Plooy.

[11] He testified that they did not know where a T-junction was because it was dark. It
was too dark, there were lights on the right -hand side, he thought there was a motor
vehicle coming on. The lights were on the right-hand side, on the side of the oncoming

vehicle coming on. The lights were on the right-hand side, on the side of the oncoming
traffic, and that looked like it was a vehicle that took a curve away from them, on the
right lane. He was not sure whether the lights were moving or stationery. He thought the
lights were from a motor vehicle, but it turned out that it was a flashlight. He testified that
he could not see the curve where the vehicle with a flashlight had parked, he only saw it

two days later. After he saw the lights, it was few se conds and he heard a sound, it was
Mr Du Plooy falling, then it was him. After the lights , he travelled for about 30 meters
before the accident. He heard gravel under his tyres, then it was chaos, the accident
happened.

[12] On the way before the accident scene, he did not notice anything on the road, he
did not see any road signs. At the intersection, there was nothing, he also d id not see
any indication of the speed limit. The only reason they drove at 60 km ’s per hour was
because it was scary and dark. He testified that there were no road markings. On page
130 of the plaintiffs’ trial bundle, which was submitted as Exhibit B, he marked the area
where the lights were located.

[13] He testified that he did not identify any rumble strips towards the accident scene.
Still referring to Exhibit B, Mr Green pointed out the gravel that appears on the
photograph. He testified that the gravel appeared two to three second s before the
accident and that it is the sand he felt before the accident. The gravel is where the stop
sign should have been. On page 11 of the trial bundle, he identified the document as a
picture of the chevron board. He testified that he did not see th e chevron board before
the accident. Mr Green identified an island on page 16 of the trial bundle and testified
that the island is located 10 meters before the accident scene. He also identified
rumble strips on page 19 of the trial bundle and testified that he could not hear or feel
the rumble strips from the motorbike because these were almost equal to the surface of
the tar road. He did no t feel that he was d riving over rumble strips. Minaar street was
4.5 meters wide and , if he was able to see, he would bring his motorbike to a standstill
within 10 meters.

[14] Mr Green testified that it was his first time that he was driving on that road as he
was from Spri ngs in Gauteng . At the time of the accident, he was staying in Sasolburg

was from Spri ngs in Gauteng . At the time of the accident, he was staying in Sasolburg
for three months and 13 days. He did not travel on that road when going to work as this
was not the road to his workplace . He confirmed that he resides on the same street
where the ac cident occurred and his house is about six kilometres from the accident
scene. He had no need to travel on that road prior to the date of accident, when he goes
to work, he travels by R55 road.

[15] Mr Green testified that they travelled to Jackies’ place at around 19h00 to 20 h00.
Before travelling to Jackies’ place, they had a burger and cool drink in Vanderbijlpark. At
Jackies’ place, there was music band playing. He is not familiar with the place, and it
was the first time that he was at the place. He testified that they did not drink alcohol at
Jackies’ place, they only drank sprite zero cool drink. He bought two for himself and Mr
Du Plooy. On whether Mr Du Plooy drank alcohol, he testified that h e usually drank
sprite zero and he did not see him drinking anything else at Jackies’ place . He testified
that he did not drink alcohol before travelling to Jac kies’ place as he does not drink
alcohol when riding a motorbike.

[16] Regarding how he landed after the accident, Mr Green testified that he flew over
the hip of soil or sand that was beyond the T-junction. He could not recall how he ended
up flying over the hip of the soil after driving over the gravel. He testified that Mr Du
Plooy fell into the ditch and passed on. After the accident, he passed out five times and
experienced pain in his shoulder, left knee and right shoulder. There was water in his
knee, he was on crutches and , at some point, on a wheelchair. He was taken to
Emfuleni Medi Clinic by an ambulance. Prior to the accident, he had no injuries on his
right shoulder and right knee. He now has screws on his leg, which were put 10 days
after the accident. He suffered no other injuries between the accident and the operation.

[17] Under cross-examination, Mr Green testified that there are times that he would not
be with Mr Du Plooy, particularly when he was with his customers. He confirmed that he
would not know what Mr Du Plooy would be drinking wh en he was not with him. He
testified that the distance between Jackies’ place and the accident scene is 6 km ’s and
it would take 25 minutes to drive. He took measurements after the accident; he decided

it would take 25 minutes to drive. He took measurements after the accident; he decided
to go to the accident scene after he was discharged from hospital to check what exactly
happened. He was referred to a road sign indicating the speed limit as km ’s per hour.
He confirm ed that he was under the impression that Mr Du Plooy knew the route as
they talked about it. He testified that, before the accident, other than the vehicle that had
oncoming lights, there were no other vehicles and there were no visible animals on the
road. He testified that , whilst he is wearing glasses, he can see from far and he
confirmed that he was wearing glasses in 2018. Regarding his experience of riding a
motorbike, he testified that he had been riding a motorbike from when he was 4 years

old. He was wearing a full helmet at the time of the accident. He testified that, if he had
seen the T-junction, he would have stopped 20 meters before the T-junction
and he would have stopped before the line.

[18] When dealing with the question of whether they were looking for a stop sign, he
responded by stating that , when you know that a T -junction is coming, you would know
that the road is coming to an end, that is why they drove at 60 km’s per hour. He
testified that he was not paying attention to the distance, he was just following Mr Du
Plooy and could not see anything. Once his motorbike hit the gravel, he closed his eyes,
he knew that an accident was coming. He confirmed that his motorbike was road
worthy, and he bought it a year before the accident, the head lights were in good
condition. Regarding the rumble strips, he confirmed that a motorbike would make
noise and vibrate from the engine. However, he reiterated his version that they could not
hear any rumble strips or see them. He disputed S ergeant Modise’s version that there
was a stop sign.

[19] After cross -examination, an appl ication was made to re -open Mr Green’s
evidence, and the application was granted. Mr Green testified about the photos he took
of the accident scene after he was discharged from hospital. He testified about the
location of the motorcycles after the accident and where the stop sign should have
been. He testified that the stop sign does no t appear in the photograph. He testified that
there was no stop sign lying on the ground. Under cross -examination, he testified that
he took the measurements of the accident scene two months after the accident. He took
the photographs on April 14, 2018, the day he was discharged from hospital. He
confirmed in the photograph the absence of a stop sign. He testified that he did not walk
to where the stop sign should have been, he just took a picture.

[20] The next witness was Mr Steward Truscott who testified that he is aware of the

[20] The next witness was Mr Steward Truscott who testified that he is aware of the
accident, in that evening he was assisting a friend who ha d an accident where the
plaintiffs’ accident occurred. He received a call from his friend after 23h00, he arrived on
the scene at 23h30. He travelled with his father in a bakkie to tow the friend’s motor
vehicle. Upon arrival, the friend’s motor vehicle wa s in the angle towards the ditch. He
pointed out where the accident happened. On the way towards the accident scene, it

was extremely dark and there were no lights. They pulled the vehicle towards the
bottom of the road. His friend advised him that she was driving from the bottom towards
the intersection and did not notice that the road was ending. There was no board
indicating that the road was coming to an end. He observed that there was no chevron
board indicating that the road was coming to an end. He testified that there were no
road signs.

[21] Ms Van der Gryp advised him that when coming from Wonderfontein Road, she
saw the road ending, swerved and lost control. Whils t standing, they noticed two lights
coming down from Wonderfontein Road, from bottom to the top. He could not indicate
how far the lights were because it was dark. Mr Truscott testified that he told his father
to warn the oncoming drivers with the two ligh ts with a flashlight to indicate that there
was something there. He was still seated at the time on the driver side. His father took
the flashlight, showed it to the sky and tar road. His father was standing next to his
bakkie on the driver side, about a m eter and a half. They wanted to caution the
oncoming drivers to be cautious because there was already an accident, so that they
are not also involved in an accident. He confirmed that the lights coming towards their
direction were dim. The motorcycles took five to six seconds before reaching where they
were standing. After the motorcycles passed them, they heard a sound which was loud
but not too loud. He turned around and saw them going across the street and thought
that the two motorcyclists might have been involved in an accident. He testified that the
motorcyclists fell into the ditch, he went to check the motorcyclists and found one biker
still breathing and the other one was not responding and later on he stopped breathing
after almost two hours. He decided to call an ambulance for assistance.

[22] Mr Truscott confirmed that there was gravel lying on the tar road, the re was no

[22] Mr Truscott confirmed that there was gravel lying on the tar road, the re was no
paint marking the stop line and there were no speed bumps. He walked on the left-hand
shoulder of the road to see if there was an indication of a stop sign and he did not see
any stop sign. He testified that during the proceedings, his father was in a lot of pain,
recovering from a back surgery. He cannot s it up for more than 30 minutes, and he
cannot bend or drive a long distance as he stays in Vanderbijlpark. After the accident of
the motorcycles, other motor vehicles arrived. This included friends and family members
of the motorcyclists.

[23] The next witness to testify is Mr Wilie Du Preez , who testified via video link that he
holds a B. Engineering from University of Pretoria. He is registered as a professional
construction manager in the civil engineering field. He obtained his degree in 1982 and
he has knowledge in roads, road signs and road markings. He referred to his expert
opinion the summary of which is as follows:
(a) He was instructed by Leon JJ van Rensburg Attorneys to issue an opinion where two
motorcyclists drove through an intersection at a T-junction where there were no warning
signs or road markings in place. The scene of the accident was identified to him by Mr
Anton Myburgh from Leon JJ van Rensburg Attorneys on 18 May 2018. He based his
opinion on the facts gathered on the scene as well from the affidavits from Emmanuel
Modise from the South African Police Service (SAPS), Stuart Scott and Jenifer van der
Gryp, all attached under Annexure “A”.
(b) He took the photographs o f the scene on 18 May 2018 at approximately 08 h00.
Warning signs are used to alert drivers to hazardous or potentially hazardous
conditions, on or adjacent to the roadway. Warning signs indicate a need for extra
caution by road users and may require a reduction in speed or other ma noeuvres, in the
interest of their safety and that of other drivers. It is imperative for warning signs, to be
clear, unambiguous and appropriately positioned.
(c) A driver of a motor vehicle is obliged to maintain a proper lookout; they must pay
attention to what is happening around them. But, most important of all, they must, as far
as possible, keep their eyes on the road, particularly at night when the vision is limited.
Depending on the state of the traffic, the nature of the road and the speed at which he is
travelling, the opportunity which a motorist must read and comprehend the importance
of each sig n may be extremely limited. Indeed, it is not uncommon for even the most

of each sig n may be extremely limited. Indeed, it is not uncommon for even the most
competent and cautious drivers to misread or fail to react to a road sign. For this
reason, it is imperative, particularly in unlit areas, for warning signs and other signs and
road markings to be in place, to be clear, unambiguous and appropriately positioned,
so, if necessary, they may be read and comprehend at a glance. This is more so where
there is a potentially dangerous situation ahead, such as an unusual, shaped bend or,
for that matter, an unlit T -junction which would otherwise not be anticipated by a driver
who is unfamiliar with the road.
(d) Authorities responsible for road signs are not entitled to assume that drivers will read
and react to every sign regardless of nature, size and positioning. Road markings

perform a very necessary function by conveying requirements and information to drivers
which might not be possible by means of road signs. They may often be visible when
signs are obscured and are able to provide message continuity to drivers of moving
vehicles, which may be difficult to achieve by using road signs. The effectiveness of
road markings will deteriorate rapidly if their application is not adequately specified and
controlled. When road markings have poor dura bility, the road authority is forced to re-
mark more frequently, which was not the case in this incident. The road authority failed
to maintain the road markings. If road markings are not durable or well maintained , the
accident potential for sections of roadways may be significantly increased, with adverse
economic effects, which is the case at the specific alleged scene of the accident.
(e) There are absolutely no warning signs of any nature from any direction appr oaching
the intersection, nor are there any form of road markings visible from a direction towards
the intersection, which is an unacceptable situation created by the relevant road
authority, placing the road user in a very dangerous and risky situation. T he road user
receives no warning of any nature, which might enable the road user to reduce speed or
to take the required action to avoid the risk/danger.

(f) Photographs 1 and 2 of the photo album indicates the absence of the required
‘STOP’ sign. Photog raphs 3 and 6 indicate no road markings that indicate the
requirement to ‘STOP’. Photographs 5 indicates that there were no signs of any nature
in place to warn the drivers of motor vehicles of a dangerous situation coming up soon.
Photograph 7 indicates t he skid marks on the road surface of a motor vehicle that
overshot the intersection as a result of no warning signs or road markings. Photograph
8 indicates the required warning sign in a position in th e grass, scratch marks on the

8 indicates the required warning sign in a position in th e grass, scratch marks on the
warning sign indicates that numerous objects went across the sign while being in this
position in the grass, instead of where the sign was supposed to be. Photograph 9-12
indicate spares from various vehicles that have oversho t the intersection as a result of
the absence of the required warning signs and road markings. Photograph 13 indicates
that the raised island is not marked with a hazard marker to indicate the hazard and the
curb stones are also not painted white and black to make the raised island more visible.

[24] Mr Wilie Du Preez’ opinion concludes that:

(a) The applicable road authority is not conducting their duty with diligence and in the
best interests of the general road user. The road user expects the correct an d
applicable warning signs and road markings to be in place at all times, to inform the
road user of any dangerous situation that will enable the road user to take the required
preventative actions as per the information issued by the warning signs. The
consistency of providing the correct and required warning signs next to roads is very
important, inconsistency leads to confusion by road users which is a risk to the road
user.
(b) These accidents and all previous incidents at this specific location might have been
avoided if the required road signs road markings were in place. It is therefore also clear
that road safety audits are not done regularly in an effort to identify the risk areas and to
mitigate the risk for the relevant road authority as well as for the road user.
(c) In a case such as this where the relevant road authority does not have the financial
means to erect road signs and to apply road markings, or where the relev ant road
authority does not have the experienced and skilled technical people who can take the
required decisions, the stage has been reached where the road should have been
closed, in an effort to protect the road users against these dangerous conditions.

[25] Mr Du Preez testified that he was taken by Mr Anthony Muyburgh to the accident
scene on May 18, 2018. In his evidence, he restated his opinion regarding the road
signs and road markings as well as the importance of their visibility. He testified that
road markings and road signs go hand-in-hand. If there is a marking, there should also
be a solid wide line to indicate that the road user is not allowed to overtake in that area.
Road markings complement the road signs. Road markings indicate where you should
not overtake and where you should stop. Road signs indicate that you should reduce

not overtake and where you should stop. Road signs indicate that you should reduce
speed. From time to time , where there are no road signs, road markings can
complement and vice versa.

[26] Regarding the picture on page 1 8 of his report, Mr Du Preez testified that the
picture is a steel pole where the stop sign used to be. He testified that one can see that
the stop sign has been removed for quite some time. When making reference to page
20 of the expert notice bundle, he testified that, as appears from the photograph, there
are no road signs or solid line in the area. He pointed out to the potholes and indicated

that the road edge is breaking. He referred to page 22 of the expert notice and testified
that there is no warni ng sign, no road marking sign or stop sign at the T -junction. He
confirmed that the photographs in the expert notice bundle were taken a month and four
days after the accident. Regarding the photograph on page 24 of the expert notice, he
testified that the picture shows skid marks as a result of absence of warning signs. He
also testified that there is a lot of debris and the portion of the road surface that is not in
place. There is a little bit of gravel lying there. There is also muddy area. Photograph 2 1
of the expert notice indicates rumble strips which has minimum effect. They are
relatively flat and have no impact to the road users.

[27] Mr Du Preez testified that in his opinion, the rumble strips were in similar condition,
very flat and not able to warn the road users of the danger coming up. On how the
rumble strips are created, he testified that effort is created with asphalt (tar) on a half -
circle profile. Rumble strips can be created with in one day. The road markings should
have been re-done a while ago as there are no road markings visible
anymore. He testified that there was a patch here and there on the right, at the T -
junction, there was no full road marking. Dependin g on the planning of the project, at
least three days’ time period will be sufficient. He testified that , in his opinion,
maintenance on the road surface and markings was not done very diligently. Road
inspections should be done frequently to see the condi tions of road signs and road
markings. He testified that road markings , if properly done , can last three to four years
with minimum traffic on the road. Rumble strips can last quite a long time with minimum
traffic, depending on the bitumen content of the asphalt as the bitumen binds the
asphalt. If it is too weak, the mixture will weaken with temperature and traffic.

asphalt. If it is too weak, the mixture will weaken with temperature and traffic.

[28] He referred to the photograph on page 25 of the expert notice bundle and testified
that it is a portion of road sign that was not in place before the accident. When he
arrived, it was lying beyond the T-junction in the field. Beyond the T-junction, there were
numerous spares of numerous vehicles lying there. He testified that motor vehicles went
through the T-junction from the direction of left to right. If the road authority would have
conducted regular inspections, they would have recognised that there are no road
markings and no road signs. If they had went to t he ditch, they would have seen motor
spares and seen that this is a dangerous area. The road authority would have put
temporary road signs to warn motorists that a T-junction is coming up. This should have

been 100 meters before you get to the T -junction. He testified that on the rear side
before you get into the storm water channel, there should be a temporary barrier, yellow
plastic barrier with reflective tape to indicate that there is a danger coming up.
Regarding the photograph on page 30 of the expert notice bundle, he testified that this
was taken from t he direction of the motorcyclists’ travel, and the photo indicates that
there are no road markings, there are no hazard markers to warn the road users.

[29] Regarding the appropriateness of perma nent signs, Mr Du Preez testified that one
must dig a hole and fill it with concrete which takes up to three days, whilst temporary
signs are done immediately. He testified that there could be a combination of a sign with
an exclamation mark and a supplementary board written T -junction, warning that there
is a T -junction coming. The stop sign should be there. There sh ould be a chevron
beyond the T -junction indicating that the road is not continuing and you should enter,
turn left or right. Road marking is complementary to the road sign, as well as barrier line
preventing overtaking as you approach stop sign as well as stop line and T -junction
written to the road surface.

[30] Mr Du Preez referred to the defendant’s trial bundle at page 1 and testified that,
the photograph depicts a worksheet of activities, this shows that there was a permanent
road sign installed, howe ver, there are no coordinates to indicate where was this
installed. There is no description of the road signs, and he did not know where and what
type of road signs. The Worksheet is indicated FS 203 Heilbron and on page 7 page 10,
the date is indicated as May 7, 2018. He testified that the consistency of road signs is
very important as road users depend on the road s igns as they travel on the road. They
rely on consistent message as they travel on the road.

[31] Under cross-examination, Mr Du Preez confirmed that a driver needs to make a

[31] Under cross-examination, Mr Du Preez confirmed that a driver needs to make a
proper decision on speed, speed limit and adjust speed according to the conditio ns
experienced. If he experiences the road to be dark, he needs to adjust. Responding to
Mr Grobbelaar’s version that if the stop sign was there, corrosion could have occurred
on the galvanised portion, he testified that the stop sign would have been lying there.
You can see from the scratch that it was knocked off quite some time, and he could not
give indication of how long the stop sign was not there. On whether he would know if

the skid marks were caused by the vehicles, he confirmed that he would not, but the
skid marks went through the intersection. He confirmed that he would not know whether
the vehicles were speeding and whether the drivers were paying attention. Regarding
the rumble strips, he testified that it was flat and not up and down. Regarding the photo
depicting the island, he testified that the reason he took it is because there is no sign on
the island.
[32] Mrs Du Plooy testified as the wife of the deceased. There is not muc h she could
offer about the incident as she was not there when the accident occurred. She arrived
on the scene after the accident.

[33] The fourth witness was Ms Van der Gryp who testified that on the day of the
accident she went to Jackie ’s Pub & Grill and there was a show that evening. She was
driving her motor vehicle, a Ford Fiesta. She had been to Jackies once and she was
driving alone that evening. She drank co ol drink and water and did not eat. She
remained until the end of the show and she left go ing home. She travelled along
Wonderfontein Road, the headlights of her motor vehicle were on, however, she could
not remember if the lights were dim or bright. The road was dark and there were no
streetlights. There were no road signs or road markings on the road surface. She did
not feel or hear the rumble strips. She travelled at 60 km ’s per hour. She pulled off the
road to alert her mother that she was driving back home and continued driving after the
telephone call. After a short distance, she was involved in an accident. She noticed that
the road was nearing a cul -de-sac. It was too late, she turned right, and her car landed
on a ditch. She testified that there was no indication that the road was coming to an end
and there was no stop sign or stop line. There was also no chevron board on the side of
the T-junction. After the accident , she called her friend, Mr Steward Truscott to come

the T-junction. After the accident , she called her friend, Mr Steward Truscott to come
and assist her. After Mr Truscott arrived, they towed her motor vehicle until the end of
the road.

[34] After her motor vehicle was towed, they saw two motorcyclists coming up the road
in the direction where she came from. They also went over the T-junction, and she could
not accurately judge the speed of the motor cyclists. She testified that it was at night,
and she could not make an accurate estimation of the speed. She confirmed that she
made a statement to the police after the accident. In the statement, she had stated that

the motor cyclists were travelling at high speed. She testified that she would see that
they would not be able to stop and she was terrified that they will experience the same
thing she experienced. They would not be able to stop because there was no chevron
board. She could not dispute Mr Green’s version that they were travelling a t 60 km’s per
hour. She did not know if they missed the turn or stopped on time.

[35] Under cross -examination she confirmed that she made a statement at police
station on April 16, 2018, just over two days after the accident occurred. She went to
make a s tatement about her involvement in the accident not the motorcyclists. She
thought it was the right thing to include the accident of the motorcyclists in her
statement to the police. In her understanding, when you make a statement, you mention
everything you experienced. She disputed Sergeant Modise’s version that there was a
stop sign. She confirmed that she did not see the 60 km speed sign picked up by Mr
Grobbelaar, 350 meters from the T-junction. She further testified that she
did not see the rumble strips. Regarding Mr Grobbelaar’s version that there are various
rumble strips on Wonderfontein Road, she reiterated her version that she did not hear
or feel nothing. Regarding the speed at which she was driving, she testified that it could
be less than 60 km’s per hour as she does not like driving at night.

The defendant’s case
[36] The defendant called Seargent Modise as a first witness, who testified that he is
employed in the S outh African Police Service (“SAPS”) as a member of Sectional
Technical Response Team in Sasolburg. At the time of the accident, he was working at
crime prevention as a constable. They work in the streets and do stop and search as
well as highway patrols. He confirmed that the accident report appearing in the trial
bundle was completed by him. The time he wrote in the accident report is the time that

bundle was completed by him. The time he wrote in the accident report is the time that
he arrived in the accident scene. On the day of the accident, he was doing his daily
duties of patrolling. He travelled along Minaar Street from right to the left and stopped at
the accident scene. There were vehicles and people around the area and there were
also motorcycles. This was unusual because that is a quite road. He stopped to
investigate what was happeni ng and whether there were people who needed
assistance. After making enquiries he established what had happened. He confirmed
that he found the two motorcycles on the scene of the accident, they were off the road
in the veld.

[37] He drew a sketch plan to indicate the circumstances he found on the accident
scene. He confirmed that the sketch plan was his observation. In the sketch plan there
is an indication of the T-junction, the island, the broken line which indicates where the
road allows the motorists to proceed straight as well as the solid line which indicates the
end of the road or the shoulder of the road. There is also an indication of the area where
the motorists are supposed to stop, because the vehicle travelling along Mi naar Street
has a right of way. He pointed out an indication of a stop sign in the sketch plan and
testified that the block is an indication that there was a stop sign and that there is a stop
line at the left corner. He confirmed that the two motorcyclists were lying next to the hip
of sand in the ditch. As there was a deceased person, they summoned different sections
of the SAPS. They summoned Local Criminal Record Centre ( “LCRC”) as they are the
specialists in collection of crime scene evidence and forensic.

[38] Seargent Modise testified that he indicated a speed limit of 100 km ’s per hour
because there is a sign on the road indicating that motorists must reduce speed and it is
followed by others indicating that motorists must reduce speed. You needed t o go back
in Wonderfontein Road to see the speed limit sign, the closest speed limit sign is 40
km’s per hour. He confirmed that he is familiar with the road and the last time he
travelled there was the Wednesday before the accident. He confirmed that there was a
speed limit si gn and stop sign on that road . Regarding the road markings, he testified
that they were there but not visible and he marked not applicable in the road accident
report.

[39] Under cross-examination, he was unable to provide the number of accidents that
he attended in his working career; he testified that he attended to a few. He confirmed
that it was not the first time that he worked on the accident report form. He testified that

that it was not the first time that he worked on the accident report form. He testified that
the road condition was good, the road surface was dry and there were no potholes. He
confirmed that the road was unlit. His response on why he indicated the road markings
as not applicable was that this is how the form is like, this was his understanding and
the language used is not his. He testified that his understanding was that the road
markings were not visible and the block does not allow him space to indicate not visible.
Later on, he conceded that the indication of not applicable means that the road
markings are not there.

[40] He confirmed that, on overtaking control he indicated ‘none’ and, on road signs, he
indicated ‘not applicable’. He confirmed that , on the block relating to road signs clearly
visible, he marked not applicable. On condition of road signs, he indicated damaged or
missing. He disputed the plaintiffs’ version that there was no stop sign. He testified that
he noticed that the sign showing ‘dead end ’ of the road was there or it fell on the
ground. He was unsure whether it fell during the accident or what caused it to fall.
Regarding the lines he drew in relation to paintings, he testified that he was explaining
how the road was divided, he confirmed that it was not the actual paintings on the road.
He testified that he did not deem it necessary to show a stop sign in the sketch plan
because accident did not occur inside the road, it happened outside the road. He could
not explain why Mr Man gena, a member of the LCRC did not draw a stop sign in his
sketch plan. Seargent Modise confirmed that a lot of accidents occur in the area where
Mr Du Plooy and Mr Green were involved in an accident.

[41] The defendant called Mr Grobbelaar as an expert witness who testified that he
holds a master’s degree in chemical engineering from the University of Pretoria. He
does forensic work in relation to motor vehicle accidents. He estimated his experience
of testifying as a witness in relation to accident matters to between 300 and 400 cases.
He testified that the difference between his opinion and that of Mr Du Preez is that Mr
Du Preez is a civil engineer who focusses on roads, construction and maintenance
whilst his opinion relates to mechanical aspects relating to speed and others.

[42] He referred to his expert opinion the summary of which is as follows:
(a) The police photographs show the direction of travel (A) of the two motorcycles, their
rest positions in the ditch (C) and (D), and the rest position of the one motorcycle rides

rest positions in the ditch (C) and (D), and the rest position of the one motorcycle rides
(B) also in the ditch. There is no T-junction chevron sign visible in police pho tographs 1
or 2. The police sketch plan shows the T-junction with the direction of travel of the
motorcycle (A), the rest positions of the two motorcycles (C) and (D), as well as the
motorcycle rider (B). According to the AR form, the speed limit at the ac cident site was
100 km/h.
(b) When however, considering photographs 17 and 18 in appendix B, these show a
60 km/h speed limit sign found during the inspection, which sign was posted

approximately 3.8 km from the area of the accident site a s the motorcycles would have
travelled (see the aerial view of appendix A1 for the location of this sign). The rear of
this sign indicates that it was manufactured in May of 2009 (photograph 18 in appendix
B). This sign also appears to have been in positio n in July 2019, as can be seen in the
Street View image contained as photograph 21 in appendix B, with the aerial view of
appendix A4 showing that it was also in position on 30 June 2017. It is therefore
probable that this 60 km/h speed limit sign was in position at the time of the accident.
(c) The inspection of the accident site and approach thereto also revealed a 60 km/h
speed limit sign posted approximately 350 metres from the accident site, as the
motorcycles were travelling, with this sign also visi ble in the street view image taken in
July 2019 (photograph 20 in appendix B). The GPS used to locate the accident site also
indicated a speed limit of 60 km/h on approach to the accident site, as can be seen in
photograph 19 in appendix B. The presence of this speed limit sign could unfortunately
not be confirmed in any of the Google Earth images taken before or after April 14, 2018,
due to the clarity of the images. The presence of this 60 km/h speed limit sign at the
time of the accident would therefore be a matter for evidence.
(d) It cannot be established, from an expert point of view, whether the stop sign or
T-junction chevron warning sign were in posit ion at the time of the accident in which the
vehicle of Ms van der Vyfer was involved, and thereafter the motorcyclists. This would
therefore be a matter for evidence.
(e) It can also not be established, from an expert point of view, in the event of the st op
sign and the T-junction chevron warning sign not having been in position at the time of
the accident in which the motorcycles were involved, at what stage these signs were

the accident in which the motorcycles were involved, at what stage these signs were
removed/displaced from their positions. This would also be a matter for evidence. The
Photo Report of Mr du Preez does however show the T -junction chevron to have been
lying in the vicinity of the accident site.
(f) Inspection of the accident site on April 13, 2022, revealed that there was essentially
unrestricted visibility of the roa dway ahead of the motorcyclists on approach to the
accident site, due to the road being straight and flat. This can be seen in photographs 1
to 13 in appendix B. During this inspection, numerous areas of rumble were found on
the road surface as the motorcy cles would have approached the accident site, with the
first area of rumble strips found at approximately 730 metres from the accident site, a

further area found at approximately 370 metres from the accident site, and a further
seven areas of rumble strips found from approximately 195 metres from the accident
site to approximately 71 metres from the accident site. These rumble strips can be seen
in photographs 1 to 3 and 5 to 11 in appendix B. These rumble strips were found to be
functional during the inspection, with them providing the rumble effect to a driver whilst
travelling over them to the accident site. These rumble strips were also visible in the
aerial view of appendix A3 (taken 1 week after the accident), with the implication that
they were probably also present at the time of time of the accident.
(g) There was a 60 km/h speed limit sign posted approximately 3.8 km’s from the area
of the accident site on the road that the motorcycles would have travelled to have
reached the accident site, which 60km/h speed limit sign was also probably in position
at the time of the accident. This has been concluded in paragraph 9.2. There was also a
speed limit sign posted approximately 350 metres from the accident site, though it could
not be confirmed whether or not this speed limit sign was in position at the time of the
accident.
(h) Under the acceptance of there having been no road markin gs, no stop signs and no
T-junction chevron warning sign in position at the time of the accident, the motorcyclists
would have travelled over the first area of rumble strips approximately 370 metres from
the accident site, the further area of rumble strips at approximately 370 metres from the
accident site, and the further seven areas of rumble strips located between 195 metres
to 71 metres from the accident site. These rumble strips should have pro vided prior
warning to the motorcyclists to be aware of some or other situation or hazard ahead that
warranted the placing of rumble strips on the road.
(i) Had the motorcyclists been travelling at the speed limit of 60 km/h as indicated by, at

(i) Had the motorcyclists been travelling at the speed limit of 60 km/h as indicated by, at
least the speed limit sign posted 3.8 km’s from the accident site, they should have been
able to have stopped their motorcycles in a distance probably shorter than 57 metres,
which distance consists of a distance shorter than 33 metres travelled in the reaction
time of the motorcycl ists and a braking distance of approximately 24 metres. This is
based on an average retardation factor of 0.6 for the motorcycle braking, a nighttime
visualisation, perception and reaction time of two seconds. When considering that the
motorcyclists would have had prior warning of some or other situation or hazard ahead
by means of the rumble strips, and that this would already have occurred from
approximately 730 metres prior to the accident site, this should have reduced their

visualisation, perception and reaction time due to them being more alert and on the
lookout, had they heeded the rumble strips. In this regard if a visualisation, perception
time of approximately one second is therefore used, this would reduce the stopping
distance to 40 metres and for a time of 1.5 seconds, the stopping distance would reduce
to approximately 49 metres.
(j) Had the motorcyclists therefore been travelling at or below the speed limit of 60km/h
on approach to the accident site, and have been on the lookout for some or other
situation ahead that warranted the placing of rumble strips on the road surface, they
should have been able to have stopped their motorcycles prior to colliding with the
northern bank of the ditch where the motorcycles ended up, for a reaction time of one
second and 1.5 seconds.
(k) In this regard, it is probable that, in the absence of any road markings, the fir st visual
alert that the motorcyclists would have had to the danger ahead would have been the
northern edge of the road and the grass at this edge, with the added possible additional
warning of the island to his right prior to reaching the T -junction. This northern edge of
the road as well as the grass at this edge can be seen in police photographs 1 and 2.
(l) Had the headlights of the Kawasaki motorcycle, or the Suzuki motorcycle, or both,
therefore have been set on bright on approach to the accident site , in the event of there
having been no approaching traffic, and had the motorcyclists have been travelling at or
below the speed limit of 60 km/h on their approach, they should have been able to have
slowed down and to already have stopped their motorcycle s a considerable distance
prior to the area where the motorcycles collided with the northern bank of the ditch at
the T-junction.
(m) It goes without saying that, in the event of there having been a stop sign in position,
and/or a T-junction chevron sign, and/or a T-junction warning sign, and/or road markings

and/or a T-junction chevron sign, and/or a T-junction warning sign, and/or road markings
on the road on approach to the accident site, this should have provided prior, visual
warning to the motorcyclists specifically of the T-junction ahead (where the rumble strips
should have provided prior warning to some or other situation ahead that warranted the
placing of rumble strips), compared to a situation where none of these measures were
in place. Under the circumstances, the accident would probably have been avoided had
the motorcyclists been keeping a proper lookout and have heeded these measures on
approach to the accident site.

(n) As was indicated previously, it is not possible to establish, from an expert point of
view, which of these measures were in place at the time of the accident, and this would
therefore be a matter of evidence. If it is found that none of the visual measures referred
to above were in position at the time of the accide nt, it would be a matter for the
Honourable Court to decide whether, in the event of some or all the visual measures
indicated above having been in position, whether or not they would have prevented the
accidents of both motorcycles from occurring under the circumstances of this accident.
(o) It is not possible to calculate the speed of the motorcycles on approach to the
accident site, as there is insufficient information available with which to do so. In this
regard, the statements of the eyewitnesses Ms v an der Gryp as well as Mr Truscott,
both indicate that they saw the two motorcycles approaching at high speed.

[43] Mr Grobbelaar testified that he visited the accident scene on April 13, 2022, which
is four years after the accident, he took photographs from different directions and where
the motorcyclists were approaching and the area where they came to a rest. He took
road measurements and went back a considerable distance as the motorcycles
approached. He referred to a 730 meters distance from the T-junction on page 50 of the
trial bundle. He also referred to the rumble strips appearing on the left-hand side. While
driving over rumble strips it gave a rumbling sound and effect to the vehicle. He felt and
experienced the rumble strips. He took a 50 meters drive from the accident scene and
took a photo which shows a chevron sign, and it is in the vicinity where the motorcyclists
came to a rest.

[44] He testified that in the photo that he took, there is a cross in the area where there
is a ditch. He also took a photo of the speed limit sign and in the rear of the sign, it was
manufactured in May 2009. That is the direction from where the motorcyclists came

manufactured in May 2009. That is the direction from where the motorcyclists came
from. He also found a photo on google earth which was taken on April 21, 2018, a week
later than the date of the accident. He testified about the arrows in the area where he
found rumble strips, including the last one closer to the accident scene. Re garding page
59 of the trial bundle, he testified that the GPS shows the 60 km sign in the GPS and
above the GPS there is a blurry sign. Photo 20 of the trial bundle is a street view image
that shows the 60 km/h sign and there are rumble strips in photo 21 , which was taken

from street view in google earth which 60 km/h sign taken 3.8 km’s from the accident
scene.

[45] He confirmed that in photos 1 and 2 attached to his opinion there is no visible sign
of the chevron on the T -junction. He also confirmed wha t was stated by Mr Du Preez
that on page 11 of the trial bundle, the chevron could be seen lying on the ground. He
agreed with Mr Du Preez’s conclusion regarding the presence of a pole but reiterated
his position that when he visited the accident scene, there was effect of the rumble
strips but agreed that they were of lesser effect than when they were new. He could not
establish whether, at the time of the accident, the stop sign or th e chevron was there or
at what stage they had been displaced or removed.

[46] Regarding the speed at which the motor cyclists were travelling, Mr Grobbelaar
testified that, if they were travelling at 60 km/h, they would have covered 37 meters, in
the absen ce of warning signs, firstly, they would have seen the grass with a reaction
time of two seconds. The rumble strips indicate that there is something coming up and
they are placed as a warning. If they had heeded the rumble strips, there were nine sets
of rumble strips. The reaction time could have been less, if the reaction time is one
second, they could have stop ped 40 meters. The headlights must be adjusted to
illuminate an object at a distance of 45 meters. The headlights should have been able to
illuminate the grass of the edge at least 45 meters if they were adjusted correctly. There
was a flashlight which was a warning, the reaction time should have been lower.

[47] Under cross -examination, when dealing with the presence of rumble strips, Mr
Grobbelaar testified that the rumble strips were in the same position that Mr Green
found them four years before he went to the accident scene. He testified that the photos
of the r umble strips taken by Mr Du Preez look similar to the photos he took and

of the r umble strips taken by Mr Du Preez look similar to the photos he took and
testified that the rumble strips would have minimum effect. The rumble strips were worn
out; they did not have the effect of new rumble strips. They were audible and there were
nine of those rumble strips. If you are an alert driver you should feel them. He agreed
that it is possible that the rumble strips may have been resurfaced and ran out again in
four years. As a motorcyclist himself, he is aware of the experience of riding over rumble

strips. If you are wearing a helmet, it may take away the sound effect, but the handles
will give you the effect.

Legal framework and analysis
[48] The Court must first determine whether the defendant’ s conduct is wrongful. It is
not in dispute that the defendant has a duty to maintain the road and provide signage to
alert the road users of potential hazards. This is to ensure the safety of the road users
and limit the chances of being involved in accid ents that will pose danger to the m. The
defendant is responsible for the road network within the Free State Province. As a
responsible road authority, it must maintain the road networks and ensure that there are
adequate road signs in the road networks.

[49] The Court must determine whether the defendant owed road users a duty to act
without negligence in relation to erection of adequate road signs and ma intenance
thereof; and whether the defendant failed to fulfil its duty. Furthermore, the Court must
determine whether such failure has contributed to the accident which resulted in
damages suffered by the plaintiffs. Lastly, the Court must determine whethe r the
defendant is liable to the plaintiffs for damages caused by the accident. In determining
the liability of the road authority, it is necessary for wrongfulness to be established. In
Kruger v Coetzee,1 the Court stated that:
‘For the purposes of liability culpa arises if-
(a) A diligent 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 patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.’

[50] The Court, in Kruger v Coetzee, further stated that:
‘Whether a diligens paterfamilias in the position of the person concerned would take any
guarding steps at all and, if so, what steps would be reasonable, must always depend upon the

guarding steps at all and, if so, what steps would be reasonable, must always depend upon the
particular circumstances of each case. No hard and fast basis can be laid down. Hence the
futility, in general of seeking guidance from the facts and results of other cases.’2


1 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F.
2 Ibid at 340G.

[51] In MEC for Department of Public Works, Roads and Transport v Botha ,3 the Court
followed the decision of Minister of Safety and Security v Duivenboden ,4 where it is
stated that:
‘The classic test for negligence as set out in Kruger v Coetzee has since been quoted with
approval in countless decisions of this Court: whether a person is required to act at all so as to
avoid reasonably foreseeable harm and, if so, what that person is required to do, will depend
upon what can reasonably be expected in the circumstances of the particular case. That enquiry
offers considerable scope for ensuring that undue demands are not placed upon public
authorities and functionaries for the extent of their resources and the manner in which they have
ordered their priorities will necessarily be taken in determining whether they acted reasonably.’

[52] In Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd (Two
Oceans Aquarium Trust),5 the Court stated that:
‘Negligent conduct giving rise to damages is not, however, actionable per se. It is only
actionable if the law recognises it as wrongful. Negligent conduct manifesting itself in the form of
a positive act causing physical damage to the property or person of another is prima facie
wrongful. In those cases, wrongfulness is therefore seldom contentious. Where the element of
wrongfulness becomes less straightforward is with reference to liability for negligent omissions
and for negligen tly caused pure economic loss . . . In these instances, it is said, wrongfulness
depends on the existence of a legal duty not to act negligently. The imposition of such legal duty
is a matter for judicial determination involving criteria of public or legal policy consistent with
constitutional norms.’ (Footnotes omitted.)

[53] The Court further stated in Two Oceans Aquarium Trust,6 that:
‘When we say that a particular omission or conduc t causing pure economic loss is “wrongful”,

‘When we say that a particular omission or conduc t causing pure economic loss is “wrongful”,
we mean that public or legal policy considerations require that such conduct, if negligent, is
actionable; that liability for the resulting damages should follow.’

[54] In Minister of Transport NO and Another v Du Toit and Another (Du Toit),7 the
Court stated that:

3 MEC for Department of Public Works, Roads and Transport v Botha [2016] ZASCA 20 para 12.
4 Minister of Safety and Security v Duivenboden [2002] ZASCA 79; [2002] 3 All SA 741 (SCA); 2002 (6)
SA 431 (SCA) para 23.
5 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd [2005] ZASCA 109; [2007] 1 All SA
240 (SCA); 2006 (3) SA 138 (SCA) para 10; see also McIntosh v Premier, Kwazulu -Natal and Another
2008 (6) SA 1 (SCA).
6 Ibid para 12.

‘Indeed, it is not uncommon for even a competent and cautious driver to misread or fail to react
to a road sign. For this reason, it is imperative, particularly in unlit areas, for warning and other
signs to be clear, unambiguous and appropriately positioned, so that, if necessary, they may be
read and comprehended at a glance. This is more so where there is a potentially dangerous
situation ahead, such as an unusually sharp bend or, for that matter, an unlit T -junction which
would otherwise not be anticipated by a driver who is unfamiliar with the road.’

[55] There is no dispute on whether the defendant has a duty to maintain the roads and
provide adequate signage, th is Court must determine whether the defendant acted in a
negligent and wrongful manner. Mr Green’s evidence is that, on the day of the accident,
he did not see road signs because it was too dark. He testified that he travelled at
60 km/h and he was following Mr Du Plooy. He did not see a stop sign and stop line
before the accident. He also did not see the chevron sign before the accident. Ms Van
der Gryp, who was involved in an accident on the same scene immediately before Mr
Green and Mr Du Plooy were involved in the accident, also testified that she did not see
road signs before she was involved in the accident. Both Mr Green and Ms Van Der
Gryp testified that they did not see a chevron sign warning motorists of a T -junction
ahead. They both testified that they did not see or feel rumble strips before the accident.
Mr Truscott testified that there was gravel lying on the tar road, there was no paint
marking the stop line and there were no speed bumps. Mr Green went back to the
accident scene after he was discharged from the hospital, he took p hotographs of the
accident scene, the photographs he took indicate that there was no stop sign and the
chevron sign was lying on the ground.

[56] The plaintiff’s expert witness Mr Du Preez testified that , from the photograph

[56] The plaintiff’s expert witness Mr Du Preez testified that , from the photograph
taken, there are no road signs or solid line in the area where the accident occurred. He
testified that road markings should have been re -done a while ago as there were no
road markings visible anymore. He testified that there was a patch here and there on
the right, at the T-junction, there was no full road marking. He also testified that the
rumble strips had minimal affect. Mr Du Preez’ evidence is in corroboration with Mr
Green’s evidence regarding the absence of road signs and road markings. This is also

7 Minister of Transport NO and Another v Du Toit and Another [2006] ZASCA 41; 2007 (1) SA 322 (SCA)
(Du Toit) para 17.

consistent with Mr Truscott and Ms Van der Gryp’s evidence regarding the inadequacy
of the road signage in the area of the accident scene.

[57] The Court was presented with two conflicting opinions regarding the adequacy of
road signs, road marking s and rumble strips in the accident scene. Regarding the
evaluation of expert evidence, the defendant referred to the decision of
PriceWaterhouseCoopers Inc and Others v National Potato Co -operative Ltd ,8 where
the Court stated that:
‘. . . [ W]hen dealing with the approach to an expert witness I have found helpful the following
passage from the judgment of Justice Marie St-Pierre in Widdrington:
“Legal principles and tools to assess credibility and reliability
[326] “Before any weight can be given to an expert’s opinion, the facts upon which the opinion is
based must be found to exist.”
[327] “As long as there is some admissible evidence on which the expert’ s testimony is based it
cannot be ignored; but it follows that the more an expert relies on fa cts not in evidence, the
weight given to his opinion will diminish.”
An opinion based on facts not in evidence has no value for the Court.
[329] With respect to its probative value, the testimony of an expert is considered in the same
manner as the testimony of an ordinary witness. The Court is not bound by the expert witness’s
opinion.
[330] An expert witness’s objectivity and credibility of his opinions may be called into question,
namely, where he or she:
accepts to perform his or her mandate in a restricted manner;
presents a product influenced as to form or content by the exigencies of litigation;
shows a lack of independence or a bias;
has an interest in the outcome of the litigation, either because of a relationship with the party
that retained his or her services or otherwise;
advocates the position of the party that retained his or her services; or
selectively examines only the evidence that supports his or her conclusions or accepts to

selectively examines only the evidence that supports his or her conclusions or accepts to
examine only the evidence provided by the party that retained his or her services.’

[58] The issue is whether the experts’ evidence adduced during the proceedings meets
the standards as set out by the Supreme Court of Appeal. In my assessment of Mr Du

8 PriceWaterhouseCoopers Inc and Others v National Potato Co-operative Ltd [2015] ZASCA 2; [2015] 2
All SA 403 (SCA).

Preez and Mr Grobbelaar, they both possess requisite qualifications and expe rience as
experts in these proceedings. I did not find their evidence to be lacking professional
expert testimony. They are both independent and were not biased in favour of the
parties that retained their services. They both made concessions in areas wher e their
opinion was challenged, and I have no reason to doubt the independence of their
testimony.

[59] The difficulty with Mr Grobbelaar’s evidence is that he was at the acciden t scene
almost four years after the accident. His testimony is that he did not do a reconstruction
of the accident scene and was therefore unable to dispute Mr Green’s evidence that
they were travelling at 60 km/h before the accident. He could not establis h whether, at
the time of the accident, the stop sign or the chevron was there or at what stage they
had been displaced or removed. Whilst there are different versions regarding the status
of the rumble strips, Mr Grobbelaar conceded under cross -examination that it is
possible that the rumble strips may have been resurfaced and ran out again in four
years. I therefore accept Mr Du Preez’s evidence as probable and true. I am satisfied
that his evidence can be relied upon. The test for dealing with two mutual ly destructive
versions is enunciated in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell
& Cie SA & Others,9 which set out the following principles:
‘The technique generally employed by Courts in resolving factual disputes of this nature may
conveniently be summarized as follows. To come to a conclusion on the disputed issues a Court
must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and
(c) the probabilities. As to (a), the Court’s finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness. . . the Court will then, as a final step,
determine whether the party burdened with onus of proof has discharged it.’

determine whether the party burdened with onus of proof has discharged it.’

[60] I find that the evidence of plaintiffs’ witnesses was honest and credible, they did
not fabricate their evidence to make up a case for the plaintiffs. Mr Green and Ms Van
der Gryp’s evidence is that it was too dark, and they did not s ee road signs or road
markings prior to the evidence. Mr Green went to the accident scene after he was
released from hospital to determine how the accident occur red. He took photographs
which indicate inadequacy of road signs and road markings to warn the road users of a

9 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Others [2002] ZASCA 98;
2003 (1) SA 11 (SCA) para 5.

potential hazard, being the T -junction. Mr Green was not evasive in his testimony: his
evidence is that it was too dark to see any road signs or road markings. Ms Van der Gryt
and Mr Truscott also did not appear to be merely presenting their evidence to support
the plaintiffs’ case, they were clear and truthful in their testimony, hence this Court’s
finding that they were honest witnesses. Regarding S ergeant Modise, he is the only
person that is adamant that there were road signs and road markings in the accident
scene. He was not a convincing witness under cross -examination and there are
inconsistences with his evidence regarding the sketch plan and t he accident report that
he compiled. I therefore find his evidence unreliable and untruthful.

[61] The defendant raised the issue of causal connection between any proven breach
of the defendant’s duty of care and the accident. In Frank v Road Accident Fu nd,10 the
Court followed the decision of Grove v Road Accident Fund,11 where the Supreme Court
of Appeal stated that:
‘There can be no question of liability if it is not proved that the wrongdoer caused the damage of
the person suffering the harm. Whether an act can be identified as a cause, depends on a
conclusion drawn from available facts and relevant probabilities. The important question is how
one should determine a casual nexus, namely whether one fact follows from another.’

[62] The defendant argued that, even if it were to be accepted that there were no road
signs or road markings to warn the road users of the upcoming intersection, the
plaintiffs did not prove that the lack of such signs or markings were the (sole) cause of
the accident. This argument wa s rejected in a case of similar fact s in Du Toit,12 there is
clear evidence that there was inadequate signage on the road, the stop sign was not in
place, there was no stop line, there were no road markings, and the chevron was not in
place. As the Court pointed out in Du Toit, apart from any other deficie ncies in the

place. As the Court pointed out in Du Toit, apart from any other deficie ncies in the
signage, the probabilities are overwhelming that had the T -junction been properly
aligned with the intersection, Mr Du Plooy and Mr Green would have been alerted to the
danger of the T-junction and reacted accordingly.13


10 Frank v Road Accident Fund [2023] ZAGPJHC 1183 (Frank) para 35.
11 Grove v The Road Accident Fund [2011] ZASCA 55 para 7.
12 Du Toit para 21.
13 Ibid.

[63] Having considered the totality of the evidence, I find that the defendant has failed
in its duty to maintain the road and/or to provide adequate road signs and road
markings to warn the road users of the potential hazard, particularly, the existence of a
T-junction at Wonderfontein Road and Minnaar Streets, Sasolburg. A reasonable person
in the position of the defendant would have foreseen that road users like Mr Du Plooy
and Mr Green would suffer injury as a result of the defendant’s failure to provide
adequate road signs and marking signs to warn the road users of a potential T -junction
hazard. The defendant has a duty not to act negligently and its failure to provide
adequate road signs and road markings meets the test for negligent conduct. The next
issue for determination is whether such negligent conduct is wrongful in order to give
effect to an actionable conduct that gave rise to damages sustained by the plaintiffs.
The defendant’s negligent conduct has given rise to the physical damages sustained by
Mr Du Plooy and Mr Green and is wrongful. It therefore follows that the defendant is
liable for the damages suffered by the Plaintiffs as a result of the negligent and wrongful
conduct of the defendant.14


Apportionment
[64] The other issue to be considered is whether the Mr Du Plooy and Mr Green
contributed to the ac cident by either failing to keep a proper look out and/or drove at a
speed that might have been excessive and in so doing failed to avoid the accident,
when they could have done so. Section 1(1)(a) of the Apportionment of Damages Act 34
of 1956 provides that:
‘Where any person suffers damage which is caused partly by his own fault and partly by the
fault of any other person, a claim in respect of that damage shall not be defeated by reason of
the fault of the claimant but the damages recoverable in respect thereof shall be reduced by the
Court to such extent as the Court may deem just and equitable having regard to the degree in

Court to such extent as the Court may deem just and equitable having regard to the degree in
which the claimant was at fault in relation to the damage.’

[65] In Du Toit,15 the Court stated that:
‘A driver of a motor vehicle is obliged to maintain a proper look -out. He (or she) must pay
attention to what is happening around him; but most important of all, he must as far as possible

14 Op cit fn 5.
15 Du Toit para 17.

keep his eyes on the road, particularly at night when his vision is limited. Depending on the state
of the traffic, the nature of the road and the speed at which he is travelling, the opportunity
which a motorist has to read and comprehend the import of each sign may be extremely limited.’

[66] Mr Grobelaar’s opinion is that, compared to a situation where none of the measures
relating to road signs and road markings measures were in place; under the
circumstances, the accident would probably have been avoided had the motorcyclists
been keeping a proper lookout and have heeded these measures on approach to the
accident site. Mr Du Plooy conceded under cross -examination that in the absence of
appropriate road signs and markings, it is important for road users to (i) keep a proper
look out; (ii) adju st their speed according to prevailing circumstances; and (iii) act
according to visibility as experienced by the individual users themselves. Mr Green’s
evidence is that they were aware that they were driving towards a T -junction. Whilst
there was a flashlight which was warning them of a potential hazard ahead, they did not
reduce speed to heed the warning. Mr Green’s evidence is that he was focussed on Mr
Du Plooy, and he did not keep a proper look out on the road , as it was too dark to see .
He did not apply breaks when his motorbike hit the gravel.
[67] In Botes v MEC Western Cape Department of Transport and Public Works ,16 the
Court stated that:
‘In my view, a reasonable driver, after realising that he had negligently strayed off the right
shoulder, would have taken his foot off the accelerator and slowed down in order to gain
complete control of his vehicle. A gravel shoulder is not intended to be driven upon at the same
speed as the tarmac surface. The friction differential between the tarmac surface and the
shoulder adds a further complication. While sharp braking would have been inadvisable with the

shoulder adds a further complication. While sharp braking would have been inadvisable with the
right wheels on the gravel shoulder, gentle br eaking to slow down the vehicle would have been
prudent.’

[68] In Steyn v Road Accident Fund17 this Court stated that:
‘The test for negligence as stated in Kruger v Coetzee has as a yard stick the conduct of the
reasonable man (hereafter the reasonable “person”). It is trite the onus rests on the plaintiff to
prove the defendant’s negligence which caused the damages suffered, on a balance of
probabilities. To avoid liability, the defendant must produce evidence to disprove the inference of
negligence on his part, failing which the defendant risks the possibility of being found to be liable

16 Botes v MEC Western Cape Department of Transport and Public Works [2020] ZAWCHC 147 para 33.
17 Steyn v Road Accident Fund [2024] ZAFSHC 241 para 8.

for damages suffered by the plaintiff. On the other hand, where the defendant had in th e
alternative pleaded contributory negligence and seeks a finding of an apportionment, the
defendant would have to establish negligence on the part of the plaintiff on a balance
probabilities.’

[69] In order to give effect to contributory negligence, ther e must be proof that there
was a causal link between the accident and the plaintiff’s conduct. Section 1(1)(a) of the
Apportionment of Damages Act gives authority to the Court to reduce damages suffered
by the plaintiff and have regard to the degree to which the plaintiff is found to be at fault.
In Van Vuuren v South African Nationals Roads Agency Ltd and Others ,18 the Court
stated that:
‘The locus classicus in this regard is South British Insurance Co Ltd v Smit wherein the
principle, which has often been confirmed since, has been formulated as follows: “From the very
nature of the enquiry, apportionment of damages imports a c onsiderable measure of individual
judgment: the assessment of ‘the degree in which the claimant was at fault in relation to the
damage’ is necessarily a matter upon which opinions may vary. In the words of Lord Wright in
British Fame (Owners) v MacGregor ( Owners) [1943] (1) A.E.R.33 at 35 (a maritime case: but
the principle appears to be equally followed in England in relation to the Contributory
Negligence Act): ‘It is a question of the degree of fault, depending on a trained and expert
judgment considering all the circumstances, and it is different in essence from a mere finding of
fact in the ordinary sense. It is a question, not of principle, but of proportion, of balance and
relative emphasis, and of weighing different considerations. It involves an individual choice or
discretion, as to which there may be difference of opinion by differe nt minds .’ (Footnotes
omitted.)

[70] Having considered the totality of evidence, I find that had the defendant provided

[70] Having considered the totality of evidence, I find that had the defendant provided
adequate road signs and road markings to warn the road users of a potential hazard,
particularly, the existence of a T -junction at the intersection of Wonderfontein and
Minnaar Streets, the accident would not have happened. Similarly, had Mr Du Plooy and
Mr Green, kept a proper look out and reduced speed as they were riding towards an
intersection to which they anticipated to meet a T-junction, the accident could have been
avoided. They should have reduced speed upon noticing a flashlight which was warning
them of a potential hazard. They should have adjusted the headlights of their
motorcycles to illuminate at a distance, as indicated by Mr Grobbelaar, to be able to see

18 Van Vuuren v South African Nationals Roads Agency Ltd and Others [2025] ZAGPPHC 1147.

the grass of the edge at least 45 meters as they approached the T -junction. They made
no attempt to apply breaks as their motorcycles hit the gravel immediately before they
fell into a ditch beyond the T -junction. I find th at both Mr Du Plooy and Mr Green’s
negligent conduct contributed to the accident on a 20 percent scale. The Defendant’s
negligent and wrongful conduct contributed to the accident on an 80 percent scale.

Onus
[71] The plaintiffs bear the onus to prove on a balance of probabilities that the
defendant’s conduct is negligent and wrongful. I have made a finding that the defendant
acted negligently and in a wrongful manner by failing to provide adequate road signs
and road markings to warn the road users, particularly Mr Du Plooy and Mr Green of a
potential hazard which may cause harm to them. The Court’s duty is to determine the
nexus between the negligent and wrongful conduct of the defendant and the accident
before a decis ion is taken to award compensation for damages to the plaintiff. I am
satisfied that the plaintiffs in casu have proven on a balance of probabilities the
defendant’s negligent and wrongful conduct. The defendant has failed to provide its duty
of care towar ds the road users. In South Cape Corp. v Engineering Management
Services,19 the then Appellate Division stated that:
‘As was pointed by Davis, A.J.A. in Pillay v Krishna and Another, 1946 at pp. 952 -3, the word
onus has often been used to denote, inter alia, two distinct concepts: (i) the duty which is cast
on the particular litigant, in order to be successful, of finally satisfying the Court that he is
entitled to succeed on his claim or defence, as the case may be, and (ii) the duty cast upon a
litigant to adduce evidence in order to combat a prima facie case made by his opponent. Only
the first of these concepts represents onus in its true and original sense.’

Costs
[72] The general rule is that the successful party should be granted costs. This rule

Costs
[72] The general rule is that the successful party should be granted costs. This rule
should not be departed from unless there are grounds for doing so. I see no reason to
depart from this rule; the defendant should pay the plaintiffs’ costs.

Order
In the circumstances, I make the following order:

19 South Cape Corp. v Engineering Management Services 1977 (3) SA 534 (A) at 548A.

1.1 It is declared that the Defendant is liable for 80% of the plaintiffs’ proven damages
as a result of the two motorcycles’ accident which occurred on May 14, 2018.
1.2 The defendant is ordered to pay the plaintiffs’ costs on a party -to-party scale,
including costs of counsel on scale B.

________________
M. NTANGA AJ

Appearances

For the applicant: D J Smit
Instructed by: Rosendorff Reitz Barry Attorneys, Bloemfontein

For the respondent: G J M Wright
Instructed by: State Attorney, Bloemfontein.