IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
MOTLATSI JACOB MOFOKA
(substituted by the executrix of his estate ,
being ANNA MOFOKA)
and
THE MEC DEPARTMENT OF ROADS
AND PUBLIC WORKS, NORTHERN CAPE
FRANCES BAARD DISTRICT MUNICIPALITY
DIKGATLONG LOCAL MUNICIPALITY
Coram: Lever J
JUDGMENT
Lever J.
Case No: 132/2015
Plaintiff
1st Defendant
2nd Defendant
3rd Defendant
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BACKGROUND FACTS:
I. The orig inal plaint iff Motlatsi Jacob Mofoka , who is now deceased instituted a claim
against the three defendants listed above. The said plaintiff will hereafter be referred to as
the deceased or Mr Mofoka , depending on the context. The said claim arose out of a motor
vehicle accident involving only the vehicle driven by the deceased.
2. The said accident occurred on the 7 February 2012 at approximately 08H30. The deceased
was travelling in a military vehicle, being a Light Delivery Vehicle (LOY) bearing the
registration number BLZ 360 M. The road in quest ion was referred to as the R31 in the
evidence. It is common cause that the accident occurred on this road, that it is a provincial
road and that the first defendant is the political head of the provincial department
responsible for the care, maintenance and upkeep of the said road.
3. On the date and time set out above, the deceased was driving the said vehicle. The decease
had one passenger with him, a certain Warrant Officer Frye (W/O Frye). Both the deceased
and W/O Frye were member s of the South African National Defence Force (SANDF) at
the material time. The were on their way from Postmasburg to Kimberley to attend a
meeting related to their employment in the SANDF in Kimberley.
4. On a stretch of road between Koopmansfontein and Danielskuil, it is allege d that the vehicle
deceased was driving hit a pothole and that as a result thereof he lost control of the vehicle
and suffered serious injuries rendering him a quadrip legic. The deceased instituted this
action to claim compensation for such injuries.
5. On the 11 July 20 I 7, plaintiff withdrew his action against both the second and third
defendants.
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6. The deceased died after the pleadings had closed and litus contestatio had been reached.
On the 4 February 202 J, the deceased was subst ituted by the executrix of his estate as the
plaintiff in this matter.
THE ISSUES:
7. Initially, the first defendant had filed two special pleas. The first special plea related to the
notice contemplated in section 3 of the Institution of Legal Proceedings Against Certain
Organs of State Act 42 of 2002. The second special plea invoked section 2 of the State
Liability Act 20 of 1957. The plaintiff app lied for condonation. The matter was set down
before my Sister Stanto n AJ (as she then was). On the 25 June 2028 Stanton AJ granted the
necessary condonation in respect of the first specia l plea. Stanton AJ d ismissed the second
special plea and reserved the question of costs. Stanton AJ also postponed the merits of toe
action to a date to be arranged with the Registra r and reserved the question of costs related
to such postponement.
8. The further issues raised by the plaint iff his pleadi ngs, still relevant to the matter between
the plaintiff and first defendant at this time, are as follows: That first defendant was
respons ible for the maintenance and upkeep of the relevant road in order to keep such road
in good repair; That the accident was caused by the sole negligence of the first defendant
or his servants acting in the course and scope of their employment; That the first defendant
and or his servants had certain pos itive duties toward s road users in the position of the
plaintiff ; That the first defenda nt and or his servants were neg ligent in failing to comply
with one or more alternatively all of the said positive dut ies; Such positive duties included
inter alia that first defendant had failed to maintain and keep the relevant road in good
repair and that first defendant or his servants had failed to display approp riate road signs in
advance of such potholes warn ing motorists of the potholes in the road so that motorists
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could adjust the ir drivin g in a manner appropriate to the existing road conditions; That in
the circumstances first defendant and/or his servants owed a duty of care to motorists using
the relevant stretch of road; and That the fai lure of the first defendant and/or his servant in
failing to keep the said road in a proper state of repair and/or their failure to warn motorists
by way of appropriate road signs of the risks on the road ahead, created a potential risk of
harm which first defendant and/o r his servan ts failed to take reasonable steps to prevent.
9. The first de fendant pleaded to these issues set out above as fol lows: Admitted that he is
responsible for the maintenance of the road in question ; Admitted that he does owe
motorists using the relevan t road a duty of care; That he denied the contention that any act
or omission on his part or on the part of his serva nts caused the said accident; He denied
that the relevan t accident was caused by potholes in the road; He pleaded that the accide nt
was caused by the plaintiff's neglige nce; (Such alleged negligence included infer alia: the
plaintiff drove at an excess ive speed; he failed to keep his motor vehicle under proper
control; he failed to appl y brakes adequately , tirneously or at all; he failed to prevent the
accident when he could and should have done so; he failed to exercise the care of a prudent
driver under the circumstances; and he failed to take cognisance of, or abide by, the genera l
rules and regulations of the road); That plaintiff had failed to adhere and comply with road
traffic warning signs erected on the relevant stretch of road and that plainti ff had failed to
drive at a reduced speed; That in the circumstances first defendant is not liable to
compensate the plaintiff for any damages he might have suffered: and That defendants
action ought to be dismissed with cos ts alternatively, if this court finds the defendant liable
for any of the damages the plaintiff suffered that such damages ought to be apportioned in
terms of the Appo rtionment of Damages Act 34 of 1956 and that in these c ircumstances an
appropriate order of costs shou ld be made.
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I 0. The parties agreed at a pre-trial conference held on the 4 July 20 I 7 that the issues of the
merits and quantum be separated and that the special pleas be dealt with at the outset. The
outcome of such special pleas has already been dealt with above.
11. In argument Mr Coetzee SC and the junior counsel, Mr Jankowitz, who appeared with him
on behalf of the plaintiff, submitt ed that: the plaintiff has establi shed the duty of care and
the omission/s of the first defendant and or his servants; the first defendant was liabl e to
compensate the plaintiff for the damages he suffered as a result of such accident; and that
the first defendant had not established contr ibutory negligence on the part of the plaintiff
and that according ly this court could not apportion blame in respect of the relevant accident.
I 2. Mr Bomela who appeared for the first defendant from halfway through the plaintiffs case
up until the end of the case, argued in his heads of argument that plaintiff had volu ntarily
accepted the risk and that in the circ umstances the defence of volenti non fit injuria applied.
Wisely, given the evidence and the circumstances Mr Bomela did not pursue this defence
in his final argument. In my view the facts as they emerged from the evidence do not
support such a defence.
13. What Mr Bomela did argue in his final argument before thi s court was that the accident
itself was not caused by a damaged road, but that before the edge-break in the road the
vehicle swerved to the left and left the road then it is contended that the plaintiff swerved
to the right and then hit the edge-break. ln other words, Mr Bomela argues that the plaintiff
lost control of the vehicle before it came into contact with any damage to the road surface.
As a consequence of that sequence of events he contended that the first defendant was not
responsible for the accident and the claim now managed by the deceased's executrix ought
responsible for the accident and the claim now managed by the deceased's executrix ought
to be dismissed. In the event that the court finds the first defendant liable in damages, which
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is still denied , then this court should apportion blame and subseq uent damages in a manner
that is consistent with the facts the court finds to have been estab lished on the probabilities.
14. At this point it is prudent to point out that there was something of a debate on terminology
applicable to damage to a road surface. The plaintiffs expert witness , Mr Du Preez testified
that damage to the road surface on the edge of the macadam surface is called an edge-break .
Although Mr Du Preez was of the opinion that at some point in the development of the
edge-break it would qualify to be described as a pothole. The defendant 's expert , Mr
Strydo m believed such damage could on ly be described as an edge break. Mr Matsoso , the
Chief Engineer of the first defendant 's roads division called it an edge-break , but he also
expressed the view that at some point it would be described as a pothole. W/O Frye, in this
context a lay witness , simp ly referre d to it as a pothole. W/O Molwane. the policeman who
attended the scene after the accident and drew a sketc h plan described it as 'a pothole or a
cut tannac' in his sketch plan of the scene of the accident. W/O Molwane repeated this
terminology in his oral evide nce.
15. For present purposes abso lutely nothing turns on how the releva nt damage to the road is
described. Th is will become evident once the relevant evidence is set out and discussed.
THE LAW:
16. The legal position in respect ofan om ission was dealt with, set out and restated by Scott JA
in the Supre me Court of Appeal (SCA) the case of McIntosh v Premier Kwazulu-Natal 1•
The passage quoted is a lengthy one, but it is necessary to quote it, at least to the exte nt that
1 (2008) 4 All SA 72 (SCA) at paras (11) to (14).
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I have, because it authoritatively and succinctly sets out the legal position. The SCA in the
McIntosh matter, set out the legal position as follows:
"[11] As repeatedly stated by this Court, a negligent omission , unless wrongful will
not give rise to delictual liab ility. More recently in Trustees, Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3} SA 138 (SCA) [also
reported at !2007] 1 All SA 240 (SCA) - Ed] Brand JA, at 144A-C, parag raph
I 0, explained the requirement of wrongfu lness as follows:
"Negligent conduct manifesti ng 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 om issions and for negligently caused
pure economic loss (see eg Minister of Safety and Security v Van
Duivenboden 2002 (6} SA 431 (SCA) ((2002] 3 All SA 741 ) in para [12];
Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) (1 2004] 4 Al l
SA 500) in para [12]) . In these instances, it is said , w rongfulness depen ds
on the existence of a legal duty not to act negligently. The impos ition of
such a legal duty is a matter for jud icial determination involving criteria
of public or legal policy consistent with constitutional norms."
The learned Judge cont inued at 1441, paragraph 12;
" ... when we say that negligent conduct .. . consisting of an omission is
not wrongfu l, we intend to convey that public or legal policy considerations
determine that there should be no liab ility; that the potential defendant
should not be subjected to a cla im for damages , his or her negligence
notwithstanding. ln suc h event , the quest ion of fault does not even arise.
The defendant enjoys immun ity agai nst liability for such conduct , whether
neg I igent or not .. . . "
[12] The second inquiry is whether there was fault, in this case negligence. As
[12] The second inquiry is whether there was fault, in this case negligence. As
is apparent from the much quoted dictum of Holmes JA in Kruger v Coetzee
1966 (2) SA ,pg (A) at 430E -F [also reported at 119661 2 All SA ➔ 90 (A) -
Ed] , the issue of negligence itself involves a twofold inquiry. The first
is; was the harm reasonab ly foreseeable? The second is; would the
diligens pate,familias take reasonable steps to guard against such
occurrence and d id the defendant fail to take those steps? The answe r to
the second inquiry is frequent ly expressed in terms of a duty. The
foreseeability requirement is more often than not assumed and the inquiry
is said to be simply whether the defendant had a duty to take one or other
step , such as drive in a part icular way or perform some or other positive act ,
and, ifso , whether the failure on the pa rt of the defendant to do so amounted
to a breach of that duty. But the word "duty" , and sometimes even the
expression "legal duty" , in this context , must not be confused with the
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concept of "legal duty" in the context of wro ngfuln ess which, as has been
indicated, is distinct from the issue of negligence. I mention this because
this confusion was not only apparent in the arguments presented to us
in thi s case but is frequently encountered in reported cases. The use of the
expression "duty of care" is similarly a source of confusion. In English law
"duty of care" is used to denote both what in South Africa n law would be
the second leg of the inquiry into negligence and legal duty in the context
of wrongfulness. As Brand JA observed in the Trustees, Two Oceans
Aquarium Trust case, at I 44F, "duty of care" in English law "straddles
both elements of wrongfulness and negligence".
[13] In the present case the reasonable foreseeabili ty of harm to users of the
road in consequence of potholes was not in issue. Mr George Hattingh , a
consultin g engineer who gave evidence on behalfofthe respondents, readily
conceded that quite apart from the damage caused to vehicles by driving
over large potholes, their presence in the road was likely to cause drivers to
swerve to avoid them which could result in collisions with other vehicles
or pedestrians, particularly in wet weather when a swerving vehicle was
likely to skid. The circumstances of the appellant's accident were admittedly
somewhat unusual but it is well established that it is suffic ient if the general
nature of the harm to the injured party was foreseeable; it is not necessary
that the precise manner of its occurrence be foreseeable.
( 14] The crucial question, therefore. is the reasonableness or otherw ise of the
respondents' conduct. This is the second leg of the negligence inquiry.
General ly speaking , the answer to the inquiry depends on a
consideration of all the relevant circumstances and involves a value
judgment which is to be made by balancing various competin g
considerations including such factors as the degree or extent of the risk
considerations including such factors as the degree or extent of the risk
created by the actor's conduct, the gravity of the possible consequences
and the burden of eliminating the risk of harm. See eg Cape Metropolitan
Council v Graham 2001 CI l SA 1197 (SCA) [also reported at 120011 I All S.\
215 (A) - Ed] paragraph 17. Where, however, a public authority is involved a
further consideration arises. It is this: a court when determining the
reasonableness or otherwise of an authority's conduct will in principle
recognise the autonomy of the authority to make decisions with regard to the
exercise of its powers. Typica lly, a court wil l not lightly find a public
authority to have failed to act reasonably because it elected to priorit ise one
demand on its possibly limited resources above another. Just where the line
is to be drawn is no easy matter and the question has been the subject of
much judicial debate both in England and other Commonwealth
countri es. See eg Stovin v Wise [ 1996) AC 923 (HL); Gorringe v Calderdale
Metropolitan Borough Council [W04J_2...c.l1.LI R_.32.Q (HL); Barratt v District of
North Vancouver ( 1980) I 14 DLR (3rd) 577 (SCC): Brodie v Singleton Shire
Council (200 I) 206 CLR 5 12 (HC of A) paragraphs 161- 162. But whethe r
the criterion to be applied is ultimately one of rationality or some other
principle is unnecessary to decide. What, I think , is clear is that if in the actual
implementation of a policy or procedure adopted by the authority , or for that
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matter in the course of its operations , foreseeable harm is suffered by
another in consequence of a failure on the part of the authority's servants
to take reasonable steps to gua rd against its occurrence , a court will not
hesitate to hold the authority liable on account of that omiss ion. Indeed, as
I read sectio n 9(3) of the Kwa Zu lu-Natal Provincial Roads Act, whatever its
precise ambit may be, there can be no doubt that omissions of this
nature were intended by the Legislature to be excluded from the general
exemption embodie d in the section. "
17. As can be seen from the McIntosh matter, a determination must first be made as to whether
in the circumstances of the particular case , the omission can be said to be wrongful. In other
words, whether there was a legal duty on the first defendant not to act negligently. The next
enquiry is to determine whether there was ' fault ' on the part of the first defendant. In other
words, whether the first defendant can be said to have been negligent. The question of
determining fault has two parts. Firstly, a determination of whethe r the harm was
reasonably foreseeable. Secondly , would a diligens paterfamilias take reasonable steps to
guard against such ham1.
18. As can be seen from the pleadings set out above , the defendant has, inter alia, placed in
issue the question of factual causation. The test to determine factual causation is the sine
qua non test. Sometimes referred to as the ' ... but for test ' . As Jansen J in the matter of
Celliers v South African Railways and Harbours 2 put it: " Would the collision have
occur red but for the negligence of the defendant? "
19. Th is question has been considered by the then Appellate Division (AD) in the matter of
International Shipping Co (Pty) Ltd v Bentle y3. The AD in that matter set out the
position as fo llows:
2 1961 (2) SA 131 (TPD) at 141F.
3 1990 (1) SA 680 (AD) at 700 to 701.
Page 9 of24
"As has previously been pointed out by this Court , in the law of delict causation involves
two distinct enquiries. The first is a factual one and relates to the question as to whether the
defendant's wrongful act was a cause of the plaintiff's loss. This has been referred to as
'factual causat ion'. The enquiry as to factual causation is genera lly conducted by applying
the so-called 'but-fo r' test, which is designed to determine whethe r a postulated cause can
be identified as a causa sine qua non of the loss in question. In orde r to apply this test one
must make a hypothetical enquiry as to what probably would have happened but for the
wrongful conduct of the defendant. This enquiry may involve the mental eliminat ion of the
wrongful conduct and the substit ution of a hypothetical course of lawful conduct and the
posing of the question as to whethe r upon such an hypothesis plaintiffs loss would have
ensued or not. If it would in any event have ensued , then the wrongful conduct was not a
cause of the plaintiffs loss; aliter, if it would not so have ensued. If the wrongful act is
shown in this way not to be a causa sine qua non of the loss suffered , then no legal liability
can arise. On the other hand, demonstration that the wrongfu l act was a causa sine qua non
of the loss does not necessarily result in legal liability. The seco nd enquiry then arises, viz
whether the wrongful act is linked sufficiently closely or directly to the loss for legal
liability to ensue or whether , as it is said , the loss is too remote. This is basically a juridical
problem in the solution of which considerations of policy may play a part. "
20. In summary , in the present circumsta nces, this court must first decide whether the plaintiff
has established if there was an omission in relation to the harm that forms the basis of his
claim. Then, assuming that plaintiff establishes such an omission , this court must then
decide whethe r the omission on the part of the first defendant was wrongful. Then , this
decide whethe r the omission on the part of the first defendant was wrongful. Then , this
court must consider whether there was fault on the first defendant 's part in the particular
circumstances of the case. The n this court must consider whether the plaintiff has
established both factual and legal causation in relation to the harm the deceased has
suffered. In respect of the question of legal causation , whether as a matter of public policy,
the first defendant should be held liable for the harm in the circumstances of the case.
Assuming , that both of those questions are answered in favour of the plaintiff , I will then
proceed to consider the question of contributory negligence.
Page 10 of 24
THE EVIDENCE:
2 I. The plaintiff led the evidence of W/O Frye, Mr Van Der Ryst, Mr Van Der Bergh, Mr Du
Preez (plaintiffs expert on road mainte nance) and W /0 Molwane (the policeman who drew
the sketch plan of the scene). The defendant led the evidence of Mr Strydom (defendant ' s
expert on accident reconstruction) and Mr Matsoso.
22. The evidence of W/O Frye was to the effect that: She was a retired member of the SANDF
and held the rank or Warrant Officer on the 7 February 2012, the day of the relevant
accident; She and the deceased were colleagues and the worked together in the SANDF;
The deceased held a rank in the military that was junior to her rank; She had known the
deceased for approximately IO years prior to the accident; She considered the deceased to
be a responsib le driver and she had never known him to be a reckless driver ; On the said
date they were travelling in the military LDV for an official meeting related to their
employment in the military ; There is a strict procedure before a trip is authorised and a
vehicle is allocated for such trip; This procedure included the driver showing his drivers
licence; the vehicle being inspected for roadworthiness; The relevant vehicle was indeed
roadworthy before they undertook the relevant trip on the day in question; Historically , she
had travelled the road in question , the R3 I, on different occasions prior to the relevant
accident ; Jn her opinion the R3 l had last been in a good condition about five years prior to
the said accident ; On the day of the accident they drove on the R3 I from Kathu to
Kimberle y; While the road was in poor condition , it was not uniformly bad, there were
places where they could speed up and places where they had to slow down ; The accident
happened about IO kilometre s before Koopman s fontein ; the acc ident happened after a
gentle curve in the road; About 500 metres before they entered this gentle curve they
encountered potholes in the road surface ; They had a deadline to reach Kimbe rley; They
encountered potholes in the road surface ; They had a deadline to reach Kimbe rley; They
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discussed their speed of travel and W/O Frye requested the deceased to increase his speed
so that they could make their appointment in Kimbe rley; They then encountered the pothole
alleged to have caused the accide nt; She described this pothole as starting from the edge of
the lane they were travelling and being in a horse shoe shape that encroac hed from the edge
of the lane they were travelling in until about halfway into their lane of travel; She saw this
pothole for the first time after she had been discharged from hospital whilst travelling home
with her husband some three days after the accident; She testified that the deceased lost
control of the vehicle after he hit this potho le; After the vehicle went out of control she saw
flames and realised that the vehicle was rolling; She confirmed the sketch plan of W/O
Molwane as representing how the acc ident occurred; On her way home she identified the
accident scene by the marks that could be observed and the fact that where the tyre marks
ended and the vehicle came to a rest she found broken glass from the windsc reen; The
vehicle was transported back to the Lohatla Military base where she works; About a week
after the accident she saw this vehicle at the said militar y base; She observed that both left
hand side tyres had burst; She testified that there had been no problem with the tyres until
they hit the relevant pothole ; After the accident , the deceased was paralysed from the
shoulders downward and was confined to a wheelchair.
23. Under cross-examination by Ms Seboko, who appeared for the first defendant at that time,
W/O Frye testified: That although she held a rank senior to the deceased that her request to
increase speed was not an instruction ; She herself also drove and that she would adjust her
speed in accordance with the prevailing road conditions; The speed limit on the relevant
section of road was l 20km/h; W/O Frye was referred to her statement she made to the
section of road was l 20km/h; W/O Frye was referred to her statement she made to the
police where her description of the accident was different from her oral evidence; ln her
statement to the police she said the vehicle swerved to the left and then hit the relevant
pothole ; Her response to this was that she did not see the vehicle hit the pothole ; After she
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observed the vehicle at Lohatla Military base she concluded that both tyres on the left hand
side of the vehicle burst after the vehicle hit the relevant pothole.
24. In re-examination she testified that she does not recal l any hazard warning road signs or
speed reduction signs in the vicinity of, or immediately prior to the relevant pothole.
25. The plaint iff then led the evidence of Mr Van Der Ryst, whose evidence was to the effect
that: He is a local farmer in the vicinity of where the accident took place; He grew up in
that area and travelled the relevant stretch of road at least twice a week; He confirmed that
the condition of the relevant road in that vicinity is poor; It was in his opinion not safe to
travel on the relevant stretch of road in an ordinary sedan vehicle; In confirmed that there
had been a number of single veh icle accidents on the releva nt stretch of road and that there
had even been fatal ities arising from such accidents; The poor condition of the road was
due to the high volume of heavy vehic le using the relevant road on a daily basis; and he
had not observed warning signs on the relevant section of road relating to potholes.
26. The plaintiff then called Mr Van Der Bergh who testified that he had taken certain of the
photographs relied upon by the plaintiff and that the condition of the road surface on the
relevant stretch of road was poor as he drives the said road regularly.
27. Then the plaintiff led the evidence of his expert Mr Du Preez, who is an engineer and
specialises in the requirements for maintenance of roads and road surfaces. Although the
plaintiff and the defendant both engaged experts to assist them in presenting their cases ,
they are not experts in the same field. The defendant ' s expert was an expert in
reconstructing accidents. Nonetheless , they had a conference and filed an expert report. In
such joint minute, they both accepted each other 's competence to advise their respect ive
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clients in their respective fields of expertise. ln other words, they accepted each other 's
qualifications. In any event , this was not an issue between the parties.
28. The evidence of Mr Du Preez was to the effect that: He did not personally visit the scene
of the accident, but based his report and conclusions from photographs and documents
provided to him by the plaintiff's attorney; He filed an addendum to his report after the
evidence led on the 23 and 24 February 2021 ; he referred to the fact that first defendant 's
counsel in cross-examining the plaintiff's witness referred to an edge -break shown in a
certain photograph was in the order of 300 mm to 400mm in size; Which he pointed out
would be considered a severe edge break; He emphasised that that this meant that at such
edge-break 300mm of the usable road surface from the edge of the road towards the centre
of the lane of travel was no longer present; In his view this would constitute a signi ficant
hazard to road users; In his opinion the first defendant owed members of the public , using
the relevant road, a duty of care to reasonably monitor, inspect and mainta in such roads to
ensure that use of such roads was reasonably safe ; He then quotes directly from the first
defendant's website to show that the first defendant was well aware of the conditio n of the
relevant road and was also aware of the duty of care that he owed users of the relevant road;
It emerged that prior to this accident , there had been a substantial increase in the volume of
heavy vehicles using the relevant stretch ofroad and that prior to the relevant acc ident there
had been heavy rainfalls in the relevant area ; 1t also emerged from his evidence that the
relevant stretch of road passed through a wetla nd and that the substrata of the relevant
stretch of road would need special attention ; and that all of these factors would have
increased the rate of wear and deterioration on the relevant stretch of road.
increased the rate of wear and deterioration on the relevant stretch of road.
29. Finally, the plaintiff called W /0 Molwane to give evidence. W /0 Mo I wane drew the sketch
plan and authored the key to the said sketch plan wh ich appears at pages 5 and 6 of the
Page 14 of 24
plaintiff's exhibit bundle. His evidence was to the effect that: He drew the sketch plan on
the 13 February 2012; He has no personal knowledge when the accident occurred , but he
accepts the evidence placed before the court that the accident occurred on the 7 February
20 I 2; When he visited the scene of the relevant accident, he was accompanied by the
investigating officer in respect of the said accident. Such investigating officer had asked
for his assistance to draw the said sketch plan; The relevant investigating officer has since
passed away; He read the key to his sketch plan into the record; He test ified that when he
had visited the scene, the relevant motor vehicle had already been removed; He relied upon
the police who took him to the scene to indicate whe re the vehicle came to a rest after the
accident; He saw marks made by the relevant vehicle at the spot where the police indicated
the vehicle came to rest; He also observed broken glass at that spot; On the opposite side
of the road there was a telephone pole adjacent to where the said vehicle came to rest; He
recorded the serial number attached to this telephone pole and used it as his fixed point;
There were tyre marks of the said vehicle that ultimately led back to point "C" indicated on
his sketch plan; Point "C" was described in the key to his sketch as 'a pothole or cut tannac';
he described two tyre tracks that led from the outer edge of the said pothole to the right
hand side of the road into the lane of oncoming traffic then these tracks went back to the
left hand side of the road, being the lane he was orig inally travelling in and that these tracks
finally left the road at point "D" indicated on his sketch plan; that these tracks came to an
end at point "E" indicated on his sketch plan; Point "E" was opposite to the fixed point
being the telephone pole on the other side of the road, which is marked as point " H" on the
sketch plan; there were clear tyre marks from point "C", the pothole to where the vehicle
sketch plan; there were clear tyre marks from point "C", the pothole to where the vehicle
finally came to a rest; These tyre marks started from the pothole , there were no tyre marks
before the pothole ; He was stationed at Delportshoop for 9 years and he knows the relevant
stretch of road; he described that section of road as being broken on the edges of the road
Page 15 of 24
surface and having potholes in places ; In his opinion the road was not in a good cond ition;
When he was on the scene on the 13 February 2012 there was no indication that the relevant
edge break had been repaired; When he drew the sketch plan there were no warning signs
relating to potholes in sight ; He would nonnally in draw ing such sketch plan indicate if
there were warning signs present; In his line of work he was aware of many accidents that
had occurred on the relevant stretc h of road ; and the said road had a high volu me of heavy
trucks using it.
30. Under cross-examination by Mr Bomela W/O Molwane testified that: He attended the
scene with Sgt Kuloisi and not Raadt (Raadt filed an accide nt report but he was not called
to testify so such report has no evidential value); W/O Molwane was not able to comment
on Raadt's accident report ; He reiterated that the tyre tracks started from the edge of the
pothole and that there were no tyre marks before that point outside the edge of the road
surface; In response to a question as to what wou ld be a reasonable speed to navigate the
relevant stretch of road, he rep I ied that you cou Id even go up to l 20km/h; ln his opinion
the deceased drove through the pothole and due to the speed he was travelling he lost
control of the vehicle he was driving; that the deceased lost control of the vehicle after he
drove through the pothole; Mr Bomela asked , "You can also not confirm or deny that
driving throug h either the pothole or the edge break, necessarily resulted in the cause of the
accide nt?"; To which W/O Molwane replied , "According to me, I would say the accident
was caused by him drivi ng over the pothole. "
31. In response to a question by the court after re-examination W/O Molwane confirmed that
he made his measurements for his sketch plan with the aid of a measuring tape.
Page 16 of 24
32. After the evidence ofW/0 Molwane , the plaintiff closed his case. The first defendant then
led the evidence of his expert, Mr Strydom and the evidence of Mr Motsoso an offic ial
from the engineering division of the first defendant's road divi sion.
33. Mr Strydom is an admitted attorney who has completed certain course that gives him
expertise in road accident reconstruction. As set out above. the two experts accepted each
others expertise and the qualifications of the respective experts was not at issue in this trial.
34. Mr Strydom relied upon the sketch-plan ofW/0 Molwane and the measurements contained
therein. In fact, both experts in their joint minut e accepted the relevance of W /0 Molwane's
sketch plan. Both experts agreed that the sketch plan was not drawn to scale. Mr Strydom
explained that the drawing was not proportional to the measurements set out in the said
sketch-plan key. Other than that Mr Strydom conceded that the sketch plan showed the
correct sequence of events.
35. What is highly relevant from Mr Strydom 's evidence is that with the assistance of certain
offic ials from the first defendant's department he visited the scene of the relevant accident
some eight years after such accident had occurred. He identified the fixed point set out in
the said sketch-plan and with the aid of a tape measure he worked backwards using the
measurements W/0 Molwane set out in his sketch plan and he came to a repaired edge
break in the road which corresponded with point ·'c·, the pothole or cut tarmac, described
in the said sketch plan. If the said point "C' is not proporti onally represented on the sketch
plan, it is of no moment in the present circumstances. The mere fact that Mr Strydom can
some eight years after the accident use the sketch plan to find a repaired edge break
corrobo rates the accuracy of W/0 Molwane·s measurements and is also strong
corroboration of the plaintiff's version.
Page 17 of 24
36. Mr Strydom's attention was drawn to the statement made in the affidavit ofW/O Frye about
the vehicle leaving the road to the left before hitting the pothole and then veer ing to the
right afte r hitt ing the pothole as opposed to the sequence indicated by W/O Molwane in his
sketch plan and then he was asked on the probabilities which was the more likely scenario
of events . Jn answeri ng this question Mr Strydom said he believed the sequence set out in
the sketch-plan of W/O Molwane was more likely on the probabilities, as the sketch plan
showed no tracks outside the road surface prior to the pothole and that plainly W /0
Mo I wane had no personal interest in the outcome of any proceedings that may arise from
his sketch-plan. W/O Molwane was adamant that the tyre tracks started from the edge of
the relevant pothole and there were no tyre tracks before the relevant pothole.
37. Mr Strydom conceded on the probabilities that the veh icle driven by the deceased went out
of control after hitting the relevant edge-break at point "C".
38. At different points in his testimony Mr Strydom was referred to a photograph of a road
where a warn ing sign to reduce speed to 60 km/h was displayed. In respect of this
photograph Mr Strydom was at great pains to ensure that the court understood that this
warning sign appeared in the lane of travel opposite to the one the deceased would have
been using in travelling to Kimberley and that according to the information he was provided
with, such photograph was taken some months after the accident concerned.
39. While generally Mr Strydom approached his evidence and his role in accordance with what
this court would expect from an expert witness , there is one aspect of his evide nce over
which l have serious concerns. Mr Strydom testified that by use of a certain formula he
could using a mathematical constant , the coefficient of drag and the distance travelled work
out the speed of the vehicle at the beginning of the sequence that caused the accident. This
out the speed of the vehicle at the beginning of the sequence that caused the accident. This
was not challenged by the plaintiff and in and of itself this is not my concern with Mr
Page 18 of 24
Strydom's evidence regarding the speed. My conce rn arises from the way he expressed his
conclus ion on the speed issue in his expert report as opposed to how he set it out in the joint
minute between the experts. In his oral evidence he merely confirmed what is set out in the
experts ' joint minute without explaining what is obviously a different connota tion and
conclusion in his expert report.
40. As the manner of expression is centra l to my concern , I am going to quote the relevant
extract of both documents verbatim. In paragraph 7 .2 of the expert report that Mr Strydom
filed, he set out his conclusion as follows: "Notwithstanding this alleged scenario , Mr
Mofoka is said to have driven the Mazda LDV - Vehicle A at a speed of approximately
11 0km/h. My calculations suggest that he was driving at a higher speed of between 120 and
I 30Km/h. " (My Emphasis)
41. The n in paragraph 3.10 of the experts ' joint minute , Mr Strydom sets out the position as
follows: " Mr Strydom is of the opin ion that the Plaintiff's vehicle was being driven at a
speed in excess of 120 km/h, at or about a speed of 130 km/h, conservatively speaking. Du
Preez cannot comment on this statement as he is not an accident reconstruction expert. "
(My emphasis)
42. It is important to re-iterate that Mr Strydom confirmed the conclusion set out in the joint
minute and did not explain the difference in connotation to the conclusion he set out in his
expert report , which was filed in accordance with the Rules of this court. At the risk of
being pedantic , it is important to set out the difference in connotatio n between these two
versions of Mr Strydom ' s concl usion. In his expert report Mr Strydom says the deceased
drove at a speed between 120 and 130 km/h. However , in the joint minute Mr Strydo m is
effectively saying that the minimum speed the deceased drove at the relevant time was
l 30km/h. A very different connotation with significantly different speeds at the point of
Page 19 of 24
impact with the releva nt pothole. At the very least this calls for an exp lanation. None was
forthcom ing.
43. In the absence of an exp lanation , one would have to question the utility of a formula that
would cater for and validate such inconsistent concl usions. It is obvious, yet bears mention ,
that such difference in speed would have an obv ious effect on the deceased 's ability to
control the vehicle he was driving at the time he hit the pothole (edge-break). The difference
between the two conclusions Mr Strydom placed before the court as set out above, is
significant enough to have had a real effect on the deceased's abi lity to control the veh icle
in the circumstances. In these circ umstances, l can not rely on Mr Strydom 's conclusions or
evidence relating to the speed of the vehic le driven by the deceased at the point of impact.
44. Then the first defendant led the evidence of Mr Matsoso. Mr Matsoso is the chief engineer
of the first defendant 's road division. Mr Matsoso gave evidence about certa in daily and
weekly worksheets dealing with repairs to the relevant stretch of the R3 l at the time in
question. Mr Matsoso was not the author of these doc uments. Mr Matsoso did not himself
go to the relevant stretch of the R31 and check the work indicated in the said reports agai nst
the physical repairs on the relevant stretch of the R3 I. Mr Coetzee in cross-exa minin g Mr
Matsoso pointed out certain anoma lies in the said reports. Mr Matsoso acknow ledged the
said anoma lies but cou ld not explain them as he was not the author of the relevant reports.
The first defendant did not call the author of the said reports to give ev idence. In these
circumstances l cannot rely on this evidence given by Mr Matsoso .
45. Mr Matsoso also testified that he attende d on the scene of the relevant accident some
months after the accident. He had W /0 Molwane 's sketch-p lan, he measured the scene with
a tape and took certain photographs. This evidence tended to confirm W /0 Molwane 's
a tape and took certain photographs. This evidence tended to confirm W /0 Molwane 's
sketch-plan.
Page 20 of24
APPRAISAL OF THE EVIDENCE:
46. Turning first to the argument put forward by Mr Bomela that the deceased lost control of
the vehicle he was driving before such vehicle hit the edge-break concerned. He based this
argument on an extract of the affidavit W/0 Frye provided to the police. Ms Seboko , who
represented the first defendant at the time W/0 Frye was cross-examined, did not deal with
this aspect comprehensively in her cross-examination of Ms Frye. This version is at odds
with the physical evidence found on the scene by W/0 Molwane when he made his sketch
plan. The first defendant ' s own expert , Mr Strydom, relied on the evidence of Mr Molwane
and his sketch plan. Mr Stydom correctly , in my view, conceded that the probabilities
indicated that the deceased lost control of the vehicle as a result of hitting the edge-break
(pothole).
47. In my view W/0 Molwane was an honest and reliable witness. He did not carry a torch for
any party connected to these proceedings. He recorded the phys ical evidence he found on
the scene, including the tyre tracks. Nothing more and nothing less. Based on his evidence ,
I agree with Mr Strydom ' s conclusion that on the probabilities , the deceased lost control of
the vehicle he was driving at the material time as a result of hitting the pothole (edge-break).
In these circumstances , l must reject the argument put forward by Mr Bomela on behalf of
the first defendant.
48. The evidence of Mr Du Preez as supported by the direct quotations from the website of the
Provincial Department of Roads and Public Works contained in the addendum to his expert
report establ ishes the duty of care owed by the first defendant to the plaintiff and other road
users of the R3 I. The said evidence also establishes that the first defendant was aware of
such duty of care.
Page 21 of 24
49. The first defendant had a duty of care to maintain the relevant road in a way that kept it
free of road hazards to users of such road and in the event that he could not repair any such
hazard timeously he had a duty of care to ensure that a warn ing sign relating to such road
hazard was appropriately placed to warn drivers using such road that would allow users of
the road to adjust their driving in an appropriate manner to navigate the relevant road hazard
safely. In respect of the relevant duty of care, the first defendant failed on both counts.
50. In my view in the present circumstances , the first defendant has a legal obl igation to
compensate the plaintiff for the damage suffered.
51. The first defendant raised the issue of an apportionment of damages in relation to the
respective degrees of neg I igence that can be attributed to the parties concerned . Mr Coetzee ,
on behalf of the plaintiff argued that the first defendant had not led evidence on this aspect
and it could not be determined. ln the circu mstances , 1 cannot agree wit h this submission.
Firstly, it is clear from the evidence of W /0 Frye that both she and the deceased were aware
of the general condition of the R3 I being poor. They both knew that they had to adjust their
driving speed to the prevailing road conditions. On the evidence of Ms Frye, the deceased
increased his speed to about 110 km/h because they feared missing their appointment in
Kimberley. In all these circumsta nces I believe that this increased speed. On the
probabilities , played a role in the deceased losing cont rol of the vehicle he was driv ing at
that time. In these circumstances the deceased drove at a speed inappropriate to the
prevailin g road conditions. ln my view these factors are appropriately estab lished before
this court . Accordingly , I cannot uphold the argument put forward by Mr Coetzee on behalf
of the plaintiff in this regard.
52. In assessing this apportionment , it is clear that the main cause of the accident was clearly
the failure to mainta in the road appropriately and more particularly the failure to warn road
Page 22 of 24
users of the particular road hazard, in a manner that wou ld provide road users, including
the plaintiff, an opportunity to adjust their driving accord ingly. In these circumstances, I
wou ld apportion eighty percent of the blame to these factors. On the evidence of Ms Frye,
the deceased was driving at a speed of about 110 km/h. Given the knowledge that they had
about the poor conditio n of the road, also on the evidence of Ms Frye, this was not
appropriate to the general condition of the road in quest ion. On the probabilities, this speed
was clea rly a factor in the ability of the deceased to contro l the vehicle he was driving afte r
hitting the relevant pothole (edge-break). In these circ umstances, I believe twenty percent
of the blame should be apportioned to the deceased.
53. This leaves the question of costs. The plaintiff requested costs to include the costs of two
counsel where two counsel were employed. Having regard to the issues raised in this case,
I do not believe an order for costs on the basis of two counsel would be appropriate and
such an order w ill not be made.
54. 1 believe the appropriate order would be that the first defendant pay 80% (eighty percent)
of the plaintiffs taxed or agreed costs. The plaintiff was substant ially successful; in all of
the circumstances of the case I do not think it would be app ropria te to order the defendant
to pay 20% of the first defendant 's taxed or agreed costs. Jn the circ umstances, the first
defendan t will be ordered to pay 80% (eighty percent) of the plaintiff's taxed or agreed
costs. In all the circumstances of this case, I believe it would be appropriate that these costs
be taxed on scale "C".
55. In her order of the 25 June 2018 Stanton AJ reserved costs in relat ion to two questions.
Firstly, the costs of the condonation application and first special plea. Second ly, in respect
of the costs of postponing the trial on the merits on that occas ion. Neithe r of the parties
of the costs of postponing the trial on the merits on that occas ion. Neithe r of the parties
made representations before me in respect of such costs. In the circumsta nces I bel ieve the
Page 23 of 24
appropriate order is to further reserve the question of these costs for the court dealing with
the quantum in this matter.
ln the circumstances , the following order is made:
1) The first defendant shall pay to the plaintiff 80% (eighty percent) of his proved or
agreed damages.
2) First defendant shall pay to the plaintiff 80% (eighty percent) of his taxed or agreed
costs. Such costs to be taxed on scale "C".
3) The questions ofcosts reserved by Stanton AJ in terms of her order of the 25 June 2018
are hereby further reserved for the court dealing with the quantum of the plaintiffs
claim.
JU HCOURT
NORTHERN CAPE DTVTSTON, KIMBERLEY
APPEARANCES:
Plaintiff: Adv W.J. Coetzee (SC) with D.C. Jankowitz oio P. Joubert Inc (Ref
NP/scj/PJJ 0206)
First Defendant: Adv L.R. Bomela oio Gqadushe Attorneys
Date of hearing: 12 June 2024
Date of Judgment: l 6 Januar y 2026
Page 24 of 24