IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
Case No: 8864/2012
In the matter between:
ANTON HESSE Plaintiff
and
THE SOUTH AFRICAN NATIONAL ROADS AGENCY First Defendant
LTD
KAYAD CONSULTING ENGINEERING (PTY) LTD Second Defendant
FOUNTAIN SQUARE TRADING 71 CC t/a
MD CIVILS Third Defendant
KAYAD CONSULTING ENGINEERING (PTY) LTD First Third Party
FOUNTAIN SQUARE TRADING 71 CC t/a
MD CIVILS Second Third Party
Heard on: 13 – 16 August 2024; 19, 20, 23, 28 August 2024; 6 – 8 November
2024; 20 – 22 January 2025; 29 August 2025; 22 -23,
25 – 26 September 2025; 15 December 2025
Delivered on: 11 March 2026
Summary: Delict — Road authority — Wrongful omission — National freeway —
Ponding and aquaplaning at known low point — Statutory stewardship/monitoring duty
a a
2
(SANRAL Act ss 25(1), 26(c)) — Independent‑contractor defence — Principal’s
non‑delegable steps; inadequate oversight — Chartaprops; Langley Fox — applied
with recent authority confirming that outsourcing does not absolve a principal where
monitoring is deficient — Causation — Factual and legal causation established on
emergency records, post ‑incident edge ‑build‑up removal and in loco geometry —
Contributory negligence — Not proved. Prescription — Prescription Act s 12(3) —
“Material facts” and constructive knowledge — Identity of potential wrongdoers
insufficient — Links applied; Tembani distinguished — Full contractual disclosure and
amended plea in 2016/2017 triggered running — Joinder in March 2019 within
three‑year period — Special plea dismissed. Third‑party proceedings — Indemnity and
contribution under Rule 13 and s 2(2) of the Apportionment of Damages Act —
Contingent claims postponed sine die . Condonation (Rule 36(9)) — Good cause
shown; admission of late expert reports in the interests of justice. Procedure — Merits
only; quantum postponed sine die.
Held — (1) Omission to avert/remove edge build-up at low point wrongful in principle;
(2) Reasonable steps not taken by road authority and contractors; (3) Factual and
legal causation established; (4) Independent -contractor defence unavailable on the
facts given statutory monitoring duty and inadequate overs ight; (5) Contributory
negligence not established; (6) Special plea of prescription dismissed; (7)
Condonation under Rule 36(9) granted with reserved costs made costs in the cause;
(8) Defendants liable, jointly and severally, for 100% of proven damages on the merits.
___________________________________________________________________
ORDER
1. The Special Plea of prescription is dismissed.
2. The First, Second and Third Defendants are held liable, jointly and severally,
the one paying the others to be absolved , for 100% of the Plaintiff’s proven
damages on the merits.
damages on the merits.
3. The Defendants jointly and severally are to pay the costs of suit, including the
costs of two Counsel, Senior Counsel on Scale C and Junior Counsel on Scale
B, respectively.
4. The reserved costs of the interlocutory application heard on 29 August 2025
are declared to be costs in the cause.
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5. The First Defendant’s Third-Party claims for indemnity, rectification, and in the
alternative contribution, against the First and/or Second Third Parties are
postponed sine die for determination, if necessary, at the quantification stage,
with the costs of the third-party proceedings likewise reserved.
6. The matter of quantum is postponed sine die.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
ANDREWS AJ:
Introduction
[1] The Plaintiff instituted action against the South African National Roads Agency
Ltd (“SANRAL”) for delictual damages arising from a collision on 15 May 2009 after
his vehicle aquaplaned on ponded water on the N1 near the Okavango interchange.
The Second and Third Defendants were later joined after it emerged that they
performed supervisory and maintenance functions on that section of road.
[2] In terms of Rule 33(4), the issues of merits and quantum were separated. The
trial proceeded on the merits only.
Preliminary Issues
Reasons for the Interlocutory Order of 2 September 2025
[3] The court granted the following orders following a Rule 27 application launched
by the Second and Third Defendants:
1. The Second and Third Defendants' non-compliance with Rules 36(9)(a) and
(b) in respect of the supplementary report of Mr John Craig, dated 26
November 2024, and the report of Dr Peter Johnson, dated 10 December
2024, is condoned;
2. The Second and Third Defendants are granted leave to call Mr John Craig
and Dr Peter Johnson to testify in support of their aforementioned reports;
3. The matter of costs will stand over for later determination.
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[4] After carefully considering the papers and the submissions advanced by the
parties, I was satisfied that good cause was shown for the late admission of the
supplementary reports of Mr Craig and Dr Johnson.
[5] The change in the factual premise underpinning the engineering evidence
arising from the correct identification of the actual low point in the roadway during the
trial constituted a material development that justified the Defendants’ filing of further
expert reports. The reports we re delivered promptly after that development . They
addressed issues already traversed in evidence. To my mind, their admission did not
cause trial prejudice, as the Plaintiff was afforded an opportunity to reopen his case .
The content of the reports did not alter the nature of the issues to be determined. In
these circumstances, together with interest of justice considerations, the Defendants’
non-compliance with Rule 36(9)(a) and (b) was adequately explained, and
condonation was warranted to ensure that the Court has the benefit of all relevant
material when evaluating the technical evidence.
[6] As to costs, I considered it appropriate that the costs of the application stand
over for later determination together with the remaining issues in the trial, so that the
Court hearing the merits is best placed to assess the extent to which any party has
been prejudiced or put to unnecessary expense by the late delivery of the reports.
Factual Background
[7] The incident at the centre of these proceedings occurred during the early hours
of 15 May 2009 , at approximately 03h00, when the Plaintiff, Mr Anton Hesse, was
travelling along the inbound carriageway of the N1 near the Okavango interchange.
While driving towards Cape Town in heavy rain and darkness, the Plaintiff’s vehicle
encountered a substantial pool of accumulated water in the right-hand lane, causing it
to aquaplane, rotate, and leave the roadway, ultimately colliding with wooden poles
to aquaplane, rotate, and leave the roadway, ultimately colliding with wooden poles
and vegetation on the median of the highway.
[8] It is undisputed that water had ponded in the right -hand lane at the time of the
incident and that this ponding caused the Plaintiff’s vehicle to skid and collide with the
median barrier, resulting in physical injuries. The section of road where the incide nt
occurred lies between approximately kilometre markers 21.8 and 21.9 , which
5
engineering evidence later confirmed to be a low -lying point on the inbound
carriageway where surface water naturally collects.
[9] It is undisputed that SANRAL was incorporated on 19 May 1998 in terms of
Section 3 of the South African National Road Agency Limited and National Roads Act
7 of 1998 (“the SANRAL Act”). In terms of Section 25(1) of the SANRAL Act, SANRAL
was responsible for, and was given power to perform, all strategic planning with regard
to the South African National Roads System, as well as the planning, design,
construction, operation, management, control, maintenance and rehabilitation of
national roads for the Republic. Therefore, at the releva nt time of the incident,
SANRAL bore statutory responsibility for the planning, maintenance, and operation of
the N1 national road under Sections 25 and 26 of the SANRAL Act.
[10] Section 25 of the SANRAL Act states as follows:
‘25 Main functions of Agency
(1) The Agency, within the framework of government policy, is responsible for, and is
hereby given power to perform, all strategic planning with regard to the South African
national roads system, as well as the planning, design, construction, operation,
management, control, maintenance and rehabilitation of national roads for the
Republic, and is responsible for the financing of all those functions in accordance
with its business and financial plan, so as to ensure that government’s goals and
policy objectives concerning national roads are achieved…
(2) For the purposes of subsection (1) –
(a) The Agency, on the incorporation date, will take over from the South African
Roads Board the responsibility for all projects and work which, before that date,
had been commenced in terms of the previous Act by the South African Roads
Board in connection with the planning, design, construction, operation,
management, control, maintenance and rehabilitation of a national road or the
planning of a proposed national road, and which is still pending on that date;
planning of a proposed national road, and which is still pending on that date;
(b) The Agency, as from the incorporation date, will be competent to continue with
and to carry out those projects and that work or to have them carried out subject
to the provisions of this Act and any existing contracts and agreeme nts
concluded by the South African Roads Board with regard to the execution of the
projects or the performance of the work.
(3) Except insofar as this Act provides otherwise, the responsibility and capacity to
perform the functions mentioned in subsection (1) in the Republic, are entrusted to
the Agency only.’
[11] Section 26 (c) in relevant part stipulates as follows:
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‘In addition to the Agency’s main powers and functions under section 25, the Agency is
competent –
…
(c) to appoint any private person, institution or body, in terms of a contract concluded
for that purpose, in order to perform any work on behalf of the Agency with regard
to the planning or design of a national road or proposed national road or the
construction, operation, management, control, maintenance or rehabilitation of a
national road, or in order to perform any work in the execution of a project or in
connection therewith, and to monitor the execution and the work performance…’
[12] In terms of written agreements concluded in 2005 and 2006 respectively,
SANRAL appointed the Second Defendant, Kayad Consulting Engineers, as
consulting engineer responsible for supervisory functions, and the Third Defendant,
MD Civils, as the routine maintenance contractor for this section of road , the one or
the other or both of them to perform all such work as was necessary to ensure that the
functions were discharged. Both contractors had commenced work on the road prior
to the collision.
[13] Following the incident, emergency records reflect call-outs at 03h15 and
again at 12h35 on the same day, each noting water on the road surface in the vicinity
of the scene. Shortly thereafter, on 18 May 2009 , SANRAL’s engineer issued a job
instruction directing MD Civils to remove edge build-up, a growth of vegetation and
soil capable of impeding drainage, over a substantial length of the median edge. This
work was undertaken between 15 and 21 May 2009 and later certified for payment.
Summary of the Pleadings
[14] The Plaintiff instituted a delictual claim for damages, alleging that
SANRAL, alternatively the Second or Third Defendants, further alternatively all
Defendants jointly and severally, owed road users a legal duty to ensure that the N1
was maintained in a clean and safe condition, free from hazardous water
was maintained in a clean and safe condition, free from hazardous water
accumulation, particularly during or after rainfall. He pleaded that the Defendants
wrongfully and negligently failed to maintain the road, manage drainage, prevent edge
build-up, or warn motorists of potential water accumulation, thereby causing the
incident.
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[15] The First Defendant, SANRAL, admitted its statutory functions but
denied any wrongful or negligent omission on its part. It pleaded that any duties
relating to maintenance were discharged by enga ging the Second and Third
Defendants as competent independent contractors, and that once they entered upon
the work, SANRAL bore no further liability in respect of their omissions. SANRAL
further alleged contributory negligence on the part of the Plaintiff.
[16] The Second and Third Defendants ( engineering and maintenance
contractors) denied owing any legal duty to the public beyond their contractual
obligations to SANRAL. They denied wrongfulness, negligence, and causation . They
also denied the presence of any hazardous water at the time alleged, and put the
Plaintiff to the proof of his claims. In the alternative they pleaded that the Plaintiff was
solely or partly negligent.
[17] The Second and Third Defendants raised a Special Plea that the
Plaintiff’s claim against them had prescribed, contending that he knew, or could with
reasonable care have ascertained, their identity and connection to the incident by
December 2015, when the Third Party Notice was served on the Plaintiff , whereas
they were only joined as Defendants in March 2019.
The Plaintiff replicated that material facts , specifically the Defendants’
independent-contractor status, only became known upon SANRAL’s amended plea
filed on 10 March 2017 . The First Defendant produced the complete copies of the
underlying contracts at a pre-trial meeting on 9 March 20171. It is undisputed that the
Plaintiff received complete copies of the contracts from the Second Defendant on 18
June 2024.2
A. First Defendant (SANRAL): Summary of defences
[18] Wrongfulness (omission): SANRAL accepts a general stewardship role
over national roads under ss 25(1) and 26(c) of the SANRAL Act, but contend ed that
wrongfulness must be kept distinct from negligence; that public and legal policy do not
wrongfulness must be kept distinct from negligence; that public and legal policy do not
1 Plaintiff’s Heads of Argument, page 36 “09 March 2017 – First Defendant produces full copies of the
contracts with First and Second Third Party at pre-trial meeting. (Therefrom the substantial facts of
the matter had come to light.)
2 Index to Special Plea, Bundle D, pages 2 – 4.
8
impose on it a dut y to warn motorists of transient ponding, because it is not a traffic
authority under the National Road Traffic Act 3; and that its duties sound in ensuring
the physical condition and maintenance of the network rather than real -time traffic
management.
[19] Independent-contractor defence: Relying on the majority in Chartaprops,
SANRAL submit ted that it discharged its duty by engaging reasonably competent
independent contractors (Kayad for supervision; MD Civils for routine maintenance).
It argue d that any operat ional failure attracts the contractors’ liability in delict, not
SANRAL’s vicarious liability, and that the Plaintiff did not plead a distinct
“supplementary oversight-negligence” case against SANRAL.
[20] Personal fault (oversight): In the alternative, to the extent the Court
enquires into SANRAL’s own fault, SANRAL says it took reasonable steps through a
structured inspection/maintenance regime and cannot be faulted on the evidence.
[21] Duty to warn: SANRAL denies the pleaded duty to warn motorists of
ponding, s ubmitting that such a duty would require an unworkable shadow
traffic-policing system nationwide and is not supported by the SANRAL Act.
[22] Causation: On factual causation, SANRAL contended that the Plaintiff’s
mechanism, namely that edge build-up impeded drainage at a low point, is speculative
and that a municipal pipeline or valve leak remains an equally probable explanation;
and if the probabilities are evenly balanced, the Plaintiff has not discharged the onus.
[23] Prescription (alignment with co -defendants): SANRAL aligns with the
Second and Third Defendants’ plea that the claim against them prescribed once their
identity became known in 2015, rendering the service and joinder in 2019 out of time.
B. Second and Third Defendants (Kayad / MD Civils): Summary of defences
[24] Wrongfulness/Negligence: They deny any wrongful or negligent
[24] Wrongfulness/Negligence: They deny any wrongful or negligent
omission, asserting that the Plaintiff’s mechanism is founded on Dr Roodt’s
3 The National Road Traffic Act 93 of 1996.
9
hypothesis, which in their view is methodologically unsound, fails to take alternative
causes into account, does not accord with the rainfall evidence or the absence of
observed edge build-up on the night, and is contradicted by the maintenance records
and the inspection regime. In this context, “mechanism” refers to the causal process
by which the accident occurred, that is how rainwater moved on the cambered surface,
was impeded at the median edge by vegetation and soil build-up, pooled at the known
low point, and induced aquaplaning.
[25] Alternative cause: They advance the municipal leak explanation as
consistent with (a) valve-chamber geography; (b) the presence of a pumping vehicle;
and (c) a later 12h35 call -out; suggesting that the rainfall data d id not support the
Plaintiff’s theory.
[26] Contributory negligence: They argued aquaplaning at 70 –80 km/h was
“virtually impossible” and the Plaintiff over-steered.
[27] Special Plea of prescription: They contended the Plaintiff knew identities
and the facta founding his claim by late -2015, and the claim against them therefore
prescribed by late-2018.
[28] Given its potentially dispositive effect, I address the Special Plea upfront.
If it fails, the judgment turns to the remaining issues: wrongfulness (including
SANRAL’s statutory framework), negligence, factual and legal causation, the
independent‑contractor defence, and (if necessary) contributory negligence.
Prescription
A. Statutory Framework
[29] The applicable statutory framework is contained in the Prescription Act
68 of 1969 (“the Act”). The Second and Third Defendants (‘the Defendants”) Special
Plea is rooted in Section 11(d), read with Sections 12(1) and 12(3), of the Act. Section
11(d) of the Act prescribes a three-year period for “any other debt”.4 Sections 12(1) –
4 Section 11(d) of the Prescription Act provides:
4 Section 11(d) of the Prescription Act provides:
‘save where an Act of Parliament provides otherwise, three years in respect of any other debt.’
10
(3) of the Act provide that prescription begins to run when the debt is “due”, and a debt
is not deemed due until the creditor has knowledge of both the identity of the debtor
and the facts from which the debt arises. Constructive knowledge arises only where
such facts could have been acquired by reasonable care.
[30] Sections 12(1) to (3) of the Act read as follows:
‘12 When prescription begins to run
(1) Subject to the provisions of subsection (2), (3), and (4), prescription shall
commence to run as soon as the debt is due.
(2) If the debtor wilfully prevents the creditor from coming to know of the existence
of the debt, prescription shall not commence to run until the creditor becomes
aware of the existence of the debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the
identity of the debtor and of the facts from which the debt arises: Provided that
a creditor shall be deemed to have such knowledge if he could have acquired
it by exercising reasonable care.’
[31] The principles were restated in Bruwer N.O and Others v Trustees of the
time being of the Phillip Fourie Family Trust 5, emphasising that a Defendant bears the
full onus to establish prescription, including proving when the Plaintiff obtained, or
could with reasonable care have obtained, the necessary knowledge. The bur den
shifts to the Plaintiff only once a prima facie case of prescription is shown.6
B. Parties’ principal submissions
[32] The Defendants invoke Section 12(3) of the Prescription Act,
contending that by October –December 2015, when SANRAL served its Third-Party
Joinder application and the formal Third-Party Notice identifying Kayad and MD Civils
and annexing extracts from their contracts, the Plaintiff had, or could with reasonable
care have acquired, the requisite knowledge. On that footing, prescription began then
and was completed before the Plaintiff joined the contractors in March 2019.
5 (918/2020) [2022] ZAWCHC 8; 2022 (6) SA 214 (WCC) (28 January 2022) at para 6 :
‘It is settled law that a person invoking prescription bears a full onus to prove it. A defendant bears the
full evidentiary burden to prove a plea of prescription, including the date on which a plaintiff obtained
actual or constructive knowledge of the debt. The burden shifts to the plaintiff only if the defendant has
established a prima facie case.’
6 See also, Macleod v Kweyiya 2013 (6) SA 1 at para 10; Gericke v Sack 1978 (1) SA 821 (A) at 827H
- 828A.
11
[33] The factual sequence is common cause. The accident occurred on 15
May 2009. The Plaintiff issued summons against SANRAL on 10 May 2012, alleging
SANRAL’s sole responsibility for planning, control and maintenance. In 2014, in replies
to requests for particulars, he stated that no other party bore the duties alleged.
[34] At a 30 January 2015 pre -trial, SANRAL indicated an intention to join
further parties. It filed the Third-Party Joinder application on 29 October 2015 and
served the formal Third -Party Notice on 7 December 2015, identifying the
maintenance contractors and describing their alleged duties. The First and Second
Third Parties pleaded on 22 February 2016. During 2016 , the Third-Party process
proceeded, and on 6 October 2016 , SANRAL served its discovery affidavit on the
Plaintiff.
[35] At a 9 March 2017 pre -trial, SANRAL furnished complete copies of the
underlying contracts and, on 10 March 2017, delivered an amended plea setting out,
for the first time , the contractors’ contractual and supervisory roles with reference to
Sections 25 and 26 of the SANRAL Act.
[36] The Plaintiff applied in August 2017 to join Kayad and MD Civils as
Defendants, but withdrew the application on the hearing day in 2018. A further
unopposed application was launched on 7 January 2019, and on 20 March 2019 an
order joined Kayad and MD Civils as the Second and Third Defendants. The amended
summons was served on 29 March 2019.
[37] The Defendants contended th at a reasonable enquiry would have
revealed the contractors’ roles earlier, whether from signage, prior documents or
public sources. Relying on Absa Bank Ltd v De Villiers (“De Villiers”)7 and Peter Taylor
& Associates v Bell Estates (“Peter Taylor”)8, they argued that only service of process
interrupts prescription and that the amended summons served in March 2019 was
therefore late.
7 Absa Bank Ltd v De Villiers 2001 (1) SA 481 (SCA).
7 Absa Bank Ltd v De Villiers 2001 (1) SA 481 (SCA).
8 Peter Taylor & Associates v Bell Estates 2014 (2) SA 312 (SCA).
12
[38] In De Villiers, they argue that once a prima facie case of prescription is
shown, and the creditor asserts delayed commenc ement, an independent onus
regarding that delay rests on the creditor; thus, the evidential burden shifts to the
Plaintiff.
[39] The Defendants reasoned that the earliest date on which prescription
could have been interrupted would have been on the granting of the order on 20 March
2019, in terms of which the First and Second Third Parties (Kayad and MD Civils) were
in fact joined to the action as the Second and Third Defendants. Or, more likely, on a
proper construction of section 15(1), prescription only stopped running on the service
on the First and Second Third Parties (Kayad and MD Civils) of the Plaintiff’s amended
summons, which occurred on 29 March 2019.9
[40] Relying on Truter and Another v Deysel (“Truter v Deysel” )10, the
Defendants emphasise that a debt is “due” when the creditor has a complete cause of
action; they submit that the third-party material in 2015 provided what was necessary
to sue the contractors.
[41] On the facts, they say the December 2015 Third -Party Notice identified
Kayad and MD Civils and described their duties, thereby triggering s 12(3).
Alternatively, the Plaintiff ought to have known of their connection by 30 January 2015
(pre-trial) or 29 October 2015 (joinder application). On this reasoning, prescription ran
to December 2018, rendering the March 2019 joinder out of time.
[42] They add that reasonable care required enquiries by reference to
routine-maintenance signage on the N1 and to Colyn’s 2012 report reflecting
SANRAL’s outsourcing. The Plaintiff’s failure to do so is said to fix him with
constructive knowledge under Section 12(3), the proviso being that delay persists only
until the creditor could have acquired the necessary facts by reasonable care.
[43] The Plaintiff’s case is that the “material facts” required by Section 12(3)
[43] The Plaintiff’s case is that the “material facts” required by Section 12(3)
9 In terms of Section 15(6),‘process’ for purposes of section 15 ‘includes a petition, a notice of motion,
a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any
document whereby legal proceedings are commenced’.
10 Truter and Another v Deysel (043/05) [2006] ZASCA 16; 2006 (4) SA 168 (SCA) para 16.
13
extended well beyond identity and that identity alone is not sufficient to trigger
prescription. He contended that the sub stantial facts relating to the contractors’
supervisory and routine maintenance roles, and thus their potential liability for the
pleaded omissions, only emerged upon discovery in 2016 and were crystallised by
SANRAL’s Amended Plea in March 2017.
[44] Furthermore, the recent authority on prescription, namely President of
the Republic of South Africa and Another v Tembani and Others (“Tembani”) 11, does
not alter this position and that Links v Member of the Executive Council, Department
of Health, Northern Cape Province (“Links”)12 remains applicable where the court held
that prescription does not run until the creditor knows facts giving rise to negligence
and causation, not merely the existence of harm and the identity of a potential
wrongdoer. Tembani distinguishes between knowledge of material facts and later legal
conclusions or judicial pronouncements . Prescription does not await a court ruling
where facts are already known, but equally does not begin until material facts (as
contemplated in Section 12(3)) are accessible. In this matter, those facts, namely, the
contractors’ mandates and SANRAL’s reliance on them , became available on 6
October 2016 (discovery) and 10 March 2017 (Amended Plea).
C. Evaluation
[45] The contention that the Plaintiff could r easonably have obtained the
necessary knowledge from signage or the 2015 Joinder papers is not borne out by the
evidence. Signage did not disclose the nature or scope of contractual functions, and
the partial documents attached to the Third-Party applicati on did not convey the
material facts linking the supervisory and routine-maintenance mandates to the hazard
in issue.
[46] The Defendants are correct that SANRAL’s joinder of Third parties did
not, without more, create a lis between the Plaintiff and those entities. The matter of
not, without more, create a lis between the Plaintiff and those entities. The matter of
11 President of the Republic of South Africa and Another v Tembani and Others (CCT 162/2022)
[2024] ZACC 5; 2025 (2) SA 371 (CC).
12 Links v Member of the Executive Council, Department of Health, Northern Cape Province (CCT
29/15) [2016] ZACC 10; 2016 (4) SA 414 (CC); 2016 (5) BCLR 656 (CC)para 45.
.
14
Shield Insurance Co Ltd v Zervoudakis13 confirms that no judgment lies in favour of a
Plaintiff against a Third Party in that posture. Their point, however, does not assist in
Section 12(3). The que stion is what material facts the Plaintiff knew or could
reasonably have acquired, not whether SANRAL’s Third-Party step itself interrupted
prescription as between the Plaintiff and the contractors.
[47] For completeness, SANRAL served notices in terms of Section 2(2) of
the Apportionment of Damages Act14 upon Kayad/Knight Piésold and MD Civils; these
notices preserve SANRAL ’s rights of recourse but do not affect the running of
prescription as between the Plaintiff and those Defendants.
[48] The further submission that the Plaintiff’s “independent -contractor vs
subcontractor” terminology is legally irrelevant does not address the real point . The
content of the supervisory and maintenance mandates, and SANRAL’s reliance on
those mandates, were the material facts required to link the pleaded omissions to the
contractors. Whether styled “independent contractors” or “contractors”, the substance
of their roles was what mattered for Section12(3).
[49] The court was referred to the principles applicable to the delictual liability
of contractors as set out in Chartaprops 16 (Pty) Ltd v Silberman 15(“Chartaprops”),
Langley Fox Building Partnership (Pty) Ltd v De Valence16 (“Langley Fox”) and Stein
v Rising Tide Productions CC 17 which confirm that liability depends on conduct and
fault, not capacity. That is correct as a matter of delict, but here these cases do not
resolve when the Plaintiff knew the material facts needed to sue the contractors.
[50] Likewise, reliance on contractual extracts attached to the 2015 Joinder
papers overstates what those partial documents revealed. In contrast, the full
contracts furnished on 9 March 2017, read with SANRAL’s 10 March 2017 Amended
Plea, first set out with clarity the contractors’ supervisory and routine -maintenance
Plea, first set out with clarity the contractors’ supervisory and routine -maintenance
mandates relevant to the pleaded omissions.
13 Shield Insurance Co Ltd v Zervoudakis 1967 (4) SA 735 (E) at 739B.
14 Apportionment of Damages Act 34 of 1956.
15 Chartaprops 16 (Pty) Ltd v Silberman 2009 (1) SA 265 (SCA).
16 Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (AD).
17 Stein v Rising Tide Productions CC [2002] 2 All SA 22 (C).
15
[51] The argument that the Plaintiff adduced no evidence of late discovery
overlooks the inherent sequence , namely that the complete contracts and the
Amended Plea were only made available in March 2017. To the extent the Defendants
rely on Truter v Deysel, the principle that a debt is due once a complete cause of action
exists does not assist them unless the Plaintiff already possessed the material facts
completing that cause of action.
[52] The Plaintiff’s position is that tho se material facts , particularly the
supervisory and routine -maintenance mandates , only emerged on 6 October 2016
(discovery) and were clarified on 10 March 2017 ( Amended Plea). He says earlier
documents did not link the contractors’ roles to the pleaded om issions; many of the
operative facts lay within SANRAL’s knowledge; and expert interpretation was needed
to appreciate the link between the maintenance regime, edge build -up, and the
low-point hazard.
[53] The Plaintiff also contended that he could not reason ably have known
of the negligent conduct or omissions on which the claim is based because the relevant
facts were concealed, unavailable, or not reasonably discoverable. In that vein, he
invokes Section 12(2) to the extent that SANRAL’s representations or conduct
reasonably led him to believe the matter was being attended to.
[54] The applicable test remains Section 12(3) that prescription runs only
when the creditor knows the identity of the debtor and the facts from which the debt
arises, unless such knowledge could reasonably have been acquired. The onus rests
on the party invoking prescription.
[55] Applying that test, I am not persuaded that the Defendants have shown
that the Plaintiff could reasonably have acquired the material facts before 2016/2017.
While identity may have been known earlier, identity alone is not “the facts from which
the debt arises”. Neither signage nor the 2015 joinder papers conveyed the scope or
the debt arises”. Neither signage nor the 2015 joinder papers conveyed the scope or
content of the contractors’ duties. Mr Craig placed no evidence before the Court that
the Plaintiff did or could reasonably have known those substantial facts before the full
contracts were disclosed. The timeline supports the Plaintiff’s case that those facts
emerged only on discovery and in the Amended Plea.
16
[56] On the Defendants’ own version, therefore, the Plaintiff could not know
that the contractors’ omissions, rather than some other explanation, constituted the
factual basis of his claim until experts, discovery, and the Amended Plea clarified their
roles. Constructive knowledge does not arise merely because further enquiry was
theoretically possible . Reasonable care does not impose a duty of suspicion, nor
require reconstruction of contractual arrangements without access to the contracts.
That the Plaintiff did enquire, and only received the full contracts in March 2017,
supports his position.
[57] The principle in Links is determinative as p rescription requires
knowledge of material facts relating to negligence and causation, not merely
awareness of injury. On the evidence, those facts , namely the contractors’ mandates
and their connection to the pleaded omissions , emerged on 6 October 2 016
(discovery) and 10 March 2017 (Amended Plea). The suggestion that prescription was
complete by early December 2018 is therefore not sustained.
[58] In the result, the Defendants have not discharged the onus of proving
that the Plaintiff had, or reasonably could have acquired, the material facts before
March 2017. Prescription accordingly began running at that stage, and the March
2019 joinder fell within three years.
D. Conclusion on prescription
[59] On the totality of the evidence, the Defendants, who bear the onus, have
not, on the probabilities, shown that the Plaintiff had, or with reasonable care could
have acquired, the material facts contemplated in Section 12(3) before March 2017.
Identity of potential wrongdoers is not, without more, “the facts from which the debt
arises”. The 2015 Third-Party papers and signage did not disclose the nature and
scope of the contractors’ supervisory and routine-maintenance mandates on which the
pleaded omissions depend, and no evidence establishes that the Plaintiff could
pleaded omissions depend, and no evidence establishes that the Plaintiff could
reasonably have obtained those facts before full contractual discovery and the
amended plea.
[60] Consistent with Links, prescription begins when the creditor k nows the
material facts bearing on negligence and causation, not merely when loss or identity
17
is known; and, as Tembani makes plain, prescription does not wait upon a legal
conclusion once the facts exist, but equally does not commence until those material
facts are reasonably accessible. On the probabilities, those facts emerged only upon
SANRAL’s discovery on 6 October 2016 and its amended plea on 10 March 2017.
Time therefore began running at that stage, and the March 2019 joinder fell within
three years. The special plea of prescription accordingly falls to be dismissed.
Third-Party Proceedings (Rule 13 and s 2(2) of Act 34 of 1956)
[61] Pursuant to Uniform Rule 13, the First Defendant (SANRAL) joined
Knight Piésold Consulting (Pty) Ltd (as successor to Kayad Consulting Engineers (Pty)
Ltd) as First Third Party, and Fountain Square Trading 71 CC t/a MD Civils as Second
Third Party. In the same process , SANRAL served notices in terms of s 2(2) of the
Apportionment of Damages Act upon both entities, thereby pre serving its rights of
recourse in the event that it was held liable to the Plaintiff. The Third-Party Notices
incorporate SANRAL’s pleas that, if liability were established against it, the First and/or
Second Third Parties are obliged either to indemnify SANRAL or, in the alternative, to
make such contribution as is just.
[62] Rule 13 is a procedural mechanism that exists to avoid multiplicity of
actions and operates in tandem with Section 2 of the Apportionment of Damages Act.
Its validity and purpose were con firmed in Gross v Commercial Union Assurance Co
Ltd 18.The principles governing the court’s discretion in third -party costs were
articulated in Robertson v Durban Turf Club and Others 19, which held that a Plaintiff
should not be required to pay third-party costs unless the Defendant acted reasonably
in issuing the third -party notice, and even then, fairness remains the overriding
criterion.
[63] As regards the First Third Party, SANRAL relies on the 2005 Engineering
[63] As regards the First Third Party, SANRAL relies on the 2005 Engineering
Services Contract (“first agreement”), in terms of which Kayad undertook supervisory
and maintenance -related obligations and provided an indemnity clause (cl 3.5.3),
alternatively subject to rectification. As regards the Second Third Party, SANRAL relies
18 Gross v Commercial Union Assurance Co Ltd 1974 (1) SA 630 (A) at 633–635.
19 Robertson v Durban Turf Club and Others 1970 (4) SA 649 (N).
18
on the Routine Road Maintenance Contract (“second agreement”), incorporating the
Standard Specifications for Routine Road Maintenance (2011) and FIDIC (1999),
which included obligations to maintain drainage structures, remove edge build-up, and
indemnify SANRAL under cl 17.1(a) of FIDIC.
[64] In the alternative to contractual indemnity, SANRAL pleads that both the
First and Second Third Parties, having entered upon the work, owed public-law duties
to road users and are consequently joint wrongdoers vis-à-vis the Plaintiff in terms of
Chartaprops, rendering them liable to make a just contribution in terms of Section 2 of
the Apportionment of Damages Act should SANRAL be liable.
[65] In its prayer, SANRAL seeks:
(a) Indemnity (jointly and severally, or against either third party);
(b) Rectification of clause 3.5.3 of the first agreement, only if necessary;
(c) Contribution, in the alternative to indemnity; and
(d) Costs in the Third-Party proceedings.
[66] As explained later in this judgment, because SANRAL and the
co-defendants have been found jointly and severally liable to the Plaintiff on the merits,
the Third-Party claims are contingent and need not be determined at this stage.
Issues for Determination
[67] Having dismissed the Special Plea of prescription, the Court is required
to determine the remaining issues arising on the merits. These issues, distilled from
the pleadings, the evidence, and the parties’ submissions, are the following:
(a) Whether any of the Defendants owed the Plaintiff a legal duty in the
circumstances. This requires a determination of whether SANRAL, Kayad
Consulting (Second Defendant), and MD Civils (Third Defendant) bore a legal
duty to act positively to prevent the creation of a hazardous condition on the
inbound carriageway of the N1, consistent with the pleaded duties in
paragraphs 11 and 13 of the particulars of claim and the applicable
jurisprudence on wrongfulness and omissions.
19
(b) Whether the Defendants wrongfully and negligently omitted to discharge that
duty. This issue concerns the application of the Kruger v Coetzee20 negligence
test to the pleaded omissions, including the adequacy of inspections,
maintenance practices, the management of edge build -up, and any failure to
avert the risk of ponding of water on the roadway.
(c) Whether such wrongful and negligent omissions factually and legally caused
the ponding and the collision. This issue encompasses both:
(i) Factual causation, applying the “but-for” test, and
(ii) Legal causation , applying the flexible policy -based approach, including
considerations of reasonableness, fairness, and remoteness.
(d) Whether SANRAL is entitled to rely on the independent -contractor defence .
This involves determining:
(i) Whether SANRAL discharged its legal duty by engaging reasonably
competent independent contractors under section 26(c) of the SANRAL
Act;
(ii) Whether the contractors in fact entered upon and performed the work;
and
(iii) Whether, notwithstanding Chartaprops, any supplementary duty of
oversight remained engaged on the facts.
(e) Whether the Second and Third Defend ants are themselves liable for wrongful
and negligent performance of the work they undertook . This includes
determining the nature and scope of the duties arising upon them “because
they entered upon the work”, in accordance with Chartaprops, and whether their
conduct materially contributed to the hazardous condition.
(f) Whether contributory negligence on the part of the Plaintiff played any role in
20 1966 (2) SA 428 (AD) at 430E, where Holmes JA elucidated the proper approach for establishing the
existence or otherwise of negligence as follows:
‘For the purposes of liability culpa arises if—
(a) a diligens paterfamilias in the position of the defendant—
(i) would foresee the reasonable possibility of his conduct injuring another
(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.’
20
the occurrence . This issue arises from the Defendants’ pleadings alleging
excessive speed, failure to maintain a proper lookout, or inappropriate
responses after striking the water.
(g) The appropriate apportionment of liability (if required) . If more than one
Defendant is found liable, or if contributory negligence is established, the Court
is enjoined to determine the proper apportionment under the Apportionment of
Damages Act.
Applicable legal principles
[68] It is trite that t he Plaintiff bears the overall burden of proof to establish
the delictual elements on a balance of probabilities.21 The civil standard requires only
that the Court be satisfied that the Plaintiff’s version is more probable than not. As
Lord Denning put it, the burden is discharged once the tribunal can say “we think it
more probable than not”; if the probabilities are equal, it is not discharged.22 This Court
adopts that standard.
[69] The proper approach to the evaluation of expert evidence is
well-established. The authorities emphasise the difference between (i) factual
observations by experts; (ii) discipline -specific general knowledge necessary to
understand the issues; and (iii) the expert’s opinions and inferences. It is trite that
expert opinions assist the Court but do not bind it; the Court must be satisfied that the
opinion rests on facts proved to exist and is supported by proper reasoning. The more
21 See Pillay v Krishna 1946 AD 946 at 952.
22 See Miller v Minister of Pensions 1947 2 All ER 372; Ocean Accident and Guarantee Corporation
Ltd v Koch 1963 (4) SA 147 (A) at 159D; See also South African Bank of Athens v 24 Hour Cash CC
(A3027/2016) [2016] ZAGPJHC 217 (11 August 2016):
‘[9] We return to these questions after having first discussed the correct approach to the assessment
of the evidence. A helpful discussion of this topic appears in the judgment of Van der Spuy, AJ in
Selamolele v Makhado:
Selamolele v Makhado:
“The onus of proof and the legal requirements as to the discharge thereof
It is common cause that plaintiff bears the overall onus of proof, ie he must prove his version that he
was pushed from behind and did not fall fortuitously backwards after a scuffle with defendant. It may be
that defendant has some duty of adducing evidence in support of the latter version but the onus of proof
in the overall case never shifts and remains on plaintiff. See Pillay v Krishna 1946 AD 946 at 952 -3. A
disagreement arose between counsel for the two parties, ie Mr Botha for plaintiff and Mr Pieterse for
defendant, concerning that approach which I should adopt when determining whether plaintiff has
discharged the onus of proving his version on a balance - preponderance - of probabilities. The
disagreement arises from the well -known statement of the law in National Employers' Mutual General
Insurance Association v Gany 1931 AD 187 at 199: …”’
21
an expert relies on facts not in evidence, the less weight the opinion carries; an opinion
founded on facts not proved has no value. Indicators of diminished objectivity include
limited mandates, litigation-driven products, selective engagement with evidence, and
identifiable bias or interest. Even where experts agree, the Court must still be satisfied
that the agreed opinion is factually underpinned and reasoned.
[70] In PriceWaterhouseCoopers Inc and Others v National Potato
Co-operative Ltd and Another 23, Wallis JA endorsed the principle articulated in the
Canadian decision of Wightman v Widdrington24 that, before any weight can be
attached to an expert’s opinion, the facts upon which the opinion is based must be
found to exist. An opinion founded on assumptions or facts not proved in evidence is
of no value. The more an expert relies on fa cts that have not been established, the
less weight their opinion attracts.
[71] Wallis JA reaffirmed these principles in AM and Another v MEC for
Health, Western Cape ,25 emphasising that expert opinion involves the drawing of
23 PriceWaterhouseCoopers Inc & others v National Potato Co-operative Ltd & another (451/12) [2015]
ZASCA 2; [2015] 2 All SA 403 (SCA) 4 March 2015 (‘PriceWaterhouseCoopers’), at para 99.
“[99] Lastly when dealing with the appro ach 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 facts not in evidence, the
weight given to his opinion will diminish”.
weight given to his opinion will diminish”.
[328] 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 the 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 examine only the evidence
provided by the party that retained his or her services.’
24 Wightman v Widdrington (Succession de) 2013 QCCA 1187 (CanLII) (‘Wightman v Widdrington’).
25 AM v MEC for Health, Western Cape 2021 (3) SA 337 (SCA):
‘The opinions of expert witnesses involve the drawing of inferences from facts…. [I]n any
process of reasoning the drawing of inferences from the facts must be based on admitted or
proven facts and not matters of speculation. As Lord Wright said in his spe ech in Caswell v
Powell Duffryn Associated Collieries Ltd:
22
inferences from facts. Such inferences must rest on admitted or proven facts and not
on speculation. As explained by Lord Wright in Caswell v Powell Duffryn Associated
Collieries Ltd , inference must be distinguished carefully from conjecture; where no
objectively proven facts exist from which an inference can properly be drawn, the
reasoning process collapses into speculation.
[72] The same reasoning appears in Knoop NO and Another v Gupta and
Another26, The Pasquale della Gatta27, Moraitis Investments (Pty) Ltd v Montric Dairy
(Pty) Ltd28, and again in PriceWaterhouseCoopers, where the SCA applied these
principles to reject expert testimony resting on unproven assumptions. Only where
the primary facts have been established can the inferential reasoning of an expert
properly arise.
[73] Moreover, the drawing of inferences must be done carefully, logically
and in conformity with the proven facts. The inference must be one that is reasonably
capable of being drawn from the established facts, must not be tenuous or far-fetched,
and must be consistent with all the proven facts. Where more than one inference is
possible, the inference drawn must be the more natural, plausible and probable
conclusion.
[74] In addition to the requirement that expert reasoning be factually
grounded, our courts have stressed the centrality of objectivity. In The Ikarian Reefer29,
repeatedly applied, it was stated that an expert must take into account material facts
which detract from the conclusion advanced. Selective consideration of evidence
undermines both objectivity and credibility. Similarly, in Stock v Stock.30, the court held
‘Inference must be carefully distinguished from conjecture or speculation. There can
be no inference unless there are objective facts from which to infer the other facts
which it is sought to estab lish … But if there are no positive proved facts from which
which it is sought to estab lish … But if there are no positive proved facts from which
the inference can be made, the method of inference fails and what is left is mere
speculation or conjecture.’
26 Knoop NO and Another v Gupta and Another 2021 (3) SA 88 (SCA) at para 19.
27 MV Pasqu ale della Gatta; MV Filippo Lembo; Imperial Marine Co v Deiulemar Compagnia di
Navigazione SPA 2012 (1) SA 58 at para 24.
28 Moraitis Investments (Pty) Ltd and Others v Montric Dairy (Pty) Ltd 2017 (5) SA 508 (SCA) at para
34.
29 National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyds Rep 68 at 81.
30 Stock v Stock 1981 (3) SA 1280 (A) at 1296F.
23
that an expert’s opinion is of little value where the witness is partisan or advocates the
cause of the party calling them rather than assisting the court.
[75] The SCA in PriceWaterhouseCoopers set out further indicators of bias
or partiality; an expert who limits the scope of their mandate, presents a report shaped
by litigation strategy, shows a lack of independence, has an interest in the outcome,
or selectively engages only with material supporting their conclusion, compromises
the probative value of their opinion. Objectivity is a “central prerequisite”; the expert’s
role is to assist the court, not to advance a litigant’s case.
[76] The general principles governing the evaluation of evidence is trite.
When evaluating all the evidence, the cour t must consider it holistically. The
conclusion ultimately reached must account for the totality of the evidence and not
isolated portions. In distinguishing probabilities and permissible inferences from
conjecture, the court may draw inferences only from objectively established facts;
speculation has no place in judicial reasoning. Inferences may be drawn and
probabilities considered only in light of objectively proven facts.
[77] The established approach to resolving factual disputes is set out
authoritatively in Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie31. The court
must consider (a) the credibility of witnesses, (b) their reliability, and (c) the
probabilities. Credibility concerns veracity, assessed through factors such as
demeanour, bias, internal and external contradictions, and the inherent plausibilit y of
the version. Reliability depends on the witness’s opportunity to observe, the quality
and integrity of their recollection, and the independence of their account. The
probabilities require an analysis of which version is more likely in light of all the proven
facts. Having assessed these components, the court must finally determine whether
the party bearing the onus has discharged it.
the party bearing the onus has discharged it.
[78] A court of appeal will ordinarily defer to a trial court’s factual findings
unless they are clearly wrong or influenced by a material misdirection. This is so
31 2003 (1) SA 11 (SCA); A M and Another v MEC for Health, Western Cape 2021 (3) SA 337 (SCA).
24
because the trial court is best placed to assess credibility and reliability through its
observation of witnesses first-hand.
Summary and evaluation of the Evidence
A. Viva Voce Evidence
[79] The Plaintiff, Mr Anton Hesse, testified that at approximately 03h00 on
15 May 2009, while travelling inbound on the N1 near the Okavango interchange, he
unexpectedly struck a deep body of water in the right -hand lane. The heavy rain and
darkness prevented him from seeing the water befo rehand, and upon impact , the
vehicle lifted more on the right side, aquaplaned, rotated clockwise, and came to rest
in the median after colliding with wooden poles and vegetation. He stepped out into
ankle-deep water on both the roadway and the median, and he indicated the general
area opposite the apartment complex as the place where he lost control. He
maintained that he was travelling at approximately 70 –80 km/h and denied any
negligence in his manner of driving. His evidence regarding the approximate location
of the ponding remained consistent and unchallenged.
[80] The Plaintiff gave his evidence in a straightforward and consistent
manner. His description of the heavy rainfall, the sudden encounter with water, and
the rotation of his vehicle did not materially shift under cross-examination. His inability
to pinpoint the exact metre-by-metre location was understandable given the darkness,
the rainfall, the shock of the collision, and the early -morning hour. Importantly, his
evidence regarding the prese nce of pooled water in the right -hand lane and in the
median was corroborated by the emergency call -out records and by his brother and
Mr Rhode, which enhanced both his reliability and his overall credibility. Nothing in his
demeanour suggested exaggeratio n, and he demonstrated no motive to distort the
events. The Court is satisfied that he was a credible and reliable witness.
[81] Mr Heinz Hesse, the Plaintiff’s brother, arrived five to six minutes after
[81] Mr Heinz Hesse, the Plaintiff’s brother, arrived five to six minutes after
receiving a call about the collision. He observed that although the rain had ceased, the
road surface remained extremely wet, and pooled water was clearly visible under the
lights of the traffic vehicle. When he alighted from his own car, he stepped into water
approximately 15 mm deep, and he noted that the water in the median appeared even
deeper. He had to drive through standing water in the right-hand lane to reach the
25
Plaintiff. Like his brother, he placed the location of the pooled water in the vicinity
opposite the apartment complex. He later heard the sou nd of another collision as he
was towing the Plaintiff’s vehicle away.
[82] Heinz Hesse corroborated the Plaintiff’s account in material respects,
particularly regarding the presence and depth of the pooled water and the location
opposite the apartment complex. He gave his evidence calmly and without hesitation.
His observations were based on a direct and immediate attendance at the scene
minutes after the collision, which strengthens the reliability of his recollections.
Although he could not speak to causatio n and could only describe what he
encountered, his account aligned with the objective records and the photographic
references in the inspection in loco. There were no significant inconsistencies or
indications of bias. His evidence was credible and his reliability high.
[83] Mr Brevin Rhode, an independent witness, described that he too was
involved in an incident at approximately 04h00 on the same morning in approximately
the same area after striking pooled water. He testified that he observed a vehicle
equipped with a pump attempting to remove water from the roadway and several
vehicles splashing through accumulated water at the site. His evidence corroborated
the presence of significant ponding in the right-hand lane during the early hours of 15
May 2009.
[84] Mr Rhode was an independent witness with no apparent interest in the
outcome of the litigation. His evidence , that he too struck water at almost the same
location on the same morning , was clear, spontaneous, and aligned with the
emergency call -outs noting “w ater on road”. He described water removal efforts
underway, which further supported the inference that significant ponding had occurred.
The consistency between his account and that of both Hesse brothers enhanced its
The consistency between his account and that of both Hesse brothers enhanced its
probative value. His lack of any relat ionship to the Plaintiff made him particularly
credible, and the Court accepts his testimony as reliable and impartial.
[85] Dr Louis de Villiers Roodt , a civil engineer called by the Plaintiff,
identified the true low point of the inbound carriageway at kilometre markers 21.85 to
21.88, an assessment later confirmed by a contour plan and the inspection in loco. He
26
explained that vegetation and soil had accumulated along the median edge, creating
an “edge build -up” that impeded the natural drainage of water off the road and
effectively acted as a dam wall. In his opinion, this obstruction caused water to pond
in the right-hand lane during the rainfall. He relied on the emergency call -out records
at 03h15 and 12h35, both noting water on the road in the same chainage, and on the
instruction issued on 18 May 2009 to remove about 200 metres of edge build -up in
precisely that area. He rejected the alternative theory of a pipeline leak, stating that no
factual evidence supported such a leak, and he explained the mechanics of
aquaplaning, noting that even shallow water of between 6–17 mm could destabilise a
light vehicle, especially where the depth differed between the left and right wheels.
[86] Dr Roodt impressed as a careful and objective expert who distinguished
clearly between fact, inference, and engineering assumption. Although he initially
worked from an incorrect assumption regarding the low point of the road, he readily
revised his opinion when the contour plan became available. This willingness to adapt
when better factual data emerged enhanced, rather than diminished, his credibility.
His reasoning was consistently grounded in measurable site characteristics,
emergency records, post -incident maintenance logs, and principles of roadway
drainage. He answered questions directly and did not engage in advocacy. While he
firmly rejected the pipeline -leak hypothesis, his reasons were cogent and supported
by the absence of factual indicators. Overall , his evidence was carefully reasoned,
aligned with objective documentation, and the Court finds him to be a credible and
reliable expert witness.
[87] Mr John Craig , the civil engineer representing Kayad, offered an
alternative hypothesis that the ponding may have been caused by a leak in the
Wemmershoek municipal pipeline running through the median. Under
Wemmershoek municipal pipeline running through the median. Under
cross-examination, he conceded that he had no factual evidence of any such leak and
acknowledged that he had deviated from certain important concessions rec orded in
the joint expert minute, particularly the agreement that vegetation or edge build -up
could trap water on the roadway. His objectivity was questioned because he had
significant involvement with the Second Defendant, including signing its contract a nd
its discovery affidavit.
27
[88] Mr Craig’s credibility was significantly compromised. Although he
presented himself as an expert, he played multiple roles in the litigation . He was
involved in the underlying maintenance contract, he signed discovery affidavits for the
Second Defendant, and he participated in resisting Joinder. These overlapping roles
created a palpable risk of partisanship. His explanation that the flooding was caused
by a municipal pipeline leak was not supported by any contemporaneous
documentation, emergency record, or inspection finding and under cross-examination
he conceded this. More concerning was his departure from key concessions recorded
in the joint expert minute, particularly the fact that vegetation and edge build-up could
trap water on the pavement. His attempts to minimise or retreat from the joint minute
were unconvincing and suggested a defensive posture rather than an impartial
scientific asses sment. The Court therefore finds his evidence to be unreliable and
accords it limited weight.
[89] Dr Peter Johnston , a climatologist, provided an analysis of regional
rainfall patterns. He testified that rainfall measured at nearby stations reflected only
light rain prior to the Plaintiff’s collision. However, he acknowledged that localised
heavy downpours frequently occur in the area and could not be excluded as having
occurred at the site and time in question. He accepted that such localised rainfall could
have contributed to ponding on the roadway when combined with impeded drainage.
[90] Dr Johnston’s evidence was balanced and appropriately cautious. He
relied on rainfall measurements from nearby stations, which indicated only light
rainfall. However, he did not overstate the significance of those readings and accepted
that localised downpours commonly occur in the region and could have produced
significantly heavier rain at the accident location than the aggregated measurements
significantly heavier rain at the accident location than the aggregated measurements
suggested. He did not attempt to comment on engineering or drainage issues beyond
his expertise and conceded readily where information fell outside his mandate. His
neutrality, professional restraint, and willingness to acknowledge the limits of
meteorological data enhanced his credibility. His evidence is accordingly accepted as
reliable.
28
[91] Mr Robin Davidse, the contracts manager for MD Civils, confirmed that
MD Civils held the routine maintenance contract for this section of the N1. He
described the maintenance regime, noting that edge build-up would only be removed
upon receiving an instruction from the engineer. He confirmed that edge build-up was
in fact removed three days after the incident between kilometre markers 21.85 and
21.65, which corresponded with the low point later identifie d by the experts. He
conceded that edge build -up is capable of obstructing drainage and poses a danger
to motorists. He also accepted that he could not exclude the possibility of prior similar
incidents having occurred at the same location. Although he ref erred to regular
inspections and route patrols, he could not explain why the specific hazard had not
been identified earlier.
[92] Mr Davidse possessed detailed knowledge of the routine maintenance
practices and the documentation relating to the emergency call-outs and edge build-up
removal. He gave his evidence openly and made several concessions adverse to the
interests of his employer, which included acknowledging that edge build -up can
impede drainage, that the low point corresponded to the area of the Plaintiff’s accident,
and that he could not exclude prior similar incidents. These concessions enhanced his
credibility. However, aspects of his evidence reflected a degree of defensiveness,
particularly when pressed on why the hazard had not been detected ear lier despite
inspections and patrols. While he was careful not to admit operational shortcomings
directly, he did not dispute the presence of extensive edge build -up three days after
the incident. The Court finds him generally credible, though his evidence must be
weighed with some caution where it tended to deflect responsibility away from MD
Civils.
B. Documentary Evidence
[93] Before turning to the analysis of wrongfulness, it is necessary to record,
[93] Before turning to the analysis of wrongfulness, it is necessary to record,
in general terms, the documentary evidence placed before the Court. Although the
detail of each document has been canvassed in the evidence, it is helpful to outline
the nature and evidentiary significance of the principal materials that featured
prominently in the trial.
29
[94] The approach to joint minutes is consistent with the principles outlined
earlier regarding the evaluation of expert evidence. Agreement on facts in a joint
minute can be treated as common cause absent withdrawal on good grounds; but
agreement on opinions does not relieve the Court of assessing whet her the agreed
opinion is supported by the underlying facts and logical reasoning. A later refinement
of an expert’s opinion in light of better factual data (for example, a newly -produced
contour plan pinpointing the true low point) is not inherently discrediting, provided the
expert explains the basis for the adjustment and remains anchored in proved facts.
[95] Where the dispute concerns technical causation, the Court considers
whether the expert’s analysis is congruent with contemporaneous records and
objective site conditions . In casu , the emergency call -outs, the post -incident edge
build-up instruction and measurements, the in loco geometry of the carriageway and
median, and the joint minute concessions that vegetation at the median edge can trap
water and cause ponding into the right lane. Opinions that align with and explain these
records are, ceteris paribus, preferred over those that are speculative or inconsistent
with contemporaneous documentation.
[96] A central document in the matter was the contour plan of the relevant
section of the N1. This plan was produced by the Defendants shortly before the
commencement of the trial and was examined extensively during the inspection in
loco. It established, more reliably than visual observation alone, that the true low point
of the inbound carriageway lies between kilometre 21.85 and 21.88 , which is
proximate to the apartment complex identified by the Plaintiff. The contour plan
materially influenced the expert engineering evidence, particularly Dr Roodt’s revision
of his initial assumptions and the location of the ponding mechanism.
of his initial assumptions and the location of the ponding mechanism.
[97] The Court also received the joint expert minute compiled by the two civil
engineering experts, Dr Roodt and Mr Craig. This minute recorded areas of agreement
between the experts, most notably that vegetation or edge build-up along the median
edge is capable of trapping water on the road surface, and that flooding did occur in
the vicinity of the incident. It further confirmed that instructions had been issued to
remove significant edge b uild-up in the immediate days following the accident. The
minute also records agreement that water may have ponded back onto the
30
southbound carriageway from the median under such conditions. Although Mr Craig
deviated from some of these agreed positions du ring cross -examination, the joint
minute remained an important and binding record of shared technical facts.
[98] A further category of documentary evidence consisted of the SANRAL
routine maintenance records , including emergency call -out sheets, job instructi on
forms, inspection requests, and payment certificates. These records reflect that, at
03h15 and 12h35 on 15 May 2009, water on the road was reported in the same general
area as the Plaintiff’s collision. They also show that on 18 May 2009, Kayad issued a
formal instruction to MD Civils to remove edge build -up between kilometre markers
21.6 and 21.8, and that the actual work performed, as measured, extended between
21.85 and 21.65, precisely the section associated with the low point identif ied on the
contour plan. These documents corroborated the testimony of both Dr Roodt and Mr
Davidse that edge build-up was indeed present and removed shortly after the incident.
[99] The Court also had regard to the expert reports delivered by the civil
engineering and climatology experts. These reports were supplemented by oral
evidence and cross -examination, but they remain part of the evidentiary record. Dr
Roodt’s report advanced the theory that the combination of the low point and edge
build-up caused the ponding. Mr Craig’s report advanced alternative hypotheses,
including a possible leak from the Wemmershoek pipeline, although that hypothesis
was unsupported by any contemporaneous documentation. Dr Johnston’s climatology
report analysed rainfall data from multiple weather stations and informed the Court’s
assessment of the meteorological context.
[100] Finally, the Court received into evidence the construction and
maintenance contracts concluded between SANRAL, Kayad Consulting, an d MD
Civils. These documents formed an important part of the legal landscape, because
Civils. These documents formed an important part of the legal landscape, because
they defined the respective contractual duties of the Second and Third Defendants,
the supervisory obligations of the consulting engineer, and the intended mechanisms
for identifying and addressing road maintenance issues such as edge build -up. They
also provided the context for the Defendants’ reliance on the independent -contractor
defence and for the Plaintiff’s argument regarding the non -delegable statutory duties
of SANRAL under sections 25 and 26 of the SANRAL Act.
31
[101] Taken together, these documents provided an essential foundation for
determining the factual issues in dispute. They complemented the oral testimony,
clarified technical matters that could not be reliably as sessed through recollection
alone, and provided objective records of the Defendants’ maintenance practices
during the period immediately surrounding the incident.
Wrongfulness
[102] The Plaintiff pleaded that a t all material times, First Defendant,
alternatively the Second Defendant, alternatively the Third Defendant, further
alternatively the First, Second and Third Defendants jointly and severally owed the
public utilising the road and the Plaintiff in particu lar a legal duty, which legal duty
entailed that:
(b) The road was kept in a clean and safe condition for use by the public and
the Plaintiff in particular;
(c) The road did not constitute a source of danger when utilised by the public
and the Plaintiff in particular during and/or after rain and/or heavy rain;
(d) The road was kept clean and maintained in such a manner that no water
build-up occurred on the road during rain and/or heavy rain to such an
extent that it constituted a source of danger to users of the road;
(e) The road was designed and constructed in such a manner that no water
build-up occurred on the road during rain and/or heavy rain to such an
extent that it constituted a source of danger to users of the road;
(f) The public and the Plaintiff in particular wer e properly notified of the
presence of or the possibility of the presence built -up water on the road
during rain and/or heavy rain;
(g) The drainage system was designed and constructed to prohibit water build-
up on the road during rain and/or heavy rain.
[103] Furthermore, that ‘A reasonable person in the position of the First
Defendant, alternatively the Second Defendant, alternatively the Third Defendant,
further alternatively the First, Second and Third Defendants jointly and severally could
further alternatively the First, Second and Third Defendants jointly and severally could
or should have foreseen the reasonable possibility that failure to take reasonable steps
to guard against the occurrence of the incident could cause a member of the public
32
utilising the road or the Plaintiff in particular, to sustain serious bodily injuries, causing
such member of the public or the Plaintiff in particular patrimonial loss.’
A. Was there a duty on SANRAL to warn motorists about ponding?
[104] Before dealing with the wrongfulness enquiry , the Plaintiff's assertion
that SANRAL bore a specific legal duty to warn motorists of the presence or risk of
ponded water on the roadway requires addressing. In this regard, SANRAL denied
that such a duty rested upon it. It argued that the routine road-patrol function, including
monitoring for conditions such as blocked drains and pond ing, was contractually
assigned to the Third Defendant under the Standard Specifications.
[105] SANRAL further contended that national roads fall within a
traffic-policing environment regulated by the National Road Traffic Act, in terms of
which designated traffic officers, not SANRAL, are empowered to regulate traffic, issue
warnings, and close roads where necessary. On this basis, SANRAL submitted that
the statutory scheme does not confer upon it any authority to undertake real-time traffic
regulation or hazard warning functions.
[106] Imposing a specific legal duty to warn of transient ponding would, in its
view, require SANRAL to establish a parallel nationwide traffic-monitoring and warning
system, an unreasonable and impracticable burden. SANRAL accordingly contended
that, applying the criterion of reasonableness within the wrongfulness inquiry, no
specific legal duty to warn motorists of ponded water arose in law
[107] Although the Amended Particulars of Claim list a duty to warn motorists
of ponded water, the imposition of such a duty upon SANRAL is not supported by the
statutory framework or by policy. SANRAL is not a traffic authority and is not
empowered under the National Road Traffic Act to regulate or control traffic or to issue
hazard warnings. Sections 25 and 26 of the SANRAL Act, which will be discussed later
hazard warnings. Sections 25 and 26 of the SANRAL Act, which will be discussed later
in this judgment, impose responsibilities relating to the physical condition and safety
of the national road network, not the operational policing of transient hazards. To
require SANRAL to monitor the road continuously for sudden ponding would impose
an unreasonable and unworkable burden. The duty to warn is therefore not one that
public or legal policy would impose in these circumstances.
33
B. Wrongfulness: The competing legal frameworks
[108] In Gouda Boerdery BK v Transnet Ltd ,32 Scott, JA, writing for a
unanimous Court, explained that in order to find whether a legal duty existed to act
positively, factors such as reasonableness, policy, and where appropriate,
constitutional norms should be considered.
[109] In Chartaprops 16 (Pty) Ltd v Silberman , the Supreme Court of Appeal
reaffirmed that a principal is not vicariously liable for the wrongs of an independent
contractor. The correct approach is to apply the fundamental rule that everyone must
take the degree of care the circumstances demand . A principal who engages a
competent contractor to perform the work may thereby take reasonable steps to guard
against foreseeable harm. The SCA cautioned against treating the case as one of a
non-delegable duty in order to “ outflank” the general rule. The contractor remains
personally liable to third parties for negligent performance of the work it undertook.
[110] In Langley Fox Building Partnership (Pty) Ltd v De Valence (supra),
which concerned building works across a public sidewalk, the Appellate Division held
that where the work itself creates a foreseeable danger to the public , the employer
must ensure that adequate precautions are actually taken . In such a setting,
“reasonable steps” required more than engagement of a contr actor; liability followed
because adequate precautions were not ensured.
[111] The SCA has recently reaffirmed that outsourcing does not absolve a
principal where its monitoring/precautionary systems are inadequate on the facts. See
Pick ’n Pay Retailers (Pty) Ltd v Williams33 (slip-and-fall), where reconsideration was
refused and liability stood.
C. Plaintiff’s articulation of the wrongfulness enquiry
[112] The Plaintiff’s contention on wrongfulness draws on the established
framework governing liability for omissions . More particularly that an omission is not
framework governing liability for omissions . More particularly that an omission is not
32Gouda Boerdery BK v Transnet Ltd (314/03) [2004] ZASCA 85; [2004] 4 All SA 500 (SCA); 2005 (5)
SA 490 (SCA) (27 September 2004), at para 12.
33 Pick ’n Pay Retailers (Pty) Ltd v Williams and Another (238/2024) [2026] ZASCA 7 (26 January
2026).
34
prima facie wrongful; rather, wrongfulness is engaged only where, viewed through
constitutionally-aligned public and legal policy, the law requires that a negligent failure
to act should give rise to liability.
[113] He relies on settled authority that wrongfulness is a normative enquiry
distinct from negligence and must not be conflated with foreseeability. 34 In particular,
Minister of Police v Ewels 35 for the proposition that policy considerations determine
whether the negligent omission attracts delictual liability. He further invokes Hawekwa
Youth Camp v Byrne 36 to emphasise that negligent omissions are actionable only
where public or legal policy demands it, and he cites Loureiro and Country Cloud37 for
the distinct, no rmative character of wrongfulness , and the warning not to conflate it
with negligence.
[114] Within that framework, the Plaintiff points to the statutory matrix of the
SANRAL Act as the primary source informing wrongfulness in this road-safety context.
Sections 25(1) and 26(c) collectively impose responsibility and confer powers on
SANRAL to ensure the planning, operation, control and maintenance of national roads
and to “monitor the execution and work performance” when work is performed by
others. These provisions, the Plaintiff contends, support the imposition of liability in
principle for omissions that allow hazardous ponding at a known low point on a national
road. This statutory stewardship, the Plaintiff contends, is a strong policy reason to
34 See Minister of Police v Ewels 1975 (3) SA 590 (A); Hawekwa Youth Camp v Byrne 2010 (6) SA 83
(SCA); Loureiro v Imvula Quality Protection 2014 (3) SA (CC); Country Cloud Trading CC v MEC,
Department of Infrastructure Development, Gauteng 2015 (1) SA 1 (CC).
35Ibid at para 59 7A-B: “… conduct is wrongful if public policy considerations demand that in the
particular circumstances the plaintiff has to be compensated for the loss suffered by the defendant’s
negligent act or omission, i.e. the legal convictions of society regard the conduct as wrongful.”
36 Ibid at para 22: “…. negligent conduct which manifests itself in the form of a positive act causing
physical harm to the property or person of another is prima facie wrongful. By contrast, negligent
conduct in the form of an omission is not regarded as prima facie wrongful. Its wrongfulness depends
on the existence of a legal duty. The imposition of this legal duty is a matter for judicial determination,
involving criteria of public and legal policy consistent with constitutional norms. In the result, a negligent
omission causing loss will only be regarded as wrongful and therefore actionable if public or legal policy
considerations require that such omission, if negligent, should attract legal liability for the resulting
damages.”
37 Ibid at para 53: “The wrongfulness enquiry focuses on the conduct and goes to whether the policy
and legal convictions of the community, constitutionally understood, regard it as acceptable. It is based
on the duty not to cause harm – indeed to respect rights – and questions the re asonableness of
imposing liability.” Therefore the court held that a defendant’s “subjective state of mind is not the focus
of the wrongfulness enquiry. Negligence, on the other hand, focuses on the state of mind of the
defendant and tests his or her co nduct against that of a reasonable person in the same situation in
order to determine fault.”
35
impose liability (in principle) for omissions that allow a hazardous condition , ponding
at a known low point, to persist on a national roadway.
[115] Beyond SANRAL, the Plaintiff invokes the Chartaprops principle that an
independent contractor’s duty to third parties arises “because it entered upon the
work,” with the content of the contract defining the task undertaken but not negating
the duty owed to non -contracting road users. On that footing, both the supervising
engineer (Second Defendant) and the routine mainten ance contractor (Third
Defendant) attract potential delictual liability in principle for omissions within the field
of work they undertook.38
[116] The recent decision of the Supreme Court of Appeal in Pick ‘n Pay
Retailers (Pty) Ltd v Williams underscores this approach. The Court held that although
operational tasks may be outsourced, the principal retains a non -delegable duty to
take reasonable steps to ensure the safety of those entering its premises. Outsourcing
does not absolve the principal where its own mo nitoring or supervisory systems are
inadequate. This principle aligns with SANRAL’s statutory obligation in Section 26(c)
to ‘monitor the execution and work performance’ of contractors engaged to maintain
the national road network.
D. First Defendant ( SANRAL): wrongfulness as a “brake”, and the
independent‑contractor frame
[117] SANRAL accepts that, by virtue of Sections 25(1) and 26(c) of the
SANRAL Act, a legal duty rested upon it to take reasonable steps to ensure the safety
of the national road network. It submitted, however, that the wrongfulness enquiry
operates as a normative constraint on delictual liability and must not be conflated with
negligence. The Constitutional Court has described wrongfulness as a limiting device
that functions as a “brake” on the expansion of liability, ensuring that not every
38 Chartaprops 16 (Pty) Ltd v Silberman (SCA) para 47 : ‘Neither the terms of Advanced Cleaning’s
engagement, nor the terms of its contract with Chartaprops, can operate to discharge it from a legal
duty to persons who are strangers to those contracts. Nor can they directly determine what it must do
to satisfy its duty to such persons. That duty is cast upon it by law, not because it made a contract, but
because it entered upon the work. Nevertheless its contract with the building owner is not an irrelevant
circumstance, for it determines the task entered upon’
36
operational shortcoming in a complex system attracts delictual fault.39 On that footing,
SANRAL urged a strict separation between the policy-laden enquiry into wrongfulness
and the reasonableness/foreseeability enquiry that belongs to negligence.
[118] SANRAL situates its wrongfulness analysis inside the
independent-contractor defence. Relying on the majority in Chartaprops, SANRAL
argues that an employer discharges its duty to avert harm to third parties by engaging
a reasonably competent independent contractor to perform the relevant work; if harm
occurs through the contr actor’s wrongful and negligent conduct, liability in principle
lies with the contractor, not the employer. According to SANRAL, the appointment of
competent independent contractors, coupled with their entry upon and performance of
the work, constitutes the affirmative step that satisfies its duty; thus, liability in
wrongfulness should not be imposed upon SANRAL for lapses by the contractors in
the absence of SANRAL’s own independent fault. SANRAL maintains that the issue
falls to be determined under negligence, not wrongfulness.
[119] SANRAL also resists the Plaintiff’s reliance on Section 18(1)(b) of the
SANRAL Act 40 (the non -divestiture clause governing internal delegations by the
Board). That provision stipulates that the Agency is not divested of any power nor
relieved of any function or duty it may have delegated. SANRAL’s position is that it
engaged the Second and Third Defendants as independent contractors to perform
defined maintenance and supervisory work under Section 26(c), and that doing so
constituted reasonable steps to discharge the duties resting upon it. It contends that
Section 18(1)(b) has no application to the appointment of external contractors under
Section 26(c); the section preserves responsibility where the Board delegates
internally to members or employees, and does not convert Section 26(c) appointments
internally to members or employees, and does not convert Section 26(c) appointments
into a non-delegable duty that would defeat the independent -contractor defence
recognised in Chartaprops.
39 Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 (1)
SA 1 (CC) at paras 22–26 (explaining the normative and limiting role of wrongfulness as a control
mechanism on delictual liability).
40 Section 18(1)(b) of the SANRAL Act: “…the agency will not be divested of any power nor be
relieved of any function or duty it may have delegated.”
37
[120] On that approach, the policy balance within wrongfulness , avoiding
over-extension of public -authority liability while protecting road users , favours
recognising the contractor’s primary exposure for negligent performance of the work it
undertook, while reserving SANRAL’s exposure to instances of personal
wrongfulness, such as negligent selection or a failure reasonably to monitor
performance where circumstances demanded intervention. SANRAL submits that
these matters sound in negligence rather than wrongfulness, and that no stand-alone
allegation of “supplementary oversight negligence” was pleaded, a point I consider
separately below.
[121] SANRAL retained a personal duty to monitor performance; even
accepting the majority in Chartaprops, a pri ncipal may rely on an independent
contractor only where it has itself taken the steps reasonably required to discharge its
own supervisory obligations. Section 26(c) of the SANRAL Act specifically requires
SANRAL ‘to monitor the execution and the work perf ormance’ of the work it
outsources. On the trial record, oversight at the known low point was reactive rather
than preventative. The independent ‑contractor defence therefore fails on the facts
because SANRAL’s own monitoring duty was not reasonably performed at this
location.
[122] The same tenor is evident in Pick ’n Pay Retailers (Pty) Ltd v Williams
(supra) in which the SCA left undisturbed the conclusion that outsourcing does not
absolve a principal where its monitoring is deficient, thereby reinforc ing the principle
that a residual duty of oversight may remain notwithstanding engagement of
independent contractors.
E. Second and Third Defendants: wrongfulness confined to the task entered
upon
[123] The Second and Third Defendants emphasise that they owed no
statutory duty to the public at large and that any duties they owed arose within, and
are circumscribed by, their contracts with SANRAL. They accordingly deny a general
are circumscribed by, their contracts with SANRAL. They accordingly deny a general
public-law duty and insist that wrongfulness must be tested against what they entered
upon to do.
38
[124] At the same time, they invoke Chartaprops to argue that their legal duty
to third parties is not derived from contractual privity but flows from entering upon the
work. Thus, they acce pt the doctrinal point that contractors can, in principle, be
delictually liable to strangers to the contract; however, they contend that as a matter
of policy, wrongfulness should not be imposed unless the particular omission falls
squarely within the defined task undertaken (supervision or routine maintenance) and
represents the kind of public-safety hazard that the task was meant to address. 41
[125] In their submission, the existence of structured inspection regimes, the
need for engineers’ instructions before certain items (like edge build-up removal) could
be done, and the absence of evidence of systemic failure at this precise location, are
all considerations that temper the policy case for imposing wrongfulness. Those
issues, they say, ultimately crystallise as negligence rather than wrongfulness.
[126] Finally, the contractors emphasise the broader cautions articulated in
Country Cloud, Loureiro and MTO Forestry. They submitted that courts must remain
careful not to conflate wrongfulness with negligence and must ensure that, in the
context of omissions, the imposition of liability accords with reasonableness, taking
into account institutional roles, practical constraints, and the operational structure of
the maintenance regime along an extended national route.
[127] On the authority of Chartaprops, contractors owe a duty to Third Parties
flowing from the work they undertake. In this instance, the engineering supervision
and routine maintenance functions performed by Kayad and MD Civils correspond
precisely with the mechanism of harm. The instruction issued immediately after the
collision, and the measured removal of about 200 metres of edge build -up at the low
point, underscore both the operational relevance of the obstruction and the omission
point, underscore both the operational relevance of the obstruction and the omission
to remove it when reasonable to do so.
41 Second and Third Defendants’ Pleas (22 February 2016); Second and Third Defendants’ Heads of
Argument (23 August 2025); Chartaprops 16 (Pty) Ltd v Silberman 2009 (1) SA 265 (SCA) para 47.
39
F. Evaluation: wrongfulness
[128] The parties’ approaches converge on the core doctrinal propositions: (a)
wrongfulness in omissions is a normative policy -laden inquiry; (b) it must not be
conflated with negligence; and (c) policy supplies the criterion. Their divergence lies
in application.
[129] The Plaintiff urges that SANRAL’s statutory stewardship over a known
low point on a national road, together with the experts’ common -cause engineering
propositions about edge build -up and the immediate post-incident removal of 200
metres of vegetation, make this precisely the kind of public -safety failure for which
liability should in principle be imposed if fault and causation are later established.
[130] SANRAL and the contractors respond that, as a matter of policy,
wrongfulness should recognise the independent-contractor architecture of the Act and
system, so that SANRAL’s exposure, in principle, is limited to its own wrongful failures
(e.g., negligent monitoring in defined circumstances), while the contr actors face
primary policy exposure only to the extent of the work they entered upon. Thus,
treating the remaining disputes as matters of negligence rather than wrongfulness.
[131] Read together, Langley Fox, Chartaprops, and the recent Pick n Pay
decision illustrate a consistent principle ; while independent contractors bear primary
responsibility for negligent performance of the work they undertake, a principal may
nevertheless remain liable where policy, statute, or circumstances impose a personal
duty of over sight. SANRAL’s duty under Section 26(c) to monitor the execution and
performance of maintenance work places this case squarely within that line of
authority.
[132] This Court will, in the next section, apply these principles to the particular
facts established on the record, taking care to keep wrongfulness distinct from
negligence and causation, as the authorities require.
G. Application to the facts
negligence and causation, as the authorities require.
G. Application to the facts
[133] The documentary and technical record shows that the inbound
carriageway contains a true low point in the vicinity of km 21.85 –21.88, proximate to
40
the apartment complex, where water would predictably accumulate if the pathway from
the paved surface to the m edian were impeded. This was confirmed by the contour
plan and by the inspection in loco, which also recorded that the inbound lanes camber
towards the median and that no median drain is situated at the low point. On those
objective facts, the risk was not diffuse or hypothetical but location-specific and known.
[134] The maintenance records provide contemporaneous corroboration .
There were emergency call-outs for “water on the road” on 15 May 2009, and, within
the next business days, the engineer issued a job instruction (18 May 2009) directing
the removal of edge build -up in that corridor, with the measured work capturing the
critical stretch spanning the true low point. The sequence and the measured locations
objectively link the hazard to edge build-up at the median edge.
[135] The joint expert minute records an agreed engineering proposition that
vegetation/edge build-up can trap water on the road surface and that flooding did occur
at the site . It further recognises that water may have ponded back from the median
onto the southbound carriageway in these conditions. Those concessions mark the
hazard as one falling squarely within the ordinary domain of routine maintenance and
supervision.
[136] Taking the evidential context into account, and on the assumption that
fault and causation are met, the Court is satisfied that public and legal policy, informed
by SANRAL’s statutory stewardship of the national road network under Sections 25(1)
and 26(c), demand that omissions of this character attract delictual liability.
Wrongfulness is founded on the failure reasonably to ensure free drainage and to
monitor outsourced maintenance at a known low point. There is no free-standing duty
to warn.
[137] As regards the Second and Third Defendants, the Court applies the
to warn.
[137] As regards the Second and Third Defendants, the Court applies the
principle in Chartaprops that a contractor who undertakes work capable of affecting
the safety of the public assumes a corresponding duty towards road users. In this
matter, the supervisory responsibilities performed by the Second Defendant and the
routine maintenance functions carried out by the Third Defendant, including vegetation
clearance and edge build -up control, bear directly on the hazard that arose. Subject
41
to the requirements of fault and causation, the omissions attributed to them
accordingly constitute wrongful conduct.
[138] In the road ‑safety setting of national freeways, the statutory matrix
(Sections 25(1) and 26(c) of the SANRAL Act) fixes the road authority with stewardship
and an obligation to monitor outsourced maintenance. Public and legal policy,
constitutionally understood, accordingly favour liability in principle where a known,
site‑specific risk (a sag at the median with no drain) materialises because routine
vegetation and edge build ‑up were not timeously neutralised. This conclusion keeps
foreseeability within negligence and treats wrongfulness as the normative judgment
that liability should, in principle, attach if fault and causation are established.
H. Conclusion on Wrongfulness
[139] This conclusion does not conflate wrongfulness with negligenc e. It
simply determines that, in this factual and statutory setting, the type of omission
alleged is of the kind for which the law should impose liability in principle if fault and
causation are later found. The negligence and causation enquiries remain to be
addressed discretely.
[140] The Court remains alert to two recurring risks in delicts founded on
omissions. First, to avoid conflation of wrongfulness and negligence, the Court treats
policy-laden questions about imposing liability as analytically distinct from
foreseeability and reasonable steps under Kruger v Coetzee . Second, in assessing
the reasonableness of steps expected from public bodies and those engaged by them,
the Court takes into account resource limits, the structure of contractual delegations,
and the statutory injunction to monitor performance, without losing sight of the modest
and practicable steps demanded by the foreseeable hazard in issue.
[141] SANRAL invoked the evidentiary -burden framework in Monteoli v
Woolworths42, to the effect that where a Plaintiff establishes only a prima facie
Woolworths42, to the effect that where a Plaintiff establishes only a prima facie
omission, a Defendant may neutralise the case by restoring equilibrium of
42 Monteoli v Woolworths 2000 (4) SA 735 (W) at 745G–I.
42
probabilities. The difficulty with this submission is factual, not doctrinal. The evidentiary
matrix here is stronger than that: the emerg ency call-outs on the day, the immediate
instruction and measured removal of approximately 200 metres of edge build-up at the
low-point corridor, the experts’ joint -minute propositions, and the in loco geometry
together place the plaintiff’s case beyond the realm of a prima facie showing.
[142] On the evidential record, the Plaintiff’s case rises above a mere prima
facie threshold. The contemporaneous emergency call-outs on the day, the instruction
issued on 18 May 2009 and the measured removal of edge build -up across the
low-point corridor, the engineers’ joint -minute concessions, and the geometry
recorded in loco together establish probabilities that do not return to equilibrium.
SANRAL’s reliance on the mere appointment of competent contractors does not
neutralise this evidentiary matrix. The Monteoli formulation is therefore not engaged,
the probabilities favouring the conclusion that the monitoring and maintenance regime
failed to detect or prevent a foreseeable hazard at a known low point.
Negligence (Kruger v Coetzee)
A. Legal Framework
[143] In our law, the culpa classic test for culpa as set out in the locus classicus
Kruger v Coetzee arises if a diligens paterfamilias in the position of the defendant (i)
would have foreseen the reasonable possibility of his conduct injuring another and
causing patrimonial loss, (ii) would have taken reasonable steps to guard against such
occurrence, and (iii) the defendant failed to take such steps. The reasonableness of
guarding steps is fact-sensitive.
B. Foreseeability and the need for guarding steps
[144] On the evidence, the risk of water ponding at the specific low point was
objectively foreseeable. The in-loco minute and contour plan identify the low point and
the camber towards the median, with no drain at that point; the joint minute recognises
the camber towards the median, with no drain at that point; the joint minute recognises
that edge build-up can functionally “dam” water on the roadway. Those features made
the hazard predictable in rainy conditions and amenable to routine edge management.
[145] The emergency call-outs on the day of the incident registered “water on
the road” at the very corridor in question, and the prompt instruction (18 May 2009) to
43
remove edge build-up, with measured work spanning km 21.85 to 21.65, confirm that
the issue was both real and remediable by straightforward maintenance intervention.
[146] In addition, the engineering evidence established that even modest
water depths can destabilise a light vehicle, with aquaplaning/hydraulic drag occurring
at shallow depths depending on speed and tyre characteristics; facts that underscore
the need for prudent maintenance and timely intervention.
C. Reasonable steps in context
(a) In respect of the Second Defendant (supervising engineer)
[147] Reasonable steps included a proactive inspection regime sensitive to
the geometry of the site, the issuing of timely instructions for edge removal at the low
point before winter rainfall events and follow-up to ensure execution. The records show
that an instruction was indeed issued ; but after the incident , and that the work
ultimately measured encompassed the low point. On the probabilities, reasonable
steps called for earlier instruction and clearance at that specific location.
(b) In respect of the Third Defendant (maintenance contractor)
[148] Reasonable steps included ensuring that when edge build -up had
developed to a depth capable of impeding drainage, it was cleared without delay upon
instruction, and that routine reporting and route-patrol feedback escalated site-specific
risks. The documentary record shows the removal of approximately 200 metres of
edge build -up immediately post -incident in the precise corridor of concern,
corroborating both the presence and significance of the obstruction. On the
probabilities, maintenance attention to that corridor was required earlier than it
occurred.
(c) In respect of SANRAL (road authority)
[149] Reasonable steps, over and above appointing competent contractors ,
included the exercise of reasonable oversight under Section 26(c) (“monitor the
execution and work performance”), calibrated to the location -specific risk at this low
execution and work performance”), calibrated to the location -specific risk at this low
point. While a robust system of inspections and route patrols existed in general, the
fact that edge removal in the critical corridor only occurred after the event indicates
that the monitoring did not, in this instance, trigger timely intervention at the known low
44
point. Whether that amounts to actionable negligence in light of the
independent-contractor defence will be addressed in the dedicated sec tion that
follows; for present purposes, I find that reasonable steps called for earlier
identification and treatment of the edge build-up at this site.
(d) Failure to take reasonable steps
[150] In light of the foreseeable risk at a known low point; the emergency
records pre- and post-incident; the post-incident instruction and measured removal of
edge build-up across the exact corridor; the joint minute’s recognition of the ponding
mechanism; and the in-loco confirmation of the geometry, I find that the Second and
Third Defendants failed to take reasonable steps that were available and practicable
to guard against the occurrence. The supervising engineer should have timeously
instructed removal at the low point; the maintenance contractor’s processes should
have ensured that the edge condition at that point was detected and eliminated earlier.
[151] As regards SANRAL, on the evidence presently before me, I am satisfied
that the risk profile at this location warranted earlier oversight intervention directed at
the low-point corridor. Whether that personal fault (as distinct from vicarious liability)
sustains liability, given the independent -contractor framework, will be determined
when I address SANRAL’s independent-contractor defence and the pleaded bases of
liability. Fo r present purposes, I record that Kruger v Coetzee’s second and third
elements, namely reasonable steps and failure , are prima facie satisfied on the
probabilities in relation to SANRAL’s monitoring function at this site.
Inspection in loco
[152] The Court, accompanied by the parties and their experts, conducted an
inspection in loco on 15 August 2024. A minute of the inspection was prepared and
signed. The following salient features, which are either common cause or objectively
signed. The following salient features, which are either common cause or objectively
recorded during the inspection, bear directly on the mechanism of ponding at the locus
in quo.
[153] First, the geometry of the roadway was established with precision. The
inbound carriageway (towards Cape Town) exhibits a camber that slopes from the
centre line towards the median, and the true low point of the inbound carriageway lies
45
in the region of km 21.85 to 21.88 . The inspection further recorded that no median
drain is located at that low point, with the result that excess water which accumulates
in the median can, if imped ed, present as ponding initially in the right shoulder and
extend into the right -hand lane. These observations accord with the engineering
explanation given at trial and with the later -produced contour plan considered by the
experts.
[154] Secondly, the experts pointed out concrete slab structures and manhole
covers associated with the Wemmershoek municipal water main situated within the
median in the vicinity of the low point (including the valve chamber laddered structure).
The physical locations of these feat ures were recorded photographically in the
inspection minute and its annexures. Their relative elevations and positions were
noted for purposes of assessing how water would migrate in the event of rainfall or
other inflow at the site.
[155] Thirdly, the Plaintiff indicated on site the general area where his vehicle
struck the water and where it came to rest . The positions were documented by
reference to identifiable landmarks, including the apartment complex on the opposite
side of the N1, and cross -referenced to kilometer markers on the SANRAL system.
These indications correspond with the corridor identified in the emergency records and
with the later edge-build-up removal measurements.
[156] Fourthly, the inspection enabled the experts to synthesize the
topography with the records. It was confirmed that excess water in the median would
tend to collect at the low point and, in the absence of a median drain at that point,
could be impeded by vegetation and edge build -up along the median edge, thereby
trapping water on the inbound fast lane. This is consistent with the joint minute’s
recognition of vegetation as a mechanism of ponding and with the post -incident
instruction to remove edge build-up over approximately 200 metres straddling the low
instruction to remove edge build-up over approximately 200 metres straddling the low
point.
[157] Finally, the Cour t notes that although the existence of a pipeline leak
was mooted during the trial, the inspection findings and the absence of water inside
the relevant manholes at the time of inspection provide no direct support for a leak as
46
the cause of the ponding on the night in question. In any event, the inspection
confirmed that if significant water were to accumulate in the median at the low point, it
would tend, on overflow, to migrate towards the outbound carriageway , given the
relative levels, again underscoring the importance of keeping the median edge clear
to allow roadway runoff to pass into the median without obstruction.
[158] Taken together, the in loco findings objectively corroborate the
location-specific risk at the km 21.8–21.9 corridor and align with the documentary
record (emergency call -outs and the ensuing edge -build-up instruction and
measurements). They therefore provide independent confirmation of the foreseeability
of ponding at this site under rainy conditions and the reasonableness of targeted
vegetation and edge-build-up control as a guarding step in the maintenance regime.
[159] The positions indicated by the Plaintiff at the inspection for (a) the strike
of water and (b) the vehicle’s final rest are congruent with the documented emergency
call-outs and the subsequent instruction to remove edge build -up in the same
segment. These observations support the inference that water pooled at the low point
on the right lane due to impeded drainage and that the ponding coincided with the
area later addressed by the clean-up works.
Causation
[160] Causation requires the Plaintiff to establish both factual causation ,
namely that the Defendants' wrongful and negligent omissions were a causa sine qua
non of the harm; and legal causation, which asks whether, as a matter of policy and
reasonableness, liability should extend to the harm suffered. The Plaintiff need not
demonstrate certainty. The test is whether the negligent omission probably caused
the harm. As the Supreme Court of Appeal held in Minister of Police v Skosana43, and
as later developed in Minister of Safety and Security v Van Duivenboden44 and Lee v
as later developed in Minister of Safety and Security v Van Duivenboden44 and Lee v
Minister for Correctional Services 45, the inquiry calls for a sensible retrospective
analysis, grounded in the evidence, rather than speculative metaphysics.
43 Minister of Police v Skosana 1977 (1) SA 31 (A).
44 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
45Lee v Minister for Correctional Services 2013 (2) SA 144 (CC).
47
A. Factual causation
[161] The first question is whether, but for the Defendants' failure to maintain
the roadway free of edge build -up at the median edge in the region of the low point
between km 21.85 and 21.88, the Plaintiff’s vehicle would probably not have
encountered a body of water sufficient to induce aquaplaning.
(a) The location of the ponding
[162] The contour plan, produced shortly before trial, established the true low
point of the inbound carriageway at approximately km 21.85 –21.88, and this
observation was reaffirmed during the inspection in loco. The low point’s proximity to
the apartment complex, the inbound camber towards the median, and the absence of
a median drain at that location together created conditions conducive to the
accumulation of surface water.
[163] The Plaintiff identified the general area in which he struck the water as
being approximately opposite the apartment complex, and this area aligns with the
kilometre markings appearing in the emergency call -out records and the later job
instruction for edge-build-up removal.
(b) The presence and effect of edge build-up
[164] The routine maintenance records reflect two emergency call-outs on 15
May 2009, at 03h15 and 12h35, each noting water on the roadway in the vicinity of
the low point. Three days later, on 18 May 2009, the supervising engineer issued a
job instruction to remove edge build-up between kilometre markers 21.6 and 21.8, with
the actual measured work performed from 21.85 to 21.65; precisely the corridor of the
low point. This provides objective evidence that edge build-up was present at the time
of the incident and was subsequently removed.
[165] The joint engineering minute captures agreement that vegetation and
edge build-up can trap water on the road surface, initially causing ponding on the right
shoulder before extending into the right -hand lane. This proposition was consistent
across both experts, notwithstanding Mr Craig’s later attempts to deviate.
48
[166] Dr Roodt explained that, absent edge build -up, rainfall would have
drained off the surface, through t he median, and away from the inbound lane. The
presence of edge build-up functioned as a “dam wall”, slowing drainage and allowing
water to accumulate on the roadway. He further explained that water of even modest
depth, on the order of 6–17mm, is sufficient to induce hydraulic drag and aquaplaning,
particularly in light vehicles.
(c) The expert synthesis
[167] Dr Roodt’s revised analysis, after receipt of the contour plan, located the
point of ponding squarely at the low point. He described how water travelling down the
cambered surface would reach the median edge, be impeded by vegetation/edge
build-up, and be forced back into the right-hand lane. The in loco inspection confirmed
the physical plausibility of this mechanism, including the absence of any drain at the
true low point. Mr Davidse (MD Civils) conceded its plausibility and acknowledged that
the 200m of edge -build-up removal immediately after the inci dent was an indication
that the obstruction had been dangerous.
[168] Dr Johnston, the climatologist, accepted that localised heavy rainfall was
possible despite regional variations and could not dispute the Plaintiff’s and Mr
Hesse’s evidence of “heavy, heavy” rainfall at precisely the time and place of the
accident. He conceded that rainfall could therefore have functioned as the trigger, with
drainage impeded by edge build-up functioning as the mechanism of ponding.
(d) Applying the “but for” test
[169] ln light of the known low point and camber of the road; the acknowledged
effect of edge build -up on drainage ; the emergency call -outs; the post -incident
instruction to remove vegetation build-up at precisely that location; the 200 meters of
removal actually undertaken; the lay evidence of water accumulation in both the right-
hand lane and the median; and the concessions in the joint minute, I find on a balance
hand lane and the median; and the concessions in the joint minute, I find on a balance
of probabilities that but for the presence of edge build -up obstructing drainage at the
low point, the Plaintiff would not have encountered a pool of water of such depth as to
cause aquaplaning.
49
[170] On the probabilities, and having regard to the emergency call -out
records of 03h15 and 12h35 on 15 May 2009, the 18 May 2009 job instruction and
measured removal o f 200 metres of edge build -up, the joint minute of the civil
engineers that vegetation/edge build -up can trap water on the right lane, and the in
loco geometry, the Court finds that edge build -up along the median edge materially
slowed or impeded the drainage off the right lane at the low point, causing ponding of
sufficient depth to destabilise a small hatchback motor vehicle at the speeds
described. The post -incident instruction to remove edge build -up at precisely this
chainage is consistent with an oper ational recognition, by those responsible for
maintenance, that the edge build -up was causally implicated in the hazardous
condition observed on the day. The factual link is therefore established ; but for the
failure to prevent or remove the edge build-up in the period preceding the incident, the
hazardous pooling to a depth capable of aquaplaning or hydraulic drag would probably
not have occurred.
[171] The Defendants’ alternative hypothesis that a pipeline or valve leak
caused the ponding is not borne out by t he evidentiary record. There is no
contemporaneous documentation, emergency notation, or field observation indicating
any leak on the night in question, and the inspection in loco, conducted many years
later, did not reveal any indicator within the relevant manholes that would support such
a failure. Given both the temporal distance from the incident and the absence of
corroborating evidence at the time, the pipeline-leak theory cannot withstand scrutiny
and remains speculative on the probabilities.
[172] The Defendants’ climatology expert accepted that localised heavy
rainfall could not be excluded. The sequence of emergency call -outs noting water on
the roadway, followed by the measured removal of approximately 200 metres of edge
the roadway, followed by the measured removal of approximately 200 metres of edge
build-up in the precise corridor of the low point, is consistent with edge obstruction as
the operative mechanism. The Court therefore rejects the valve -leak hypothesis as
speculative on these facts.
[173] I turn briefly to SANRAL’s pipeline-leak hypothesis. SANRAL contended
that, if the Court were unable to choose between the Plaintiff’s mechanism (impeded
drainage due to edge build -up) and a municipal pipeline leak, the Plaintiff must fail
50
because the probabilities would be evenly balanced. T o my mind, t he submission
overstates the evidential parity. The alternative hypothesis is unsupported by
contemporaneous field notes, maintenance records, municipal documentation, or any
credible expert foundation; and the in loco inspection, conducted years later, disclosed
no objective indicator of a historic leak of sufficient magnitude to flood the median and
southbound carriageway.
[174] By contrast, the emergency call-outs on the day of the incident and the
post-incident instruction and measured removal of approximately 200 metres of edge
build-up at the low-point corridor supply a coherent causal pathway grounded in
impeded drainage. The evidentiary record does not present an equipoise between
competing probabilities. The Plaintiff has therefore discharged the burden of
establishing factual causation on a balance of probabilities.
B. Legal causation
[175] The remaining question is whether the harm is too remote or whether
policy considerations preclude liability. As the Supreme Court of Appeal held in
Minister of Police v Skosana (supra), and as later developed in Minister of Safety and
Security v Van Duivenboden (supra) and Lee v Minister for Correctional Services
(supra), the inquiry calls for a sensible retrospective analysis, grounded in the
evidence, rather than speculative metaphysics. In Fourway Haulage SA (Pty) Ltd v SA
National Roads Agency Ltd 46, Brand JA emphasised that legal causation must be
applied flexibly to avoid unjust results; and in South African Hang and Paragliding
Association v Bewick47 the same principle was reaffirmed.
[176] In respect of the matter in casu, the chain of causation is straightforward
and linear:
(a) Edge build-up and vegetation accumulated at a known low point;
(b) The Defendants’ maintenance/supervision regime failed to remove this
timeously;
timeously;
46 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd (653/07) [2008] ZASCA 134; 2009
(2) SA 150 (SCA); [2009] 1 All SA 525 (SCA) (26 November 2008).
47 South African Hang and Paragliding Association v Bewick (1010/2013) [2015] ZASCA 34 (25 March
2015).
51
(c) During rainfall, the edge build -up impeded drainage, causing ponding on the
right-hand lane and
(d) The Plaintiff, driving lawfully, struck the ponded water and aquaplaned, colliding
with the median.
[177] This is not a case where an extraordinary or unforeseeable intervening
act broke the chain of causation. Nor is this an instance of remote or policy -averse
liability. To the contrary, the imposition of liability accords with the statutory purpose
behind SANRAL’s maintenance obligations under Sections 25 and 26 of the SANRAL
Act, and with the operational obligations assumed by the contractors.
[178] Moreover, the hazard was not an abstract or diffuse danger arising
anywhere along the N1; it occurred at a site-specific low point, repeatedly identified in
the engineering evidence, the emergency logs, and the in loco inspection. The causal
pathway is thus neither remote nor attenuated.
[179] The harm suffered by the Plaintiff was the direct realisation of the very
danger that the Defendants’ maintenance and supervision duties we re intended to
prevent, namely aquaplaning caused by a pool of water that had accumulated due to
inadequate drainage.
[180] The harm was neither remote nor unfairly burdensome to ascribe to the
failure to keep the roadway safe through routine maintenance of edg e build-up at an
identified low point of a national freeway. The policy considerations of reasonableness,
fairness and justice, applied flexibly, favour liability where the risk (aquaplaning on
pooled water) is well-known, the precaution (maintaining free drainage at the median
edge) is modest and routinely contracted-for, and the post-incident works corroborate
the causal pathway. There is thus no novus actus. Accordingly, legal causation is
established.
[181] I interpose to deal briefly with SANRAL’s argument that the Plaintiff did
not plead “supplementary” oversight negligence. SANRAL submitted that the
not plead “supplementary” oversight negligence. SANRAL submitted that the
Particulars of Claim do not allege that SANRAL breached any supplementary duty to
52
monitor the contractors, and contends that SANRAL therefore cannot be held l iable
on that basis.
[182] SANRAL further argues that the Plaintiff did not plead a distinct basis of
liability arising from SANRAL’s failure to perform supervisory or oversight functions
over its contractors. In my view this characterisation is too narrow. The Plaintiff
pleaded a general delictual claim founded on SANRAL’s wrongful and negligent failure
to ensure that the road was maintained in a safe condition and free of hazardous water
accumulation. A public body that is statutorily required under Section 26(c) of the
SANRAL Act to monitor the execution and performance of outsourced maintenance
work cannot separate that monitoring obligation from the negligence enquiry.
Oversight of appointed contractors forms part of the content of the duty to take
reasonable care. It is not a separate cause of action that must be pleaded
independently. The absence of a standalone allegation of “supplementary oversight
negligence” therefore does not preclude consideration of SANRAL’s own omissions
within the pleaded framework of wrongfulness and negligence.
Independent-Contractor Defence
[183] SANRAL relies on the rule articulated in Chartaprops 16 (Pty) Ltd v
Silberman, namely that a person subject to a legal duty to prevent harm may discharge
that duty by engaging a reasonably competent independent contractor; in such a case,
the contractor’s wrongful act/omission does not render the employer vicariously liable.
SANRAL’s position is that it (i) appointed MD Civils (routine maintenance) and (ii)
appointed Kayad (engineering supervision), that both were competent, and that they
entered upon the work. On this basis, SANRAL says, it has discharged its legal duty.
[184] Two further points arise. First, the Plaintiff’s case against SANRAL is not
confined to vicarious liability for the contractor’s wrongs; it rests in part on SANRAL’s
confined to vicarious liability for the contractor’s wrongs; it rests in part on SANRAL’s
statutory framework: Sections 25(1) and 26(c) of the SANRAL Act fix SANRAL with
responsibility for maintenance and the competence to appoint contractors and to
monitor their performance. While Chartaprops recognises the defence in principle, it
does not negate a personal duty on an employer, in appropriate circumstances, to take
reasonable supervisory steps, especially where the statute itself speaks in terms of
ongoing monitoring of outsourced maintenance.
53
[185] Second, on the facts, the contemporaneous documents show that the
routine maintenance system responded to the very hazard at issue after the Plaintiff’s
accident: emergency call -outs for “water in road” in the same chainage and, within
days, a job instruction and measured edge build-up removal over the precise segment
straddling the low point. That chronology supports the conclusion that the maintenance
regime and supervision failed to avert a foreseeable hazard at a known low point and
were reactive rather than preventative. Chartaprops does not immunise an employer
if, on the facts, its arrangements and oversight do not prevent obvious risks within the
contractor’s mandate, particularly where post -incident works align with the very risk
the Plaintiff encountered.
[186] The SCA’s analysis in Pick ‘n Pay Retailers (Pty) Ltd v Williams fortifies
this conclusion. Although Chartaprops recognises the independent -contractor
defence, the SCA reaffirmed that a principal may not rely on delegation where its own
systems of oversight are deficient. The Court held that retailers remain responsible
where weak supervision or inadequate monitoring allowed a hazard to persist despite
the appointment of a competent contractor. In terms of SANRAL’s monitoring duty
under Section 26(c), the mere appointment of contractors does not absolve it of its
responsibility to ensure that the national road remains safe for public use . In these
circumstances, SANRAL’s reliance on the independent-contractor defence fails on the
facts.
[187] As for Kayad and MD Civils, Chartaprops underscores that a contractor
owes a duty to Third Parties because it entered upon the work, not because of private
privity. On the evidence summarised earlier, (including the joint minute, the
emergency regime and the edge -build-up instruction), both the consulting engineer
and the maintenance contractor fell short of the standard of care applicable to their
and the maintenance contractor fell short of the standard of care applicable to their
respective roles in preventing or neutralising edge build -up that could (and did) lead
to ponding at the low point.
Contributory Negligence
[188] The Defendants pleaded that the Plaintiff travelled at an excessive
speed, failed to maintain a proper lookout, and did not respond appropriately after
striking the water. There is, however, no objective measurement of the Plaintiff’s
54
speed, nor any independent evidence substantiating a departure from reasonable
driving behaviour in the prevailing conditions of darkness and heavy rain. The
engineering evidence established that even modest differential water depths across
the right and left wheels of a light motor vehicle are capable of inducing hydraulic drag
and rotation without imprudent driver input. In these circumstances, post -impact
reaction dynamics are an unreliable foundation for attributing fault to the Plaintiff.
[189] The lay evidence supports this conclusion. The Plaintiff, his brother, and
the independent witness, Mr Rhode, each described unexpectedly encountering
ponded water on the right -hand lane at approximately the same location in the early
hours of the morning. Mr Rhode’s near -contemporaneous incident, in particular,
reinforces the inference that the hazard lay in the roadway condition rather than in
idiosyncratic driver error. Nothing in the record suggests that either driver behaved
negligently; rather, both appear to have be en confronted with a sudden and largely
invisible hazard which would have challenged even a prudent motorist.
[190] In these circumstances, and on the probabilities, the Defendants have
not demonstrated that the Plaintiff’s conduct fell below the standard of the reasonable
driver. Any imperfections in his response after striking the water cannot, in the
conditions described, be regarded as culpable or causally material. The defence of
contributory negligence is therefore not sustained, and no apportionment of damages
arises.
Discussion
[191] The Second and Third Defendants submitted that the Plaintiff’s
causation case rests on speculation in the Popi M / Recife sense, and that the Court
should not choose between improbable theories. 48 The record does not place the
Court in that dilemma. The contemporaneous emergency call -outs, the post-incident
instruction and measured removal of approximately 200 metres of edge build-up at the
instruction and measured removal of approximately 200 metres of edge build-up at the
low-point corridor, the common-cause geometry recorded in loco, and the joint-minute
48 Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 (HL) (on a court not being
compelled to choose between equally improbable causes); Control Chemicals (Pty) Ltd v Safbank
Line Ltd and Others (The “Recife”) 2000 (3) SA 357 (SCA) (insufficiency of proof where rival causal
theories rest on speculation).
55
concession that vegetation at the median edge can trap water on the pavement
together provide a coherent and probable factual substratum. The Court prefers the
explanation that best fits those proven facts.
[192] The criticism that Dr Roodt ‘speculated’, failed to consider alternatives,
or relied on selective material is overstated when viewed against the complete record.
Although he corrected his initial assumption about the location of the low point once
the contour plan became available, his final opinion was anc hored in objective
materials: the emergency call -outs, the measured post -incident works located at the
critical corridor, the site geometry, and the joint -minute engineering propositions. By
contrast, the alternative of a valve or pipeline leak never progressed beyond assertion.
It was unsupported by contemporaneous field notes, repair tickets or municipal
records at the relevant time and place.
[193] The Defendants emphasise rainfall station data described as light. That
contention does not displace the mechanism of risk on the evidence. The enquiry here
is not whether a regional cloudburst occurred but whether, at a known low point,
impeded drainage on the right lane produced hazardous ponding during rain. The
climatology evidence accepted that localised heavier rain could not be excluded and,
when combined with edge obstruction at the median edge, could yield a hazardous
water film in the fast lane. The mechanism is site-specific rather than gauge-specific.
[194] It is contended that no one observed ‘edge bui ld-up’ on the night and
that lay witnesses perceived more water in the median. Lay observation in heavy rain
and darkness is an unreliable basis on which to exclude impeded drainage at the
pavement-to-median interface. In any event, the measured removal of approximately
200 metres of edge build -up immediately after the incident in the precise corridor of
200 metres of edge build -up immediately after the incident in the precise corridor of
the low point is objective corroboration that edge obstruction of consequence existed
and was treated. The timing and location of that instruction are consistent with targeted
hazard abatement, not a generic tidy-up.
[195] The suggestion that the 18 May works were ‘reinstatement’ after towing,
or that the recorded chainage was ‘away from’ the low point, does not assist the
defence. The measurement spans the criti cal corridor and aligns with the low -point
56
segment identified on the contour plan and in loco. On the probabilities, the instruction
and its execution reflect operational recognition that edge obstruction in that corridor
was implicated in the hazard encountered.
[196] The presence of a vehicle pumping water after the incident is equally
consistent with post-event hazard mitigation and does not establish the origin of the
water, still less a contemporaneous leak from the municipal line. The later call-out the
same day confirms the existence of a roadway water problem in the same corridor; it
does not prove a pipeline failure.
[197] The Defendants rely on an absence of recorded prior flooding and on a
generally rigorous inspection regime to negate negligence. Those poi nts are not
determinative. A system may be broadly robust yet miss a location-specific risk where
sag geometry and median interface require targeted vigilance. Reasonable care
demanded calibrated inspections and pre-emptive vegetation/edge control at that site
before winter rainfall; the fact that essentially the same treatment was carried out
immediately after the incident confirms the step was modest, available, and should
have been taken earlier.
[198] The contention that aquaplaning at 70–80 km/h was ‘virtually impossible’
is inconsistent with accepted engineering understanding of hydraulic drag at modest
depths where differential water films act across tyres. In the prevailing conditions of
night driving and rain, sudden encounter with ponded water is a reco gnised loss-of-
control risk even without imprudent driver input. The near -contemporaneous Rhode
incident underscores that the danger lay in the roadway condition rather than
idiosyncratic driver error. The defence of contributory negligence is accordingly not
made out.
[199] The Defendants’ alternative explanation that a valve or pipeline leak is
the ‘only plausible’ cause is not borne out by the record. There is no contemporaneous
the ‘only plausible’ cause is not borne out by the record. There is no contemporaneous
documentary or field evidence of such a leak at the relevant time; the in loco inspection
conducted years later did not reveal supporting indicators; and the climatology
evidence did not exclude localised downpour. The sequence of emergency call -outs,
57
together with the measured edge -build-up removal at the precise corridor of the low
point, is consistent with edge obstruction as the operative mechanism.
[200] The submission that their liability is contingent upon SANRAL first being
liable misstates the delictual position. In Chartaprops, contractors attract a duty to third
parties because they entered upon the work. The supervision functions undertaken by
the Second Defendant and the routine vegetation and edge -control functions
undertaken by the Third Defendant align directly with the hazard that materialised.
Subject to fault and causation, their omissions are wrongful in principle and are not
contingent upon SANRAL’s liability.
[201] As to SANRAL, reliance on an independent -contractor framework does
not immunise a principal whose own monitoring is inadequate in the circumstances.
On the authority of Langley Fox, and consistently with the Supreme Court of Appeal’s
recent approach in Pick ‘n Pay v Williams, a principal remains liable where its systems
of oversight fall short; outsourcing is not a safe harbour where the statute and the facts
require proactive monitoring at a known risk location. Section 26(c) of the SANRAL
Act fixes SANRAL with a personal duty to monitor performance. On this record,
oversight at the low point was reactive rather than preventative.
[202] The Defendants’ expert -methodology critique is addressed by settled
principles. The Court attaches weight to opinion only to the extent that it is anchored
in proven facts and cogent reasoning. Where an expert advances an alternative
without contemporaneous support, departs from a joint minute without a proper basis,
or approaches the record through a role invested in the litigation, the probative value
is diminished. Against that yardstick, the pipeline-leak explanation cannot displace the
probable causal mechanism supported by the objective record.
[203] In summary, the themes developed in the Second and Third Defendants’
[203] In summary, the themes developed in the Second and Third Defendants’
submissions do not undermine the Court’s findings on wrongfulness, negligence, or
causation. The hazard was location-specific and foreseeable; modest guarding steps
were available; they w ere not taken timeously; and the post -incident works at the
precise corridor corroborate the Plaintiff’s mechanism. The independent -contractor
58
defence does not avail SANRAL on these facts, and the contractors’ own duties
remain engaged by virtue of the work they undertook.
Conclusion
[204] Wrongfulness has been established for the reasons set out earlier,
including the statutory framework governing SANRAL’s responsibilities, the applicable
public-policy considerations, and the nature of the omissions concerned.
[205] Applying the test in Kruger v Coetzee , a reasonable road authority,
consulting engineer, or maintenance contractor in the Defendants’ respective
positions would have foreseen the risk of ponding at the low point if edge build-up was
not managed, would have taken reasonable steps such as inspections calibrated to
site geometry and timely removal of edge build-up, and the Defendants failed to take
such steps. The emergency records, the post-incident instruction and measurements
reflecting removal of approximately 200 metres of edge build-up, the joint minute, and
the in loco findings collectively satisfy both foreseeability and preventability on the
probabilities.
[206] In considering the evidentiary landscape, I am satisfied that the failure
to remove or prevent edge build-up at the low point probably caused the ponding that
resulted in the collision. Legal causation is established for the reasons already given.
[207] The independent-contractor defence does not assist SANRAL, whose
statutory duty to monitor performa nce remained engaged, and the duties of the
contractors themselves were likewise triggered by the work they undertook. No
contributory negligence has been established on the evidence.
Costs
[208] It is trite that costs ordinarily follow the result. I find no reason to depart
from the accepted legal principle. Consequently, in the exercise of my discretion, the
Defendants, jointly and severally, the one paying the others to be absolved, are
ordered to pay the Plaintiff’s costs of suit on the merits, including th e costs of two
ordered to pay the Plaintiff’s costs of suit on the merits, including th e costs of two
counsel, Senior Counsel on scale C and Junior Counsel on scale B given the clearly
identified features of this case that were sufficiently complex, important and valuable
59
to the respective parties. All issues relating to Third-Party costs ar e reserved for
determination together with SANRAL’s contingent Third-Party claims at the
quantification stage.
[209] For completeness, the costs of the First Defendant’s application for
absolution from the instance, previously directed to stand over for determination at the
conclusion of the trial, follow the result and are incorporated into the costs order made
herein.
[210] Although condonation for the late delivery of the further expert reports
was granted to ensure the Court had the fullest record, the Defendants’ expert material
ultimately did not advance their case and was accorded little weight on the merits. The
Plaintiff’s opposition was neither frivolous nor obstructive in the circumstances, and
there was no discernible prejudice caused by the timing that would justify a punitive or
one-sided order. In the result, fairness is best served by directing that the reserved
costs of the opposed interlocutory application be costs in the cause.
Order:
[211] In the result:
1. The Special Plea of prescription is dismissed.
2. The First, Second and Third Defendants are held liable, jointly and severally,
the one paying the others to be absolved, for 100% of the Plaintiff’s proven
damages on the merits.
3. The Defendants jointly and severally are to pay the costs of suit, including the
costs of two Counsel, Senior Counsel on Scale C and Junior Counsel on Scale
B, respectively.
4. The reserved costs of the interlocutory application heard on 29 August 2025
are declared to be costs in the cause.
5. The First Defendant’s third-party claims for indemnity, rectification, and in the
alternative contribution, against the First and/or Second Third Parties are
postponed sine die for determination, if necessary, at the quantification stage,
with the costs of the third-party proceedings likewise reserved.
6. The matter of quantum is postponed sine die.
APPEARANCES:
Counsel for the Plaintiff:
Instructed by:
Counsel for the First Defendant:
Instructed by:
Counsel for the Second and
Third Defendants and Third Parties:
Instructed by:
P D ANDREWS AJ
Acting Judge of the High Court,
Western Cape Division
Advocate M Salie (SC)
Advocate A J du Toit
Simpsons Attorneys Inc.
Advocate T R Tyler
Dicks van der Merwe Attorneys
Advocate D Melunsky (SC)
Michael Ward Attorneys
This judgment was handed down electronically by circulation to the parties'
representatives by email.
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