IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number no: 20111/2012
In the matter between:
CHRISTIAN JACOBUS VAN STADEN Plaintiff
and
DEPARTMENT OF INFRASTRUCTURE, WESTERN CAPE Defendant
Coram : Nziweni, J
Heard : 04 September 2025
Delivered : 08 June 2026
Summary : Delict – Public Authority Liability — Road maintenance — Omission to
repair road surface — Motorcyclist striking large pothole — Hazard measuring
approximately 600 mm by 500 mm and existing on roadway for several weeks —
Pothole constituting a hidden trap difficult for road users to detect. — Public authority
deemed to have constructive notice of the defect due to the substantial size of the
pothole and the prolonged period of its existence - Wrongfulness — Failure of
defendant to maintain public road under its cont rol — Public authority possessing a
positive legal duty to keep roads in a reasonably safe condition for public use —
Failure to detect and re pair severe road defect over several weeks constituting a
wrongful omission. Negligence — Proof of — Diligens paterfamilias — Reasonable
foreseeability of harm to road users — Failure by public authority to execute a
proper, routine road inspection and maintenance system — Incomplete maintenance
logbooks indicating deficient operational protocols — Negligence established.
ORDER
1. The defendant is liable for the plaintiff's proven or agreed
damages.
2. The claim against the first defendant is dismissed.
3. The second defendant is to pay the costs of the plaintiff on attorney
and client scale, such costs to include counsel fees and the costs of
the expert witnesses called by the plaintiff.
JUDGMENT DELIVERED ELECTRONICALLY
Nziweni, J
Introduction
[1] On the afternoon of 1 January 2012, under clear and bright weather conditions,
the plaintiff was riding his motorcycle northbound, toward George, on the main road
(“MR347”), between Blanco and George Airport, near the Geelhoutboom turn -off in
George. The plaintiff contends that while driving, without any fault or negligence on
his part, but due to the negligence of the defendant in permitting the road to remain
in an unsafe and dangerous condition unknown to him; he hit a pothole about the
size of a size 11 Crock shoe, measuring 600 mm by 500 mm , and he lost control of
his motorcycle. As a result, he sustained severe leg injuries that necessitated
amputation, resulting in the permanent loss of his limb.
[2] The plaintiff alleges, inter alia, that the defendant who owed him a duty of care as
a motorist breached that duty of care through wrongful commissions that were the
proximate cause of his injurie. Thus, this is a delictual action for personal injury that
originates from a pothole which the plaintiff alleges caused the accident that
occurred.
[3] According to the evidence offered by the plaintiff , the impact damage occurred
when the vehicle struck the far exit wall of the pothole. Conversely, the defendant
contends that ; had a pothole been present at the location, the motorcycle would
have safely cleared it.
[4] To this end, the plaintiff launched this action to recover damages for personal
injuries sustained in an accident while riding his 2002 BMW R 1150 GS motorcycle
[also classified as an adventure motorcycle ] on the main road (“MR347”), near the
Geelhoutboom turn-off in George.
[5] The defendant acknowledges in its plea a duty of care to properly maintain public
roads within its jurisdiction, including the MR347. This includes a duty to ensure that
these roads do not pose actual or potential dangers to road users.
[6] The defendant, moreover, called several witnesses who were employees of the
George Municipality at the critical time. Their evidence was led to substantiate the
defendant’s denial of any failure or negligence regarding its duty of care in respect of
the public road in question.
[7] The parties agreed that the merits of the matter should be separated from the
quantum aspect; consequently, an order was granted separating the two. This trial,
therefore, relates solely to the liability portion of the dispute.
[8] Notwithstanding, this was a rather protracted trial [the transcript contains more
than 1251 pages] that involved at least three expert witnesses and several other
witnesses. This case , in my view , was also of extraordinary complexity. A proper
analysis of the questions presented by this trial required this Court to delve deep into
the facts of the matter.
[9] The matter involved a fact -intensive inquiry, as both parties presented extensive
evidence during trial to demonstrate their positions. As such, I had to write an
exhaustive judgment, in which I discuss and interrogate in detail, the facts and the
law applicable to each of the issues. Once again, I wish to thank the parties for their
patience.
[10] During the argument stage the defendant submitted that the existence of the
pothole was no longer in dispute . In the defendant’s heads of argument, the
following is stated: “it is common cause that that the alleged pothole was located at approximately
km 5.490 at the intersection with Division Road 1599 (DR 1599) in the right -hand side lane (RHS),
north bound lane travelling from George Airport towards Blanco” (“km 5,490 pothole”) . . .
(1) . . .
9. It is respectfully submitted that the Defendant disputed, from inception of the matter, that
the km 5,490 pothole existed on the MR347 on the day of the accident.
10. Although these dispute/issues will be fully traversed below under costs heading, it is
respectfully submitted that Defendant’s opposition to the pothole had initially stemmed from
Plaintiff’s non-compliance with the rules in respect of proper discovery or relevant
documents and artifacts which would have limited issue s and possibly prompted
settlement, namely, the accident report statement, police sketch plans, accident scene
photographs, and software/digital equipment and data, inter alia.
11. Notwithstanding the above, Defendant respectfully submits and highlights the testimony of
Defendant’s witness , Ms Alta Nigrini, who was a traffic officer with the George Traffic
Department at the time of the accident, and who testified on the 03 December 2024, a year
after the trial commenced, that she had seen the pothole depicted in the photographs in
Photo Bundle (: pp P1 - P16), on the day of the accident.
12. in light of Ms Nigrini’s testimony, Defendant’s further submissions will be premised on the
km 5, 490 pothole being present on the MR347 at the time of the accident.” Underlining
added.
[11] Another critical factor that shapes the determination of this case; is that the
defendant’s concession has drastically narrowed the issues in dispute.
[12] The real controversy here is whether the plaintiff has established wrongfulness,
causation, and negligence on the part of the defendant. Thus, the plaintiff bears the
onus of proving both fault and causation.
The evidence
Plaintiff’s testimony
[13] On the morning of 1 January 2012, the Plaintiff, who resided in Heather Park,
was with his family at Glentana Beach. To travel to Glentana Beach, he had used the
MR 347, a road commonly referred to as Airport Road.
[14] The family then decided to leave G lentana Beach and go back home to George
for a braai. He drove behind his family on his motorcycle. Whilst driving his
motorcycle he was wearing a full -face helmet, his motorcycle jacket, leather hand
gloves and Khaki short pants.
[15] He was driving toward George from the airport side, travelling down a slight
incline. Because he only used this road two or three times a month, with a motor
vehicle, he did not know it well.
[16] He had bought the motorcycle from his father four months before the accident
and had it serviced at a BMW dealership. The motorcycle's dual -purpose tyres were
brand new, having been purchased two to three weeks before the accident. Prior to
the accident, he possessed approximately 15 years of experience operating both
dual-purpose and off -road motorcycles. However, he had only obtained his licence
three months earlier so that he could ride with his wife.
[17] While driving toward the Geelhoutboom turn-off, he monitored the intersection to
scan the road ahead. According to him, motorcycle riders generally look well beyond
two metres ahead on a tarred road. He states that he was travelling at a speed of
approximately 80 kilometres per hour. He was not in a rush to get home and was
simply cruising.
[18] As he proceeded, he suddenly experienced a severe jolt to the handlebars of
his motorcycle. His initial assumption was that he had struck or ridden through an
object. The incident unfolded rapidly ; immediately after hearing the wheel rim make
contact with the tarred road, he experienced what he characterised as a tank slapper
and began losing control of the motorcycle . He testified that he could not confirm
feeling a significant dip. It is his testimony that he ultimately collided with a yield sign
pole before coming to rest on the grass verge of the embankment.
[19] During cross examination he testified that he cannot say where exactly he felt
the jolt, but he would say he felt it near the pothole when he travelled through it.
When shown a photograph of the pothole and its location during cross -examination,
he confirmed that it was the point where he felt the impact.
[20] He was seen at the scene by Lourens Steytler, who immediately came to his
assistance and called an ambulance. He had no prior acquaintance with Steytler nor
that of his mother. He asked Steytler to call his wife, but Steytler could not reach her.
Subsequently, members of his family, including his father, arrived at the scene of the
accident. His father then returned to the site the following day to take photographs.
As a direct result of the injuries he sustained in the collision, his leg had to be
amputated.
[21] He has no recollection of telling the police that he had a tyre burst, but it is
possible that he said so. It was his testimony that he was experiencing a lot of pain
at that moment. He remains adamant that at the time of the incident, there was an
absence of warning signs alerting road users to the presence of potholes. He did not
see any open potholes; he only observed dark patches that appeared to be potholes
that had been repaired.
[22] When he was recalled by Ms Pillay SC to be confronted with the statement he
had made when charged with reckless and negligent driving, he testified that he
could not recall whether that police statement had been read back to him.
[23] He was also cross -examined regarding why he did not tell the police about the
pothole. It was also put to him that Captain Meyer would testify that the plaintiff made
no reference to a pothole at the time.
[24] Lourens Steytler testified that at the time of the incident, he was 19 years old
and working at Haygrove Eden Farm. He stated that on the day in question, he
witnessed the accident. He testified that he was on his way back to the farm. The
motorcycle was travelling in the opposite direction to him , in the opposite lane. He
then witnessed a lot of movement, a dust cloud and the motorcycle travelling across
the island ending up in the embarkment. He called the emergency service. He
rushed to where the Plaintiff was and in the process he picked up his bank cards and
wallet on the road. At that time, he did not know the plaintiff. When he enquired from
the plaintiff as to what had happened; the plaintiff said he had either hit something or
drove over something in the road.
[25] His initial thought was that he hit an animal or another vehicle. But he saw
nothing and then he thought he had hit a pothole that was located just before
Geelhout turnoff. The pothole has existed for a while before the accident. He testified
that he travelled that route almost every single day.
[26] It was his testimony that the pothole has been a point of discussion amongst him
and his colleague and his mother. When the plaintiff’s family arrived on the scene, he
had told them about the pothole. He testified that the plaintiff’s father had on 02
January 2012, c ome back to the farm and took photographs and one of the
photographs that the father took also depicted him [Steytler]. He was present when
the photographs were taken. He disputed that what is contained in the police report
was what he told the police. It was his testimony that the pothole was difficult to spot.
He says it is difficult to spot the pothole because it is almost the same colour on the
inside as the road surface.
[27] When Mr Steytler was recalled by the defendant, it was put to him by Ms Pillay
that his version of the events at the scene, specifically regarding his reporting of the
pothole to the police, was entirely uncorroborated by the objective findings contained
in the police report.
[28] He replied that he had absolutely no reason to lie and stood to gain nothing from
the proceedings. He maintained that the events occurred exactly as he had
explained. According to him, he witnessed the accident, arrived at the scene, and
provided his version directly to a police officer. He also testified that he felt his
character was being attacked by assertions that his testimony was untrue, he
emphasised that he could not account for what other individuals chose to record in
their reports. He concluded by stating that his version of events would not change
because it represented the truth.
[29] Ms Rina Bryston testified that she had migrated to New Zealand, where she
was a permanent resident at the time of her testimony. She is the mother of Mr
Steytler. On the day of the incident, she resided at Golf Park, Witteplant, George,
and was employed at Haygrove Farm. According to her, the MR347 is the main road
linking George with the George Airport and also leads to the farm where she was
employed. The main gate of the farm where she worked is on Geelboom Road.
[30] On 1 January 2012, while she was at home on the farm, she received a call from
her son. She testified that her son, who was 19 years old at the time, was distraught
when he called her. His son told her that he witnessed a motorcycle accident that
was serious.
[31] She testified that when her son telephonically reported the accident to her, he
referred to a ‘damn pothole’. She further testified that she subsequently proceeded to
the scene and captured a photograph of the pothole in question on 1 January 2012,
with her cell phone. It was her testimony that when her son showed her where the
accident happened, she realised that the pothole involved was the same one they
had complained about and had warned her children about several times.
[32] She testified that because her children frequently drove her vehicle, she had
warned them to avoid that specific pothole so they would not disrupt the wheel
alignment due to its size. She testified that she had never met the plaintiff before and
stated that she had no incentive to lie.
[33] According to her, the pothole was originally quite small but continuously
expanded, causing frustration. It had remained at its current large size for
approximately six weeks and was a regular topic of discussion among herself, her
colleagues, and her family.
[34] Mrs. Van Staden testified that she viewed the photographs of the scene, which
form part of Exhibit P, on 2 January 2012. She stated that her father -in-law had
borrowed her professional camera to take photographs of the accident scene. It was
her testimony that the camera's metadata indicates that the photographs taken by
her father-in-law were captured on 2 January 2012.
[35] Plaintiff’s expert witness, Mr Willie Du Preez , testified that he is a civil
engineer and he has experience in testifying in a number of matters that involve
potholes. The expert noted that he had previously compiled investigative reports for
other motorcycle accidents. He testified that he based his opinion on the
photographs of the scene that were provided to him. This is so because he only
received instruction in 2020, and by that time the layout of the road in question had
changed.
[36] He also testified that warning signs are used to alert drivers to hazardous and
potential hazardous conditions. It is his testimony that warning signs indicate a need
for extra caution by road users and may require a reduction in speed or other
manoeuvres in the interest of their safety and that of other drivers. He also testified
regarding causes of a pothole.
[37] He opined that the growth of a pothole is mainly accelerated by moisture and the
traffic across it because overtime a vehicles ’ wheels hit the pothole and loosen and
break up further pieces of the road surface. He testified that ; depending on the traffic
and the rain, a pothole can take some time to form. And it is not something that
forms overnight.
[38] It is his testimony that ; as soon as a pothole forms and it is noticed it is critical
for it to be repaired as quickly as possible. He supported the evidence of Mr Steytler
and Ms Bryston that a pothole of such size is consistent with an existence of 2
weeks.
[39] The expert classified the defect as a "degree five" pothole because its diameter
exceeded 300 millimetres and its depth was greater than 15 millimetres. To
demonstrate its scale, he juxtaposed the pothole against a Croc shoe placed next to
it by Miss Bryston (as shown in photo TB20). Operating on the conservative
assumption that the shoe was a size 10; even though it was a size 11; the expert
calculated that the pothole's diameter actually exceeded 600 millimetres.
Consequently, according to him, the pothole was twice the minimum threshold
required for a degree five classification.
[40] The expert further testified that because the pothole exceeded 600 millimetres in
length, the motorcycle's front wheel could not have crossed it without dropping in and
hitting the rear face. He explained that the black marks on one side of the pothole in
photograph TB20 represent tyre rubber residue. This residue occurs when a tyre
impacts the rear side of a defect, marking what is known as the pothole's exit side. In
contrast to Mr Craig's [defendant’s expert witness] evidence, Mr Du Preez testified
that the plaintiff’s motorcycle tyre would fit completely inside a pothole of the
dimensions that the plaintiff says he struck.
[41] The expert noted that this impact mechanism is consistent with the damaged
rim, which caused the tyre to deflate immediately. He explicitly ruled out the
possibility that the front wheel was damaged when the motorcycle travelled across
the ramp onto the island. Furthermore, he testified that the pothole caused both the
sudden deflation and the indentation on the motorcycle's rim. He concluded that the
overall damage perfectly aligns with the impact of striking a large pothole.
[42] Pertaining the faint black mark on the tarmac beyond the pothole's
circumference (shown in Exhibits P7 and P8), the expert testified that it was caused
by numerous vehicles driving across the defect over time.
The expert noted that this stretch of road surface was in poor condition and required
remedial action. To support this, he quoted the defendant’s expert witness, Mr John
Craig, whose report stated that potholes had previously been patched in the
immediate area. And that the overall pavement condition was "fair to poor."
Consequently, the plaintiff's expert testified that Mr Craig’s findings directly aligned
with his own finding that the condition of the relevant road was poor.
[43] The expert testified that the roads authority should have erected warning signs
regardless of the immediate presence of potholes. He emphasi sed that the road's
ongoing susceptibility to defects is clearly borne out by the exhibits, which reveal a
history of numerous past repairs.
[44] The plaintiff’s expert also testified that a prudent roads authority would have
acted upon the reports and complaints [as testified to by Ms Bryston] regarding the
pothole that had been lodged prior to the accident.
[45] The expert further testified that the "Priority A" maintenance classification in Mr
Schoeman’s report signified defects that required urgent, continuous remediation on
the very stretch of road.
[46] The plaintiff’s expert concluded that the roads authority failed in its duties by
neglecting to erect warning signs and failing to conduct adequate visual inspections.
In his view, bi-monthly inspections are insufficient to identify dangerous potholes. He
further noted that the authority failed to take proactive, preventative action when the
defects first emerged. Furthermore, he criticized the authority's administrative record-
keeping:
a. Daily Worksheets: These are contractually or forensically worthless because
they fail to specify the exact location or nature of the maintenance. General
claims of patching somewhere along a 13,000 -metre stretch fail to prove that
work was done at the actual accident site.
b. Accident Report (AR) Form: This document is unreliable due to a lack of
diligence and Captain Meyer’s failure to conduct an in loco inspection. The
omission of critical details, such as the pothole itself, means the AR form
cannot reliably assist in determining the cause of the accident. The plaintiff’s
expert noted that his conclusions were based on the evidence available at that
time.
[47] The next expert witness called by the plaintiff was Mr Grobbelaar , a
mechanical engineer. He testified that one of his master’s degree topics was the
optimisation of vehicle suspensions using numerical integration techniques. Part of
his professional experience also includes designing and developing engineering
solutions in respect of vehicle suspension systems from 1984 to 1987.
[48] He indicated that throughout his career, he has gained expert knowledge as a
motor vehicle accident reconstruction expert, having investigated in excess of 4,800
motor vehicle accidents. And that also includes motorcycles.
[49] He testified that when he inspected the front wheel of the motorcycle there was
no cut in the tyre. He thus concluded that, the tyre wasn't cut through by whatever
impact occurred.
[50] The Mr Grobbelaar, further testified on the importance of warning signs placed
at a sufficient distance to caution road users about potential potholes. According to
him, the warning signs would give a motorcyclist a chance to adjust speed.
[51] Mr Grobbelaar is of the opinion that the exit edge of the pothole forms a sharp,
vertical face. He testified that colliding with such an edge is structurally similar to
striking a vertical curb of the exact same height. He invited the court to imagine the
impact of travelling at 80 or 100 kilometres per hour straight into a curb of that height
without taking evasive action. This mechanism is illustrated by the three sketches
provided in paragraph 9.3 of his investigative report. Consequently, he concluded
that colliding with such a sharp edge would probably cause the observed indentation
and damage to the rim of the motorcycle's front wheel.
[52] He further testified by illustrating this mechanism by drawing an analogy to an
80-millimetre vertical curb. He explained that if a rider is aware of the curb's
presence, they can anticipate the impact, lift the front of the motorcycle, and clear
the obstacle without sustaining damage. Conversely, if the rider is unaware of the
curb and riding blindly at the same speed, they will strike it directly. The expert
testified that the latter scenario mirrors the incident involving the pothole; because
the plaintiff could not anticipate the hazard, he struck it at full speed, resulting in the
rim damage.
[53] The expert noted that both sides agreed that the tyre would compress first upon
impact. In response to the defendant’s expert's theories, he explained that even if the
depth of the pothole is roughly equal to the profile height of the tyre, rim damage
remains highly probable. He testified that the defendant's hypothesis fails to account
for three combined critical factors: first, the dynamic compression and severe
pinching of the rubber tyre and tread between the wheel rim and the hard road
surface; second, the specific height of the rim's lip; and third, the fact that the
motorcycle's front wheel drops into the hole on a downward trajectory, accelerated
and forced downward by the suspension system.
[54] When confronted by Ms Pillay SC, defendant’s counsel with the defendant’s
erstwhile position that no pothole at the scene caused the accident, Mr Grobbelaar
testified that, in the absence of a pothole, alternative explanations would have to be
found for three critical objective facts: the deep indentation in the wheel rim, the
sudden deflation of the tyre, and the subsequent reason why the plaintiff lost control
of his motorcycle. In other words, he emphasised that a cause entirely unrelated to a
pothole impact would have to be established to explain the full sequence of these
objective physical findings.
Defendant’s witnesses:
[55] Mr Deon Jansen testified that on the day of the accident, just before 12: 00
p.m., he was on his way to visit his son when he heard a motorcycle approaching.
Suddenly, he then heard a sound resembling a tyre bursting.
[56] Upon looking up, he observed two distinct objects; a man and a motorcycle,
airborne. This was followed immediately by a loud thud as both objects impacted a
traffic sign. The cyclists ultimately landed in a roadside ditch. He immediately ran to
the scene of the crash. On the scene he saw that the plaintiff was injured. He then
went to look for help.
[57] He ran after a passing vehicle and asked the driver to phone for an ambulance,
but no vehicle stopped to assist him. Consequently, he returned to the crash scene,
where he remained the only person present at that material time. He testified that he
was very shaky at the time because he thought the plaintiff was dead. Regarding his
state of mind during the aftermath of these events, the witness testified: "On that day
I was so much confused”.
[58] While remaining at the scene, he observed Mr Steytler giving a statement to the
police. Although Mr Jansen had no independent recollection of Mr Steytler speaking
with the plaintiff at the scene, he did not dispute that this interaction occurred or that
it was Mr Steytler who ultimately summoned the ambulance. Eventually, the
ambulance and emergency services arrived at the scene.
[59] Mr Steenkamp explained that his core responsibility was to oversee the
maintenance of the road network under his jurisdiction, ensuring that the work was
executed by the operational teams under his command. As the head of his division,
he directly managed four superintendents: two routine maintenance superintendents
[one for the George area and one for the Riversdale area], one reseal
superintendent, and one re-gravel superintendent. His role required him to assist and
guide these subordinates in prioritising maintenance schedules for their respective
field teams based on weekly and monthly routine inspection protocols.
[60] Following the incident, Mr Steenkamp was tasked with conducting a targeted
inspection of the scene on Main Road 347. When questioned regarding what he
looked for during this specific site visit, he testified that he sought to identify the
exact location of the accident and examine the road for defects. Based on the
accident reports he received, he walked approximately 100 metres up and 100
metres down the road to inspect the immediate area.
[61] He testified that during this inspection, he could not find any potholes or
structural defects of any kind along the 200 -metre stretch he examined. While he
recalled seeing some small patches on the centre line of the road on the northern
side the intersection [the Blanco side], he maintained that there were no signs of
active potholes or recent pothole repairs on the southern side of the intersection.
[62] Mr Steenkamp concluded from the plaintiff’s letter of demand that when the
accident occurred on Sunday, 1 January 2012, a municipal standby team was on
duty. He noted that this team remained operational during the holiday closure period
to attend to major hazards or issues reported by the public, emergency services, or
senior management. However, after consulting with both the relevant superintendent
and the field teams, he confirmed that none of them had received any complaints
regarding a pothole at the scene prior to the accident.
[63] Regarding the maintenance history of the MR347 from 1 July 2011 to 30 June
2012, a daily log (TB31) was required to be completed by team supervisors,
documenting the date, road, section, and work performed. These records were
captured into the municipal system. According to him, inspections were done on the
following dates: 15 August 2011 – 18 October - 09 November -19 January 2012.
[64] He disputed the timeline of the pothole as testified by Ms Bryston and Mr
Steytler. He testified that the pothole could not have been present weeks prior to the
accident. To support this, he cited his own personal use of the road and the formal
inspection schedule. The witness further testified that a pothole of that size would not
go unnoticed by the community.
[65] He asserted that if a defect of that magnitude had developed on the road, the
municipality would have received public complaints or queries notifying them of the
hazard. During cross examination, he acknowledged that a pothole of the size and
nature in question does not form overnight, conceding that its development requires
a period of time. He further stated that that if they had been aware of the pothole,
they would not have left it in that condition.
[66] When explicitly asked during cross -examination how they managed to miss the
pothole during his inspections, Mr Steenkamp, admitted that he did not know.
[67] The plaintiff's counsel also put it to Mr Steenkamp that allowing a pothole to
grow to such a large size constitutes clear negligence. The witness rejected this
assertion, testifying that a pothole on a heavily trafficked road like the MR347 can
expand very quickly.
[68] The witness further testified that he conducted a post -accident inspection on 10
February, just over a month after the incident occurred. During this particular
inspection, he did not observe the alleged 600 mm by 500 mm pothole at kilometre
5.6.
[69] In his official report, Mr, Steenkamp, strongly rejected the possibility of oversight.
He asserted that it was impossible for him to have missed a pothole of that size
without directing the maintenance team to repair it. He emphasised his extensive
oversight role, which covered the entire region stretching from Plettenberg Bay to
Heidelberg on the coastal side of the Outeniqua mountain range.
[70] Mr Steenkamp explained the municipality's policy regarding decision to place
warning signs, testifying that they do not install signage specifically for individual
potholes. He explained that if a road deteriorates to a condition where routine
maintenance is no longer sustainable, the municipality's protocol is to escalate the
matter to the provincial authority. The province is then requested to conduct an
investigation and determine whether traffic warning signage should be deployed.
[71] The next defendant’s witness to be called was Mr Anthony Cupido, he testified
that at the time of the accident, he was employed by the Garden Route District
Municipality as a Superintendent for Maintenance in the George division. At the
critical time, MR347 fell under his control.
[72] He testified that his work entails conducting monthly inspections. Pursuant to the
inspections, reports are submitted to management, who evaluate the data to verify
and check the quality and completion of the road maintenance work performed
during that month.
[73] He testified that on 19 January 2012 he did an inspection from kilometre 4 to
kilometre 12 [includes MR 347]. During this inspection, amongst others, he was
checking for obvious defects, specifically potholes and general surface degradation.
[74] He denied that a pothole measuring 600 mm by 500 mm existed at kilometre
5.6. It was his testimony that the pothole wasn't there on the 1st of January 2012. He
testified that had the pothole been present on that date, it would have been recorded
as repaired. He admitted that according to the municipal system, the pothole was
officially recorded as repaired on 19 April 2012.
[75] He further testified that had he seen the pothole, he would have reported it
directly to the area supervisor and sen t him to execute the necessary repairs.
According to him, a pothole ranks as one of the highest priority maintenance
activities within the municipality's operational framework.
[76] He conceded that for the period spanning from 1 July 2011 to 30 June 2012 he
conducted only one planned inspection which took place on 19 January 2012. During
cross-examination, Mr Cupido admitted that he could not remember the exact reason
he conducted his inspection on 19 January 2012. He conceded to the proposition
that someone may have phoned in to report an edge break or a pothole, prompting
his visit to the site.
[77] According to him, when he came back from the inspection, he told his colleague,
Mr Xalisa, that there were problems on kilometre 4 to kilometre 12, and Mr Xalisa
went out the next day to go and fix the problems within the area where the pothole
was.
[78] Mr Xalisa testified that he used to work for the George District Municipality. He
started to work there from 2003 and retired in 2023. In 2012 he was working as a
supervisor of the road maintenance. He testified that they used a logbook to give
each report related to road maintenance. It was his testimony that his team was
responsible, amongst others, for the patching of potholes.
[79] He also testified that once they become aware of a pothole, they either repair it
or erect a warning sign. Regarding potholes of which they are unaware of, they rely
on inspections done by the superintendent and the manager, as well as reports from
municipal drivers patrolling the area and the members of the public. It was his
testimony that there were a lot of potholes forming on this MR347 during end of 2011
and in the first few months of 2012.
[80] He testified that he did work on the MR347 on 20 January 2012. It was also his
testimony that the accompanying logbook is materially incomplete. According to him,
the logbook only indicates that the maintenance began at kilometre 4 but fails to
reflect where the work ended or the total distance covered. He testified that the
omission left him unable to determine the exact extent of the roadwork completed.
[81] Mr Konstable was also called to testify on behalf of the defendant, he testified
that on 1 January 2012 [the date of the accident], he was employed and working at
the George South African Police Service (SAPS), as a constable taking complaints.
He testified that he attended the scene of the accident on the same day it occurred.
He drew the official sketch plan [Exhibit F] of the accident. It was his testimony that
he did not see a pothole there.
[82] Ms Elise Meyer testified that; on the day of the accident she was employed at
the financial division of the South African Police Service in George. She testified that
she went to the scene of the accident and she is the one who completed the
accident report.
[83] She stated that she wrote in the Accident report the following:
“Accident report: Attended accident seen at 12:00 hours on Geelhoutboom Road, Blanco.
Colonel Lang and Captain Meyer. Motorcycle registration number CAW . . ., silver and blue
BMW motorcycle involved, front tyre burst, lost control."
[84] She testified that she obtained the information from eyewitnesses as well as
from her own observations. It was her testimony that the specific individuals who
provided her with the information to complete the accident report were Mr Jansen as
well as Mr Lourence Steytler. It was her testimony that the version of Mr Jansen and
Mr Steytler were basically corroborating each other.
[85] She also denied that Mr Steytler told her about a pothole and added that
according to the version that she got from both witnesses and her own observations :
the road was smooth, and she did not observe any pothole. She further testified that
while driving to the scene of the accident, she travelled directly past the specific
section where the pothole was alleged to be located. However, she did not observe
any pothole on the road surface.
[86] When it was put to her during cross examination that it is common cause
between the plaintiff and the defendant that he was travelling on the R347 coming
from the airport towards George when the accident happened. And that it was not on
the Geelhoutboom Road.
[87] When she was presented with the photographs , which the parties agreed that
they depicted the defect identified by the plaintiff’s witnesses as the cause of the
accident. Upon reviewing the images, she stated that the defect did not look like a
pothole to her, asserting that a genuine pothole typically goes deeper into the road
surface.
[88] The next witness to be called by the defendant was Mr Cutshe, who was tasked
with the investigation of the criminal aspect of this case. He received the docket of
this case for further investigation on 02 January 2012, and he took the plaintiff’s
warning statement, as he [the plaintiff] was a possible suspect, for reckless driving.
He did not do further investigation because he was only told that he should take the
warning statement. He did not take photographs of the scene. He speculated that
perhaps photographers were not sent to the scene because only one driver was
involved.
[89] The next defendant’s witness was Ms Kleyn , who works at Haygrove Farms
and also worked there during the the time of the incident. She testified that on the
farm she only remembers the tunnels built in 2018, which are still there today.
According to her, the tunnels reflected on exhibit P1 were definitely not on the farm in
2012. No pothole reports were submitted to the municipality by her.
[90] Lieutenant Colonel Laing, testified on behalf of the defendant that she works
as at the George SAPS. She testified that she attended to the accident scene.
Although she verified her attendance through her statement, she has no independent
recollection of receiving the radio control call or traveling to the scene.
[91] The only thing she recalls is a man lying next to the road when she got to the
scene.
[92] Defendant then called Ms Alta Nigrini to the stand. She testified that she was
employed at the George Municipality Traffic Department when the accident occurred,
as a traffic officer. She did a sweep of the scene, and that's where she could see
where the point of impact was. She testified that during the sweep, they also inspect
the road surface for damage, including the area where the pothole was located.
Because there were no vehicle fragments, physical marks, or points of impact, they
concluded that a tyre burst did not occur. Consequently, no scene markings were
made.
[93] She testified that she remembered seeing the pothole at the scene on the day of
the accident. As such she confirms that it was there.
[94] After Ms Nigrini, the defendant called an expert witness Mr Schoeman . He
testified that he started his working career, with the Department of Transport,
Western Cape Government. He started off with road construction . From there, he
transferred to the Oudtshoorn regional office, where he primarily handled road
maintenance. Later, he was promoted to Chief Engineer of Construction and
Maintenance, overseeing 21 in -house projects for the department. He has since left
the Department and currently operates as an independent consultant.
[95] He testified that repairing a centreline pothole carries a higher priority rating than
servicing a road sign. He also testified that as the road is approaching the end of its
life, more maintenance needs to be done. According to him, the maintenance regime
must pick that up. He also testified that a road coming towards the end of its life
would be susceptible to potholes.
[96] It is his testimony that the Department tries to extend the life of the asset as far
as possible while keeping it functional and safe by doing maintenance on it.
According to Mr Schoeman, based on the reports or information he had at his
disposal related to the maintain ance of the road in question, confirms that regular
maintenance and inspections were conducted on this road section. Consequently,
according to him, it is highly improbable that the alleged pothole existed at the time
of the incident.
[97] Regarding Ms Nigrini’s testimony, Mr Schoeman stated that the presence of a
pothole was highly unlikely but not impossible. He conceded that since he was never
at the accident scene, if Ms Nigrini testified that the pothole was there, her account
stands. However, he also maintains that it is very unlikely for him that a pothole of
this kind of presence on the road, would be driven over by maintenance teams and
not be given attention to.
[98] Furthermore, from the information that was placed before him, he consequently,
concluded that pothole P2 [the pothole in question] developed and was repaired
between April 2010 and March 2013. However, he also testified that a more precise
timeline could not be determined. According to him, it is unlikely that the alleged
pothole was left open from 1 January to 19 April, as suggested by the images in the
trial bundle.
[99] It was his evidence that a pothole of the size in question would have taken
several weeks to reach the size claimed.
[100] According to him, the defendant was giving special attention to the road in
question because they knew that there was extra care needed on the section of
road, as it was approaching the end of its life. It is his testimony that more than
normal attention was being given to this section of road. And it was given a high
priority of maintenance.
[101] He expected repair crews operating in that area around 21 December to have
identified the pothole. He further testified that, based on available records and
information, there is no evidence that a warning sign was in place on that section of
the road during the period in question.
[102] It was also his testimony that if proper and optimal maintenance is done, the
encounter of a general warning sign is not expected o n an even road surface.
According to him, the maintenance team's saying is always that ‘a sign doesn't fix a
pothole’. As such, a sign is only put up if they are unable to attend to a pothole. Even
if the road is prone to potholes.
[103] He also testified that a pothole of that size will most probably prompt public
complaints.
[104] The other expert witness called by the Defendant was Mr John Craig . He
testified that, among his qualifications, he holds a BSc degree in Civil Engineering.
Since 1986, he has worked in the fields of road design and construction. Additionally,
he has extensive experience, providing advanced driver and riding instruction and is
actively involved in motor vehicle accident reconstruction.
[105] The brief he received from the Defendant required him to focus on the accident
reconstruction aspects of the matter, specifically the dynamics of the motorcycle.
[106] He testified that the evidence that was placed before him reveals that the
plaintiff has provided no fewer than five conflicting versions of how this accident
occurred. He testified further that his report systematically addresses each of these
contradictions.
[107] Mr Craig testified that his analysis was based on the specific version wherein
the plaintiff experienced a 'jolt' to the motorcycle. According to him, in that account,
the plaintiff stated: “Being an experienced motorcycle rider, I knew instantly that I
must have hit a pothole. However, that was a fleeting thought, as shortly thereafter I
heard the rim of the motorcycle scraping against the road. Thereafter I lost control of
my motorcycle and as a result myself and the motorcycle proceeded to skid, slide,
sideways along the road until I hit the pavement..."
[108] In his testimony , Mr Craig pointed directly to different versions given by the
plaintiff regarding how the accident occurred.
[109] Mr Craig testified that the defence took the initiative to definitively settle the
dispute [concerning whether the pothole alleged by the plaintiff caused the accident]
through empirical testing. This was to ensure that they could not be accused of
understating the hazard . T hey obtained an identical motorcycle and simulated the
scene, digging a test hole that was significantly deeper, steeper, and sharper than
the pothole in question. During cross examination, Mr Craig testified that the test
rider possessed precise knowledge of the pothole's location, whereas the plaintiff
was entirely unaware of it.
[110] Mr Craig further noted that one of the advantages of the chosen test area was
the presence of guidelines, which ensured the test rider hit the pothole accurately, a
task he acknowledged is otherwise difficult to achieve.
[111] They ran the motorcycle over this pothole at 60, 80, and 100 kilometres per
hour. According to him, in every single simulation, the front wheel completely skipped
over the hole, never even touching the back lip. He further testified that this evidence
entirely dismantles Mr Grobbelaar's theoretical 'tyre -in-a-box' demonstration, proving
his calculations fail to account for how an adventure motorcycle behaves under real -
world conditions.
[112] He also testified that the simulation used an extremely experienced and very
competent rider, whereas the plaintiff was far less experienced. He also testified that
the test driver was a vastly more experienced rider. It was Mr Craig’s testimony that a
rider becomes a professional when they receive payment for riding. According to
him, the test rider was a former top motorcycle racer and a long -time BMW off-road
instructor who had also raced professionally for Honda in the 1980s. However, Mr
Craig stopped short of calling the test rider a professional rider, further testifying that
a simulation rider's specialised skill and experience would not affect the test results.
He asserted that, a rider skill is not a variable in the simulation. While he
acknowledged that the plaintiff and the test rider possessed different skill sets
regarding certain types of riding, he maintained that there was no difference in their
capabilities regarding the specific skills relevant to this case.
[113] When questioned regarding the comparative capabilities of the riders [the test
rider and the plaintiff], Mr Craig admitted that the test rider, would ordinarily travel at
speeds exceeding 60 kilometres per hour on a dirt road. It was then put to Mr Craig,
and he accepted, that while the plaintiff's maximum operating speed on gravel was
capped at 60 kilometres per hour due to his limited skill set, the test rider’s capacity
to ride faster was a reflection of his more advanced riding proficiency.
[114] Mr Craig further testified that a pothole of that size would not affect a
motorcycle traveling at 80 to 90 km/h. It was his testimony that his conclusion in his
report stated that the pothole should never have caused damage to the GS1150 . It
was also his testimony that a n adventure motorcycle is ]3=engineered to navigate
significantly rougher terrain at much higher speeds.
[115] He also testified that the pothole was a very insignificant in depth in relation to
the profile of the motorbike involved in the accident. During cross -examination, he
specified that his assessment did not change the defendant's duty to fix it [pothole]
and noted he was not implying that the pothole failed to qualify as a degree -five
hazard.
[116] According to him, an adventure motorcycle has a larger front wheel than a road
motorcycle or a car. While a smaller wheel might drop into a pothole at low speeds,
tests show that at higher speeds, a vehicle will glide straight over a 300 to 400 mm
pothole because the wheel does not have time to drop into the depression.
[117] He also conceded during cross examination that the test pothole was
excavated on a dirt road, unlike the actual pothole in question , that was on a tarred
road. The cross-examination revealed that the road at the scene of the accident was
slightly curved to the right and sloped downhill. In contrast, the test road was entirely
straight.
[118] Regarding the driver's weight, Mr Craig did not dispute during cross
examination that the plaintiff is significantly heavier than the test driver. Mr Craig also
conceded that, generally speaking, the 1150 motorcycle ridden by the plaintiff is a
heavier model than the 1200 motorcycle utilised during the test.
[119] He testified during cross-examination that they made absolutely certain the test
motorcycle was not accelerating over the pothole. According to his testimony, the
rider reached the required speed well in advance, meaning the motorcycle
maintained a steady test speed and was no longer accelerating when it encountered
the pothole.
[120] Mr Botha reminded Mr Craig of his earlier testimony; that he testified that had
the test driver accelerated, the outcome would have differed. And that he [Mr Craig]
previously explained that acceleration reduces front -end weight, allowing the vehicle
to clear the pothole more easily. He was reminded that he previously testified there
was no evidence of the plaintiff accelerating; therefore, an accelerating test driver
would not accurately replicate the plaintiff's actions.
[121] After these above concessions it was put to Mr Craig by Mr Botha that he puts
it to him that the test driver was accelerating throughout that test up until he reached
the pothole. Mr Botha also put it to Mr Craig that the acceleration is evident from the
left-mounted camera and the rev counter, that clearly depict the RPM climbing from
just under 4,000 to 4,500. Furthermore, Mr Botha put it to Mr Craig that the test
driver accelerated until on the other side of the test. Ultimately, Mr Craig testified that
any degree of acceleration would have marginally reduced the load on the front end.
[122] He testified that the damage sustained by the wheel rim of the plaintiff's
motorcycle was inconsistent with striking a pothole. Instead, he stated that the rim
damage was more consistent with striking a flatter object, such as a curb or
potentially a pole. He testified, however, that the edge of the pothole's surfacing was
sharp. During questioning by Mr Botha [plaintiffs’ counsel] he conceded that in the
joint minute, he agreed with Mr Grobbelaar’s view that the damage on plaintiff’s the
rim could have been caused by a sharp edge.
[123] During cross examination Mr Botha posed a question to Mr Craig regarding the
jolt felt by the plaintiff. It was put to Mr Craig that if the plaintiff struck the outer lip of
the pothole with sufficient severity to damage his wheel rim, such an impact would
be consistent with the plaintiff's evidence of feeling a severe jolt. Mr Craig disputed
this, responding that such a strike would certainly not cause a severe jolt, but rather
only a minor sensation in the handlebars. In other words the plaintiff would have felt
a slight resistance in the handlebars as he rode over something. According to Mr
Craig, a jolt is too strong a word. Mr Craig doubts there was a jolt.
[124] Furthermore, he testified that the sound heard by Mr. Jansen was the
motorcycle impacting that curb and mounting the island. He testified during cross
examination that he is not convinced that a sudden deflation of this tyre would
probably make a noise; because of the size, the gap through which the air would
have escaped, and the fact that this front wheel doesn’t contain that amount of air
such as a car. He testified that a motorcycle tyre deflation typically produces a low,
thudding sound like "boof." While he would be surprised if it caused a loud explosion,
he could not entirely exclude the possibility.
[125] It was his testimony that he has never stated to this Court that he rejected the
existence of a pothole. According to him, his report merely concludes that it is
unlikely. It was also his testimony that, based on his knowledge, derived from
working in road maintenance since 1992 for SANRAL, the City of Cape Town, and
the Western Cape Provincial Government, he has never seen a pothole of that
magnitude left unrepaired on a road of that significance for such an extended
duration.
[126] It is his testimony that it is entirely out of character for the Western Cape
Government to leave a defect like that unattended. According to him, he cannot
comprehend how the maintenance personnel, particularly the Oudtshoorn District
Road Engineer and the George Garden Route team, who are typically highly
efficient, could have driven past that pothole and ignored it, especially given its
location in a holiday area on a route from the airport. He added that; while he found it
difficult to understand, it remains within the realm of possibility, as they are human.
[127] Mr Craig conceded that at the time of the accident, the road in question was
highly susceptible to potholes and structural deterioration.
[128] Mr Craig testified that in the circumstances of this case, there is no question
that a pothole existed. He also testified that the road in question should have been
repaired two years earlier as the road was at the end of its life cycle. This oversight,
he noted, raises serious questions as to why the relevant authorities failed to invest
more effort into maintaining that road.
[129] He further conceded that if the Court finds and accepts the evidence of Ms
Bryston, that pothole was present for a significant period. Something which all the
experts confirm that the size of the pothole confirms its long -standing existence. And
despite the matter being reported, the defect was never attended to . Alternatively,
the failure to even set up a warning sign points to only one conclusion; that there
was gross negligence.
[130] He, however, conceded that an object or obstruction must have been present
to launch the motorcycle over the curb, which likely caused the impact sound heard
by Mr. Deon Jansen. According to his testimony, how the wheel responds to a
pothole impact is determined by a set of variables outlined. These critical parameters
consist of the motorcycle's operational speed, the depth of the road defect, and the
tyre inflation pressure, which is nominally rated at 2.2 bars for the model in question.
[131] Additionally, Mr Craig opined that a pothole measuring approximately 600
millimetres in diameter and 80 to 100 millimetres in depth was unlikely to damage
the front rim of a BMW GS1150, provided the tyre was inflated to the recommended
2.2 bar. He claimed to base this conclusion on his extensive experience riding
adventure motorcycles in rough terrain, where he had personally witnessed and
experienced similar high -impact forces with larger obstructions at speeds of up to
100 kilometres per hour without sustaining damage to the front wheels.
[132] He testified that the test did not evaluate human reaction, but focused instead
on the mechanical response of the motorcycle's front suspension when striking a
pothole at 80 km/h. He testified that the evaluation depended strictly on the physics
of the motorcycle’s front suspension. He noted that, theoretically, a robot could have
operated the motorcycle at 80 km/h with identical outcomes.
[133] He testified that the front suspensions of the two motorcycles were identical for
all intents and purposes. Both vehicles utilised a Telelever suspension system with
identical wheel and tyre dimensions and he noted that the specific condition of the
tyre would have no effect on the test results. While one motorcycle possessed a
50cc larger engine capacity, rendering it faster and slightly lighter, these variances
were irrelevant because the test strictly evaluated the mechanical reaction of the
front suspension to the pothole. He emphasised that an adventure motorcycle like
the GS model [the one that was driven by the plaintiff] is specifically engineered to
navigate extremely rough terrain, a fact that directly supported his findings.
[134] He testified that the sound heard by Mr. Jansen was the motorcycle impacting
the curb and mounting the island.
[135] It was also his testimony that the simulation objective was not to evaluate Mr.
Carr’s riding abilities; rather, it tested the capacity of the motorcycle's front
suspension to navigate a pothole at 80 km/h. He testified that the asphalt road
surface had no bearing on the test results.
[136] He initially testified that the simulation created a more severe conditions than
the incident itself, as the test pothole was engineered to be 15 millimetres deeper.
Later, however, he corrected his testimony to state that the 15 -millimetre depth was
probably inaccurate and should instead be 10 millimetres. He also testified that the
westerly side of the edge of the pothole is not vertical, it's sloped; it's not as sharp as
the one in the test.
[137] When he was asked by Mr Botha as to how does he compare the 2.2 bar of the
test motorcycle with an unknown tyre pressure on the 1150 , Mr Craig responded by
saying the 1150 must have had sufficient pressure in the tyre for the rider to have
ridden it from Herold’s Bay comfortably where he was driving. He explained that a
motorcycle of that type typically becomes unstable at a minimum pressure of
approximately 1.2 to 1.4 bar. Consequently, the rider should maintain sufficient tyre
pressure to operate the motorcycle, which should have easily cleared the pothole in
question. He clarified that their testing was strictly conducted to ensure all
components met specifications to establish a baseline.
[138] It was his testimony that, at a speed of 100 km/h, a vehicle travels at 27.8
metres per second. Therefore, according to him, there was an unobstructed line of
sight extending approximately 350 metres before the pothole location. He clarified
that from an engineering perspective, this meant no physical structures blocked the
view, rendering the road defect potentially visible. He stated with certainty that the
pothole was clearly visible to the plaintiff on approach . According to him, the plaintiff
had a temporal buffer of approximately 12.5 seconds before reaching the impact
point.
[139] Furthermore, he testified that because the BMW GS1150 features an elevated
seat and an upright riding posture, the plaintiff would have had a clear, elevated view
of the approaching pothole.
[140] He testified that the plaintiff inevitably reached a point of actual visibility during
his approach, affording him ample opportunity to observe and avoid the pothole.
According to his testimony, given the prevailing conditions and visibility, he
concluded that the pothole could have been entirely avoided, as there was no
justification for driving into it. It was also his testimony that it is inexplicable why the
plaintiff did not see that pothole.
[141] He explained that total reaction time comprises three distinct sequential
phases: perception time, during which the brain detects a hazard; decision time,
when the brain determines the appropriate response; and action time, which involves
the physical execution of the manoeuvre.
[142] His testimony was that if the Court accepts the plaintiff's account, that he failed
to see the pothole and consequently lost control of the vehicle, then he concedes
that this scenario would place the plaintiff in a sudden emergency. He , however,
maintained that the perception reaction time would be triggered when he hits the
pothole. Mr Botha then asked Mr Craig how the perception -reaction time could be
triggered or applicable after the emergency had already occurred. Mr Craig testified
that the perception -reaction time commences when the rider or the driver perceives
he is in a sudden emergency. Mr Craig maintains that something should trigger the
perception reaction time. According to him, the period from the trigger to the action is
one and a half second.
[143] Mr Craig further testified that if the plaintiff found himself in a sudden
emergency yet managed to keep the motorcycle upright with a damaged front wheel
onto the island and only crashed there, he actually did quite well.
[144] He concurred with Mr. Grobbelaar that while a definitive scientific calculation of
the vehicle's exact speed was impossible, all circumstantial indications strongly
suggested either excessive speed or an alternative destabilising factor.
[145] According to him, this road was in that stage where literally it appears they
were holding it by doing pothole repairs on it. Mr. Craig also did not dispute Mr.
Schoeman’s testimony that the pothole likely originated at the beginning of
December. Similarly, Mr. Craig agreed with Mr. Du Preez, acknowledging that a road
defect of that nature would require several weeks to develop.
[146] Mr Craig was adamant that the plaintiff was riding the GS1150 adventure
motorcycle designed to traverse extreme and very rough terrain off road, including
rocks, depressions, water and sand. It is a very capable motorcycle used on
surfaced roads. It is unlikely that it should be destabilised so seriously by a pothole
of the type shown in the photographs and to crash when ridden by a reasonable
experienced rider travelling at reasonable speed. He added that he does not say it is
impossible, but he maintains that it is extremely unlikely.
[147] He testified that it was highly improbable for the Western Cape Government to
have left a road defect of that magnitude unattended for the alleged duration.
[148] During cross examination he admitted that his technical opinions regarding the
motorcycle were based entirely on his background as a rider and his private, non -
commercial suspension design projects. He testified that he was legally advised
against signing a joint minute with Mr. Du Preez on the grounds that they were not
corresponding experts.
[149] Mr. Craig admitted that Mr. Grobbelaar is better qualified academically to testify
on suspension systems, given that Mr. Grobbelaar training is in mechanical
engineering and his own is in civil engineering.
[150] He was unable to provide any reason for failing to invite Mr. Grobbelaar to the
simulation test.
[151] Ultimately, Mr Craig testified that his evidence remains that the pothole should
not have caused the motorcycle to crash. And that is the explicit conclusion of his
report.
Evaluation
[152] Having reviewed the authorities, it is clear that the plaintiff bears the onus of
proving, on a balance of probabilities, each of the following five essential elements of
delictual liability to succeed in a claim against the defendant, a public road authority:
a) Conduct in the form of an omission: The defendant failed to act by omitting to
properly maintain the road in question, repair the pothole, or warn road users
of the hazard.
b) Wrongfulness: The omission breached a legal duty to prevent harm, which is
established by testing whether public and legal policy considerations require
that it would be reasonable to impose liability on the defendant in the
circumstances.
c) Fault in the form of negligence (culpa): Whether the defendant or its
employees failed to act as a reasonable person (diligens paterfamilias) would
have in the circumstances. This is established if:
1. A reasonable person would have foreseen the reasonable possibility
of their conduct [the omission to repair or warn road users about the
defect] causing injury to another and leading to patrimonial loss;
2. A reasonable person would have taken reasonable steps to guard
against such an occurrence; and
3. The defendant failed to take those steps.
d) Causation: There must be a direct link between the defendant's omission and
the incident. This comprises both:
1. Factual causation, determined via the 'but-for' test (sine qua non); and
2. Legal causation, ensuring the connection is not too remote and that
the harm was a reasonably foreseeable consequence of the failure to
repair.
e) Harm (Patrimonial Loss or Damage): The plaintiff must prove they suffered
measurable physical injury resulting directly from the accident.
[152] The law regarding these requirements is well settled and aligns with
established principles affirmed by our courts.
a. Common cause issues
[153] The following issues are either common cause or not seriously disputed, that:
1. the pothole was officially recorded as repaired on 19 April 2012;
2. It is common cause in this matter that there were no warning signs to warn
road users about potholes. It is further common cause that the accident
occurred at approximately 12:00 on Sunday, 1 January 2012, on the Main
Road 347 (“MR 347”) at Geelhoutboom intersection.
3. It is further common cause that the road in question was at the end of its life
span or design life. It is similarly common cause that the road was prone to
potholes.
4. It is also common cause that a pothole was present in the immediate vicinity
of the accident scene.
5. It is not in dispute that the size of the pothole in question was approximately
600 millimetres in diameter and 80 to 100 millimetres in depth.
6. It is further common cause that the motorcycle rim sustained damage upon
impact with an object; the dispute pertains solely to the cause of that damage.
7. The Plaintiff had no prior knowledge of the pothole before the incident, nor
had he submitted any complaints concerning the condition of the road to any
organs of state.
8. MR 347 is located in the George. Local Municipality between Blanco and
George airport. At the time of the incident, the tarred road surface was dry.
9. There is also no dispute regarding the fact that the roadway ahead offers a
clear sight distance of approximately 350 metres to the pothole. Mr Craig
[defendant’s reconstruction expert]: Maintained that 350 metres afforded a
motorcyclist ample time to detect the hazard, make a decision, and execute
an evasive manoeuvre.
10. The simulation exercise did not entirely replicate the exact conditions of the
accident in question.
b. Did the pothole cause the accident?
[154] At the outset I consider the issue of causation. In the defendant’s heads of
argument, it is stated that, in light of Ms Nigrini’s testimony, the defendant’s further
submissions will be premised on the kilometre 5,490 pothole being present on the
MR347 at the time of the accident. Consequently, as already pointed out, the
existence of the pothole is no longer an issue in this matter. To this end, one of the
main contested questions, in this case, is whether the accident was caused by the
pothole in question. It is important, therefore, to determine first of all whether the
pothole is the factor that brought about the motorcycle crash.
[155] The concession made by the defendant followed the testimony of the
defendant Ms Nigrini, the traffic officer who attended the scene of the accident and
confirmed the presence of the pothole. The credibility and reliability of the plaintiff, Mr
Steytler, and Ms Bryston were heavily bolstered by the defendant's ultimate
concession that the pothole in question did exist at the material time. The logical
corollary of this concession is that plaintiff’s testimony, specifically that he felt a
sudden jolt through his motorcycle handlebars, was not a figment of his imagination,
but an accurate perception of an objective physical reality.
[156] As a matter of fact, the defendant’s expert, Mr Craig, did not exclude the
possibility of a physical sensation being transmitted through the handlebars; rather,
he merely disputed its intensity. Mr Craig conceded that the strike felt by the plaintiff
would have caused a minor sensation or a slight resistance in the handlebars, even
if he doubted it amounted to a severe jolt. This concession by Mr Craig further
corroborates the plaintiff's version that a physical impact did occur.
[157] Another significant aspect of the severe jolt felt by the plaintiff is that his
version was never challenged during cross-examination. Indeed, there was no cross-
examination whatsoever on this specific point. The corollary of this is that this aspect
of the plaintiff’s testimony remained unshaken. Its accuracy was not controverted by
direct or inferential evidence, nor by the surrounding circumstances. It is difficult to
see why, if inaccurate, it could not have been readily demonstrated to be so. The
witness was not impeached, and nothing in the record reflects unfavourably upon his
credibility. The first time this dispute was raised was during the testimony of Mr
Craig.
[158] There are no circumstances tending to cast suspicion upon either the
testimony or the witness, save for the fact that Mr Craig doubts the severity of the
jolt. There is no reason why this Court should doubt the accuracy and truthfulness of
the plaintiff’s account regarding this aspect.
[159] Mr Craig testified that the damage sustained by the wheel rim of the plaintiff's
motorcycle was inconsistent with striking a pothole, suggesting instead that it was
more consistent with striking a flatter object, such as a curb or a pole. However, he
significantly admitted that the edge of the pothole's surfacing was sharp.
Furthermore, during cross -examination by Mr Botha [plaintiff’s counsel], he
conceded that in the joint expert minute, he had agreed with Mr Grobbelaar’s view
that the damage to the plaintiff's rim could indeed have been caused by a sharp
edge.
[160] Indeed, objective physical evidence supports the plaintiff’s claim of a significant
jolt, rendering the assertion that an impact violent enough to deform a metal wheel
rim would merely transmit a "minor feeling" logically unconvincing. The severe
damage to the rim demonstrates that the impact force was substantial. As a matter of
objective logic, an impact violent enough to permanently deform structural aluminium
at the bottom of the mechanical chain must inevitably transmit a massive,
instantaneous shockwave up to the rider's hands.
[161] Several witnesses testified that a pothole of the dimensions in question is
inherently dangerous to road users. Notably, the defendant’s witness, Mr
Steenkamp, testified that if a defect of that magnitude had developed on the road,
the municipality would have received public complaints notifying them of the hazard.
In this regard, Mr Steenkamp’s testimony tends to show that he explicitly
acknowledges that a pothole of this magnitude constituted an objective hazard on
the roadway.
[162] The mechanical reality of this hazard was explained by the plaintiff’s expert, Mr
Du Preez, who testified that because the pothole exceeded 600 millimetres in length,
the motorcycle's front wheel could not have crossed over it without dropping
completely inside and striking the rear face. This impact mechanism perfectly aligns
with the physical evidence in photograph TB20, which displays black marks on the
exit side of the defect. Mr Du Preez explained that this represents tyre rubber
residue left behind when a tyre violently impacts the rear face of a defect. In contrast
to Mr Craig's evidence, Mr Du Preez confirmed that the plaintiff’s tyre would easily fit
inside a pothole of these dimensions. Because the plaintiff could not anticipate this
hidden hazard, Mr Grobbelaar noted that he struck it at full cruising speed.
[163] Mr Grobbelaar testified that the exit edge of the pothole formed a sharp,
vertical face, making a collision with it structurally identical to striking a vertical
concrete kerb of the same height. He noted that the defendant's hypothesis fails to
account for the dynamic compression and severe pinching of the rubber tyre and
tread between the metal wheel rim and this hard road surface.
[164] This mechanical finding is directly corroborated by the defendant’s own
eyewitness, Mr Jansen, who was in close proximity to the scene and testified to
hearing a loud sound resembling a tyre burst at the critical moment of the incident.
This acoustic event provides clear circumstantial proof of a sudden, explosive
release of air pressure, caused by the tyre being violently pinched between the
pothole's sharp vertical face and the metal rim.
[165] Remarkably, during cross -examination, the defendant’s expert, Mr Craig, was
forced to make several key concessions that align with this timeline. First, he agreed
with Mr Grobbelaar’s view that the deep indentation on the plaintiff's rim could have
been caused by such a sharp edge. Second, while he stated he would be surprised if
it caused a loud explosion, he could not entirely exclude the possibility of the tyre
bursting. Finally, Mr Craig conceded that an object or obstruction must have been
present to launch the motorcycle over the kerb, which likely caused the impact sound
heard by Mr Jansen.
[166] In light of these cumulative facts, Mr Du Preez testified that the overall damage
to the rim perfectly aligns with the catastrophic impact of striking a large pothole,
causing the tyre to deflate instantaneously. To find that such a destructive force
resulted in a merely negligible sensation would be to ignore basic principles of
mechanics and physical cause -and-effect. It is logically unconvincing to assert that
an impact violent enough to permanently deform structural aluminium at the bottom
of the mechanical chain would transmit a mere "minor feeling" to the handlebars. In
the circumstances, Mr Craig's refusal to accept that the impact caused a severe jolt
is untenable. As Mr Grobbelaar correctly pointed out, in the absence of a severe
pothole strike, alternative explanations would have to be found for three critical
objective facts; the deep indentation in the wheel rim, the sudden deflation of the
tyre, and the reason why the plaintiff lost control.
[167] Ultimately, in my mind, the distinctive sound heard by Mr Jansen, before he
became confused, anchors the exact moment the plaintiff struck this hazard. This
acoustic evidence links the pothole impact directly to the immediate loss of tyre
pressure, the ensuing tank slapper [uncontrollable handlebar oscillation], and the
plaintiff's subsequent loss of control.
[168] It must therefore be concluded that by taking into account of all the foregoing
factors, that the evidence to the effect that the initial jolt was severe is further
reinforced by the immediate, un -interrupted sequence of events. That illustrate the
following. After feeling the severe jolt, the plaintiff felt the rim making contact with the
tarred road, experienced a violent tank slapper, and lost control of the motorcycle.
This loss of control is further evidenced by the motorcycle striking a signpost and
landing in a ditch, resulting in the plaintiff sustaining serious injuries to his leg that
subsequently necessitated its amputation. One point emerging clearly from the
above is that the sheer violence of the crash sequence directly mirrors the severity of
the initial impact.
[169] Several witnesses in this trial testified that the pothole of the size in question on
a road is dangerous. For instance, Mr Grobbelaar [ the plaintiff expert witness]
testified that because the plaintiff could not anticipate the hazard, he struck it at full
speed, resulting in the rim damage. It was also Mr Du Preez’s [ the plaintiff’s expert
witness] testimony that because the pothole exceeded 600 millimetres in length, the
motorcycle's front wheel could not have crossed it without dropping in and hitting the
rear face. He explained that the black marks on one side of the pothole in
photograph TB20 represent tyre rubber residue. This residue occurs when a tyre
impacts the rear side of a defect, marking what is known as the pothole's exit side.
This evidence demonstrates point of contact . Additionally, in contrast to Mr Craig's
[the defendant’s expert witness] evidence, Mr Du Preez testified that the plaintiff’s
motorcycle tyre would fit completely inside a pothole of the dimensions that the
plaintiff says he struck.
[170] Mr Steenkamp, a defence witness , testified that if a defect of that magnitude
had developed on the road, the municipality would have received public complaints
or queries notifying them of the hazard . In my mind, in this regard, Mr Steenkamp
explicitly acknowledged that a pothole of the magnitude in question constituted a
hazard on the road.
[171] So far as the test done by Mr Craig is concerned, one point only need be
discussed. The important and significant features regarding the test that was
conducted by Mr Craig is that his evidence reveals that the test pothole was
intentionally made deeper, sharper than the original ; the test driver was aware of the
existence of the pothole and was much more experienced that the plaintiff.
[172] At the core of Mr Craig's evidence, is his reliance on the simulation test he
conducted. The irony is that the central theme of his testimony is his concession that
this simulation was not a mirror reconstruction of the actual event and failed to
achieve a one -hundred percent correlation with the conditions of the accident. Little
wonder, then, it was not possible to determine all of the pertinent parameters.
Nonetheless, Mr Craig rigidly maintains that the pothole in question did not
contribute to the accident.
[173] When regard is had to Mr Craig’s testimony, it is important to give regard to the
warning that was sounded in Motor Vehicle Assurance Fund v Kenny 1984 (4) SA
432 (E), at 436D-H, when the following was stated:
… “ The learned Judge a quo found Tompkins “hesitant and evasive” in certain
respects and “somewhat unconvincing” in other. On the whole he came to the
conclusion that there were “too many variables and imponderables” in the case,
which in the end result, rendered Tompkins’ evidence unreliable. In cross -
examination Tompkins himself conceded that in practice things often happen which
are not always reconcilable with the opinion of experts because of the fact that there
are always “unknowns. Because of these u nknown factors he conceded that in his
attempt theoretically to reconstruct what had happened he was bound to “speculate a
lot”. I agree, with respect . . . “ it is however, a well -known-fact that it is often
impossible to explain what happened in a collision on rational, logical grounds” . .
.Direct or credible evidence of what happened in a collision, must, to my mind,
generally carry greater weight than the opinion of an expert, however experienced he
may be, seeking to reconstruct the events from his experience and scientific training.
Strange things often happen in a collision . . . Tompkins’ concession, therefore, that
there are too many unknown factors in any collision to warrant a dogmatic assertion
by an expert as to what must have happened seems to me to have been a very
proper one. An expert’s view of what might probably have occurred in a collision
must, in my view, give way to the assertion of direct and credible evidence of an
eyewitness. It is only where such direct evidence is so improbable that its very
credibility is impugned, that an expert’s opinion as to what may or may not have
occurred can persuade the Court to his view.” Emphasis added.
[174] I had already found that the plaintiff was a credible witness and I also found
that there is other evidence that supports the plaintiff that his motorcycle tyre
dropped into the pothole.
[175] The test done by Mr Craig cannot explain the plaintiff’s immediate loss of
[175] The test done by Mr Craig cannot explain the plaintiff’s immediate loss of
control, which culminated in the motorcycle colliding with the signpost and finally
landing on an embarkment. While the stated objective of the exercise was to
determine whether the pothole could cause a crash, it seems to me, that the
reconstruction was myopic in its approach. If the simulation were truly a realistic
replication of the incident, the test motorcycle's rims should have bent or cracked
under the impact force. Particularly, in light of the fact that it is not in dispute that the
pothole, that was described by some witnesses as posing a hazard did exist. In the
circumstances of this case, the fact that the test motorcycle emerged entirely
undamaged, demonstrate s that the simulation failed to replicate the severe,
localised, vertical edge-strike that the plaintiff experienced.
[176] Of course, it may be argued that that is why Mr Craig says the pothole did not
cause the crash. However, it is significant to remember that the plaintiff’s expert, Mr
Du Preez, already proved that because the pothole exceeded 600 millimetres in
length, a tyre must drop in and strike the rear vertical face of the pothole. Surely, in
the circumstances, if Mr Craig’s motorcycle ‘floated or glided over’ the pothole, it
proves his simulation was conducted at speed [a focal point that was canvassed with
him extensively during his cross examination] that did not simulate the speed that
was driven on by the plaintiff. This also shows that the variances adopted by Mr
Craig in the test had an effect on the results of the test drive.
[177] Consequently, Mr Craig’s explanation that the test motorcycle ‘floated over’ the
pothole serves only to confirm the fatal defect of his simulation; it entirely failed to
replicate the mechanical reality of the actual incident. The physical evidence , namely
the severely deformed rim and the tyre rubber residue on the pothole's exit face ,
conclusively proves that the plaintiff’s motorcycle dropped into the depression rather
than skimming over it. Because Mr Craig’s simulation bypassed this critical impact
stage, his finding that no impact occurred carries no probative value and must be
rejected.
[178] In Biddlecombe v Road Accident Fund (797/10) [2011] ZASCA 225 (30
November 2011), the SCA stated the following at para 10:
“The expert tasked with reconstructing what occurred is often dependent for the
reconstruction not simply on the application of scientific principle to accurate data but
on calculations based on imperfect human observation. The fact that the
reconstruction rests on a potentially imperfect factual foundation is the reason for
caution in determining its evidential value . However, whether that is so in any
particular case will depend upon an assessment of the degree to which it rests upon
ascertainable and measurable facts and the application of scientific principles to
those facts. It is undesirable for a court to adopt an a priori approach to its task of
weighing eyewitness and expert testimony where the two conflict.” Emphasis added.
[179] The simulated test appears to be unrealistic and distorte d. It has been based
upon the controlled tests which did not cater f or unpredictable real-world variables.
Additionally, as previously mentioned, there are several fundamental discrepancies
between the actual accident and the simulation test [that are worth re peating in this
paragraph], rendering them two completely different occurrences. Crucially, the test
driver possessed prior knowledge of the pothole’s exact location, whereas the
plaintiff did not. Furthermore, the dimensions of the potholes differed, and the test
driver was far more experienced than the plaintiff. Consequently, I find that the
simulation failed to mimic the actual occurrence with reasonable accuracy. It even
failed to account for the very jolt felt through the handlebars of the plaintiff's
motorcycle. Ultimately, the simulation leaves a critical question entirely unanswered,
which is; ‘if the pothole was not the cause, what did account for the severe, objective
structural damage to the plaintiff's wheel rim.
[180] A scenario postulating that the damage to the rim was caused by the
embankment or the signpost would be based entirely on conjecture, speculation, and
assumption. First and foremost, such a hypothesis fails to account for the physical
forces that initially launched the motorcycle toward the signpost. Consequently, this
matter does not present multiple plausible proximate causes.
[181] The evidence categorically demonstrates that the pothole was the definitive
physical antecedent to the plaintiff’s injuries; establishing an unbroken causal nexus
between the pothole, the collision with the signpost, and the ultimate landing on the
embankment.
[182] Indeed, there is no evidence before this Court to justify a finding that the crash
was caused by anything other than the pothole in question. Far from proving that the
pothole could not cause a crash, Mr Craig's simulation merely proved the obvious: a
motorcycle will not crash if it fails to impact a hazard altogether. This entirely explains
why his test vehicle suffered no rim damage. Consequently, the simulation holds no
probative value and must be rejected.
c. Was it reasonable for the plaintiff not to see the pothole?
[183] There remains, therefore, to be discussed the question which has somewhat
puzzled me from the onset, namely, in the circumstances of this case, why would it
be expected of the plaintiff to be able to see the pothole.
[184] The plaintiff’s case centres around the fact that he did not see the pothole in
question, even after falling he did not become aware of the pothole. It is so that the
accident happened during broad daylight and on a sunny day.
[185] The plaintiff testified that he only used this road two or three times a month,
with a motor vehicle, as a result he did not know it well. In essence, the plaintiff
testified that he was not familiar with the road in question. Mr Craig testified that the
plaintiff in the circumstances of this matter ought to have seen the pothole.
[186] The undisputed material facts in this matter do not support Mr Craig evidence.
First and foremost, there were no road signs warning road users about the existence
of pothole hazards. Moreover, it is important to remember that Mr Steytler testified
that it was difficult to spot the pothole because it is almost the same colour on the
inside as the road surface.
[187] Mr Grobbelaar [ the Plaintiff’s reconstruction expert], stated something quite
significant about early detection of the pothole. He testified that, that depends
entirely on the pothole's actual visibility profiles. He emphasised that the theoretical
sight distance matters only if the defect is physically discernible from that range.
[188] In contrast Mr Craig testified that the plaintiff had a clear opportunity to see and
avoid the hazard because an unobstructed, 350-metre line of sight existed before the
pothole. Furthermore, it was his testimony that the BMW GS1150’s elevated seat
and upright riding posture provided an advantageous view of the road ahead.
According to Mr Craig, at a speed of 100 km/h, this 350 -metre zone afforded the
plaintiff a substantial temporal buffer of approximately 12.5 seconds before impact.
Consequently, he concluded that the plaintiff had ample time to react, making it
inexplicable why he failed to see and evade the hazard under those conditions.
[189] At first blush Mr Craig’s testimony in this regard appears a plausible, but it
ignores the evidence from the defendant’s side. It is also belied by the objective
facts. This I say because, as will by now be well -known, in this matter that during the
occurrence of the accident, it is common cause that the pothole in question has been
in existence and for a while. For that matter, Ms Bryston and Mr Steytler, who
testified that they worked quite close to where the pothole in question was situated,
their testimony reveals that the pothole was a bane of their existence and they were
concerned about its existence. Their testimony also attests to the fact that the
potholes had existed for a substantial period of time before the accident in question.
[190] Having considered the evidence in this matter, this Court finds no reason to
doubt the testimony of Mr Steytler and Mrs Bryston. Both witnesses made an
excellent impression on the Court, presenting their evidence in an entirely truthful,
candid, and honest manner. Their truthfulness and credibility remained intact under
cross-examination, which failed to cast any doubt upon their reliability.
[191] First and foremost, the two plaintiff’s witnesses consistently corroborated each
other. Furthermore, their evidence regarding the actual existence of the pothole was
unexpectedly substantiated late in the proceedings by the defendant's own witness,
Ms Nigrini. This corroboration is particularly telling given that the defendant initially
maintained that the pothole never existed. Because Ms Nigrini's testimony
sufficiently independent-verified the core of the plaintiff's case, there is no reason for
this Court to doubt the correctness of the remaining aspects of their testimony.
[192] It is important to remember that it was Mr Steytler’s testimony that the pothole
was difficult to spot. He says it is difficult to spot the pothole because it is almost the
same colour on the inside as the road surface. This evidence strongly suggests that
the hazard was effectively camouflaged. When evaluated alongside the uncontested
photographs of the scene, Mr Steytler’s testimony on this point is cogent and cannot
be faulted. When evaluated alongside the uncontested photographs of the scene, Mr
Steytler’s testimony on this point is cogent and cannot be faulted.
[193] The fact that the pothole was officially recorded as repaired on 19 April 2012, is
quite telling, particularly in light of the fact that the accident happened on 01 January
2012.
[194] The defendant’s contention that the pothole was clearly visible to a motorist is
further undermined by its own operational records. According to Mr Steenkamp,
formal road inspections were conducted on 15 August 2011, 18 October 2011, 09
November 2011, and 19 January 2012, yet none of the deployment personnel
detected the hazard. This failure is highly telling.
[195] If trained personnel, specifically tasked and equipped to identify road defects,
failed to spot the pothole over a period of several months, it is logically untenable to
expect an ordinary motorist, navigating at speed, to have easily seen and avoided it.
In the circumstances, I cannot find that the plaintiff, who on the evidence was
maintaining a lookout commensurate with his surroundings, could or should have
seen the pothole prior to striking it.
[196] Accordingly, the defect was unexpected and substantial, and created a sudden
emergency for the plaintiff. In the result, I am satisfied that the plaintiff succeeded in
proving that external conditions prevented him from seeing the defect.
d. Was the pothole reported to the municipality or the defendant?
[197] The question that aptly arises is whether the defendant had notice of the
dangerous condition of the pothole. The plaintiff’s evidence through Mr Steytler and
Ms Bryston testified that the municipality was alerted to the pothole. As previously
mentioned, the evidence in this matter further reveals that, notwithstanding the fact
that the incident happened on the 01 January 2012, the pothole was only repaired on
19 April 2012.
[198] At the material time, Ms Bryston and Mr Steytler were employed in the
immediate vicinity to the location of the pothole. Ms Bryston’s testimony establishes
that the pothole had actively developed over a period of six weeks within their
immediate view. The evidence of both witnesses demonstrates that this specific
pothole was a significant source of concern for them and their colleagues. This is
underscored by the fact that immediately after the accident, when Mr Steytler
reported the occurrence to Ms Bryston, he explicitly referred to it as ‘the damn
pothole’. Ms Bryston also harboured personal anxieties that the hazard would
damage her vehicle. This body of evidence illustrates how heavily the pothole
weighed on the daily routines of the plaintiff’s witnesses, rendering it highly
improbable that they would have failed to report it.
[199] Ms Bryston’s evidence clearly indicates that the pothole constituted an obvious
risk and served as a frequent topic of discussion among numerous individuals.
[200] Further and significantly, the timeline of the repairs is telling; it demonstrates
that the pothole remained unaddressed at the scene for several months following the
accident. Notwithstanding the occurrence of the accident and subsequent road
inspections, the pothole remained unrepaired. Consequently, it is disingenuous for
the defendant to maintain that the pothole would have been repaired had a formal
report been received.
[201] Moreover, it is a point worth considering that Mr Steenkamp testified that on
Sunday, 1 January 2012, a municipal standby team was operational to address
major hazards reported by the public, emergency services, or senior management
during the holiday closure period. He stated that following consultations with the
relevant superintendents and field teams, he determined that no complaints
regarding a pothole at the scene had been received prior to the accident.
[202] However, it is also significant to note that the defendants ’ witnesses testified
that a pothole of that size will most probably prompt public complaints. Mr
Steenkamp further testified that a pothole of that size would not go unnoticed by the
community. He testified that if a defect of that magnitude had developed on the road,
the municipality would have received public complaints or queries notifying them of
the hazard.
[203] Now that it is common cause that the pothole in question did exists, the
corollary of the defendant’s witnesses that the nature of the pothole would have
prompted complaints, in a way supports Ms Bryston’s testimony. In light of the fact
that it is also common cause that the road in question is frequently used by motorist,
it is highly probable that other motorists also informed the municipality about the
pothole.
[204] The fact that the pothole remained unrepaired for several months post-accident
substantiates Ms Bryston’s testimony that previous reports of the defect were met
with administrative inaction. This ongoing neglect demonstrates a consistent pattern
of behaviour regarding road maintenance by the defendant. When this systemic
failure is considered alongside Ms Bryston's credible evidence, it tips the balance of
probabilities in the plaintiff's favour. Accordingly, I find that the defendant was indeed
alerted to the existence of the pothole prior to the accident, as testified by Ms
Bryston. Even the evidence of Schoeman [defendant’s witness] demonstrates that
road users would have alerted the municipality about the existence of the pothole.
[205] For that matter, the facts of this matter suggest that the defendant ought to
have known about the existence of the pothole, even in the absence of public
complaints. This is evident from the fact that the pothole was large and, according to
the evidence, had existed for several weeks. It is incomprehensible that a
reasonable road authority would fail to detect it during standard inspections.
Consequently, the defendant had ample time to discover and repair the hazard,
thereby establishing constructive notice.
[206] The question that arises is whether the plaintiffs succeeded to establish that
the pothole was of such an obvious nature that defendant, in the exercise of due
care, should have discovered the condition and its dangerous character.
e. Legal duty
[207] It is settled that without a legal duty there can never be wrongfulness . In
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority
2006 (1) SA 461 (SCA) at para 12, the court warned that wrongfulness should not be
conflated with negligence . The court also in paragraph 13 , stated that it is well to
remember that the act or omission is not prima facie wrongful and that more is
needed. It was also stated that a conduct is wrongful if public policy considerations
demand that in the circumstances the plaintiff has to be compensated for the loss
caused by the negligent act or omission of the defendant.
[208] In this matter, it is not seriously disputed that the defendant owed a legal duty
to maintain public roads in a reasonably safe condition. It would be contrary to
reason and public policy to allow the defendant to escape liability where, through a
failure to exercise due care and diligence, it allowed a severe pothole to develop and
remain undetected for several weeks on a road known to be in poor condition.
[209] From the onset I would like to state that it is common cause that there were no
road signs warning road users about potential potholes or existence of potholes,
notwithstanding the fact that the road was at the end of its lifespan.
[210] Of course, as noted above, Mr Schoeman on behalf of the defendant testified
that a pothole of the size, of the pothole in question would have taken several weeks
to reach the size. He also testified the defendant knew that there was extra care
needed on the section of road in question.
[211] Mr Craig conceded that the primary objective of the municipal inspection teams
patrolling the relevant section of the roadway was to identify surface defects,
explicitly including potholes. Under cross -examination, Mr. Craig also conceded that
despite the inspection teams being actively tasked to detect potholes, they clearly
failed to identify the road defect in question. During cross -examination, he also
testified that the inspection teams should not have missed the pothole. He further
testified that had he been responsible, they would not have missed it. He also opined
that missing a pothole of this size clearly indicated a negligent dereliction of duty by
the maintenance team . In this regard I allow myself with the testimony given by Mr
Craig.
[212] Moreover, Mr D Preez agreed with Mr Craig that the rehabilitation of this
section of the road in 2014 and 2015 confirms that it must have been close to the
end of its design life in 2012; thus, it was to be expected that potholes could form at
various locations. He opined that if a road surface is at the end of its lifespan and
potholes are forming regularly, a prudent roads authority is expected to warn road
users about possible hazards, as the road is prone to potholes.
[213] I find it telling that Mr Schoeman testified that under conditions of proper and
optimal maintenance, a general warning sign would not be expected on an even
road surface. According to him, the maintenance team’s prevailing maxim is that ‘a
sign doesn’t fix a pothole’. Consequently, a warning sign is only deployed as a
temporary measure when the team is unable to immediately repair a pothole.
Crucially, this policy applies even where a road is notoriously prone to such
degradation. This testimony exposes a severe systemic omission ; despite knowing
the road was prone to potholes and failing to repair them, the authority further
neglected to erect any warning signs, leaving motorists entirely unprotected from a
known hazard. Furthermore, because the pothole was not easily visible to
approaching motorists maintaining a reasonable lookout, it constituted a hidden trap,
thereby creating a duty upon the defendant to erect adequate warning signs
[214] The fact that the road in question was close to the end of its design life at the
time of the accident, means that it needed special attention.
[215] In Municipality of Cape Town v Bakkerud (311/97) [2000] ZASCA 174; [2000] 3
All SA 171 (A); 2000 (3) SA 1049 (SCA) (29 May 2000), the following was stated:
“It is not necessary, nor would it be possible, to provide a catalogue of the
circumstances in which it would be right to impose a legal duty to repair or to warn
upon a municipality. Obvious cases would be those in which difficult to see holes
develop in a much used street or pavement which is frequently so crowded that the
holes are upon one before one has had sufficient opportunity to see and to negotiate
them. Another example, admittedly extreme, would be a crevice caused by an earth
tremor and spanning a road entirely.” Emphasis added.
[216] The present case is one of the obvious cases where there circumstances
makes it right to impose a legal duty upon the defendant to repair or to warn .
Evidently, the defendant failed in its duty of care as such the concession made by Mr
Craig was correctly made.
f. Foreseeability
[217] In terms of South African law, t he defendant is liable in delict because the
potential for harm to others was reasonably foreseeable at the time, and a
reasonable person would have taken steps to guard against it. It is settled now that
foreseeability is an element of wrong
[218] In Standard Chartered Bank of Canada v Nedperm Bank Limited [1994]
ZASCA 146; 1994 (4) SA 747 (A) at 658G, the following was stated:
“In delict, the reasonable foreseeability test does not require that the precise
nature or the exact extent of the loss suffered or the precise manner of the
harm occurring should have been reasonably foreseeable for liability to result.
It is sufficient if the general nature of the harm suffered by the plaintiff and the
general manner of the harm occurring was reasonably foreseeable”
[219] In the face of the evidence that was presented in this matter, I fail to
understand the assertion made on defendant’s behalf that the defendant had taken
all reasonable steps to maintain the road and to warn road users. The age and
degraded state of the road, the presence of the pothole, and the evidence that this
specific stretch of road was prone to such defects collectively demonstrate the
foreseeability of the incident. The harm suffered by the plaintiff was reasonably
foreseeable. And this is a fact corroborated by the testimony of the defendant’s own
witnesses.
[220] In McIntosh v Premier of the Province of KwaZulu -Natal and Another
(632/2007) [2008] ZASCA 62; 2008 (6) SA 1 (SCA ); [2008] 4 All SA 72 (SCA) (29
May 2008), the Supreme Court of Appeal observed the following as far as
foreseeability is concerned:
“In the present case the reasonable foreseeability of harm to users of the road
in consequence of potholes was not in issue. Mr George Hattingh, a
consulting engineer who gave evidence on behalf of the respondents, readily
conceded that quite apart from the damage caused to vehicles by driving over
large potholes, their presence in the road was likely to cause drivers to
swerve to avoid them which could result in collisions with other vehicles or
pedestrians, particularly in wet weather when a swerving vehicle was likely to
skid.”
[221] In the instant action, the pothole in question constituted a hidden trap for road
users. Consequently, the presence of such an obscured hazard on a main public
road satisfies the requirement of foreseeability, as a reasonable person in the
position of the defendant would have anticipated that it would cause an accident.
g. negligence
[222] In the present case, of course, the plaintiff has been at pains to point out, that
the road in question was in a poor condition . Mr Du Preez, [the plaintiff’s expert]
noted that this stretch of road surface was in poor condition and required remedial
action. In this regard, the defendant’s witnesses echoed similar sentiments. This
piece of evidence is common cause in this case.
[223] The circumstances of the plaintiff’s accident were not unusual . Thus, i n the
circumstances of this case, it is not surprising th at Mr Du Preez concluded that the
roads authority failed in its duties by neglecting to erect warning signs and failing to
conduct adequate visual inspections. In my view, there is no reason that this Court
should not accept the evidence tendered by the plaintiff’s expert. Indeed, t he
evidence in this matter has starkly revealed that the bi-monthly inspections done on
behalf of the defendant by the municipality are insufficient to identify dangerous
potholes. He further noted that the authority failed to take proactive, preventative
action when the defects first emerged. Furthermore, he critici sed the authority's
administrative record -keeping. In this matter, it apparent that the defendant’s
omission to repair or to warn road users about it, was both wrongful and negligent.
[224] The sheer size of the pothole and the period of its existence are quite telling.
Equally, the incomplete logbook of 20 January 2012, by Mr Xalisa, evinces that the
maintenance system of the defendant was not as profoundly efficient as they
profess. There is no question about it that a diligent municipality conducting routine
road inspections is legally expected to detect and immediately repair a major road
defects. The evidence in this matter also reveals that the municipality's inspection
system was poorly executed. A diligens paterfamilias would have taken reasonable
steps to guard against such occurrence and in this case , the defendant failed to take
those steps
[225] Plainly, there was fault on the part of the defendant , as a result negligence has
been proven.
[226] As such, the defendant is liable for the damages caused by the negligent and
wrongful omission.
h. Costs
[227] The plaintiff asserts that a punitive cost order is justified in this matter.
According to the plaintiff, this is warranted due to the defendant's dilatory conduct
and tactics, which delayed the conclusion of the trial. It is further argued on behalf of
the plaintiff that extensive cross -examination was devoted to issues that ultimately
proved to be undisputed, such as the presence of the pothole, the red markings, and
the plastic tunnels on Haygrove Farm.
[228] For instance, Ms Kleyn was called to dispute the existence of the tunnels in
2012, yet when she testified, she conceded that the tunnels could have been
temporarily erected during her leave of absence. The plaintiff holds the firm view that
the defendant exhibited a pattern of inflating non -issues and abusively invoking
witness recall provisions without any substantive purpose.
[229] The plaintiff also asserted that the defendant's handling of the photographic
metadata dispute epitomised its unconscionable approach.
[230] The assertions made by the plaintiff regarding the defendant’s conduct are not
without merit. It is evident from the record that the manner in which the litigation was
conducted [by the defendant ] left much to be desired, even this Court was not
spared.
[231] During closing arguments, accusations of unfairness were levelled against the
Court. However, when counsel was asked to direct the Court to the portion s of the
record containing the basis for these accusations, she could not do so and instead
withdrew the assertions. I do not intend to unduly lengthen this judgment by detailing
with every conduct by the defendant during the trial.
[232] Save to say, t he manner in which the defendant’s case was handled did not
manifest aggressive lawyering; instead, it manifested ambush litigation that
ultimately delayed and protracted the legal process. Most of the tactical decisions
taken appeared to be mere afterthoughts and motivated by abuse of court process .
That caused costs to be run up. Indeed, the existence of the pothole was not
formally conceded until closing arguments It beggars belief that the defendant only
discovered Ms Nigrini was aware of the pothole when she testified in court . Such
actions qualify as reprehensible conduct and warrant an order for special costs.
[233] In the result, I make the following order
ORDER
1. The defendant is liable for the plaintiff's proven or agreed
damages.
2. The claim against the first defendant is dismissed.
3. The second defendant is to pay the costs of the plaintiff a costs on
attorney and client scale , such costs to include the costs of counsel
and the expert witnesses called by the plaintiff.
_________________________
CN NZIWENI
JUDGE OF THE HIGH COURT
Appearances:
Counsel for Plaintiff : Mr Pieter Botha SC
Instructed by : Lombard and Kriek INC
Counsel for Defendant : Ms Deshni Pillay
Instructed by : The State attorney
Ms NH Mhlaba