Matshoge v Premier of N.W. Province and Others (279/12) [2014] ZANWHC 53 (12 December 2014)

IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 279/12

In the matter between:

LILLIAN MATSHOGE...............................................................................................................Plaintiff

and

PREMIER OF N.W. PROVINCE.....................................................................................1st Defendant

MEC FOR THE DEPT. OF TRANSPORT, ROADS

AND PUBLIC SAFETY, N.W. PROVINCE....................................................................2nd Defendant

MEC FOR PUBLIC WORKS, N.W. PROVINCE..........................................................3rd Defendant

CIVIL MATTER

KGOELE J

DATE OF HEARING : 22 AUGUST 2014

DATE OF JUDGMENT: 12 DECEMBER 2014

FOR THE PLAINTIFF : Adv. Z Khan

FOR THE RESPONDENT: Adv. JHF Pistor (SC)

JUDGMENT

KGOELE J:

A. INTRODUCTION

[1] The plaintiff in this matter instituted an action against the three defendants for the payment of damages, allegedly suffered by her pursuant to a motor vehicle accident which occurred on 27th April 2009. By agreement between the parties the quantum and merits were separated and evidence was lead only on the merits.

[2] The plaintiff alleged in her papers that she was the driver of a motor vehicle which allegedly hit a pothole on a public road within the jurisdiction of this Court, as a result she became a paraplegic and is now wheelchair bound.

[3] The defendants filed a special plea which is to the effect that plaintiff failed to give due notice to the defendants of her

intention to institute the action as is required by Section 3 of Act 40 of 2002. The defendants did not oppose the condonation

application by the applicant of its failure to give notice timeously and it was duly granted by this Court.

[4] The defendants also applied to amend its plea, which application was granted. It is best to quote the amended plea as it is as it contains some admissions which were made late by the defendants. It reads as follows:-

1.

By the substitution for the existing paragraph 5 thereof of the following paragraph.

“5.

AD PARAGRAPH 7 THEREOF.

5.1 Defendants admit that the Department of the Second Defendant was responsible for maintenance of the road in question.

5.2 Defendant’s admit that the said Department had a duty of care to take such steps that might reasonably be necessary to ensure that the road is safe for users thereof.

5.3 Defendants’ plead that the surface of the road on the day of the accident was over a number of kilometres partly gravelled and partly tarred but that the surface was good and safe to travel on and that it did not constitute any danger to users thereof.

5.4 Defendants’ deny that there were any ‘hazards’ on the road surface and that it was necessary that road signs had to be erected to inform road users of any ‘hazards’ on the road.

5.5 Defendants plead in any event that in so far as it might have been necessary, the appropriate road signs and in particular road signs to warn road users of the presence of potholes were erected some distance from the scene of the accident in the direction from which the Plaintiff was travelling.

5.6 In so far as the contents of the paragraph under reply might be interpreted to mean that Defendants failed to put up any signs or to do anything that Defendants should have put up or done, then and in such event, such averments are denied and Plaintiff is put to the proof thereof.”

2.

By the substitution for the present paragraph 6 thereof of the following paragraph.

“6

AD PARAGRAPH 8 THEREOF.

6.1 Defendants are prepared to admit that there were potholes on the road but Defendants deny that there was a pothole at or near the scene of the accident at the time of the accident.

6.2 Defendants further plead that the potholes on the road were filled with a filler of cement, alternatively tar, alternatively gravel.

6.3 Defendants plead that in so far as it might be found that there was a pothole at or nearby the scene of accident, such pothole was not big or deep enough to constitute any danger to road users and in particular to the Plaintiff.

6.4 Defendants admit that the Department of the Second Defendant was aware of the conditions of the road but deny that the road was unsafe and that there were unsufficent warning signs.

6.5 Defendants further plead that in any event the Plaintiff used to travel the road on a regular basis prior to the accident and was acquainted with the conditions of the road.

6.6 In so far as the averments in the particulars of claim are in conflict with the contents of this paragraph of the plea, the

averments in the particulars of claim are denied and Plaintiff is put to the proof thereof.”

3.

By the substitution for the present paragraph 7 thereof of the following paragraph:

“7

AD PARAGRAPHS 9 TO 11 THEREOF.

“7.1 The Defendants deny each and every averment contained in these paragraphs of the particulars of claim as ifs specifically traversed

and put Plaintiff to the proof thereof.

7.2 Defendants plead that the sole cause of the accident on which Plaintiff relies, is the negligence of the Plaintiff who was negligent in one or more or all of the following respects:

(a) She failed to keep a proper lookout;

(b) She drove the vehicle whilst she was not licensed to do so:

(c) She drove the vehicle whilst she was not able or capable to do so;

(d) She drove too fast, bearing in mind the prevailing circumstances;

(e) She failed to properly control the vehicle whilst she could and should have done so;

(f) She increased the speed of the vehicle after it left the tarred surface of the road whilst it was unsafe to increase the speed at that stage.

7.3 IN THE ALTERNATIVE TO THE CONTENTS OF 7.1 AND 7.2 ABOVE AND IN THE EVENT OF IT BEING FOUND THAT ANY OF THE DEFENDANTS WERE NEGLIGENT AND THAT SUCH NEGLIGENCE CAUSED OR CONTRIBUTED TO THE ACCIDENT, THEN AND IN SUCH EVENT DEFENDANTS FURTHER PLEAD AS FOLLOWS:

7.3.1 That Plaintiff was contributory negligent on the grounds stated in paragraph 7.2 above and

7.3.2 That Defendants are entitled to have their liability for Plaintiff’s damages (if any) reduced in terms of the provisions of Section 1 of the Apportionment of Damages Act 1956 (Act number 34 of 1956)”.

B. SUMMARY OF THE EVIDENCE

[5] The plaintiff, Lilian Matshoge, testified that she was with other occupants in the motor-vehicle on the day in question coming from Legonyane Village with the intention to go back to Lanseria Airport in Pretoria where she was working. They were travelling with a speed of +- 40 km/h when the accident happened. There were no road signs indicating hazardous areas along the said road. The road was furthermore the only one which she could use to leave Jericho village. Shortly before the accident occurred, she was driving on the right hand side of the road (incorrect side of her road towards where she was heading to) because the road was full of potholes. Whilst still driving on the incorrect side she saw oncoming traffic approaching and were +-30 paces from her at that time. She decided to move onto her correct side and in the process of doing so struck a pothole that caused her car to swerve back towards the incorrect side of the road which was going to be into the way of travel of the oncoming traffic. When trying to correct it back to the left side (which is her correct side), she struggled to control it and in the process lost control thereof and the car left the road surface on the left side, proceeded downwards off the road surface shoulder, until it collided into a tree, where it came to a standstill. After the accident she felt numb from the hips downward. She could not stand or walk and was later transferred to the nearest hospital for medical attention. According to her she was driving on that road for the first time since having left the village some time ago to live in Johannesburg. The previous day when they entered the village, she was asleep because her brother, Levy Molefe, was the one who was driving the car. As a result of this, she was unaware of the state of repairs of the road. She was wearing a seatbelt at the time and she had a valid driver’s licence.

[6] According to her there were 8 passengers in the car including herself. Five of them were adults and three were children.

During cross-examination she vehemently denied the fact as put to her that the sole cause of the accident was due to her inability to drive coupled with the excessive speed she was driving at. She maintained that the road was in a deplorable condition. She identified a pothole on the photos which were allegedly taken three (3) months after the incident happened as the one that caused the accident.

[7] The second witness that testified on behalf of the plaintiff was Mr Rakau Kenneth Mogotsi, an ANC Ward Councillor. He indicated to the Court that he has lived in Legonyane for all his life. Further that the road from Legonyane village to Jericho has many potholes all the way from Legonyane village to Jericho village. There are no road markings, no hazardous signs alongside it. There were several accidents that happened along the road that is the reason he used the word “deplorable”. Some potholes are big and deep, some smaller. He identified potholes on the pictures shown to him and commented by saying that they are similar to those at the road between Legonyane and Jericho although in its current form. During cross-examination he admitted that he drove on that road with a minimum speed of +-40 – 60km and never had an accident.

[8] The third witness that testified on behalf of the plaintiff was a Civil Road Engineer Mr Louis Roodt. He was tasked to give an assessment and rating of the road at the scene where the accident allegedly occurred. He started by placing on record his qualifications and experience and they were never disputed. He indicated that he compiled two reports in respect of this matter. The first report was based on the statements, reports from the police, google earth images and photographs of the potholes given to him including statistical record of the North West Provincial Government of maintenance and repairs of the roads. The report was made in July 2013. The second report was made after listening to the evidence in Court and having visited the scene. His report and testimony started with an evaluation of the damages and road conditions. It then gave an engineering interpretation of the responsibilities of the road authority, accepted practice in maintenance of roads, the condition of the road in question, the nature and extent of the potholes, and lastly, the casual link between the potholes and the damage allegedly suffered.

[9] He further indicated that the severity or degree of failure of a pothole is determined by the diameter and depth. Degree 5 (worst case) potholes exceed a diameter of 300mm and depth of 50mm. The potholes he saw from the photographs that were allegedly taken three months after the incident according to him are orders of magnitude in excess of the degree 5 norm. This opinion is also based from the Google Earth Images Report. They indicate a severe road failure and distress. He agreed with the proposition by the ANC Ward Councillor that the road was deplorable. He said that the potholes that existed on route were thus real and substantial hazards to the traffic. Anyone of these potholes could have resulted in loss of control especially because there were no warning signs. Google Earth Street View images indicated to him that there were no warning signs from Legonyane village to the crush site.

[10] He emphasized what was contained in his report to the effect that potholes on a road create hazardous conditions. While it cannot be said that the road authority created the hazard and is under obligation to remove it immediately, it is the reality that where an inadequate maintenance management system exists, potholes do develop on roads. According to him road management procedures should be in place to detect these potholes before they reach Degree 3, as it is easier to fix such small defects and prevent more forming than slowing the potholes to propagate to the extent that the base material is exposed and pumped out.

[11] He further indicated that fixing of potholes is relatively cheap compared to rehabilitation / reconstruction of the road after

terminal conditions are reached. It is labour intensive and can be done by local Road Departmental teams. An interim measure to reduce the severity of driving through a pothole is to fill the pothole with appropriate quality gravel and keep the pothole from developing to a dangerous depth. This can also be done by the local Road Departmental teams. This measure also lends itself to labour intensive work by small contractors under the Extended Public Works Program, an approach for which there is financial support from the national Department of Public Works through the subsidisation of wages.

[12] He concluded by saying amongst others that:-

(a) The road between Logonyane and Jericho is a provincial route under the responsibility of the North West Provincial Department of Public Works, Roads and Transport;

(b) With respect to engineering, the road authority has a duty of care if injury can be avoided by reasonable practical means;

(c) The regional function of the road places it as a Class 4 road with regional economic functions and the road was / is thus important to maintain;

(d) Ms Matshoge’s crash was commensurate with hitting a pothole and losing control;

(e) Potholes exceeding the Degree 5 severity (worst case and serious) existed on the road and Ms Matshoge hit these isolated potholes in a manner that could cause the loss of control;

(f) Isolated pothole existed prior to the accident and the area where these potholes were had been patched previously;

(g) The road authority had to be aware of the potholes from weekly inspections as is fitting for the class of road, as well as the need to monitor previously patched section where weakness of the road structure manifested;

(h) Patching of potholes can be done with relative ease, not expensive, would not place an unreasonable burden on the road authority and is a reasonable practicable means to avoid injury or damage;

(i)As an interim measure, the potholes can be filled with appropriate gravel that will reduce the severity of traversing them;

(j) No warnings were given of the isolated potholes;

(k) The road was allowed to deteriorate to a degree of severity resulting in potholes that are dangerous. The patching that was done was inadequate. It was dangerous to use. It should have been pulled out completely and turned into a gravel road as a second thing to do. On a tarred road you get sharp edges that cut the tyres whereas those of a gravel road they are smoother to the tyres.

[13] In his addendum report that he compiled in 2014 after listening to evidence in Court, he indicated that the road was still in a severely, shocking and distressed condition. Additional failures and dangerous features developing on the edge of the road were seen. Therefore, according to him the addendum does not alter the conclusion he made in the first report. He declined to comment on the speed of the vehicle of plaintiff and said that it is outside the scope of his expertise.

[14] Mr Heiberg, the candidate attorney of the plaintiff attorney of record was called to testify about the efforts made to ensure that Mr Nkwana, the witness as mentioned by the plaintiff that was driving behind the plaintiff at the time of the incident, was not willing to attend court and give evidence. Mr Heiberg testified that Mr Nkwana was served with a subpoena to attend court, by personal service from the Sheriff Odi, and is indeed reachable by mobile phone, but refuses to assist and attend court. Mr Heiberg further testified about the process of taking the statement from Mr Nkwana and his recollection of the events in question.

[15] The fifth witness called to testify on behalf of the plaintiff was Mr Levy Molefe who is the plaintiff’s brother. His evidence as to how they left Johannesburg to Legonyane and back until the incident took place is the same as that of the plaintiff. It differs slightly with that of the plaintiff with regards to the finer details of how the accident occurred. According to him, after they had returned to the plaintiff’s correct lane, they travelled for a distance of +- 30 metres on her correct lane before they hit the pothole. His version as far as this is concerned was, “she swerved to her correct lane, she then drove into a pothole, I heard a tyre burst, the car then swerved to the right lane and facing oncoming cars, she then managed to swerve to the left again, and went into the bush and knocked a tree”

[16] During cross examination it came to light that in his statement made to the police he indicated that they were travelling at a speed of +- 80km/h whereas in his oral evidence he said it was between 40 to 60 km/h. His explanation to this was that he does not know how the police officer who took his statement came to the conclusion of 80km/h but he never said that to the police. He further testified that after three months they came back to the scene to take some photos.

[17] The plaintiff closed its case and the defendant called Mr Pogiso Motsisi as its first witness. He testified that he is the police officer who went to the scene of accident to take measurements on the 13th of May 2009. He indicated further that he was with Kingsley Letswalo who was the one that was pointing the marks and or place

where the incident took place and where the car stopped. He then prepared a sketch plan and key thereof. He admitted during cross examination that he did not mention in his sketch plan and key thereto that the markings and points he observed were pointed out by Kingsley. He further admitted after being shown Kingsley’s statement which he himself has taken down that it did not indicate anywhere that he was with him (the police officer) pointing those markings. What also emerged during cross examination is that there were no tyre marks indicated on the sketch plan which he testified about in Court.

[18] The second witness called by the defendant is Mr Johaan Lubbe. He indicated that he is a forensic expert working at the RBI Laboratory (Forensic and Ballistics International). He has 30 years applicable experience in the forensic examination of crime scenes and vehicle accident scenes, reconstruction of the scenes, photographing and documentation of examinations, researching of the vehicle involved in accidents, crash and cause analysing, determination of speed, roadworthiness and compilation of opinions

thereof. He gained all this expertise and training from his thirteen (13) years of service in the SAPS at the South African

Criminal Bureau and Forensics Science Laboratory where he was employed as a crime scene investigator, reconstruction of crime scenes expert amongst others. According to him his report is based on having visited the scene several times and from the

photographs he took by google image. The photos reflect the scene which was examined and reconstructed. Although he used the police report or sketch plan, he did not deem it necessary to consult with Kingsley who allegedly pointed out the markings.

His first scene inspection was on the 11th November 2013, the second on the 12th February 2014 and the last one on the 6th June 2014. He also indicated that he took photographs in February 2014 some five years after the collision. When explaining the photos to the Court, he indicated that there was no dam near the scene of incident. There are furthermore no slopes, and nothing going downwards. He did not reconstruct the police point where the vehicle allegedly left the road and came to a stand-still. He confirmed that on all occasions he visited the scene there were potholes on the road. But only a part of the road was bad to travel on. His view is that one can only drive with +-40km/h comfortably as a safe speed to travel. According to him he also used his car to test the stopping distance and opined that at a speed of 40km/h one can stop safely on that road. He further opined that the damages he observed on the car driven by the plaintiff were not consistent with travelling at a speed of +-40km/h. He could not specify at what speed the plaintiff was travelling but indicated that he stand on his view that it was a much higher speed.

[19] During cross-examination he admitted that the car he used at the scene to conduct his brake testing was a big luxury car, which was equipped with air suspension, ABS braking system and can therefore not be compared to that of the plaintiff. It also emerged during cross examination that he did not take Mr Motsisi to the scene of incident but instead took Seargent Motlana. In his answer to the question why he did not take Mr Motsisi as he was the one that drew the sketch plan he indicated that he deem it not necessary and also, because he thought he was the witness of the plaintiff. He further admitted that he relied on Mr Motsisi’s reports without verifying it and that as an expert he should have done that. He lastly admitted that his report does not have a “conclusion” part, but contains only a summary of the report.

C. EVALUATION OF THE EVIDENCE

[20] Counsel for the defendant, Advocate Pistor SC submitted that the plaintiff was not a reliable witness, her evidence should not be accepted by this Court because:-

read with evidence of other witnesses there appears a number of contradictions and improbabilities in her evidence which justify a conclusion that she did not convey to the Court a correct and true version of what happened on that day; her evidence with regard to the point or area where the accident occurred is on the probabilities wrong; the pothole pointed out by her could therefore not have caused the accident; on probabilities and on the available expert evidence she must have travelled at a speed substantially higher than the 40 km per hour that she claimed; on a number of occasions she became emotional and traumatised when she clearly experienced difficulties to answer questions honestly; when she was cross-examined with regard to the contents of her police statement, she testified that she did not know the address of her family reflected in the police statement. This necessitated for the recording to be replayed to her in order for her to realise that she had in fact previously testified about that address;

[21] It is indeed correct that the evidence of the plaintiff differs with that of her brother Levy as far as the finer details of how the accident occurred. Plaintiff testified that she hit a pothole when she was swerving to her correct lane, but Levy says after swerving to the correct lane, they travelled a distance of about 30 metres before they hit a pothole. This is the only contradictions that may be of substance in the plaintiff’s evidence. In my view, this is an inconsequential aspect of her evidence, the substance of her evidence remained unchallenged that she hit a pothole and lost control of her vehicle. This piece of evidence about hitting a pothole has not only been corroborated by his brother Levy, but it is also found in the statements of Kingsley Letsoalo and Lucia Ramarula who were the other passengers in the car, that were discovered. I am of the view and as it will become clearer later in this judgment that, on its own, cannot taint the credibility of the plaintiff. The other criticisms levelled against her testimony are not necessarily contradictions as submitted and will be dealt with later in this judgment when I consider the probabilities and improbabilities of the matter.

[22] The evidence of Levy Matshoge was criticised firstly on the basis of his contradiction with the plaintiff as explained above and secondly, as far as his statement made before the police in regard to the speed the plaintiff was travelling on when the accident happened which differed with what he said in evidence in chief. In answer to this criticism during cross-examination he indicated that he never told the police that the plaintiff was travelling at +-80km/h. On this aspect, it is important to also take note that Kingsley’s statement reflects that the speed they were travelling at was between +-60 and 90km/h, whereas that of Lucia says they were travelling at 40km/h. All of these differences clearly depict a form of inconsistencies in as far as the estimation of the speed the car travelled at by the passengers. They obviously were speculating as they were not driving on that particular day. The evidence of the plaintiff, who was the driver on that particular day, will have more weight than those of the passengers as in most probabilities she would have constantly checked on the speedometer as a driver.

[23] The evidence of the ANC Ward Councillor Mr Mogotsi, that of Mr Roodt an expert together with that of Mr Heidberg, the candidate attorney to plaintiff’s attorney, were not criticised at all.

[24] The evidence of Sergeant Motsisi was criticised heavily by the plaintiff’s counsel Advocate Khan to the effect that it is hearsay because:-

The pointing-outs which he used to compile a sketch plan were made some time after the collision; He was not one of the officers that attended the scene on the day of the incident; The person who made the pointing-outs, Kingsley, was not called to give evidence or his statement taken to that effect.

Sergeant Motsisi admitted all these criticisms and nothing more can be said about them.

[25] The evidence of Mr Lubbe who testified as a reconstruction expert for the defendants was also heavily criticised. The plaintiff’s counsel submitted that his evidence should be disregarded because:-

He was partial to one party in this matter. He sat next to defendants’ counsel prompting questions and assisting the

defence in the conduct of the matter; He failed to establish his credential; He conceded that his report drew no conclusions; He conceded that he could not assist this Court with a reconstruction of the accident in any material respect.

[26] In my view, the criticism was well made by the plaintiff’s counsel. At no stage during his testimony and or in his report did Mr Lubbe canvass his academic qualifications, further training or courses attended including publications as a basis to establish his expert competence. He relied heavily on his experience and training that stems from his 13 years of services in the SAPS in the South African Criminal Bureau and Forensic Science Laboratory.

[27] He indicated that he has 30 years of experience in the forensic examination of crime scenes, and vehicle accident scenes, reconstruction of the scenes, photographing, testing, investigation and research of the vehicles involved in accidents, crash and cause analysis, including the determination of speed, reconstruction and the compiling of opinions, results and findings. Despite all of his expertise, he could not make any findings, and or opinions in his report. His reports contain basically what he observed at the alleged scene of accident, and the remarks or comments he made after comparing the photos he personally took and those supplied by the plaintiff, the police report, and that of Mr Roodt. He did not look for the vehicle and examine it physically. He indicated in his report that he reconstructed the scene after having perused the dossier file, consulted with the State Attorney, and the S A Police investigating officer Mr Motsisi. The major part of his papers deals with the comments which mainly criticises Mr Roodt and the plaintiff and to some extent, the police report without laying a basis.

[28] Of great importance is the fact that he did not state the methods and techniques he applied, the facts and findings derived at, the basis on which such facts and findings are established and most importantly, express an opinion or draw conclusions based on those facts and findings. What compound the matter further is that the braking speed on those potholes were tested by him using a car which was by far not of a similar make with that of the plaintiff. In fact, as correctly submitted by the plaintiff’s counsel his evidence was not only biased, but could not help this Court at all. This as much is borne by the fact that Advocate Pistor SC did not even rely on his report in as far as the crucial issue regarding the speed which the plaintiff was travelling at, but mainly used his photographs to substantiate that the place where the incident took place is not the one pointed out by the plaintiff and his witness.

D. ANALYSIS

[29] The plaintiff maintains that the cause of the accident was a pothole or potholes in the road on which she was travelling. She alleges that the defendants were the cause as they have failed to maintain the road and put up appropriate warning signs. She bears the onus to prove on a balance of probabilities as far as both the negligence and causation is concerned for her to succeed with her claim.

[30] The defendants on the other hand need to prove plaintiff’s negligence in whole or on an apportioned basis by virtue of the admissions they made. They allege that the plaintiff was negligent in not acting properly to avoid the collision, she is the creator of her own misfortune in that she drove too fast, in an excessive speed and further failed to keep a proper observation in circumstances where she was duly aware of the nature of the road that she was travelling on. The defendants admitted that the road concerned was having potholes and further that it did not properly maintain the road, but submitted that the existence of such a duty does not render the public authority liable for damages suffered by users of a public road pursuant to accidents on that road irrespective of how the accident occurred or how it was caused. They referred this Court to a case of Snyman v Premier of North West Province, Case No. 614/05 NWHC, an unreported judgment of Hendricks J of this Division, as support for this proposition.

[31] A person who uses a road for the general public purpose is entitled to expect that she could use it with safety. See: Stewart v City Council of Johannesburg 1947 (4) S A 179 (W); Spencer v Barclays Bank 1947 (3) S A 230 (T); Alberts v Engelbrecht 1961 (2) S A 644 (T); Gordon v G Da Mata 1969 (3) S A 285 (A); Probst v Pick ‘n Pay Retailers (Pty) Ltd [1998] 2 ALL S A 186 (W); Monteoli v Woolworths (Pty) Ltd 2000 (4) S A 735 (W).

[32] In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority [2006] 1 All SA 6), Harms J A (as he then was) restated the general approach in determining wrongfulness, namely that wrongfulness exists where 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.

[33] In International Shipping Co Pty ltd v Bentley 1990 (1) SA 680 (A) at 700 E – 701 C the general principles of causation were reinstated as follows:-

“As has previously been pointed out by this Court, in the law of delict causation involves two distinct enquiries. The first is a factual one and relates to the question as to whether the defendant’s wrongful act was a cause of the plaintiff’s loss. This has been referred to as factual causation. The enquiry as to factual causation is generally conducted by applying the so-called but-for test, which is designed to determine whether a postulated cause can be identified as a causa sine qua non of the loss in question. In order to apply this test one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant. This enquiry may involve the mental elimination of the wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether upon such an hypothesis plaintiff’s loss would have ensued or not. If it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff’s loss; aliter, if it would not so have ensued, if the wrongful act is shown in this way not to be a causa sine quo non of the loss suffered, then no legal liability can arise. On the other hand, demonstration that the wrongful act was a cause sine qua non of the loss does not necessarily result in legal liability. The second enquiry then arises, viz whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote. [Emphasis added].

[34] In the Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 449 E – F it was held that;-

“A plaintiff is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what probably have occurred, based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than an exercise in metaphysics”.

[35] The defendants in their plea admitted that:-

(a) The department of the second respondent was responsible for the maintenance of the road;

(b) that it was necessary to ensure that the road is safe for users;

(c) there were potholes on the road the plaintiff was travelling on but deny that there were a pothole at or near the scene of the accident as the time of the accident;

(d) The department of the second defendant was aware of the conditions of the road but deny that the road was unsafe and that there were insufficient warning signs.

[36] These admissions together with the denial by the defendants had to be weighed against the evidence of the civil engineering expert Mr Roodt, a witness of the plaintiff to the effect that the road according to his observation was allowed to deteriorate to a degree of severity resulting in potholes that are dangerous. According to him no preventative action was taken, and what was done was inadequate. He further indicated that the potholes that existed there on that road exceeded the Degree 5 severity, which is a worst case scenario of potholes. Assessing the performance of the North West Department of Public Works, Roads and Transport with respect to road maintenance it spent its road capital budget for 2009/10 in 3 months. He opined that it did not prioritise maintenance over improvement of roads and lastly, did not have adequate engineering professional staff. According to him all of this amounts to a systematic failure to manage the roads.

[37] The defendants did not lead evidence to countenance this. Instead they led evidence of a police officer who drew the sketch plan and Mr Lubbe, both of whom were not expert to be able to express an expert opinion on the condition of the road in question. They therefore could not comment on the condition of the road and the extent of the potholes then despite the defendants alleging in their amended plea that the potholes were filled with either tar, a filter of cement and or gravel road. In addition to the Civil Engineering expert, the ANC Ward Councillor indicated that the road condition at the time of the accident in which plaintiff was involved was “deplorable”. In the circumstances, the denial of the defendants to the effect that the surface of the road was not good and safe to travel on, that it did not constitute any danger to users thereof; and lastly that if there were potholes, such potholes were not big or deep enough to constitute any danger to roads users and in particular to the plaintiff, was just a bare denial without anything to support it.

[38] In my view, the conduct of the respondent in this matter falls short of that of a reasonable man in the circumstances of this matter. According to the experts of the plaintiff, the repair of potholes was a priority, both with regard to the safety of road users and the preservation of the structural integrity of the road. No evidence was led by the defendants to establish that by reason of the lack of funds the repair of potholes was neglected in favour of some other priority. Nor was there evidence to suggest the existence of a policy to select some potholes for repairs ahead of others and if so, the basis upon which such a selection was made. The inference of negligence on the part of the servants of the Department responsible for the inspection and repairs of potholes on this road is irresistible.

[39] The defendants in the alternative pleaded the plaintiff’s own negligence by alleging that she:-

(a) was aware of the condition of the road and used to travel on it on a regular basis;

(b) failed to keep a proper lookout;

(c) drove the vehicle whilst she was not licensed to do so;

(d) drove too fast;

(e) failed to properly control the vehicle.

[40] There is no evidence that was led by the defendants to prove that she was aware of the condition of the road and was used to travel on it. Instead, the evidence of the plaintiff and his witness Levy is to the contrary. The same applies to the issue that she was not licensed to drive a vehicle. In addition, the uncontested evidence is that she was unaware of the potholes until the morning when she set out on the road. When they came to Legonyane she was not driving but asleep, and his brother Levy was the one who was driving. There were no warning signs erected to warn road users on that road of the potholes ahead. She had a license for +- 3 years before the accident and therefore the proposition that she was not licensed is not justified.

[41] The defendants allege that the plaintiff did not keep a proper look-out, she remained on the wrong side of the road until she

observed oncoming traffic at a late stage. The plaintiff testified that she was attempting to avoid the potholes in driving on the wrong side of the road. This in itself is not an indication of recklessness. The factual uncontested evidence of the distances as to how far the oncoming traffic was when she started swerving to her correct lane do not support the submission that he did not keep a proper lookout.

[42] Much criticism was levelled against the evidence of the plaintiff to the fact that she failed to point out the exact pothole that she hit, and further that the plaintiff’s pointing out of the place where the accident occurred is not acceptable because the defendants’ witnesses Mr Lubbe and the police officer Mr Motsisi told the Court that there is no dam near the place of accident when the plaintiff and her witness indicated that it was near a dam. This criticism loses the fact that in the first place Mr Motsisi visited the scene for the first time to draw his sketch plan two and half a week after the accident occurred. His evidence that the point where the vehicle hit the potholes and left the road is hearsay evidence as correctly pointed out by the plaintiff’s counsel in that, the person who made the pointing out was not called by the defendant. What is even worse is that at no stage in his statement or sketch plan did Mr Motsisi make mention of the fact that they were pointed out by another person. He was not present amongst the police officers that visited the scene immediately after the incident occurred. It also appears that they also did not make any points observed or markings that he Mr Motsisi could have relied upon. He did not consult with the driver Ms Matshoge to verify the points allegedly made by Kingsley. In Kingsley statement no mention of the fact that Mr Motsisi took him to the scene of accident to make some pointing-outs could be found. His evidence and the sketch plan discovered cannot therefore be relied upon.

[43] Secondly, Mr Lubbe went to the scene for the first time almost four years after the accident occurred. The evidence before this Court reveals that there is only one water dam in the area and the witness of the plaintiff and Ms Matshoge herself who were present when the incident happened were consistent that their vehicle came to a stand- still next to a dam. This evidence remains unrefuted as the defendants’ entire case is based on the evidence of Mr Lubbe and Mr Motsisi. Even if this Court can accept the submission as put by the defendants that the plaintiff did not point the exact pothole, this proposition does not assist the defendants at all, because, the defendants are not responsible for some of the potholes and not others. They furthermore did not proffer any alternative version in the face of their negligence in not maintaining the road and erecting road signs. The evidence of Mr Roodt in his report is to the effect that most of the potholes there were severe, and anyone of those could have resulted in loss of control. The defendants failed to prove their allegation that such a pothole indicated by the plaintiff was not big or deep enough to constitute danger to road users.

[44] In as far as the speed is concerned, the defendants submissions that on probabilities and on the available expert evidence the plaintiff must have travelled at a speed substantially more than 40 kilometres per hour is also without merit. First of all, there is no expert evidence as to the speed the plaintiff was travelling at except her own version and that of her brother and the other occupants of the car. The weight to be attached to her evidence versus that of the occupants of the car had already been dealt with when evaluating their inconsistency. Mr Roodt was honest and indicated that he is a roads specialist and cannot compute speed. Secondly, Mr Lubbe who regarded himself as a speed specialist could not put his head on the block when he was asked to indicate as to what speed the plaintiff was travelling at. He was at pains to finally conclude that the plaintiff was travelling at a much higher speed than 40km/h. A much higher speed than 40 km/h can mean anything from 45km/h to 50kh/h, which in my view is not a high speed, or 120km/h which is a high speed. It was clear that he was speculating on this fact because, as indicated earlier, he did not inspect the car itself. He used the pictures of the photos taken by the plaintiff to come to his opinion. Against this background, one should also not forget that the plaintiff had already indicated in her own evidence that after losing control of the car it is possible that she might have put her leg on the accelerator as an explanation that could have caused the speed of the car to increase before it hit the tree. Another possible explanation of the accelerated speed can be found in the uncontroverted evidence that the car after leaving the road was moving in a downward slope towards the tree.

[45] In addition, it is apparent from the plaintiff and her witnesses that there were other potholes that she had already managed to avoid before the accident occurred. If she was driving in a high speed, she could have met an accident earlier on those potholes. But above all, a common thread runs through her evidence and that of the occupants of the car that the acceleration of the speed occurred after the car hit a pothole. This obviously caused the car to hit the tree with that kind of an impact. This is the context from which Mr Lubbe’s commutation of the speed that he speculated upon should have been made. In casu, it is clear that the plaintiff’s negligence and/or her speed was not fully canvassed nor pursued by the defendants. The possible speed suggested by Mr Lubbe is a mere fanciful guess of what could be an alternative thesis without supporting facts.

[46] The defendants’ counsel further submitted that in cross examination plaintiff testified that she was unaware of the fact that any tyres of her car had burst and she maintained that she had not told anybody that her tyres had burst. However, in the letter of demand, written on her behalf by her attorneys, it was stated that “Our client while driving along the aforementioned road hit a pothole causing her back tyres to burst which in turn caused her to lose control of the motor vehicle.” The medical expert (Dr. Marus) of whom the Plaintiff filed a report also stated in his report: “She (plaintiff) indicates that there were a lot of potholes in the road, and this caused her back tyres to burst. She lost control of the car and hit a tree”

[47] On probabilities the defence counsel argued that, the information in the letter of demand and in the said medical report could only have come from the plaintiff. However, based on her evidence in Court, that information must be viewed as a fabrication.

[48] In conclusion, counsel for the respondent submitted that on plaintiff’s own evidence with regard to the manner in which the accident occurred, there is very little room for the conclusion that the pothole, described by the plaintiff, could have caused her back tyres to burst because, on her evidence she hit the pothole with the right front wheel. Her evidence and that of her brother in this regard is conflicting and cannot be correct and true because:

(a) If the tyres had burst then she on probabilities would have known about it;

(b) If the plaintiff’s evidence with regard to the manner in which the accident occurred is to be accepted, then it is highly unlikely that both back tyres of her car would have burst whilst the front tyre which, on her version had hit a pothole, did not burst;

(c) The evidence of her brother (Levy) with regard to the bursting of the tyres is questionable. According to him it was not the two rear tyres that had burst. That version does not support the evidence of the plaintiff;

(d) Significantly Levy did not mention the fact that the tyres had burst in his police statement.

[49] The only justifiable conclusion according to him in the circumstances is that the story about the bursting of the tyres on the road is the result of a fabrication and that, if any of the tyres had been flat after the accident they could have become flat during the time when plaintiff was travelling on the area next to the road.

[50] In my view, it is highly probable that the plaintiff could not hear when the tyre burst because she was panicking trying to control the car after it hit a pothole. It is also obvious that she did not inspect the car as she could not walk immediately after the accident. What has been specified in the letter of demand cannot be attributed to what plaintiff had said because he is not the author of it. As to who is the source of this information is best left to the author of the letter of demand. The same applies to the information written by the Medical Expert, Dr Marus. A possibility also exist that he used the contents of the file which had witnesses statement that talked about the tyre burst. This is in my view not a fair assessment of the plaintiff’s version. The submission that her brother’s evidence with regard to the bursting of the tyres is questionable is also not a fair one. He himself testified that he heard the tyre burst at the time they hit the pothole. His evidence is corroborated by the photos of the car which also reveals that the back tyre was damaged. His evidence furthermore resonate with the evidence of an expert Mr Roodt that the edges of a pothole on a tarred road are sharp and can cut the tyres as compared to a pothole on a gravel road, which are much smoother to a tyre. After all it does not matter whether the front or the back or both tyres burst, the fact remains that she hit a pothole which caused one or two tyres to burst, as a result the plaintiff lost control of the car and she was injured in the process. Mr Roodt’s view is that the damage to the plaintiff’s

vehicle was consistent with having struck a pothole.

[51] It was held in Govan v Skidmore 1952 (1) SA 732 (N) at 734 C that:-

“[I]n finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys in his work on Evidence (3rd ed., para 32), by balancing probabilities select a conclusion which seems to be the more natural, or plausible, conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.”

[52] The facts in casu are that the plaintiff hit a pothole, lost control of her car and veered off the road, hit a tree and became paralysed. The various

propositions by defendant as to excessive speed, not keeping a proper lookout etc. are not borne out by the facts in this matter and are merely speculations. To escape a finding of causative negligence it was for the defendant to “tell the rest of the story” by establishing some equally cogent inference or acceptable alternative explanation for the occurrence of the

incident. See: MacLead v Rens 1997 (3) S A 1039 (E) at 1052 F-H.

[53] It is trite law that the defendant, in the face of its negligence bore the burden of adducing evidence in rebuttal of the inference

that such wrongful and negligent omission caused the loss. See: South Cape Corporation (Pty) Ltd v Engeneering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 548. This proposition was set forth by the courts at it was laid down in the case of Salmons v Jacoby, 1939 AD 588 wherein at page 594 the following was said:-

“the defendant, in order to succeed, had to produce evidence sufficient to displace the inference of negligence which the prima facie evidence, unless answered, justified the Court in drawing against her”

[54] Plaintiff scenario based on facts was the only version before Court as to how the accident occurred. The defendants cannot attempt to rely on speculation and conjecture as competing inferences that may be drawn. There has to be some factual basis on which to underpin the alternative inference. See: Hoffman & Zeffert; THE SOUTH AFRICAN LAW OF EVIDENCE, 4TH ed (1988), p 554.

[55] In West Rand Estate Ltd v New Zealand Insurance Co Ltd 1925 AD 245 at 263 the following was said:-

“It is not a mere conjecture or slight probability that will suffice. The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it. It must be of sufficient weight to throw the onus on the other side to rebut it.”

[56] In Ex Parte Minister of Justice: re R v Jacobson and Levy 1931 AD 466 at 478 Stratford JA held:

“Prima facie evidence in its usual sense is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive proof and the party giving it discharges his onus”.

[57] The defendant makes extensive reference and relies heavily on an unreported 2009 decision of this division by Hendricks J, Snyman v Premier of North West referred to above. This matter of Snyman is factually distinguishable on various grounds from this case. In the Snyman matter:-

The plaintiff’s vehicle collided with an oncoming vehicle on the wrong side of the road; The witnesses were unable to say if the plaintiff did in fact hit a pothole; The Court placed emphasis on the absence of debris at the scene; The plaintiff in that case was unsure and assumed that he might have hit a pothole; No evidence was tendered that the plaintiff’s vehicle struck a pothole; The collision took place at night and the plaintiff was travelling at a high speed; The police officer who attended the scene shortly after the collision found no potholes in the vicinity of the collision; The expert was of the view that the damage to the plaintiff’s vehicle was inconsistent with having struck a pothole.

[58] The eventual finding of that Court in refusing an application for leave to Appeal is instructive as to the difference of that matter. It remarked:-

“[25] Having found on a balance of probabilities that there was no pothole in the vicinity where the collision occurred or that a pothole caused the accident, in cannot be said that a case had been made out for contributory negligence on the part of the Respondent.”

E. CONCLUSION

[59] The proven facts in this matter and the evidence before the Court do not lend themselves to any negligence on the part of the plaintiff. Plaintiff succeeded in proving from the evidence which she advanced that the most readily, apparent and acceptable version is that she hit a pothole whilst driving. The defendants presented no competing version that is on an equal footing or more probable and reasonable from which an inference can be drawn. The only reasonable inference that may be drawn from the facts of this matter is that the potholes caused the accident. No contributing negligence could under the circumstances be found on the part of the plaintiff.

[60] Plaintiff did not lead any evidence to the effect that the third defendant was also responsible for the maintenance of the road in question. This is so because plaintiff acted ex abundante cautila in litigating against all relevant provincial authorities at the risk that one might deny liability, and furthermore, because the defendants did not make admissions or disclosures at the relevant pre-trial stage. It is therefore prudent that the case against the third defendant should be dismissed.

[61] Although I dismissed the third defendant’s case, I make no adverse costs in this regard against the plaintiff because the defendants were all represented by the same counsels and all costs are overlapped and indistinguishable. The trial also was not lengthened because of the litigation against the third defendant.

F. ORDER

[62] The following order is thus made:-

62.1 The first and second defendants are 100% liable for the damages that the plaintiff will be able to proof.

62.2 The first and second defendants are jointly and severally, one paying the other to be absolved ordered to pay the costs occasioned by the adjudication of this action.

________________

A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE PLAINTIFF : Ronald Bobroff & Partners Inc.

C/O Minchin & Kelly Inc

19 Constantia Drive

RIVIERA PARK

2745

FOR THE DEFENDANT : Justice Chambers Building

44 Shippard Street

Private Bag X51

MMABATHO

2735