JUDGMENT INTRODUCTION/BACKGROUND - …

1 IN THE HIGH COURT OF SOUTH AFRICA(NATAL PROVINCIAL DIVISION)CASE NO: 3576/05In the matter between:ALLISTAIR POVL McINTOSHPLAINTIFFandPREMIER OF THE PROVINCE OF KWAZULU NATAL FIRST DEFENDANTMEC FOR THE DEPARTMENT OF TRANSPORTFOR KWAZULU-NATAL SECOND DEFENDANTJUDGMENTKRUGER J: INTRODUCTION/BACKGROUNDOn 21st August 2004 the Plaintiff and a group of friends cycled along the P164 Road leading from Kamberg to Rosetta. What was intended to have been a pleasant and uneventful ride in the country side did not materialize as the Plaintiff, whilst allegedly taking evasive action in order to avoid a pothole, was unceremoniously separated from his bicycle and seriously injured. In consequence thereof the Plaintiff instituted an action for damages. At the commencement of the trial and with the consent of the parties, the issues of quantum and liability were separated. The trial proceeded on the question of liability THE HIGH COURT OF SOUTH AFRICAThe following facts are either common cause or have been admitted during the course of proceedings: The Plaintiff was a cyclist on Road P164.

2 Immediately preceding the accident he was cycling downhill in the direction from Kamberg to Rosetta. The pothole in question was situate in the centre of Road P164, between two barrier lines, approximately from Rosetta. On the 29th August 2004 the pothole was measured and the following dimensions noted:- 400mm at its widest point;- 750mm at its longest point; and- 70mm at its deepest point. At the time of the accident there were no warning signs displayed. It would have cost no more than R598,50 to erect three warning signs in the area. It would have cost approximately R97,80 and taken approximately 25 minutes to repair the said pothole. The said pothole was repaired and a warning sign erected after the DUTYAt the end of the Plaintiff s case the Defendant made an application for absolution from the instance on the grounds that the Plaintiff had IN THE HIGH COURT OF SOUTH AFRICA failed to establish that a legal duty existed upon the Defendants to maintain and repair roads and to ensure that no potholes existed.

3 This argument was persisted in by Mr Mbenenge SC, for the Defendants, in his address at the end of the trial. Accordingly, he argued, the Plaintiff had failed to prove the element of wrongfulness and should be non-suited. What the Defendant had failed to realise was that in its plea it specifically pleaded and admitted that a legal duty existed upon it to repair and maintain the roads. In response to the Plaintiff s averment, at paragraph of the Particulars of Claim, namely: The First Defendant, alternatively the Second Defendant, further alternatively their employees had control over all roads and/or road reserves within the province of KwaZulu-Natal and were obliged to manage and maintain it by virtue of the provisions of Section 3(1) and (6) of the KwaZulu Roads Act, No. 4 of 2001. (my emphasis)The Defendant pleaded as follows: 5 Add para Defendants admit each and every allegation contained in this paragraph.

4 In terms thereof, the Defendant clearly admitted the existence of the obligation or duty to maintain the paragraphs and of the Particulars of Claim, the Plaintiff IN THE HIGH COURT OF SOUTH AFRICA pleaded as follows: signs, warning of the existence of potholes, existed or were displayed on the road; said Defendant(s) department, District Superintendent and/or persons were obliged, or alternatively, had assumed the obligation, alternatively, had a duty of care towards inter alia the Plaintiff to; - .. In response thereto the Defendant pleaded as follows: paragraphs to all material times the Defendants, in the discharge of their legal duty, alternatively the duty existing in terms of the KwaZulu-Natal Roads Act, No. 4 of 2001 .. (my emphasis)The aforesaid, in my opinion, clearly shows that the Defendants acknowledged, confirmed and admitted the existence of a legal duty upon it to manage, repair and maintain the roads.

5 As such, the argument of Mbenenge on behalf of the Defendants is misplaced. The Defendants did not, either before or during the trial amend their plea by withdrawing the aforesaid admission. Consequently the Plaintiff was, in my opinion, entitled to proceed and present its case on the basis that the question of unlawfulness (the legal duty) was no longer IN THE HIGH COURT OF SOUTH AFRICAin Nyandeni v Natal Motor Industries Limited 1974 (2) SA 274 (Durban and Coast Local Division), Fanin J held, at 279 B: The purpose of pleading is to clarify the issues between the parties and a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another. To uphold the Defendants argument/submission would therefore defeat the purpose of pleadings which is to bring clarity to both the Court and the parties to an action of the issues upon which reliance is to be placed and these issues which are in Cape Metropolitan Council v Graham 2001(1) SA 1197 (SCA) at 1203, paragraph 6, Scott JA held that an admission by the Defendant that it was under a legal duty to take such steps so as to minimise injury to road users, was in effect an acknowledgement of also Theopholius Esterhuizen and Others v Die Lid van die Uitvoerende Raad vir Openbare Werke, Paaie en Vervoer van die Vrystaat Provinsie (Case No.)

6 1673/2004 OFS Provincial Division).BREACH OF LEGAL DUTYIN THE HIGH COURT OF SOUTH AFRICAThe issue to be decided is whether the Defendant was in breach of its legal duty and whether it was negligent in doing so and, if so, whether there was any contributory negligence on the part of the response to the Plaintiff s assertions that the Defendant was negligent, inter alia, in that it failed to properly maintain the road and to ensure that it was pothole free, the Defendant raised numerous defences. It pleaded, inter alia, that it did not have sufficient or adequate budgeted funds to maintain the roads in and around the area concerned; that its employees conducted weekly checks of the roads under its control and management and that it had, during the period 18 to 20 August 2004 conducted maintenance work on the road in order to substantiate the claims that it had insufficient or inadequate budgeted funds, the Defendant led the evidence of a host of its employees viz Mr Mohammed Adam, the General Manager, Fiscal Policy and Budget Management KZN Provincial Treasury; Mr Wayne Evans, the Chief Manager Finance - in the Department of Transport during the period 2002 to 2006; Mr Blake McKenzie, the Cost Centre Deputy Manager of the Pietermaritzburg Area; and Mr Bongani Mncube, a Supervisor and Trainer of Black Top Teams.

7 All the aforesaid witnesses confirmed that insufficient funds were allocated to the Department of Transport to enable it to adequately maintain and repair the entire road network in the Province. The relevance of this evidence, save that of Mr Mncube, is to be subjected to some scrutiny later in this Mncube, after some persuasion by the Court, was at pains to admit that there were adequate funds available at the time to repair Road P164. Indeed this was so as the weekly meeting was held wherein the state of the said road was discussed and it was resolved to carry out IN THE HIGH COURT OF SOUTH AFRICAthe necessary repairs along the said road. It would have been an exercise in futility, in my opinion, and a waste of much needed funds, to have gone through the entire process knowing full well that there were insufficient or no financial resources available to conduct the necessary Roberts SC, on behalf of the Plaintiff, has argued that the costs of repair of the relevant pothole was minimal.

8 Indeed it is common cause that it would have cost no more than R97,80 to repair the said pothole. This argument however does not take into account that it is not a single pothole that is to be repaired but the entire road. It is not simply a matter of raising approximately R100 to repair a pothole whenever one appears and is noticed. The entire road surface is examined and indeed other roads in the area as well. It is the total cost of maintenance that is to be is common cause or at least unchallenged by the Plaintiff that the Defendants employees, at their weekly meeting, identified Road P164 as one in need of urgent repair and maintenance. It is further not disputed that the work was allocated to one of the Black Top Teams and that they commenced work, on the said road on 18th August 2004. At the end of that week (20th August 2004) the maintenance and repair work along the entire road had not been completed and it was scheduled to resume and did resume, on the Monday of the following Sakhamuzi David Mbedu testified that he was employed by the Department of Transport, KwaZulu Natal, as a Black Top Team Leader.

9 On or about the 18th August 2004, he was instructed by his superiors to repair Road P164. He proceeded to the said road and IN THE HIGH COURT OF SOUTH AFRICA after examining the state of same, commenced work at the 15km to 16km area of the said road. He conceded that he had no independent recollection of the pothole in question. The following extracts of his testimony are of crucial importance. Mr Mbenenge:Do you during the course of your functions fix all potholes on the road?Mr Mbenenge:Do you follow a particular scheme when you do that?Mr Mbedu:Yes.. If it had not been indicated properly to me where such a pothole is along the road, I would drive throughout the road trying to ascertain is there any pothole there, because our aim because our main purpose is to render all road users safe. If I do find places where there are serious damages, then we would work on those damages and if material remains there, we would then attend to the less serious instances.

10 We always start with the most serious instances. Later he testified: Mr Mbenenge:Now my question is my question is why do you start from 15 coming downwards according to the dates?Mr Mbedu:It does happen that I will start at the end of a road and proceed backwards with it. Because our procedure is that we should start with the most serious Mbenenge:Are you then telling his Lordship that the most serious places were at 15 and 16 and 11 and 12?Mr Mbedu:That is correct yes. (the reference to 15 and 16 and 11 and 12 is the kilometer mark along Road P164.)When cross-examined by Mr Potgieter, on behalf of the Plaintiff the following exchange took place:IN THE HIGH COURT OF SOUTH AFRICA Mr Potgieter:Now in determining the seriousness of potholes, do you refer to the manual?Mr Mbedu:No, I do not have any booklet or document which I would consult. Mr Potgieter:So in determining which potholes are serious or not it is left into (sic) your discretion?