---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE HIGH COURT, BHISHO)

CASE NO: 435/09

Heard on     :  07 October 2010

Delivered on: 26  October 2010

 

In the matter between:   

 

BERESFORD DALE KAISER	Plaintiff
and
M.E.C. FOR THE DEPARTMENT OF ROADS	Defendant
AND TRANSPORT EASTERN CAPE

 

JUDGMENT

 

SETI-NDUNA AJ:

 

[1]      This is an action for damages arising out of motor vehicle accident in which plaintiff sustained bodily injuries. The defendant is cited as the member of the Executive Council for the Province of the Eastern Cape (“the province”) responsible for roads and public works and is statutory entrusted with the function and duty to maintain, inter alia, provincial public roads and more particularly the R72 provincial road on which the accident occurred (“the road”).  

 

 [2]     In his particulars of claim plaintiff avers that the accident was occasioned solely as a result of negligence of the defendant and/or her employees acting in the course and within the scope of their employment by the defendant. The plaintiff further avers that the defendant or her employees were negligent in one or more of the respects mentioned in the particulars of claim.

         

[3]      The action is defended. The defendant denied knowledge of the occurrence of the accident putting the plaintiff to the proof thereof. She further denied that the accident was caused by the poor and/or non maintenance of the road. She instead attributes the accident to the plaintiff’s reckless and inconsiderate driving of the motor vehicle by veering at an excessive speed from the gravel into the tarmac road.  

 

[4]      At the commencement of the trial the parties applied that the issue of liability be separated from that of quantum with the latter standing over for later determination, I so ordered.  It is common cause between the parties that the plaintiff was the driver of the motor vehicle with registration  letters and numbers C[...] (“the motor vehicle”) which was involved in an accident on R72, a road within the province (‘the road”). It is further common cause that the defendant is statutory entrusted with the function and duty of maintaining the road. The only issue for determination is defendant’s negligence.   

 

[5]      On the issue of liability the plaintiff’s version is that on the day in question he was driving his motor vehicle, a Land Rover Discovery from East London on his way to attend a morning Christmas service at Port Alfred. He was in the company of his wife, Pastor Anthony and a fourth person. After passing the Hamburg off turn, he saw from his rear view mirror a motor vehicle behind him and moved off the road in order to allow it to pass. At that stage he had been travelling at 100km per hour. He moved the motor vehicle such that only the left wheels were on the gravel and that at no stage were all the wheels on the gravel.  He travelled for 70-80m in this manner and then he moved back to the road.

[6]      As he was slightly turning the steering wheel to rejoin the road, he felt it jerk and ripped off his hand.  He lost control of the motor vehicle which crossed over to the lane of the oncoming vehicles, went up the embankment, rolled over and finally landed on its wheel facing the oncoming traffic. Both tyres on the left side were ripped off from the rims. At the stage of rejoining the road his speed was considerably low and he denies the allegation that he veered back into the tarmac road at an excessive high speed.   He sustained a neck injury and was not able to turn his neck around.  He was later conveyed in an ambulance from the scene.  His wife and his pastor escaped without injuries whilst the fourth passenger sustained a cut on his head.

   

[7]      Six weeks after the accident he and his wife visited the scene of the accident. It was then that he observed that there was the drastic difference in level between the tarmac surface and the gravel portion.  He and his wife measured the drop and found it to be 220 cm.  He testified that on the day of the accident he did not feel anything in the movement of the motor vehicle to make him suspect that the drop was that high. It is his testimony that there are no road signs or markings alerting the road users of this fact and further that there are no barricades demarcating the edge of the tarmac surface and the gravel portion of the road.  He disputes that there was unbroken line on his side of the road, a fact confirmed by the road map admitted as exhibit A. He also denied that the accident left any skid marks as he never applied breaks and that any skid marks that were observed at the scene were not from his motor vehicle.

 

[8]      Mrs Kaiser confirmed the plaintiff’s testimony on how the accident occurred. She also confirmed the visit to the scene six weeks after the accident, and also the measurement of the difference in the level between the tarmac surface and the gravel portion.

 

[9]      Before dealing with the evidence tendered on behalf of the defendant, it need be mentioned that counsel for the defendant sought a postponement in order to secure the attendance of the driver who, according to the plaintiff’s version, was given right of way immediately prior to the accident. The application was refused resulting in the only evidence led on behalf of the defendant being that of the police officer who attended the scene of the accident, Const Vuyo Mabetha (“Mabetha”).

 

[10]    Briefly stated Mabetha’s evidence is to the effect that he joined South African Police Service in January 2007 and is a constable by rank.  He testified of skid marks he observed on arrival at the scene and which he did not measure as he did not have a tape measure. He conceded that he has not been trained in reconstruction of accident scene.  His hearsay evidence on how accident occurred was provisionally accepted subject to the calling of Pastor Anthony.  The defence however elected not to lead Pastor Anthony’s evidence.   

 

 [11]   Mabetha was extensively cross examined on the accident report form he had completed. He contradicted himself on several crucial aspects for example to cite but a few, the weather conditions on the day, the surface of the road i.e. whether it was wet or dry and the quality of the road with the word “bumpy” instead of “pothole” marked on the report. He confirmed that there are no barricade demarcating the edge of the tarmac surface and gravel portion of that road. He also agreed that there is difference in the level between gravel and the tarmac but denied that it was 220 millimetres and estimated it to be 10cm.  He however maintains that the drop was insignificant and could not have constituted any discomfort to a driver.

 

[12]    This is sum total of the evidence tendered on which I am called upon to determine the question of the defendant’s liability. The plaintiff’s evidence on how the accident occurred, the poor maintenance of the road, it having a dangerous uneven level between the gravel and tarmac surface  and the absence of road signs warning the drivers of the pothole was given in a clear and concise manner and was not shaken during cross examination. His wife corroborated his testimony in all material respects. With regard to defence’s case no evidence was tendered to support the allegation that the plaintiff had driven at a high speed. Also there was no evidence tendered to support the contention that the road in question has been properly and regularly maintained. There is also no version put before the court to gainsay the plaintiff’s on how the accident occurred.

 

[14]    In the light of the above I am of the view that the plaintiff has succeeded in proving negligence on the part of the defendant. I accordingly make the following order:

 

a)    The issue of the defendant’s liability is separated from the quantum in terms of Rule 33 (4).

b)    The defendant is liable to the plaintiff for any damages the plaintiff may prove or the parties may agree upon arising from the accident.

c)    The defendant is directed to pay the plaintiff’s costs incurred up to and including the 7^th October 2010.

d)    The issue of quantum is postponed sine die.

 

N.SETI NDUNA

ACTING JUDGE OF THE HIGH COURT

 

Attorney for the plaintiff:	Drake Flemmer & Orsmond
	41 Arthur Street
	KING WILLIAM’S TOWN
Counsel for the plaintiff :	Adv Bloem SC
Attorney for the defendant:	State Attorney
	First Floor
	Permanent Building
	42-46 Cnr Oxford and Terminus
	EAST LONDON
Counsel for the Defendant:	Adv Maseti
Counsel for the Applicant:	Adv. P.J. Wallis
Attorneys for the Applicant:	C/O SPF Attorneys
	34 Stanford Terrace
	Mthatha
Counsel for the Respondent:	Adv. Cole
Attorneys for the Respondent:	C/O SZ JOJO Attorneys
	74 Madeira Street
	Mthatha

---