The City of Ekurhuleni Metropolitan Municipality has been ordered to pay more than R750 000, plus costs, to the estate of a motorcyclist who sustained severe injuries after hitting a pothole.
Witnesses testified in court that on 10 July 2010, 53-year-old Marius Botes sustained serious injuries after hitting a pothole while riding his motorcycle home in Kempton Park.
According to the evidence, numerous substantial potholes in Ilex Way had been present for an extended period before the accident. There were three potholes at the intersection of Amarillo Road and Ilex Way – the site of the accident – with the smallest having a diameter of 40cm. It was situated at a T-junction, about three to four metres from the stop street and about 150m from Botes’s residence.
Ilex Way is situated within the City of Ekurhuleni Metropolitan Municipality, one of the major municipalities in Gauteng.
One of these potholes, obscured by rainwater and appearing as a large pool, caused Botes to be thrown from his bike. He sustained multiple fractures, a punctured lung, and broken ribs, leading to extended hospital stays, emergency surgery, and ongoing pain.
The pothole was fixed within two days of the accident.
Botes initially sought R1 328 990 for damages, medical expenses, and lost earnings before passing away on 11 February 2012. His estate continued the claim.
In the initial action, Botes argued that the municipality had a legal duty to repair potholes and maintain its roads in its area of jurisdiction and acted negligently in failing to repair the potholes or to warn of the existence of the potholes.
In its plea, the municipality denied the existence of the pothole at the time of the accident and claimed no knowledge of the accident’s date or vehicle details. However, it conceded that it was responsible for maintaining roads in its jurisdiction.
The municipality argued that if the court found the pothole existed on 10 July 2010 and was linked to the accident because of the municipality’s negligence, then the accident was also caused by Botes’s failure to keep a proper lookout, safely navigate the pothole, or manage his speed. Alternatively, the municipality suggested that if found negligent, Botes’s negligence contributed to his damages, and any damages awarded should be proportionally reduced.
What constitutes negligence?
Delayed by a series of interim applications, the trial started on January 24 in the High Court in Johannesburg.
On 22 August, Judge Leonie Windell delivered her judgment, confirming the existence of the pothole at the time of the accident. The municipality had acknowledged its responsibility for road maintenance, establishing its legal duty.
However, the key issue left to determine was whether the municipality’s failure to repair the pothole constituted negligence.
“Although the defendant (the municipality) admitted to having a legal duty, this does not automatically mean it is liable for failing to fulfil that duty. A plaintiff also needs to establish fault,” Judge Windell said.
The judge cited Bakkerud v Cape Town Municipality, where the Full Court clarified that wrongfulness alone does not establish liability without fault. A municipality’s duty to maintain safe streets does not automatically lead to liability for damages; fault must be proved. This principle addresses arguments about financial constraints. A municipality is only required to act reasonably, considering its financial resources. Whether its actions are reasonable depends on the case’s specific facts. Courts understand that municipalities cannot keep all streets perfect all the time. If a municipality fails to repair unsafe conditions because of financial constraints or prioritises other issues, this may not be deemed unreasonable.
In Bakkerud, damages had been caused by potholes in the pavement of Nelson Road, Sea Point. “Uncontested evidence” showed that the potholes had been there for at least six months before the accident.
The Full Court concluded: “The fact that the holes were repaired within two days after the accident justifies the inference that such repairs did not impose an undue burden on appellant. In the absence of any explanation why the repairs to the pavement were not effected much earlier, I cannot criticise the learned magistrate’s finding that the appellant was negligent.”
On appeal, the Supreme Court of Appeal (SCA) disagreed with the Full Court’s broad imposition of a general duty to repair roads or warn of potholes but upheld the finding of legal duty and negligence.
The SCA ruled that the municipality was legally obligated to repair the potholes or alert the public and had negligently failed to do so. The court noted the densely populated area, the pavement’s proximity to residences, the substantial size of the potholes, and their prolonged presence as key factors.
In the case of Minister of Safety and Security v Van Duivenboden, the SCA determined that the inquiry into what is reasonable in the circumstances of a specific case is based on the negligence test outlined in Kruger v Coetzee, and that the test “offers considerable scope for ensuring that undue demands are not placed upon public authorities and functionaries for the extent of their resources and the manner in which they have ordered their priorities will necessarily be taken into account in determining whether they acted reasonably”.
Returning to the case at hand, Judge Windell observed that the municipality failed to present any witnesses during the trial.
“No evidence was thus presented on behalf of the defendant to show that a lack of financial resources hindered the execution of maintenance duties or to detail the steps taken to warn the public of the potholes.”
The municipality’s plea lacked specifics on why it was not negligent, despite Botes clearly outlining grounds for negligence.
“No questions were asked in cross-examination to clarify why the defendant claimed it was not negligent, and no arguments were made in the heads of argument to convince the court otherwise. Based on the available facts, I am satisfied that the defendant was negligent in failing to repair the potholes.”
Regarding contributory negligence on the part of Botes, the judge considered that the potholes were located 150m from his house and had been present some time before the accident.
“Given this, it is clear that the plaintiff [Botes] exhibited contributory negligence. Being so close to his house, he should have been aware of the potholes and taken steps to avoid them, especially driving at night in the rain. Therefore, I attribute 20% of the negligence to the plaintiff,” Judge Windell ruled.
The municipality was ordered to compensate the estate 80% of Botes’s proven damages – R600 000 in respect of general damages and R151 035.71 in respect of past medical and hospital expenses.
My daughter got an injury Wich resulted in a bone fracture as a result of a municipality sink falling on her leg