Kimberley High Court awards damages to army official in pothole accident

The Kimberley High Court (Northern Cape division) has granted the deceased estate of an army official an 80% damages claim after he became a quadriplegic as a result of a road accident. 

The Northern Cape’s Department of Roads and Public Works, as the provincial department responsible for the care, maintenance, and upkeep of the R31 road on which the accident took place, will have to cough up the costs for the proven damages.

Tragedy struck when Motlatsi Mofoka, travelling with a South African National Defence Force (SANDF) colleague in a military vehicle on their way to a meeting, hit a pothole in the badly maintained roadway. 

In February 2012, the two were on their way from Postmasburg to Kimberley to attend a meeting related to their employment in the SANDF in Kimberley when, on a stretch of the road between Koopmansfontein and Danielskuil, it is alleged that the vehicle driven by Mofoka hit a pothole.

As a result, Mofoka lost control of the vehicle and suffered serious injuries, rendering him a quadriplegic, while the passenger was also injured and hospitalised. After the accident, Mofoka instituted legal action to claim compensation for his injuries.

Mofoka, however, died after the pleadings had closed and litus contestatio had been reached. On February 4, 2021, Mofoka was substituted by the executor of his estate as the plaintiff in this matter.

In his pleadings, Mofoka submitted, among other reasons, that the provincial road department failed to maintain the relevant road in good repair and that the department and its workers failed to display appropriate road signs in advance of such potholes, warning motorists of the potholes so that motorists could adjust their driving in a manner appropriate to the existing road conditions.

During the trial, the court heard from the passenger’s evidence that they had a deadline so that they could make their appointment in Kimberley. 

The passenger said they discussed their speed of travel, and she requested Mofoka to increase his speed so that they could make their appointment in Kimberley. 

“They then encountered the pothole alleged to have caused the accident; she described this pothole as starting from the edge of the lane they were travelling in and being in a horseshoe shape that encroached from the edge of the lane they were travelling in until about halfway into their lane of travel,” the judgment read.

The department, while conceding that they are responsible for the maintenance of the road in question and that it owes motorists using the relevant road a duty of care, denied that any act or omission on its part or on the part of its servants caused the said accident. 

The department also denied that the accident was caused by potholes in the road, but was instead caused by Mofoka’s negligence.

Judge Lawrence Lever, however, held that the department had a majority responsibility. 

The judge held that the department had a duty of care to maintain the road in a way that kept it free of hazards, and if it could not repair any such hazard timeously, it had a duty of care to ensure that a warning sign relating to such road hazard was appropriately placed to warn drivers using such road.

In respect of the relevant duty of care, the department failed on both counts, the court said. “In assessing this apportionment, it is clear that the main cause of the accident was clearly the failure to maintain the road appropriately and more particularly the failure to warn road users of the particular road hazard, in a manner that would provide road users… (an) opportunity to adjust their driving accordingly. In these circumstances, I would apportion 80% of the blame to these factors.

“On the evidence of Ms Frye, the deceased was driving at a speed of about 110km/h. Given the knowledge that they had about the poor condition of the road, also on the evidence of Ms Frye (the passenger), this was not appropriate to the general condition of the road in question.

“On the probabilities, this speed was clearly a factor in the ability of the deceased to control the vehicle he was driving after hitting the relevant pothole (edge-break). In these circumstances, I believe 20%of the blame should be apportioned to the deceased,” said Judge Lever. 

chevon.booysen@inl.co.za