1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy NOT REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH Case no: 2447/2008 Date heard: 2-4.12.2013 Date delivered: 14.8.2014 In the matter between: LORETTA BOTHA Plaintiff vs THE MEC FOR PUBLIC WORKS, ROADS AND TRANSPORT Defendant JUDGMENT ON MERITS TSHIKI J: A) INTRODUCTION [1] Plaintiff herein sues the defendant in her personal capacity as the surviving wife of the deceased as well as in her representative capacity as the mother and natural guardian of her minor child, a boy born on the 2nd June 1997, for loss of support. She claims damages against the defendant for wrongful causing of the death of her deceased husband L. B. B. [2] It is common cause that during his life time, deceased was married to the plaintiff with whom she was married by civil rights on the 1st April 1995. Deceased, 2 therefore, had a legal duty and indeed was supporting the plaintiff and their minor child. [3] At this stage it was agreed by the parties that the merits be separated from the quantum and that the former be dealt with first. The only issue therefore at this stage was whether or not the defendant can be held liable in law for the death of the deceased. [4] During the trial plaintiff was represented by Adv A Beyleveld SC with him Adv Simoyi and the defendant was represented by Adv Scheepers. Later during the trial Adv Scheepers was replaced by Adv Dregde. [5] According to the plaintiff the defendant had a legal duty to take steps to prevent the tree which killed the deceased from remaining on the road. Secondly, whether or not the defendant knew about the existence of the fallen tree and if so, whether defendant ought to have taken steps to prevent the tree from remaining on the road. B) EVIDENCE [6] Plaintiff’s first witness was Braam Kritzinger, a Toyota Motor dealer as well as a forecourt with a fuel outlet. He was in Joubertina on the 2nd August 2006 the date of the accident. He confirmed that it was the time when there were immense storms. According to him there were severe storms during the previous afternoon and on the night in question. He was from fetching one of his pump attendants who were on duty. On the way he met the accident in issue and he stopped his vehicle. He came 3 across the accident before he dropped off his employee. On the scene he found a Toyota Landcruiser bakkie with a man, the deceased, inside. There was a tree through the deceased’s body. According to him the deceased was the driver of the vehicle. Deceased was driving from Kareedouw towards Joubertina direction. There were trees on the road. According to the witness he noticed that some other person tried to cut the trees to clear the one lane of the road. However, one tree was left on the left hand lane. This tree was cut presumably to clear the one side of the road, however, the cut off trunk was in the direction of the incoming traffic. According to the witness this tree must have been blown over by the westerly winds. The witness knows that road very well as he was born in that area but refused to say how long had he been in that area jokingly saying: “it is going to give my age away”. Apart from that tree there were other trees that were on that route having been blown over by the wind. When he saw the accident he stopped to see if they could assist and thereafter they proceeded with their journey. They did not see anyone from the Department of Roads and Works (defendant). He confirmed that it has happened very often before that trees in that area have been blown over and fell on the road. Neither were there signs to warn motorists from Kareedouw’s side of the road not to use the road due to fallen trees. At the scene of the accident he found a Mr De Vos a towing operator together with his workers. Police only came a bit later. [7] During cross-examination he confirmed that on the night in question he travelled extremely cautiously and slowly due to the weather conditions. The tree trunk which injured the deceased Mr Botha was about a metre above the ground. From his observation when the tree in question fell over, it was supported by the side of the road and after it was cut, those who cut it left a piece that was sticking out 4 which is the one that went through the windscreen as depicted in the photographs. He conceded that the Landcruiser which was driven by the deceased was high off the ground and was easily visible. He drove on that road about 23h00 or even later and that he had not ravelled that road earlier that day. For that reason, he could not comment on the nature and position of the road earlier that day. He could not comment on whether earlier the trees were blown over or not. He testified that in the entire Langkloof area trees are often blown over particularly at Louterwater which is about 18 kilometres from where they were and was a tree that had blocked the road but was allegedly subsequently cleared by the people from the Roads Department. He conceded that trees do not fall quite often on the road unless there are severe storms. However, during severe weather conditions one would experience trees blown over and sometimes the road would be blocked. He conceded further that the Roads Department would not close the road unless they become aware of the obstruction in the road. He conceded though that some of the trees he was shown during his evidence in chief in the photographs are on the other side of the fence in other words, outside the road reserve under the jurisdiction of the owners. He also conceded during re-examination that in that weather it would be very difficult to see the tree trunk with no branches. [8] The next witness called was the Road Engineer whose report was later received by the Court as exhibit “A”. His name is Adriaan Olaff Berg. He is an engineer specialising in roads. He went to the scene when the accident involving the deceased in this case occurred with a view to prepare a report. He had assessed the nature of the road and the trees that fell on that night and concluded that the 5 road should have been closed and that preventative measures should have been taken. A letter dated 18th October 2012 was received as exhibit “B”. [9] During cross-examination by Mr Beyleveld the following occurred: the witness could not confirm whether or not the letter exhibit “D” was received by the State Attorney’s office. The witness confirmed that Mr Kaizer never told him that they don’t work overtime but said their practice is that they don’t pay overtime. They work it, but they’ve got a different system on how the employees get compensated. He also conceded that an incident like the one in issue was the first to happen. The witness could not dispute the fact that Mr Gamedi says he went home after 18h00 that night from Misgund. He could also not dispute that the road where the accident occurred is the only access road and there is no other alternative route. The witness could not comment when it was put to him that it was not an unreasonable thing not to close the road but added that the Roads Department could have resorted to many other options eg put a flagman to alert the drivers of the condition of the road. He could also not deny that the Rural Roads Provincial Department does roads inspection every week and that those intervals are not unreasonable. He could also not deny that some of the trees that fell were from other people’s properties and that the defendant department had no right to interfere with those trees by cutting or eliminating them. [10] The next witness was Louis De Villiers a professional engineer specialist in road safety. His report forms part of the documents in the green bundle. His evidence is that he refers to the British system about how to maintain the highway mostly with regard to the way they deal with highway trees. He testified that they 6 can be harmful or dangerous sometimes if not well maintained and managed. Therefore, the trees have to be constantly monitored so that they do not become a danger to people. He was questioned by Mr Beyleveld on both his evidence as well as his report about him being an expert in accident reconstruction. In respect of this case, the witness was unable to give the Court an accurate estimation as to the speed that Mr Botha was travelling on that evening of the accident. He gives the reason that he did not have the date available and therefore there is no evidence to indicate what happened prior to the accident. The witness was referred to trees next to the road which were cut but he could not know when these trees were chopped down. He does not know the speed limit in the area where the accident occurred. A Mr De Vos a towing operator was also called but I will deal with his evidence later.