JUDGMENT ON MERITS. [1] Plaintiff herein sues the defendant in her personal capacity as the surviving

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1 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 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH In the matter between: NOT REPORTABLE Case no: 2447/2008 Date heard: Date delivered: 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 2 nd 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 1 st April Deceased,

2 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 2 nd 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 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 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 5 road should have been closed and that preventative measures should have been taken. A letter dated 18 th 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 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. [11] After the evidence of this witness the plaintiff closed her case and the defendant opened its case. The first defendant s witness called was Fezile Cornelius Gamedi. At the time of this accident he was working for the Eastern Cape Department of Public Works. He retired in At the time of the accident he was stationed in Kareedouw as a supervisor. He would use an official vehicle GWP452. The 2 nd August 2006 was a rainy day as a result they were going around the camp. In the morning he left his office to Humansdorp at about 10h00 and came back in the afternoon. His supervisor Mr Crouse told him to go to Louterwater 20 kilometres away from Joubertina. He was sent to take a chainsaw to assist the supervisor Mr Silumko in cutting a huge tree which had fallen on the road. One could not drive fast as a result of a lot of water on the road. They arrived in Kareedouw about after 19h00. He refers to the condition of the road as having been very wet. It took them a longer time than usual to reach the place at Kareedouw. According to him water

7 7 was crossing the road. They did not meet any trees lying on the road. He testified that if there were any trees on the road they would have to put warning signs. He denied that they stopped along the road on seeing a tree lying on the road. He did not meet or hear of any accident on the road where the late Mr Botha was killed. What he heard is that at 23h30 police knocked and instructed them to close the road from Kareedouw to Joubertina. The witness informed Court that the chainsaw they were using broke and could not be used to assist them. Upon informing his supervisor the latter instructed him to close that road and put boards on both sides of the road at 15 meters radius distance. There were also policemen who were directing the vehicles and had put 60km speed signs on the road to control the speed limit of the vehicles. After that they assisted another supervisor to remove the branches of the fallen tree. Thereafter they proceeded to Kareedouw where they arrived at about 19-20h00. According to the witness on the road from Joubertina to Kareedouw direction there were no fallen trees lying on the road. Had they met those trees they would put warning signs as they have done to the tree in Joubertina. He denied that they had stopped on the road when they met a tree fallen on or along the road. [12] When questioned by Mr Scheepers he denied that on the road they used there are trees that could fall on the road. However, it was his view that if there is such a tree which could cause a danger on the road, his supervisor would instruct him to remove it. According to him the distance from Joubertina to Kareedouw is 50kms. The tree in respect of which they were asked to assist in Joubertina falls outside their area of jurisdiction. If he sees a tree posing a danger to the public he would simply remove it and he does not have to be told to do so. In his area there

8 8 are no trees posing a danger to the road users. He conceded that due to the rain they had a long journey back to Joubertina from Kareedouw. They had to travel through the water about the hip high and had to drive slowly. However, according to him, it was not the whole road that was full of water. A rivulet which is on the way was overflowing. On that night he did not report to Mr Crouse about the flooding water but police told them that the road should be closed and they did so without having to tell Mr Crouse. When asked why they met overflooding rivulets and water at about 19h00 but they did not close the road immediately but only did so at 23h00, his explanation was that they could not simply close the road unless told by the police. According to him the police always instruct us to close the road. He testified further that they do not interfere with trees which were not in their jurisdiction or those in private property including trees on the other side of the fence. According to him there has never been a big tree as the one in Louterwater that had fallen on their road. [13] Mr Wilson Sigcinile Silumko was called as the next witness. He testified that the first time he knew that the Landcruiser of the deceased had an accident was on the morning of the 3 rd August According to him the trees they chopped on the road between Joubertina and Krakeer were black wattle which were close to the road and it was just small trees. It was trees that had not yet fallen. He testified that when the accident involving the deceased herein occurred he was stationed in Joubertina and was the supervisor in that office. He would report to Mr Crouse his supervisor. He confirmed Mr Gamedi s evidence that they were required by Mr Crouse to attend to a tree in Louterwater. From the work place he did not proceed towards the area of Joubertina. He only did so the following day where he met the

9 9 accident scene involving the deceased where people were working with a white man. They were sawing a tree and he assisted them. He found that the tree was sawed and cut. It was about 09h00 the following day. No one told him that the road between Joubertina and Kareedouw had to be closed. He put about six road signs on that day. According to him they could not close the roads that evening after having finished their jobs. The reason he proffered was because we were very wet and it was knock off time at about 21h00. According to him it is only the supervisor who can approach the owner of the premises where there are trees that can pose a danger to the public. [14] The next witness was Mr Christiaan Crouse. He is employed by the Department of Roads and Public Works since In August 2006 he was a senior foreman of Humansdorp, Kareedouw and Joubertina. Humansdorp fall under his jurisdiction. He confirmed having instructed Gamedi and Silumko to Kareedouw to deal with a tree that had fallen. Gamedi was to bring a chainsaw. He never received a report about a fallen tree outside Joubertina. He heard about the Botha accident the following day on 3 rd August He was never informed by Mr De Vos or any other authority to close the road between Joubertina and Langkloof road on the 2 nd August He never told Mr De Vos that here was a shortage of road signs and therefore he could not assist him. He never discussed anything with Mr De Vos about a fallen tree between Joubertina and on the Kareedouw side. When he drove past the scene of Botha s accident, Mr Silumko was busy removing branches out of the road. During cross-examination he confirmed that his Department never communicated to him any information pertaining to weather warnings which were issued relating to the part of the Eastern Cape Region. Neither did the Municipal

10 10 Disaster Management did so. Nothing was communicated to him by his supervisors about the state of the road about any of the Eastern Cape areas on 2 nd August He never communicated with his colleagues about the road. He would not have recommended immediate closure of the road because the road should always be kept open. He did not have sufficient information for him to recommend closure of the road in that area. The weather conditions that prevailed during that period of 2 nd August 2006 have never happened again. Since then 2006 he has never seen a large tree fallen on or next to the road. C) ISSUES [15] On this note evidence was concluded and the parties then submitted their heads of argument. I will deal with the exhibits and/or documents handed in as at when the need arises. [16] It seems to me that according to the parties the issues to be decided by this Court are the following. [17] The plaintiff s contention regarding the wrongful and negligent conduct of the defendant s employees can, after an analysis of the evidence and what was put to witnesses on behalf of the plaintiff be summarised as follows: [17.1] The duty of care pertaining to the roads including the duty to identify trees outside the road reserve that might fall onto the road when falling over or being blown over. [17.2] The defendant s employees in failure to remove a pine tree (so as to ensure the safety of motorists) that had fallen on to the road from a property not owned by

11 11 the defendant and situated outside the road reserve and obstructing that portion of the R62 under circumstances where the defendant s employees were aware of the existence of the obstructing tree. [17.3] The prevailing circumstances on the afternoon in question of the 2 nd August 2006 necessitated the closure of the R62 road or partially closed, alternatively that warning signs should have been erected to warn motorists of potential danger. [17.4] The failure of the defendant s employees on the night in question, and having regard to the adverse weather conditions, in not timeously closing the road and in particular the R62 between Kareedouw and Joubertina. [18] I will deal with the above issues as I go along in my judgment not necessarily by their order as listed. According to Warrant Officer Malan who attended to the scene of the accident as a detective on standby on the night in question he believed that the branch that stuck through the deceased s car was sawn off by another party before he arrived at the scene. He testified further that the tree was lying across the road at an angle and was protruding into the air. According to him more than one tree was blown over. [19] According to Mr Braam Kritzinger s testimony he has lived the whole of his life in Joubertina area. He has from time to time seen trees falling over on the roads and that it is, although not a common occurrence, but not a totally unfamiliar occurrence. He attended to the scene on that night of the accident and that according to him the conditions on that evening were dangerous. When he attended the scene it was raining heavily and the wind was blowing heavily.

12 12 [20] Both expert witnesses who are civil and road engineers Messrs Adriaan Berg and Mr Louis Roodt were ad idem in emphasizing that: [20.1] It is the duty of the responsible road authority inclusive of taking into account peril that may fall outside of the road reserve and also that prior identification to enable the contingency places to be developed. Mr Roodt s emphasis was that having regard to the prevailing circumstances as well as the weather warnings as well as having regard to invasive tree species, that at the very least an inspection should have been done to decide whether the road should be closed or not. He opined that having regard to the circumstances on the day in question the road ought to have been closed at least for the night until a proper inspection regarding the safety of the road could be made during daylight. According to him as a result of the adverse weather conditions at night time the reflections of tree branches renders it nearly impossible to see it in time in order to avoid a collision. Therefore, in his view, the peril that may fall outside of the road reserve and that prior identification of potential dangers enables the contingency plans to be developed. [20.2] Mr Adriaan Bergh s emphasis was that proper inspections of the road includes the getting out of a vehicle and walking from fence to fence in order to identify any possible hazardous conditions or objects affecting the safety for road users should be considered. This includes identifying trees outside the road reserve which, due to their length, might fall onto the road. Therefore, the necessary steps would be to eradicate such identified trees. His evidence goes to the extent of saying that the correct basis is to record and identify danger to the road users and required maintenance is by preparing a strip map, that would form the basis to consider the amount of budget and time that is needed to effect the necessary repairs. This includes the eradication of the necessary potential peril within and

13 13 outside of the road reserve. His advice which should be done is to perform constant inspections and not to regard the duty to ensure safety in a static manner, but to adapt to changing circumstances. He also is of the firm view that the road in question should have been closed during that night at least until the following day. [21] To show that the area (in which there was rain) where the deceased was killed is characterised by the problem of trees Messrs Gamedi and Silumko were instructed to go to Louterwater to assist another team in chopping down a tree that had fallen over. According to Mr Gamedi this was a huge tree which had fallen over to the extent that they had to place the necessary sign boards in order to warn motorists about the existence of the tree on the road. The saw that had been brought by Gamedi was also broken. It is also important to mention that as a result of the adverse weather conditions that evening, it took them about an hour to arrive at Kareedouw in their 4ton truck. The road was flooded up to hip height of about one meter high. [22] Silumko for reasons not known did not inform his supervisor of the stones that washed onto the road surface and he confirmed that it rained consistently through the course of the day and night. Silumko himself conceded that on the night in question there were adverse weather conditions. He conceded that, although he was not apprised of the stones and soil that had washed onto the road as well as the flooding that occurred on the road between Joubertina and Kareedouw. However, had he been aware of these conditions he would have immediately attended to an inspection of the road in order to assess the safety of the road and would even consider the closure of the road.

14 14 D) REASONS FOR JUDGMENT [23] According to Neethling et al 6 th ed on page the learned authors describe the boni mores criterion as an objective criterion. Therefore, the task of the Judge is to define and interpret the legal convictions of the community in a particular instance, having regard to legal policy, legal rules and Court decisions in which the convictions of the community have found expression in the past. [24] In Minister of Polisie v Ewels 1 Rumpff CJ describes an omission as follows: The stage of development appears to have been reached where an omission is seen as wrongful conduct when the circumstances of the case are such that the omission does not only elicit indignation, but the legal convictions of the community also require the omission to be regarded as wrongful, and the resulting harm to be compensated by the person who omitted to act in a positive manner. [25] In our case we have evidence from witnesses Gamedi and others that on this day there were heavy storms in the area of Kareedouw, Joubertina and even Port Elizabeth. Gamedi put it as follows: It was difficult on that day, because the rain was heavy, you see, and as a result we were just around the camp where we were camping I was told that there was a huge tree which was laying on the road, and then I was asked to go and help that man, to saw that big tree, so big. I have never seen such a big tree like that (3) SA 590 (A) at 597 translated by Neethling et al 6 th ed on page 47

15 15 It is clear from the evidence of Gamedi that the storms were so powerful to the extent that even at that time of the day big trees were already falling. I am mindful of the fact that the weather referred to by Mr Gamedi is not in Joubertina but Kareedouw but to me it is the same area. At about 23h30 they were told by the police to close the road. Mr Gamedi, although he only conceded after some time, he confirmed having also gone to Tsitsikama to cut down young trees to prevent them from falling into the road. Those trees according to Mr Gamedi grow and become tall trees quickly even before one could imagine. From the evidence of Mr Silumko they were never informed that there was also flooding on the road in the area between Joubertina and Kareedouw. They only proceeded to inspect that area on the following day. The reason proffered by Mr Silumko is that they could not proceed to go and inspect the area of Joubertina and Kareedouw because as a result of the heavy rain their clothes were wet. Whenever they see that in any area there is flooding necessitating intervention they put warning signs for the motorists to see that the road is not safe. The reason he proffered for their neglect of closing the road is that it was already knock off time at about 21h00. [26] From the evidence of the defendant s witness it seems to me that they concede the fact that due to the prevailing circumstances there was a need and therefore a legal duty on them to close the road. The reasons which they simply proffer for not closing the road cannot be countenanced at all. It was in fact only closed at about eleven to twelve midnight on the 2 nd August 2006 and not earlier. Police have on occasions came to Mr Gamedi s or Silumko s place to inform them that the road in question or some roads should be closed.

16 16 [27] It is the same area between Kareedouw and Joubertina which had an accident where the deceased was killed by a tree. There is overwhelming evidence that the whole area between Kareedouw area, the Louterwater area and the Joubertina area there were folds and in respect of which there was no action taken by the defendant s employees. All those who testified from Mr Gamedi to Mr Crouse their senior were aware of the nature in which it was raining at the time and should have been aware of the dangers attendant thereto. Had they not have authority to close the road, which I do not believe they do not have, but they failed to seek authority or to advise their supervisors of the need to close the road. Silumko and Gamedi were even aware that in Louterwater a big tree had fallen on the road and an attempt to remove the tree was thwarted by the breakdown of the saw that was used to cut that three. [28] They all had the knowledge of the dangers caused by the tree which fell on the road. It is for the same reason that both Gamedi and Silumko told the Court that on many occasions during their employment they would go and remove trees that were next to the road. To me it does not matter whether the tree is within the road reserve or in the premises of another person. If the tree is situated within the premises of another person s property the fact of the matter is that if it has the potential to fall on the road and thus may injure or even kill the road users it has to be removed and that is the duty of the Department of Public Works and Roads. The officials of the respondent s department have a duty to approach the owner of such tree and request him to have the tree removed. There has not been any evidence to the effect that defendant s employees had made any attempt in that regard. The manner in which on the 2 nd August 2006 the rain was pouring necessitated

17 17 immediate inspection of the road whether at night or during daylight. Their failure to close the road amounted to neglect of their duties which cannot be condoned. [29] We are here dealing with an omission by the defendant s employees at the time of the accident. In the case of an omission a negligent omission is unlawful only if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently causing harm 2. [30] However, the Court will not readily assume that the omission will simply attract liability but will do so only if the omission was also culpable as determined by the application of the separate test applied in Kruger v Coetzee 3. In that case Holmes JA state at 430 E-F: For the purposes of liability culpa arises if - (a) a diligent paterfamilias in the position of the defendant - (i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and (ii) would take reasonable steps to guard against such occurrence; and (b) the defendant failed to take such steps. [31] Mr Beyleveld SC who appeared for the defendant has submitted that on the evidence, the plaintiff could not discharge the onus of proving that the defendant was aware of the tree lying in the road which eventually caused the unfortunate death of the deceased. It seems to me that from the evidence it has been shown that the rain that was pouring on the 2 nd August 2006 covered the great area inclusive of 2 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 441 para [12] (2) SA 428 (A) at 430 E-F

18 18 Joubertina, Kareedouw, Louterwater and other surrounding areas. This fact is confirmed by the evidence of the defendants. This cannot be successfully refuted by the defendant in the light of the evidence before Court. Therefore, if that is the case the defendant s employees should have closed all the roads leading to the place where trees had fallen. This should have been done before darkness came. The fact that other roads were closed shows that there was a necessity to do so earlier than it was done by the defendant s employees. The legal duty to do so though, lies with the defendant s department. It could not take the defendant s employees any effort to go and inspect the road and then as the circumstances were compelling, they instructed that the road be closed. It is surprising me that no one from the defendant s department had initiated the closure of the road. I say so because it appears from the evidence of the expert engineers who testified that this was the duty of the defendant s department. [32] It is also clear that defendant s employees, even if they had previously made attempts to cut or remove the dangerous trees, they had failed to do so frequently or as the circumstances demand. This was in fact an omission on their part because it is clear from the evidence that these trees had to be frequently cut or removed for the safety of the public. The safety of the motorists is the most important factor more than keeping the roads open in circumstances where the motorists are exposed to a real danger if the road remains open. [33] It is evident from the evidence led in this case that the omission by the defendant s employees to take preventative action must of necessity result in the wrongful conduct of the defendant causing loss to the plaintiff. This would obviously

19 19 call for a sensible retrospective analysis of what would probably have occurred if a hypothetical course of lawful conduct (instead of the wrongful conduct) had been pursued, based upon the evidence and on what could be expected to occur in the ordinary course of human affairs. A plaintiff is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss. This calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than an exercise in metaphysics 4. [34] In my view, even the two elements of causation being factual and legal causation have been established herein. Factual causation can be said to relate to the factual link between the defendant s conduct and the detrimental consequence suffered by the plaintiff herein. If the factual causation is proved the next enquiry is whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether the loss is too remote 5. [35] Mr Beyleveld has submitted that the only evidence which potentially supports the plaintiff s averment that the defendant was aware of the fallen tree is the evidence of Mr De Vos. His view is that De Vos s evidence is of inferior quality which at times is contradictory and improbable. He has submitted that De Vos s evidence should be ignored as neutral. 4 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 439 at 449 para [25] 5 International Shipping Co (Pty) Ltd v Bently 1990 (1) SA 680 (A)

20 20 [36] Mr De Vos s evidence confirms the evidence of other witnesses including those who testified for the defendant in that in the whole area from Kareedouw to Joubertina it was raining heavily and trees were on the road. He was requested by a Mr Strydom of the defendant s department to go and assist in the removal of the trees on the road and he agreed. When he got to the scene the employees of the roads department refused to allow his people to remove the trees, indicating that they would do the job themselves. He then left and informed Strydom about this response. He phoned Mr Chris Crouse to have the road ie the Langkloof road, closed due to potential danger as a result of the situation. He also phoned Mr Henk De Vos the station commander of Kareedouw to arrange to close the road due to a potential danger caused as a result of the rain and wind which caused trees to fall on the road. Later in the evening he was informed about the serious accident where the deceased had died. [37] I do not agree with Mr Beyleveld that the evidence of Mr De Vos is of inferior quality. I have no reason not to accept it. It is in fact supported by the probabilities of the case. I refer here to the fact that the tree that collided with the deceased was already cut by a saw when the accident occurred. His evidence also confirms that the defendant s employees were at the scene of accident and they knew about the tree. His evidence is that the tree stems were removed as a result of the tree falling on the road. [38] It follows from the evidence of Mr De Vos that the situation of the road in the area where the accident occurred necessitated an urgent call to have the road closed. This was not done by the Department of Roads and Works in that area at all

21 21 let alone before the accident occurred. The manner in which the defendant s employees approached the whole scenario on the date in question shows clearly that they omitted to take the appropriate action at the appropriate time in circumstances where the legal convictions of the community required them to do so.. Evidence shows that had they acted immediately by closing the road the death of the deceased would probably have been averted. As early as in the afternoon of the 2 nd August 2006 there was a necessity for the defendant s employees to act with a view to avert the danger that was looming. They failed to do so until the deceased met his death. The lives of the road users on this day were at risk of danger which should have been prevented. [39] Where there is a potential threat of the kind that is now in issue the constitutionally protected rights to human dignity, to life and to security of the person are placed in peril and the state, represented by its officials, has a constitutional duty to protect them. It might be that in some cases the need for effective government, or some other constitutional norm or consideration of public policy, will outweigh accountability in the process of balancing the various interests that are to be taken into account in determining whether action should be allowed. [40] In Minister of Finance & Others v Gore NO 6 Cameron JA et Brad JA said: Application of the 'but for' test is not based on mathematics, pure science or philosophy. It is a matter of common sense, based on the practical way in which the ordinary person's mind works against the background of everyday-life experiences. Or, as was pointed out in similar vein by Nugent JA in Minister of Safety and Security v Van Duivenboden: (1) SA 111 (SCA) para [33]

22 22 'A plaintiff is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than metaphysics.' [41] In my view, on the facts of this case it is clear that the defendant s employees failed to prevent harm to the plaintiff when they should have done so. Their omission was not only negligent but also wrongful and was the factual cause of the plaintiff s loss. The main cause of the conduct of the defendant being the failure to, firstly to maintain the road by removing the trees that constantly grow and cause a potential danger to the road users coupled with the defendant s failure to close the road in time before the accident which killed the deceased occurred. E) CONCLUSION [42] In the result, the defendant is liable to pay the plaintiff her proved damages. There being no evidence of any contributory negligence on the part of the deceased, defendant is liable to pay 100% of the proved damages. Defendant is therefore, ordered to pay 100% of the plaintiff s proven damages together with costs including the costs of all expert witnesses on whom notice was given in terms of Rule 39(a) and (b). P.W. TSHIKI JUDGE OF THE HIGH COURT Counsel for the plaintiff : Adv A Beyleveld SC with him Adv Simoyi Instructed by : De Villiers & Partners PORT ELIZABETH Ref no: E de Villiers/AV

23 23 Tel no: Counsel for the defendant : Adv Scheepers, later replaced by Adv Dredge Instructed by : The State Attorneys PORT ELIZABETH Ref no: 1714/2007/C Tel no: