South African courts are increasingly holding road authorities liable for substantial damages arising from serious accidents caused by poor road maintenance. In some cases, however, courts will attribute contributory negligence to drivers, particularly where they were aware of the condition of the road on which they were travelling.
In Mofoka v MEC: Department of Roads and Public Works, Northern Cape, the Northern Cape High Court was required to determine whether the MEC, as the authority responsible for the R31 provincial route, should be held liable for a serious accident caused by a large pothole, and whether the driver bore any responsibility for the incident. The court found that the MEC was primarily at fault for failing to repair the road or warn motorists of its dangerous condition. At the same time, it held that the driver was partly to blame for travelling at an excessive speed on a road he knew was in poor condition. Liability was accordingly apportioned at 80 percent to the MEC and 20 percent to the driver. The accident occurred in February 2012. The driver, a member of the South African National Defence Force, was driving an official vehicle with another officer as a passenger. They were travelling to Kimberley for a work-related meeting. The section of the R31 they used had been deteriorating for several years due to heavy truck traffic and weather-related damage. While travelling along this stretch, the vehicle struck a large pothole, described as an edgebreak, which caused the tyres to burst. The vehicle subsequently left the road and rolled several times. The driver sustained severe injuries that left him paralysed and, following his death, his estate continued with the legal proceedings.
The evidence showed that both occupants of the vehicle were familiar with the road and aware that it was uneven and unsafe in parts. They attempted to adjust their speed according to the condition of the road surface but were under pressure to reach Kimberley on time. As a result, while they slowed down on visibly damaged sections, they increased speed on stretches that appeared to be in better condition. This context assisted the court in understanding how the driver reached a speed of around 110 km/h before encountering the pothole.
A police officer who arrived on the scene shortly after the accident provided important evidence. He compiled a sketch plan and took measurements, which showed that tyre marks only began at the point of impact with the pothole. This indicated that the vehicle did not lose control before the pothole, but rather as a result of it. The officer also observed that the road surface was broken in several places and that there were no warning signs alerting motorists to hazards ahead. A local farmer who regularly used the road corroborated this evidence, confirming that the stretch had been unsafe for several years and that other accidents had occurred there. This reinforced the seriousness of the road’s condition and the MEC's failure to repair it or to warn motorists of the danger by installing signs.
Expert evidence added further technical detail. A road maintenance expert testified that the edgebreak was severe and posed a clear danger to road users. He explained that a significant portion of the lane had broken away and that the MEC’s department should either have repaired the defect promptly or installed adequate warning signs to enable motorists to reduce speed. The accident reconstruction expert called by the defence confirmed, based on the police measurements, that the vehicle most likely lost control after striking the pothole. While there was disagreement regarding the precise speed of the vehicle, the court placed limited reliance on the disputed calculations and focused instead on whether the speed was appropriate given the prevailing the road conditions.
The court concluded that the MEC owed a duty to maintain the R31 in a reasonably safe condition or, where repairs were not immediately feasible, to warn motorists of known hazards. The MEC failed to meet this duty. However, given that the driver was aware of the poor condition of the road and nevertheless travelled at a speed that was unsafe for that environment, he was also found to bear some responsibility. The court therefore apportioned liability by attributing 80 percent of the fault to the MEC and 20 percent to the driver. The MEC was ordered to pay 80 percent of the proven damages and costs, with certain earlier cost issues left for the later hearing on the amount of compensation.
