Driving on South African roads often feels like a constant game of dodging potholes. When that game turns catastrophic, the question that arises is who bears the duty of reasonable steps to prevent such harm? The issue extends beyond inconvenience and carries serious legal and financial consequences. The recent judgment in
Van Staden v Department of Infrastructure (20111/2012) [2026] ZAWCHC 292 (8 June 2026) highlights this reality.
On 1 January 2012, the claimant was riding his motorcycle on the main road between Blanco and George Airport when he struck a pothole. He lost control of the motorcycle and sustained severe injuries, which ultimately resulted in the amputation of his leg. He instituted legal proceedings against the Department of Infrastructure, Western Cape, seeking damages for the injuries he sustained. The Department acknowledged that it owed a duty of care to maintain public roads but denied negligence.
The questions before the court were whether the Department had breached its legal duty of care and whether that breach gave rise to delictual liability. In particular, the court had to determine whether the Department knew, or ought reasonably to have known, about the dangerous condition of the road.
The court held that the Department had constructive notice of the pothole, meaning that it should reasonably have known about the defect even without a formal complaint. The pothole's size and prolonged existence made it impossible for a diligent authority to miss. This is significant because it extends liability to defects that are objectively obvious and detectable through proper systems.
The court found that the Department had a positive legal duty to maintain public roads in a reasonably safe condition and that its failure to repair the pothole, or to warn road users of its existence, constituted wrongful omission. Expert evidence demonstrated that the pothole had existed for several weeks, was large enough to be classified as a severe hazard and could not reasonably have gone undetected by a diligent authority.
The Department's defence was undermined by deficient record keeping and inadequate inspection protocols. Liability extends beyond repairing defects to include ensuring that detection systems are accurate, reliable, and properly implemented.
This judgment, which forms part of a long line of South African case law on "pothole cases" claims against state entities, reinforces that delictual liability in road maintenance cases is rooted not only in direct negligence but extends to systemic failures in maintenance and oversight. Constructive notice significantly broadens the scope of responsibility, as authorities may be held liable even without formal complaints. The judgment underscores that the duty of care requires both proactive detection and timely repair of hazards.
