The South Gauteng High Court in Johannesburg has ordered the City of Ekurhuleni to pay over half a million rand in damages to the family of Marius Christiaan Botes, who was injured and later died after hitting a pothole with his motorbike in Kempton Park in July 2010.
In August 2011, he issued the municipality with summons claiming over R1.3 million in damages.
However, in February 2012, he passed away and was replaced by the executor of his estate.
In the summons, Botes argued that the municipality had a duty to maintain public roads properly. He claimed that the incident was a direct result of the municipality’s breach of this duty and negligence.
In its defence, the municipality disputed the existence of a pothole at the time of the accident. It stated that it had no knowledge of the date of the accident or particulars of the vehicle Botes was driving.
However, the municipality admitted that it was under a duty to attend to the proper upkeep and maintenance of roads situated within its area of jurisdiction. But it denied that the accident was caused by a pothole as it was only formed three months after the accident, in October 2010.
The municipality further contended that if the court determined that the pothole existed in July 2010 and caused the accident, Botes was negligent. They argued that he failed to keep a proper lookout, did not safely navigate around the pothole, and was travelling at an excessive speed.
The court read notes that Botes provided before his death, he said it was raining, and the pothole was not visible as it was filled with rainwater. More specifically, the pothole looked to him like a dam of water.
According to the notes, he suffered an ankle fracture, a shoulder fracture; puncture of his lung and all the ribs were broken on the one side of his chest and was was unable to sleep or work as a result of the injuries sustained during the accident.
The court heard that when he was discharged from hospital after two weeks, he was still in extreme pain and his condition deteriorated and he was taken back to a different hospital and was kept there for a month.
His daughter-in-law testified that she had to provide him with assistance in bathing, dressing, walking and using the toilet. He was prescribed permanent medication to manage his discomfort and was unable to return to work due to his injuries.
She also testified about the pain and suffering he endured for an extended period before his passing.
Judge Leonie Windell said even though the municipality denied the existence of a pothole where the accident occurred, there were photographs showing that potholes have been present for an extended period prior to the accident.
Judge Windell said Botes also contributed 20% to the accident because the potholes were located 150 meters away from his house and he should have been aware of the potholes and taken steps to avoid them, especially driving at night in the rain.
She the municipality will cover 80% of the damages and ordered it to pay R600,000 for general damages and R151,000 for medical and hospital expenses.
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