A pothole in Kempton Park 14 years ago has come to haunt the Ekurhuleni Municipality after the Gauteng High Court, Johannesburg, ordered it to pay more than R750 000 to a motorbike rider who suffered serious injuries when he drove through the pothole in the road.
Shortly after the accident, Marius Botes said the pothole was covered with water at the time and he had thought that he was driving through a puddle of water.
He claimed more than R1.3-million in damages following the accident which occurred in July 2010 in Kempton Park, when he hit the pothole at night.
His claim covered general damages, past and future hospital expenses and past and future loss of earnings. Botes has died since then and the claim is now pursued by his estate.
At the time of issuing the claim, Botes said that the Ekurhuleni Metropolitan Municipality had a legal duty towards all members of the public to attend to the proper upkeep and maintenance of public roads within the Ekurhuleni Metro area.
He claimed the accident was caused by the sole negligence of the Metro to maintain the road and ensure it was free of dangerous potholes.
The Metro denied that there was a pothole on the stretch of road where the accident took place, but said if the court found that there was indeed a pothole, it must be found that Botes was the author of his own accident.
According to the Metro, Botes should have kept an eye out for potholes and if he did see it, he should have “negotiated his way around it.”
Botes' attorney testified that before his death, Botes told him that he was involved in an accident while returning from the shops, where he had bought something to eat. The accident happened at the corner of Ilex Way and Amarilla Road, approximately 150 metres from his house.
He told his attorney that 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; a punctured lung and broken ribs on one side of his chest.
A family member testified that she saw Botes on the morning after the accident and found him in extreme pain. He said that he had been in an accident the night before, that the motorbike had hit a pothole, and he flew over the handlebars and the bike went over him.
Judge Denise Windell found both witnesses to be credible and had given evidence in a satisfactory manner. Additionally, they corroborated each other on material aspects.
In the absence of any evidence on behalf of the Ekurhuleni Metro, the Judge said, it was irrefutable that the plaintiff was involved in a motorbike accident on July 10, 2010, which resulted in serious injuries.
She added that the evidence of the plaintiff’s witnesses was sufficient to find, on a balance of probabilities, that the accident was caused by a pothole which had been on Ilex Way for some time before the accident occurred.
It was unnecessary to pinpoint the exact pothole the plaintiff struck, as there were three in close proximity.
The judge noted that the Metro’s case was a bare denial of the existence of a pothole and negligence on its part for not fixing it.
The judge said according to evidence, the potholes in Ilex Way had been present for an extended period prior to the accident. Numerous substantial potholes were observed near the site of the accident, as evidenced by pictures which were handed in court.
The potholes were repaired approximately two weeks after the accident.
Judge Windell commented that the Ekurhuleni Metro called no witnesses, nor did it present evidence to show that a lack of financial resources hindered it in the execution of its maintenance duties.
She ordered the Metro to pay Botes (now his estate) R600 000 in general damages and R151 000 towards his past medical expenses.
Pretoria News
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