Pothole injury: KZN must pay

2013-05-14 00:00

NINE years after losing her hand and part of her arm in a collision caused allegedly by a massive pothole in northern KwaZulu-Natal, a Tugela Ferry widow is still waiting to see if she will be compensated by the province.

Yesterday, the KZN premier and MEC for Transport failed in a bid to overturn an earlier court ruling that they are liable to pay 100% of any proven damages suffered by the widow, Hluphile Elda Zuma.

They asked for leave to appeal the ruling before a full bench of the KZN High Court, but the application was dismissed by retired Judge Jan Combrink.

They still have the option of petitioning the Supreme Court of Appeal for leave to appeal.

Judge Combrink yesterday found that no other court was likely to overturn his ruling that the province is liable for the accident and injuries caused to Zuma in 2004.

Zuma was a passenger in a taxi that crashed on the main road between Greytown and Dundee.

The accident happened when the taxi was forced to veer into oncoming traffic to avoid a pothole, and then had to swerve back and drive into it to avert a head-on collision with an oncoming vehicle. The taxi then overturned and smashed into rocks.

Combrink said the submissions raised on behalf of the province by advocate Griffiths Madonsela yesterday were not new.

In essence, he had challenged the court’s findings about the credibility of witnesses as well as the factual findings arrived at by the trial court.

But Combrink said he had revisited his judgment in the case and found he had given full reasons for his conclusions.

“I am quite unpersuaded that another court will take a different view,” he said.

In his judgment, handed down last December, the judge accepted evidence that the pothole was nine metres long, 2,5 metres wide and about 25 centimetres deep.

Motorists were compelled to drive on the opposite side of the road to avoid going through the pothole.

The pothole was on a busy “provincial and tourist” road, the R33 linking Pietermaritzburg (through Greytown, Tugela Ferry and Pomeroy) to Dundee and Vryheid. It also leads to the historical battlefields in KZN.

The judge ruled that the taxi driver, Zamani Langa, was also negligent for failing to slow down when he approached the pothole.

But, he said, Zuma had chosen to sue only the premier and Transport Department for her damages and they were ordered to pay those to her in full.

The province could then try to recover a “proportional contribution” to them amounting to 30% of the damages proved.

It emerged yesterday, however, that both Langa and the former owner of the taxi, a Mr Sithole, have died.

In his evidence at the trial, Langa said he knew the pothole well because it had been there for about a year.

As he approached it, he said, he moved to the opposite side of the road to avoid going through it. However, a bakkie emerged from around a bend in front “at great speed” and he was forced to return to his side of the road and hit the pothole, affecting the steering.

Combrink ruled that the province had had sufficient funds available to repair the road and was negligent in not having done so.

• ingrido@witness.co.za

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