R40 mln in KZN pothole claims

2008-06-20 00:00

The KwaZulu-Natal provincial government faces R40 million in damages claims arising from potholes.

This emerges from papers served on Pietermaritzburg advocate Allistair McIntosh yesterday, indicating that the province is going to the Constitutional Court in a bid to set aside a recent decision by the Supreme Court of Appeal (SCA), which awarded him the right to claim damages in connection with the severe injuries he suffered in a cycling accident when he swerved to avoid a pothole four years ago.

Premier S’bu Ndebele and Transport MEC Bheki Cele are applying to the Constitutional Court for leave to appeal the SCA ruling.

In the papers, it emerges that the provincial government — which claimed at the time of the civil trial that the transport sector is severely under-funded and a lack of resources is impacting on road maintenance and repair — already faces similar claims arising from potholes, totalling R40 million.

These claims are all said to be awaiting the outcome of McIntosh’s case.

McIntosh sued the premier and transport MEC for R7,6 million in respect of his injuries, but when the matter went on trial in March 2006 the court first had to decide on the issue of liability.

Judge Gregory Kruger ruled that the accident was due to McIntosh’s own negligence, but five Appeal judges ruled in May that the Transport authorities should carry 60% of the blame.

The amount of damages involved would have been the subject of another hearing or settled by agreement.

However, the latest move will further delay the finality of the matter.

Attorney Andile Khoza, who launched the application on behalf of the province for leave to appeal in the Constitutional Court, said in papers that the case raises a number of important legal and constitutional issues.

McIntosh suffered multiple injuries when he fell while cycling along the road between Rosetta and Kamberg on August 21, 2004.

He did so when he swerved to avoid a pothole that SCA judges said had been in existence for “something like a year” before the accident and was allowed to grow to dangerous dimensions.

Judge Douglas Scott and four other judges said officials did not explain why, notwithstanding weekly inspections of the road, it was not repaired. There were also no signs warning of potholes at the time. These were only erected afterwards.

The SCA ruled that the officials whose duty it was to repair the potholes were negligent.

The SCA ruled that McIntosh also had to carry some responsibility, and was negligent, for riding downhill at a speed that left “little room for error”, despite him having seen a smaller pothole in the road earlier, which ought to have “alerted him” to the danger of potholes.

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