In a landmark ruling with far-reaching implications for road safety and state accountability, the Supreme Court of Appeal (SCA) has granted Martha Johanna Petronella Rossouw the right to sue the Free State government for damages arising from a fatal pothole-related crash, despite a seven-year delay in serving the required legal notice.
The decision made on Tuesday overturns previous decisions by the Free State High Court and its full court, which had denied Rossouw the chance to explain why she submitted her legal notice late, as required by the Institution of Legal Proceedings against Certain Organs of State Act.
The case stems from a tragic accident on May 29, 2011, in which Rossouw’s husband, Marthinus Lucas Rossouw, died in the crash after losing control of his vehicle while travelling on one of the Free State roads. In her claim, Rossouw alleged that the cause of the collision was the “poor, uneven state of the road”, in particular, the presence of potholes and the absence of any warning signs for road users.
The legal battle revolved around whether Rossouw could be granted condonation for serving the required statutory notice on Free State Police, Roads and Transport MEC Jabu Mbalula only in December 2018 – more than seven years after the six-month statutory deadline had expired.
In a majority judgment penned by Judge Tati Makgoka, with judges Yvonne Mbatha and Sharise Weiner concurring, the SCA found that the lower courts had erred in their approach. The SCA emphasized that the interests of the couple’s two minor children, who were four years and six months old at the time of their father’s death, were para-mount.
“The high court tied up the children’s interests to the applicant and treated them not as ‘individual right-bearers’ but as ‘mere extensions of the applicant’,” Makgoka stated in the judgment.
The SCA further found that the MEC had failed to demonstrate “unreasonable prejudice”– a key requirement for refusing condonation. The MEC’s claims of potential prejudice were dismissed as speculative.
“The MEC speculates about prejudice as she uses ‘could’ and ‘may’. The prejudice envisaged in s3(4) of the act must be real or actual, not speculative,” the judgment noted.
The SCA also criticised the high court for being too strict when looking at the chances of success in the main claim, saying it treated the applicant’s evidence “like it was in a trial court” instead of using the easier standard needed at the condonation stage.
The ruling paves the way for Rossouw to proceed with her claim for damages for loss of support on behalf of her children. In her court papers, she relied on a police report, photographs and an engineer’s report, which indicated the presence of potholes on the road where the crash occurred.
The high court judgment, penned by acting judge Lebogang Modiba, would have dismissed the application, finding the delay “extreme” and the explanation for it unreasonable.
The SCA, however, concluded that the constitutional rights of the children to have their claim heard outweighed the procedural delays.
“They must be given an opportunity to have their case against the MEC decided in a fair and public hearing,” Makgoka concluded.
The SCA ordered the MEC to pay the costs of the application, including the costs of two counsel. The ruling sets a significant precedent, strengthening the ability of citizens to hold provincial governments accountable for negligent road maintenance, even where there have been substantial delays in initiating legal action.
Last week, Sunday World reported that ANC Free State secretary Polediso “Dihelele” Motsoeneng wrecked his R3.2-million Range Rover SUV last Monday night when his vehicle crashed.
