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A visit to a fishing lodge in the Okavango Delta in 2001 ended very badly for a 70-year old man that a High Court judgement by Justice Ian Kirby only refers to as Petersen. In the evening, as he made his way to the guests’ dining area over a raised wooden walkway, Petersen fell 1.5 metres to the ground below and sustained serious injuries. The injuries were so bad that he had to be airlifted to hospital the following morning. He sued the lodge on grounds that his fall had been caused by the sole negligence of management. His case was that the lodge owed him a duty of care and that such duty had breached by not installing rails on both sides of the walkway for the safety of the guests.
While Petersen won the case, Kirby also found that his own negligence had contributed to the accident.
“Taking all the circumstances into account, I hold that it is just and equitable that his recoverable damages should for this reason be reduced by 20 per cent, leaving him to recover 80 per cent of the damages to be agreed or subsequently adjudged to have been occasioned by the injuries which resulted from his fall,” Kirby’s judgement says.
Petersen v ANSYL (Pty) Ltd (which is available online) is another one of those cases that attracted neither media nor public attention but should have. Sunday Standard itself comes to learn of it courtesy of Professor Tachilisa Balule who teaches law at the University of Botswana. The latter case was predicated on the Law of Delict - which Balule teaches, and the broader context of his analysis of this area relates to bad roads which are so ubiquitous in Botswana. Potholes are of particular concern and thus a major focus of Balule’s analysis of the law of delict.
Road management in Botswana is such that the central government, being the Department of Roads, owns and maintains major roads (called primary and secondary roads) while local government authorities do the same with local roads – called access and tertiary roads. On such basis, is the government (at both central and local level) liable for damage and injury that may arise from using its roads?
“Yes there could be liability in the Law of Delict for central or local government for damages caused by potholes,” says Balule, adding that such liability will arise from an omission on the part of a controlling authority to maintain a road, subsequently leading to the vehicles of road users being damaged. “Generally, there is no liability for an omission in the Law of Delict; however, there will be liability where the court makes a determination that an authority was under a duty to act.”
The issue then becomes when does a road authority have the duty to act? The first scenario that Balule outlines is one where one has, by prior conduct, created a potentially dangerous situation and subsequently failed to take appropriate steps to eliminate such danger. He says that in the case of roads, the prior conduct on the part of the authority will be the construction of the road, which with time and due to wear and tear, develops potholes which create a new source of danger.
“The authority then comes under a duty to repair the potholes,” Balule says.
Scenario Two relates to control of a dangerous object, which unless due care is taken, may cause damage. Someone with duty of care then fails to take steps to guard against the possibility of harm occurring.
“It could be argued that a road with potholes is a dangerous object under the control of the authority, which is under a duty to take steps to repair the road,” Balule says.
As he notes, the two principles he outlines were decisive in Kirby’s judgement in the Petersen v ANSYL (Pty) Ltd case. The legal game is a long one and mere encounter with a pothole on the Nelson Mandela Road is no cast-iron guarantee that the Gaborone City Council will pay up. According to Balule, “it must be proved that the failure of the authority to maintain the road was through negligence or was intentional.”
All too often, roads develop potholes because they were not properly designed and constructed in the first place. “Provided all the elements of the delict are established”, delictual duty also extends to those who designed and constructed structurally infirm roads. All told, there are five such elements: positive act or omission, wrongfulness, fault, harm-conduct causality as well as conduct-damage causality. The “causality” terms are the writer’s own and not standard legal constructions.
Positive act refers to action that leads to legal injury while omission (or negative act) means neglect of duty; wrongfulness is conduct that infringes upon a person’s legally recognised interests such as damage to property; fault is when the person whose conduct caused the harm acted with either intention or negligence; harm-conduct causality is a close relationship between the harm suffered and the conduct of the defendant; and conduct-damage causality is when the conduct led to damages suffered.
There is this peculiar situation in Botswana where pothole warning signs randomly appear and disappear even as the potholes grow in size. Balule says that road authorities have legal duty to warn the public of the existence of potholes.
“If they fail to do so, it will be an omission,” he says.
Interestingly, while Botswana motorists have to grin and bear damage to their vehicles from potholes, the situation is different across the border in South Africa. Numerous claims have been made against road authorities and anxious to avoid legal precedents, most road authorities have made out-of-court settlements. In a majority of cases that went to court, verdicts were mostly in favour of the claimants. As Professor Balule states, both Botswana and South Africa’s law of delict is based on Roman-Dutch common law. However, far from creating certainty, that condition creates only possibility.
“Cases decided by South African courts are not binding on courts in Botswana but they carry a very high persuasive value,” Balule says.
A government lawyer says that mounting legal challenge would necessarily require the involvement of traffic police. The latter would take the form of reporting a traffic mishap (say pothole damage) to the police, getting them to attend the scene and issue a report that will serve as evidence in court. Balule hazards the guess that the reason why road users in Botswana hardly sue road authorities could be due to ignorance of the law. Interestingly, UB churns out graduates who are thoroughly schooled in the Law of Delict.
Botswana public roads face the challenge they do even as the country remains committed to the World Health Organization (WHO) goal of safe roads. In 2010, WHO declared the Decade of Action for Road Safety 2011–2020 to reduce road fatalities through adequate road safety engineering. The Decade of Action is built on five pillars: Road Safety Management, Safer Roads and Mobility, Safer Vehicles, Safer Road Users and Post-Crash Responses. The Safer Roads and Mobility pillar requires road authorities to implement a road development plan “that requires that systematic attention be paid to upgrading the road infrastructure and signage on the basis of continuous audits of hazardous locations and accident red spots.''