Council must pay up

The High Court in Pretoria made a settlement agreement an Order of the Court on Tuesday, in terms whereof the Makhado Municipality has to pay a claimant R300 000 plus taxed costs plus the costs of two orthopaedic surgeons, who were called to testify at the insistence of the municipality. The municipality also has to pay its own legal team, all of which could add up to more than R500 000.

The claim stems from injuries that Ms Tefu, a former candidate attorney with the State Attorney’s office, sustained whilst jogging with a friend in Cronjé Street in Makhado (Louis Trichardt) in March 2009. Whilst jogging, she and her friend decided to sprint. It was almost dark and the street lights weren’t working.

As they started to sprint, a dog barked and Ms Tefu took evasive action to the middle of the road. She stepped into a pothole that she couldn’t see and fell down, breaking her leg just below the knee. She was treated by an orthopaedic surgeon of Polokwane and spent six weeks with her leg in plaster, plus a further two weeks in a brace. The local municipality denied all liability, arguing that the incident had never taken place, that there had been no pothole and that Ms Tefu had not broken her leg. They went so far as to state that they did not even have the duty to maintain the streets.

According to Ms Tefu’s attorney, Dr Suwil Rudolph from Van Heerden & Rudolph attorneys, the municipality was invited on several occasions to discuss and settle the claim. The municipality, through its lawyers, refused point blank. Ms Tefu was sent to Dr Prins (another orthopaedic surgeon) for a medical legal report. The medical reports were disclosed to the municipality, as well as summaries of the expert evidence to be led.

The municipality failed to respond to any of the reports or to insist on the examination of Ms Tefu by their own medical experts. This being the case, Dr Rudolph addressed two letters to the municipality’s legal representatives, inviting them to admit the medical reports in order not to call the experts to court and, in so doing, to save thousands of rands in costs. Despite the invitation and not producing its own medical report(s) to contradict that of the plaintiff, the municipality insisted that the experts be called. Dr Rudolph reluctantly had to subpoena both doctors to court, at high cost.

On the day of hearing, counsel for the plaintiff Adv J K Wessels indicated that he was ready to proceed with trial as all his witnesses were present. Counsel for the municipality also indicated his readiness and the case was allocated to Judge Cynthia Pretorius for hearing. Just after the counsellors had introduced themselves to the judge, counsel for the municipality indicated that he wanted to discuss a settlement. This came as a surprise at that late stage, in view of the municipality’s refusal to settle earlier in the process and its insistence that the plaintiff's experts be present in court. “In so doing, the municipality did nothing other than to waste thousands of rands of the taxpayers' money. Had the matter been settled earlier, most of the legal and medical costs could have been saved,” said Dr Rudolph.

The municipality now has until 21 September to pay the capital amount and has to pay the legal costs after taxation. In the meantime, Cronjé Street is still riddled with potholes, not to mention other parts of town. Each pothole holds the risk of further claims against the municipality.

News - Date: 27 August 2012

Anton van Zyl

Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror since 1990. He graduated from the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.

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