What Happens When the Cracks start to Show

Our roads are deteriorating at an alarming pace. Potholes appear overnight, while warning signs disappear.

Consequently, what was once a safe route can quickly become hazardous. Unfortunately the reality is that not every dangerous condition translates into liability for the responsible party, which is this case would be the relevant municipality or road’s authority. A critical question remains: did the authority know, or should it reasonably have known about the danger, and have a reasonable opportunity to rectify the dangerous situation?

This issue was central in Mofoka v MEC Department of Roads and Public Works, Northern Cape and reflects a well-established principle in our law of delict: you cannot be expected to fix what you could not reasonably have known about. Mofoka was driving a military vehicle at a high speed when he hit a pothole leading to an accident that claimed his life. 

Our courts have consistently held that foreseeability and knowledge are key components in determining whether a legal duty arises. In Kruger v Coetzee, the Appellate Division confirmed that negligence depends on whether a reasonable person would have foreseen the reasonable possibility of harm and taken steps to prevent it. Foreseeability, in turn, presupposes some form of knowledge, be it actual or constructive knowledge of the risk.

This principle has been applied repeatedly in cases involving public authorities and road conditions. In Cape Town Municipality v Bakkerud, the Supreme Court of Appeal (SCA) held that a municipality is not an insurer of the safety of all road users. Liability depends on whether the authority knew or ought to have known of the defect and failed to act within a reasonable time. Similarly, in Gouda Boerdery BK v Transnet, the SCA again stressed that liability for omissions requires proof that the defendant had knowledge of the risk and a reasonable opportunity to take preventive steps.  In the absence of such knowledge, the city could not reasonably have been expected to repair the defect. However, it is worth noting that while a municipality may escape liability for a truly sudden defect, it cannot rely on ignorance where inadequate systems prevent it from becoming aware of deteriorating road conditions.

The SCA has reinforced this approach in the context of state liability. In Minister of Safety and Security v Van Duivenboden, this court held that while the State may bear a heightened duty to protect the public, liability for omissions still depends on whether the harm was reasonably foreseeable and preventable, having regard to what the State knew or ought to have known. The courts have therefore drawn a clear line: public authorities are not strictly liable for every defect. The enquiry remains fact-specific, and centred on knowledge, foreseeability, and reasonableness.

Against this backdrop, Mofoka v MEC for Roads and Transport confirms that a claimant must establish more than the mere existence of a dangerous road condition.  Based on police and expert evidence, the pothole was found to have materially caused the accident despite the high speed the Mofoka was travelling with thus holding the state 80% liable. The court further reaffirmed that the plaintiff must show that the relevant authority had actual or constructive knowledge of the defect, had a reasonable opportunity to repair or warn, and failed to take reasonable steps in the circumstances. Absent proof of knowledge, the law does not impose liability simply because harm occurred. This reflects a pragmatic balance between protecting road users and recognising the operational realities faced by road authorities.

An important dimension of this enquiry is the distinction between actual and constructive knowledge. The court in Mafoka did not treat liability as dependent on proof that the pothole had been formally reported to the road’s authority. Instead, it approached the issue through the lens of the authority’s ongoing duty to reasonably monitor, inspect and maintain the road network. On the evidence, the deteriorating condition of the road over time, the nature of the traffic on the route, the absence of warning signage, and the increase in accidents on that specific stretch of the road were sufficient to found constructive knowledge. The judgment therefore confirms that liability may arise not only where a defect is expressly reported, but also where the authority, exercising reasonable diligence, ought to have been aware of the risk and failed to repair or warn.

While formal reporting is not a prerequisite for liability, it remains operationally significant in practice. Road authorities often become aware of specific incidents when claims are lodged. Effective collaboration between road authorities, law enforcement and insurers remains limited but is essential in managing liability exposure. Early notification, shared access to complaint and maintenance records, and coordinated evidence preservation materially improve the prospects of mounting a coherent defence or making informed decisions on liability and quantum.

Courts have recognised that municipalities operate under resource constraints. However, as confirmed in the Cape Metropolitan Council v Graham, this discretion is not absolute. Where evidence shows prolonged neglect, poor systems, or failure to take basic preventative measures, courts will not allow resource constraints to serve as a blanket defence.

From a defence and insurance perspective, Mofoka underscores that liability often turns less on the mere existence of a pothole and more on whether the authority can demonstrate:

• functional systems for receiving and recording public reports of road defects;
• routine inspections of deteriorating road surfaces;
• reasonable prioritisation and timing of repairs; and 
• interim risk mitigation, such as warning signage.

However, this raises key questions for insurers and underwriters when providing cover for such risks:

As South Africa’s roads continue to deteriorate, litigation in this area is likely to increase. But Mofoka confirms that liability is not automatic. Ultimately, our courts still ask one simple but decisive question: did the authority know, or should it reasonably have known, and did it act reasonably…?