The Polokwane High Court rejected the defence by the city’s municipality that “an act of God” caused a branch to fall on a car parked in a street and that it is thus not liable for the damages.
The owner of the damaged Toyota Quantum turned to the court after the Polokwane Local Municipality refused to pay for the damages he had suffered when his car was damaged by the branch.
Owner Makgwathanda Kgadi blamed the municipality for the incident and argued that the municipality should have pruned the trees in the public street where he had parked. The municipality, on the other hand, claimed a huge storm caused the branch to fall onto the car.
According to Kgadi, the municipality was negligent as it failed to inspect, maintain, prune, or remove trees or branches which posed a danger to members of the public and their property. But the municipality maintained that it could not have foreseen the unusually severe thunderstorm which, according to it, constituted an act of God and was therefore beyond its control.
According to Kgadi, the municipality, through its Department of Parks and Open Spaces, bore responsibility for the inspection and maintenance of trees within its municipal area. He testified that on the morning of the incident, he parked the Toyota Quantum in a demarcated parking bay in Thabo Mbeki Street. While outside the vehicle, he heard a cracking sound and saw a branch fall onto the vehicle.
His evidence was that there was no rain or thunderstorm at the time of the incident. He maintained that the incident occurred during the morning and not the afternoon, when there was actually a storm.
He also relied on the evidence that the municipality had previously inspected trees in the relevant area and that its own inspection records reflected that pruning was required. According to him, the municipality failed to prove that the required pruning was ever carried out before the incident occurred.
An employee of the municipality testified that the latter conducts routine inspections of trees and attends to complaints from the public relating to trees or vegetation which pose a danger or nuisance. But, he said, on the day of the incident, an unusually severe thunderstorm occurred and several of the trees in Polokwane were damaged or uprooted as a result.
However, under cross-examination, he accepted that the thunderstorm occurred after lunch, whereas Kgadi’s version was that the incident occurred during the morning.
The court commented that the municipality’s version presented a material difficulty, as its own witness placed the thunderstorm in the afternoon. Acting Judge LB Maphelela said he was not persuaded that the thunderstorm relied upon by the municipality was the operative cause of the damage to the vehicle.
The judge noted that this matter is not one in which the plaintiff seeks to impose an unlimited duty upon the municipality to guarantee the safety of every tree at all times. The duty contended for is narrower. It is that where the municipality is responsible for trees in public streets, and where a tree or branch requiring attention is identified, the municipality must take reasonable steps to prevent foreseeable harm.
“In my view, the law recognises a legal duty in these circumstances. A municipality responsible for public spaces used by motorists and pedestrians must act reasonably once a risk associated with a tree or branch is identified,” the judge said in holding the municipality 100% liable for the damages.
In dismissing the defence that the damage was due to “an act of God,” the judge remarked that this defence is available where the event relied upon is extraordinary, unforeseeable, and the true cause of the damage. He said a defendant cannot hide behind this defence where its own negligence significantly contributed to the harm”.
zelda.venter@inl.co.za
