THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 602/04

In the matter between:

THE MINISTER OF TRANSPORT NO

1ST APPELLANT

TOLL ROAD CONCESSIONARIES
(PTY) LTD

2ND APPELLANT

and

D DU TOIT

1ST RESPONDENT

J L DU TOIT

2ND RESPONDENT
________________________________________________________________

Coram

:
SCOTT,  STREICHER, CAMERON, NAVSA

et  LEWIS JJA
Date of hearing
:
16 March 2006
Date of delivery
:
29 March 2006

Summary:  Driver mistakenly leaving freeway and driving through a ‘T’
intersection at the end of off-ramp – inadequate road signs – party
responsible for signage liable for contributory negligence

Neutral citation: This judgment may be referred to as Minister of Transport
v Du Toit [2006] SCA  40  (RSA)
_______________________________________________________
JUDGMENT
_______________________________________________________

SCOTT JA/…

SCOTT JA:

[1] The first respondent (to whom I shall refer as the plaintiff) was seriously
injured when on 27 September 1995 a motor vehicle in which she was a
passenger left the road and, after going over the edge of an embankment, landed
in the veld. The driver was the plaintiff’s husband. The incident occurred in the
vicinity of the Grasmere toll gate on the National Road (the N1) south of
Johannesburg. The plaintiff instituted an action for damages against the South
African Roads Board alleging that it was the authority that was authorised and
obliged inter alia to erect and maintain facilities, including road signs, for the
convenience and safety of road users and that the accident had occurred in
consequence of its negligent failure to erect and maintain adequate road signs.

[2] Subsequent to the commencement of proceedings the Minister of
Transport (the first appellant) became the legal successor to the Roads Board
and was substituted as the defendant. The latter joined a company, Toll Road
Concessionaries (Pty) Ltd (‘Tolcon’) as the first third party (now the second
appellant) and the plaintiff’s husband as the second third party (now the second
respondent). The first appellant alleged that the Roads Board had entered into an
agreement with Tolcon in terms of which the latter had undertaken to exercise
certain supervisory functions in relation to the maintenance and erection of
facilities on the stretch of the road in question and to indemnify the Roads Board
in respect of claims arising in respect thereof. As far as the plaintiff’s husband
was concerned, it was alleged that he had driven the vehicle in question
negligently and that his negligence had contributed to the damage suffered by
the plaintiff.

[3] At the commencement of the trial the court a quo was asked to separate
the issue of negligence from the other issues and to determine only whether the
first appellant was negligent and, if so, whether there was contributory
negligence on the part of the plaintiff’s husband and its degree. The formulation

lacked precision, both in relation to the issue of wrongfulness, ie the existence of
a legal duty owed to users of the road (see eg Gouda Boerdery BK v Transnet
2005 (5) SA 490 (SCA) para 12; Local Transitional Council of Delmas v Boshoff
2005 (5) SA 514 (SCA) para 18) and in relation to the issue of the liability of a
party who has engaged the services of an independent contractor whose conduct
causes harm (see Langley Fox Building Partnership (Pty) Ltd v De Valence 1991
(1) SA 1 (A)). However, from the debate that ensued between counsel and the
court a quo (Lamont AJ) prior to the evidence being led at the trial, it appears that
the issues which the court was called upon to decide were premised on the
acceptance by the first appellant that he owed users of the road a legal duty to
act without negligence in relation to road signs and other such facilities; and that
in the event of it being found that the person or persons responsible for erecting
and maintaining such signs and facilities had negligently failed to do so, and that
such failure had contributed to the damage suffered by the plaintiff, the first
appellant would be liable to the plaintiff. Included among the issues left over for
later determination was therefore the issue of Tolcon’s liability to the appellant in
the event of the latter being held liable to the plaintiff. This was the basis on
which the trial was conducted. At its conclusion Lamont AJ found the first
appellant to have been negligent and that the degree of blameworthiness on the
part of his employees in relation to the plaintiff’s damages was 20 per cent while
that of the plaintiff’s husband was 80 per cent. The first appellant and Tolcon
appeal against this finding with the leave of the court a quo. There is no cross-
appeal by the plaintiff’s husband.

[4] Before attempting to describe the road signs to which reference was made
at the trial, it is necessary to give a brief account of how the accident occurred
and a description of the locality. On the evening of 27 September 1995 the
plaintiff and her husband, together with her parents and another couple, dined at
a Johannesburg restaurant. Instead of returning to their home in Carletonville, on
leaving the restaurant the plaintiff and her husband set out for the Vaal river
where the plaintiff’s parents had a holiday house. Their reason for going there

was that the plaintiff was travelling to Bangkok the next day and needed her
credit cards and other documents which she had accidentally left at the holiday
house on a previous visit. For this reason they did not take their usual route from
Carletonville but instead drove south from Johannesburg along the N1 which was
a route with which neither was familiar.

[5] The N1 is a double-carriage freeway with two lanes in either direction. The
surface was described in evidence as being of concrete and ‘off-white’ in colour.
At the Grasmere toll gate the road widens to accommodate a number of booths
for vehicles travelling in either direction. In all there are some 11 such booths.
The area is brightly illuminated with ‘tower lighting’. The toll gate is different from
most in South Africa in that it not only accommodates through-traffic but also
south bound traffic leaving the N1. The exit gives access to the De Deur –
Ennerdale road (then the R557) which at that point runs from approximately east
to west and crosses the N1 on a bridge some 500 metres south of the toll gate.
Although not entirely clear, it appears that the three booths to the extreme left of
the toll gate (ie to the east) were dedicated for traffic leaving the freeway. On
emerging from these booths on the southern side of the toll gate a motorist would
find himself on a wide concrete apron with a temporary barrier of red and white
painted blocks, said to be of the ‘new-jersey type’, barring his way back on to the
freeway and directing him naturally to the off-ramp. The off-ramp is a tarred road
four metres in width with a two metre strip on either side of the edge of the road.
The edge is marked with a solid yellow line on the left side and a solid white line
on the right. Beyond that on either side is a metal ‘crash’ barrier. The road runs
approximately parallel to the N1 but curves slightly to the left, ie to the east. It is
also on an incline rising gradually over a distance of 530 metres to gain the crest
of an embankment which forms the spring point for the bridge over the N1. The
off-ramp joins the R557 at a ‘T’ intersection. At a point some 150 metres from the
intersection the road widens into two lanes. At the mouth of the intersection there
is a triangular-shaped island dividing the lanes with the left lane curving away to
the east for traffic going to De Deur. The right lane comes to an end at the ‘T’

intersection with traffic going to Ennerdale being required to execute a right hand
turn into the R557 before proceeding across the bridge over the N1.

[6] The plaintiff and her husband reached the Grasmere toll gate at about 11
pm. The plaintiff’s husband was driving. On seeing that the booth on the extreme
left was open, and believing it was for through-traffic, they went to it, paid the toll,
emerged onto the concrete apron and from there proceeded south along the off-
ramp. Still believing he was on the N1, the driver picked up speed and continued
on his way. It was common cause that the tower lighting would have illuminated
the road for a distance of about 350 to 400 metres from the toll gate. The nearest
light was measured to be 191 metres from the ‘T’ intersection (and 341 from the
toll gate). As the vehicle emerged from the illuminated area and proceeded into
the darkness it therefore would have been about 150 to 100 metres from the
intersection. Neither the plaintiff nor her husband could say whether the vehicle’s
lights at that stage were on bright or dim. Neither remembered or registered
having seen any warning signs. What happened next, in the words of the
plaintiff’s husband, was that ‘we ran out of road’. He said he had no idea what
had happened. What in truth had happened is that he had driven straight through
the ‘T’ intersection and down the embankment on the other side (the southern
side) of the R557. He later explained that he was astonished to discover that he
had left the freeway.

[7] It is necessary to mention at this stage that both the plaintiff and her
husband denied that either of them had consumed alcohol that evening. They
said that the only member of the dinner party at the restaurant who had done so
was the plaintiff’s father who had consumed one tot of whisky. It was suggested
in cross-examination that this was untrue and it was said that the appellants
would call a witness to say that after the accident the plaintiff’s husband was
under the influence of liquor. In anticipation of this evidence, the plaintiff called
Mr Derrick Littleford who was one of those present at the dinner party. He
confirmed the evidence of the plaintiff and her husband and denied that either

had consumed alcohol. In response to this evidence appellants no longer
persisted in the allegation that the plaintiff’s husband was intoxicated and the
threatened witness was not called.

[8] Against this background it is necessary to describe the various road signs
which were in place at the time of the accident and which the appellants contend
were reasonably adequate to warn motorists of both the exit and the ‘T’
intersection. These were the subject of much debate in evidence and are shown
in a series of photographs taken a day or two after the accident. Some of them
have since been altered, removed or their position changed. I shall describe
them as they were at the time of the accident. As one approached the toll gate
travelling from north to south the first sign of relevance was a large information
sign to the left of the road indicating a turn off  to the left (the east) to De Deur
and Ennerdale (the R557) one kilometre ahead. This was followed by a large
circular speed limit sign indicating a speed limit of 100 km per hour (as opposed
to 120 km per hour). At this point the toll gate would have been visible to an
approaching motorist who would therefore have appreciated the reason for the
reduction of the speed limit. Proceeding further in the direction of the toll gate,
there was another speed limit sign reducing the speed limit to 80 km per hour. At
a distance of 300 metres from the toll gate there was a large square sign painted
yellow with black lettering warning motorists to reduce speed. Just beyond this,
yet another speed limit sign reduced the speed limit to 60 km per hour. All these
signs were to the left of the roadway. Just beyond the latter sign, and
approximately at the point where the carriageway widens to the left, were two
large overhead signs. One was square and the other rectangular. The square
sign, which was positioned approximately above the yellow line on the left side of
the road (before that line breaks away to the left as the road widens), read ‘46
R557 Ennerdale De Deur’ with an arrow pointing straight downwards. The
rectangular sign was to the right of the square sign. In the centre of the
rectangular sign there appeared the letter and numeral ‘N1’ and adjacent to it a
‘T’ within a yellow painted circle. Immediately below this was the name

‘Kroonstad’ with two arrows similarly pointing straight downwards. Also on the
rectangular sign, and to the extreme right of it, a motor car was depicted with the
word ‘autotol’. Immediately below this was an arrow pointing at an angle to the
right. It is necessary to add that the roadway also breaks away to the right (as it
does on the left) and the arrow clearly indicated that the way to the autotol was
via the additional lane created by the widening of the road.

[9] I pause to observe that the direction of the arrow at the foot of the square
overhead sign was obviously confusing. Had the arrow been positioned at an
angle to the left it would have indicated to motorists that the turn off to the left
was at that point. In other words, the arrow to the left would have corresponded
to the arrow to the right on the rectangular board. The impression the notice
created was that the turn off to the R557 was beyond the toll gate and that all the
booths could be used by motorists intent on remaining on the freeway.

[10] Once through the toll gate and on the off-ramp, the first road sign a
motorist would have encountered was a sign on the right hand side of the road. It
displayed the number 46 (with the numerals on a white background) and beneath
that an arrow pointing to the left (the arrow was white on a black background)
and beneath that a yellow chevron with two black painted pointers, one to the left
and one to the right. The number 46 is the number of the exit. The fact that the
sign was on the right hand side of the road would have indicated that the driver
was on the off-ramp. This sign was about 150 metres beyond the toll gate and
380 metres from the ‘T’ intersection.

[11] Approximately 90 metres beyond the exit sign in the direction of the ‘T’
intersection, but on the left side of the road, was a relatively small sign mounted
on a single pole which read ‘stop’ and beneath that ‘300 m’ (with the lettering in
white on a green background). There was also a very much larger information
sign barely 10 metres beyond it. The larger sign (also with white lettering on a
green background) indicated with an arrow that the R557 to Ennerdale was to the

right and the R557 to De Deur was to the left. The proximity of the one sign to the
other was such that the larger one would have been partly obscured by the
smaller one from the vision of an approaching motorist. The larger sign was
measured to be 300 metres from the ‘T’ intersection and 230 metres from the toll
gate.

[12] Further up the road and at a point about 10 metres short of where the road
widens to create two lanes there was an ‘end of freeway’ sign. As previously
mentioned this occurs some 150 metres from the intersection. At the mouth of
the intersection itself, but on the right hand side of the road, was a large
octagonal stop sign with the word ‘stop’ in white on a red background. Finally, on
the opposite side of the R557, that is to say on the southern side, and facing the
off- ramp, was a large information sign with a ‘T’ intersection chevron  beneath it.
The information sign (with white lettering on a green background) indicated, as
did the other information signs, that De Deur was to the left and Ennerdale to the
right. The chevron was yellow with six pointers painted black, three to the left and
three to the right. Of significance is that the sign was not aligned with the right
hand lane of the off-ramp. It was slightly to the left of the left hand lane. A
motorist approaching the intersection at night would therefore not have observed
the sign to be directly ahead but, if under the impression that the road continued
in the same direction, would have been likely to have thought that the sign was to
the left of the road.

[13] Mr Konrad Lötter testified on behalf of the plaintiff. He is a mechanical
engineer and described himself as an expert on accident reconstruction and a
‘qualified road safety auditor’. He levelled various criticisms at the signs just
referred to. First, he contended that traffic for the off-ramp should have been
directed away from the other traffic. In this regard I have already referred to the
possible confusion arising from the direction of the arrow beneath the overhead
R557 sign. Second, he strongly criticised the positioning of the ‘stop 300 m’ sign
some 10 metres in front of the much larger information sign. He expressed the

view that not only would the one partly obscure the other but that at night the two
would tend to blend together so that the natural inclination of a motorist would be
to try to read the obscured sign. He also criticised the positioning of the ‘end of
freeway’ sign. Not only was it too far up the road, he said, but it was at a point
where the road divided into two lanes. This, he thought, would send a ‘conflicting
message’ to a motorist especially as at that stage the motorist would be
emerging from an illuminated area and proceeding into the dark. A further
criticism was the absence at the intersection of a stop sign on the left side of the
road (in this case on the island) where a motorist would expect it to be. Lötter
said he had never come across a stop sign on the right hand side of the road
only. He also pointed to the fact that the stop sign was in a poor condition; the
paint was badly faded and in some places the paint had come off altogether
resulting in bald patches. Finally, he strongly criticised the positioning of the ‘T’
intersection chevron which he said should have been properly aligned with the
road so that a motorist approaching the intersection would have found him or
herself driving straight towards it.

[14] Subsequent to the accident, a number of changes to the signage were
brought about. These have largely remedied the defects which formed the basis
of Lötter’s criticism. Thus, the overhead sign immediately to the north of the toll
gate now no longer has an arrow pointing downwards, but to the left, to indicate
the turn off to Ennerdale. (The R557 has been renumbered R558.) Furthermore,
as the freeway widens to accommodate the toll booths, a broken line has been
painted on the roadway to indicate which booths are for traffic leaving the
freeway and which are for traffic remaining on the freeway. The ‘stop 300 m’ sign
on the off-ramp has been removed and the ‘end of freeway’ sign has been
brought forward to a point north of the information sign previously referred to. A
stop sign has also been erected on the left side of the road at the intersection (ie
on the island) so that there are now stop signs on both sides of the road. In
addition, rumble strips have been placed in the road approximately where it
widens into two lanes, ie about 150 metres from the intersection. Another

important change is that the information sign with the ‘T’ intersection chevron
beneath it on the other side of the intersection, ie the southern side of the R557
(now the R558), has been repositioned so that it is now correctly aligned with the
off-ramp.

[15] There can be no doubt that the plaintiff’s husband was negligent and that
his negligence was causally connected to the accident. It is true that his initial
mistake in leaving the freeway was largely attributable to the confusing nature of
the overhead sign. But his failure to realise what had happened before his
vehicle finally plunged over the embankment is indicative of a high degree of
inattentiveness. On emerging from the toll booth he would have had the jersey-
type barrier immediately to his right which would have had the effect of directing
him to a single-laned road with a tarred surface – a road very different from the
double-laned highway with a concrete surface from which he had just come. Had
he merely glanced to his right he would have seen the highway on the other side
of the barrier. Moreover, the exit sign on the right of the off-ramp would have
been clearly visible. Not only did he pay no heed to that but he failed to see, or
register seeing, the ‘stop 300 m’ warning sign, the ‘end of freeway sign’, the stop
sign or the ‘T’ intersection chevron. Indeed, there was no cross-appeal against
the finding of the court a quo that the plaintiff’s husband was negligent and that
his degree of blameworthiness in relation to the plaintiff’s damages was 80 per
cent. The real issue in the appeal is therefore whether the servants of the first
appellant (or his predecessor) were negligent and, if so, whether that negligence
was causally linked to the accident.

[16] Before turning to this issue, it is necessary to make two observations. The
first is that it is for the court, not a witness, to decide the issue. While regard may
be had to Lötter’s evidence as to the adequacies or otherwise of the various road
signs, the extent to which the opinions advanced by him are to be accepted will
depend upon whether, in the judgment of the court, those opinions are founded
on logical reasoning or are otherwise valid. See Michael and another v Linksfield

Park Clinic (Pty) Ltd and another 2001 (3) SA 1188 (SCA) para 36. Second, the
fact that changes were effected to the signage subsequent to the accident does
not necessarily give rise to the inference that the pre-existing signage was
inadequate. See S v Bochris Investments (Pty) Ltd and another 1988 (1) SA 861
(A) at 866J-867C. Indeed, the nature and extent of the warning signs erected at
any particular place may not infrequently be influenced by the number of
accidents occurring there.

[17] The parties were agreed that the first appellant was obliged to erect such
road signs or provide such other facilities as were reasonable in order to guard
against reasonably foreseeable harm to users of the road. On behalf of both
appellants it was contended, however, that whether in any particular
circumstances the steps taken by the first appellant were reasonable or not had
to be determined with reference to the manner of driving of ‘a reasonably
competent and cautious driver’. If by this is meant that the authority responsible
for erecting road signs and other warnings is entitled to assume that a driver will
read and, if necessary, react to every sign regardless of its nature, size and
positioning, I cannot agree. A driver of a motor vehicle is obliged to maintain a
proper look-out. He (or she) must pay attention to what is happening around him;
but most important of all, he must as far as possible keep his eyes on the road,
particularly at night when his vision is limited. Depending on the state of the
traffic, the nature of the road and the speed at which he is travelling, the
opportunity which a motorist has to read and comprehend the import of each sign
may be extremely limited. Indeed, it is not uncommon for even a competent and
cautious driver to misread or fail to react to a road sign. For this reason it is
imperative, particularly in unlit areas, for warning and other signs to be clear,
unambiguous and appropriately positioned so that if necessary they may be read
and comprehended at a glance. This is all the more so where there is a
potentially dangerous situation ahead such as an unusually sharp bend or, for
that matter, an unlit ‘T’ intersection which would otherwise not be anticipated by a
driver who is unfamiliar with the road.

[18] It is clear that the ‘T’ intersection in question was perceived to be a
potential source of danger for motorists on the off-ramp, particularly at night as
they would come across it shortly after having emerged from an illuminated area
and proceeded into an unlit stretch of the road. The need for appropriate warning
signs was undoubtedly foreseen. In addition to the exit sign and the stop sign
itself, the servants of the first appellant (or his predecessor) had considered it
necessary to erect the two warning signs previously referred to, namely the ‘stop
300 m’ sign and the ‘T’ intersection chevron. In my view, the criticism levelled at
these signs by Lötter was fully justified. The ‘stop 300 m’ sign was quite clearly
inappropriately placed. The photographs show that it would have partly obscured
the view which a motorist would have had of the larger information sign 10
metres beyond it. Both signs had a green background with white lettering and it
seems probable, as Lötter contended, that the one would have blended in with
the other, resulting in the possibility of neither being comprehended by even a
vigilant motorist. No evidence was adduced to suggest that the photographs
gave a false impression of what a motorist would have observed. The ‘T’
intersection chevron was also inappropriately positioned. No explanation was
forthcoming as to why the sign was not properly aligned with the off-ramp, nor
could there have been one; it was moved to its correct position after the accident.
A motorist approaching the intersection at night could very easily have regarded
it as yet another information sign on the side of the road and failed to appreciate
the significance of the chevron at its base.

[19] The stop sign itself was in a poor condition with its reflective paint badly
faded and in places worn off entirely. Criticism was also levelled at the condition
of the reflective paint of the ‘end of freeway’ sign, but this was not readily
discernible from the photographs. The more cogent criticism of this sign was its
location some 350 metres from the toll gate and just short of the point where the
off-ramp widens into two lanes. No explanation was given as to why the sign was
located at this position and not at the start of the off-ramp.

[20]  In view of the aforegoing, I am satisfied that the court a quo was correct in
finding that there was negligence on the part of the first appellant, or rather his
servants.

[21] The further argument advanced on behalf of the appellants was that the
plaintiff had failed to establish a causal link between the accident and any
inadequacies found to have existed in the signage. It was contended that the
inference arising from the driver’s total failure over a distance of some 500
metres to appreciate that he was not on the freeway justified the inference that,
even had the signs been adequate in every respect, he would still have ignored
them. I do not think there is merit in the contention. In the first place, it is quite
clear that the presence of the vehicle on the off-ramp was largely due to the
misleading nature of the overhead sign immediately to the north of the toll gate.
The driver’s subsequent failure to appreciate that he had left the freeway was
undoubtedly at least in part attributable to his firm conviction that he was still on
the freeway which, in turn, flowed from the manner in which he had left it. But in
any event, and apart from any other deficiencies in the signage, the probabilities
are overwhelming that had the ‘T’ intersection chevron been properly aligned with
the off-ramp so that the plaintiff’s husband would have found himself driving
directly at it, he would have been alerted to the danger and would have reacted
accordingly.

[22] It was not contended that if the appellant’s servants were found to have
been negligent the court a quo erred in its apportionment of 80 : 20 in favour of
the appellant. Nor, in my view, is there any basis for interfering with that
apportionment. The appeal must, therefore fail.

[23] The appeal is dismissed. The appellants are ordered jointly and severally
to pay the first respondent’s costs.

__________

D G SCOTT

JUDGE OF APPEAL

CONCUR:

STREICHER JA
CAMERON   JA
NAVSA
JA
LEWIS
JA