- The High Court found Polokwane Local Municipality liable for the damage caused by the falling tree or branch.
- The municipality could not show that it had pruned the tree after inspections highlighted the need for maintenance.
- The court dismissed the municipality’s argument that an afternoon thunderstorm was an act of God and the cause of the damage.
The High Court has held the Polokwane Local Municipality responsible for the damage caused when a tree or one of its branches fell onto a parked Toyota Quantum. The court found that the municipality could not prove it had done the necessary maintenance identified by its own inspections.
Acting Judge LB Maphelela found that the municipality had a legal duty to take reasonable steps to maintain trees under its control once it became aware of a risk. The judge also rejected the municipality’s defence that an unusually severe thunderstorm was to blame, noting that evidence showed the storm happened later in the day.
Municipality blamed storm for damage
Makgwathana Kgadi sued Polokwane Local Municipality after his vehicle was damaged on 17 December 2018 while parked in a marked parking bay in Thabo Mbeki Street, Polokwane. Kgadi alleged that the municipality negligently failed to inspect, maintain, prune or remove dangerous trees within its area of responsibility.
The municipality denied liability, arguing that the damage resulted from an unusually severe thunderstorm, which it said amounted to an act of God beyond its control. The parties agreed that the court would first determine liability, with the amount of damages to be decided later.
Morning incident undermined municipality's defence
Kgadi called Makgwathana Pheyaa, who testified that he parked the Toyota Quantum on the morning of the incident before getting out of the vehicle. Moments later, he heard a cracking sound and watched as the tree, or one of its branches, fell onto the vehicle.
Pheyaa testified that there was no rain or thunderstorm at the time and that the matter was reported to both the municipality and the South African Police Service.
The municipality's witness, Seloane Frans, Superintendent for Parks and Open Spaces, confirmed that his department was responsible for inspecting and maintaining trees in public spaces. He testified that a severe thunderstorm had damaged several trees across Polokwane on 17 December 2018.
However, under cross-examination, Frans accepted that the thunderstorm occurred after lunch, at about 2pm, whereas the plaintiff's evidence was that the vehicle had been damaged earlier that morning. Judge Maphelela found this inconsistency significantly weakened the municipality's version.
Inspection records exposed maintenance failure
A central issue in the case was the municipality's own inspection records. The plaintiff relied on evidence showing that municipal inspections had identified trees in the area requiring pruning. Despite that finding, the municipality was unable to produce evidence showing the work had actually been completed before the incident.
Judge Maphelela said, "The defendant did not produce objective proof that the required pruning was carried out before the incident… No work order, completion report, maintenance register, photographs, invoice or other contemporaneous record was produced to demonstrate that the necessary remedial work was completed."
The court found that broad evidence about routine maintenance could not answer the specific question of whether the identified danger had actually been addressed.
Municipality had a legal duty to act
Judge Maphelela held that municipalities are not expected to guarantee the safety of every tree at all times, but they are required to act reasonably once a dangerous condition has been identified. "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.
The court concluded that Polokwane Local Municipality owed Kgadi and other members of the public a legal duty to take reasonable steps to maintain trees under its control where inspections had identified a foreseeable risk.
Court rejects act of God defence
The municipality argued that the damage resulted from an extraordinary thunderstorm and therefore amounted to vis major. Judge Maphelela rejected that argument, saying, "The Defendant therefore failed to establish that the storm caused the damage to the Plaintiff's vehicle."
The judge found that the municipality's own evidence placed the thunderstorm later in the afternoon, making it incapable of explaining damage that had already occurred earlier that morning.
The court further held that where the municipality had already identified the need for pruning, the subsequent occurrence of a natural event did not automatically relieve it of liability.
Municipality found negligent
After assessing the evidence, Judge Maphelela found the plaintiff's version to be the more probable one.
The court concluded that the municipality accepted responsibility for maintaining trees through its inspection system, knew pruning was required, failed to prove that the necessary work had been carried out, and could not establish that the thunderstorm caused the incident.
Judge Maphelela accordingly held Polokwane Local Municipality liable for 100% of Kgadi's proven or agreed damages arising from the incident, ordered it to pay the costs relating to the merits, and postponed the determination of quantum for later determination or agreement between the parties.
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