MORE than 14 years after her husband died in a crash allegedly caused by a pothole-ridden provincial road, Martha Johanna Petronella Rossouw’s battle to hold the Free State government accountable has been revived – thanks to a ruling by the Supreme Court of Appeal (SCA) that has breathed new life into her case.
Rossouw is suing the Member of the Executive Council (MEC) for Police, Roads and Transport in the Free State for damages on behalf of her two minor children, claiming loss of support after the death of her husband, Marthinus Lucas Rossouw, in May 2011.
He died when his vehicle overturned and struck a lamp post on a badly damaged section of road near Bloemfontein.
She alleges that the accident was caused by the poor condition of the road, particularly the presence of potholes and the absence of warning signs – and that the department responsible for road maintenance was negligent.
But the case stalled for years because Rossouw’s first attorneys, Blignaut & Wessels, mistakenly pursued the Road Accident Fund (RAF) instead of the provincial department.
As a result, the statutory notice that must be served within six months under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was only delivered to the MEC in December 2018 – seven years late.
When Rossouw finally sued the MEC in 2019, the state raised a special plea that she had not complied with the Act.
A full bench of the Free State High Court refused to excuse the delay, saying she had not shown good cause or strong prospects of success.
The court found that she bore some blame for allowing her lawyers’ negligence to persist for so long.
Now, the SCA has set that decision aside.
In a judgment handed down on 7 October, it ruled that Rossouw had provided a reasonable explanation for the delay and should not be penalised for her attorneys’ errors.
The appeal court granted her condonation for the late filing of the statutory notice, clearing the way for her lawsuit against the MEC to proceed.
Writing for the majority, Justice Makgoka – with Justices Mbatha and Weiner concurring – said the lower court had misdirected itself by treating the condonation application as if it were a trial.
“At this stage, the applicant was not expected to satisfy the court on a balance of probabilities that her action would succeed,” the judgment said.
“A prima facie case and a bona fide intention in the sense of seeking an opportunity to have the matter tried sufficed.”
The court also found that the MEC’s claims of prejudice – such as lost records and faded memories – were speculative.
It noted that key documents, including police and inquest reports, still existed and could be used at trial.
Importantly, the SCA stressed that the case involved the constitutional rights of minor children under section 28 of the Constitution and their right of access to courts under section 34.
The minority judgment, penned by Justice Modiba and supported by Justice Vally, would have dismissed the appeal, saying Rossouw bore some responsibility for the prolonged delay and that her evidence was weak.
The ruling means that, after years of procedural dead ends, Rossouw’s claim for her children’s loss of support will finally go before a court to be tested on its merits. – Staff Reporter