Whether a municipality is required to act so as to avoid reasonably foreseeable harm and, if so, what steps it is required to take to prevent harm, depends what can be reasonably expected in the circumstances of each case. Undue demands cannot be placed on public authorities and functionaries. Their resources and the manner in which they prioritise spending their resources will be taken into account in deciding whether they acted reasonably.

The respondent’s husband was killed when his car struck a fallen tree at night on a public road in the Eastern Cape. The court accepted the evidence that the roads authority was aware of the fallen tree, had attempted to remove it and abandoned the job during the day before the accident occurred. That, on the facts, was negligent and they had to pay the damages.

The court whose judgment was appealed from had made findings regarding the general duty of a roads authority to remove trees that grow at the side of the road and might cause harm. Those findings were unnecessary for a decision on the clear facts of the case. Despite that, the appeal court thought it important to set out the principles of the liability of public authorities generally because the taking of precautionary measures depends on the degree of risk and the cost of avoiding the risk. Evidence has to be led regarding the costs and the difficulty of taking the precautionary measures to avoid or reduce the risk before a proper assessment of the situation can be made by a court in each case.

MEC for Department of Public Work, Roads and Transport v Botha