He has, therefore, rejected the EMM’s 50 per cent settlement offer and demands the full claim be repaid, to the value of R3 510.40.
Pienaar laid a claim for damages with the metro in April, after damaging his vehicle’s left rim and tyre in a pothole on a rainy evening, in Kingfisher Avenue.
He claimed R3 510.40 for damage to the tyre (R770), the rim (R2 490.40) and the wheel alignment of the vehicle (R250).
ALSO READ: Boksburg pensioner unhappy about metro’s pothole pay-out
The metro’s settlement offer was only half of what Pienaar claimed (R1 755.20), because there has allegedly been no onus of proof submitted.
“In the case of potholes, liability will attach to the metro if the municipality was aware of the pothole and failed to take reasonable precautions to mitigate the risk caused by the pothole within a reasonable period of time,” said metro’s spokesperson Themba Gadebe.
He added that the onus of proof lies with the claimant.
“It is more than often the expectation of the public that all pothole claims will be settled, because the metro has the responsibility to maintain the roads within its jurisdiction,” said Gadebe.
“From a legal perspective it must, however, pass the ‘reasonable man’ test, which poses the question as to what amount of resources is deemed reasonable to be utilised on road maintenance, given the fact that the municipality must prioritise its resources to ensure it renders all its services in terms of its legal mandate.
“In the case of Pienaar, the metro actually gave him the benefit of accepting partial responsibility for the fact that there was a pothole, without the onus of proof that the metro was aware of it and failed to repair it within a reasonable time.”
Gadebe added that the claimant, however, has a co-responsibility of keeping a proper lookout for hazards when using public roads and to drive with reasonable caution.
“That is why only a 50 per cent offer is made,” said Gadebe.
“If he is of the opinion that evidence exists that the metro was aware of the pothole and failed to repair it within a reasonable time, he is at liberty to appeal the ruling of his claim but should then produce evidence to substantiate his claim.
“In such cases the facts are again presented to council’s insurers who again consider the merits and make a ruling.”
Pienaar argues that the metro’s statement is incorrect, because “[he] gave [the EMM] the full details and circumstances leading to [his] claim”.
“It is absolutely [the] council’s neglect to fix the pothole, as it was repeatedly reported – not only by me, but by other people too,” explained Pienaar.
“Council should check their records as well. In fact, it should not be the responsibility of the residents to report potholes and other service delivery problems.
“Council should have a task team driving around on a daily basis, at least in the main roads of town, to report service neglect like this.”
He advised the metro to make use of the EMPD for this purpose, as they are on the roads on a daily basis.
“And further, as submitted in my original claim forms, it was raining [on the day the incident occurred] and it was dark already,” said Pienaar.
“Therefore, it was impossible to see the pothole. There were three other vehicles damaged by the same pothole within minutes of one another.
“There are also no storm water drains on that specific stretch of the road; the road is the storm water drain.”
Pienaar has again presented the facts to the EMM, as in his original claim.
Since this case has been “dragging”, Pienaar expects payment without delay.
