Mobility

Given that a significant part of this question concerns public infrastructure, your attention is drawn to the fact that Minister Simmers is responsible for the infrastructure portfolio. However, I am informed as follows:

[1]  The Public Finance Management Act, 1 of 1999 [“PFMA”], which applies to Departments, Public Entities and Constitutional Institutions, envisages the recovery of losses or damages and provides in section 76[1] thereof that the National Treasury must make regulations or issue instructions applicable to departments concerning –

[a] …

[b] the recovery of losses and damages;

[c] …

[e] the writing off of losses of state money or other state assets or amounts owed to the state

[f] liability for losses and damages and procedures for recovery;

[g] …

[h] the settlement of claims by or against the state;

[i] the waiver of claims by the state;

[j] …”.

Part 5 of the National Treasury Regulations [“NTRs”] provides for Asset and Liability Management and provides for, among others, management of losses and claims.  Losses are not defined in the PFMA or the NTRs. However, it is common cause that where the state suffers damage, however constituted, a loss is incurred. In this regard, the NTRs provide that:

“12.3.1 If the state suffers a loss or damage and the other person denies liability, the accounting officer must, if deemed economical, refer the matter to the State Attorney for legal action, including the recovery of the value of the loss or damage.”

The Provincial Treasury Instructions [which are not legislation] provide some guidance in respect of “other persons”. In this regard, they define:

"other persons" as “any natural person or legal person with the exception of a "said person"; while "said person" means “all persons who are or were in the employ of the State and, notwithstanding the above also persons who on a full-time or part-time basis render/rendered voluntary services to the State or who hold honorary appointments or any other persons who are/were compelled by law or a court order to render services to/on behalf of the State [this includes persons who render/rendered services in terms of a contract if this instruction has been made applicable to the contractor].”

Therefore, upon determining that a valid claim for damage to state owned infrastructure exists against “other persons” [i.e., 3^rd parties], all such claims by the state should be referred to the State Attorney via the Branch: Legal Services for a legal opinion and steps to recover the value of the loss. Claims against the employers of such 3^rd parties are possible and are regulated by the principle of vicarious liability through which the law holds one person liable for the wrongful act or omission of another even though the former committed no delict or has no fault. This principle is mainly applied in employer-employee relationships where the employer is held liable for the wrongful acts of his/her employee upon the satisfaction of the following conditions:

[i]         the existence of an employer – employee relationship;

[ii]        the commission of an act or omission which caused damage;

[iii]       the act or omission was committed in the course and scope of the employee’s employment with the employer.

Please note that in relation to subsection [2] the reference should be to the Department of Transport and Public Works.

[2][a]  2019/20

NONE REPORTED

[2][b] 2020/21

Description	FY	Property	Cause	Outcome
Damage To Robot on R43 Hermanus by Private Vehicle	2021	Traffic Light	Accident	Recovery In Instalments
Damage To Miniature Substation Feeding Streetlights Due To M/V Accident	2021	Substation	Accident	In Progress

[2][c]  2021/22

NONE REPORTED