In March 2026, the High Court held that the national road authority and its appointed contractors were jointly and severally liable for delictual damages arising from a motor vehicle collision caused by aquaplaning on a national road. The court held that the road authority could not avoid liability by outsourcing maintenance functions to independent contractors where it failed to exercise reasonable oversight.
The plaintiff was driving along the inbound carriageway of the N1 near the Okavango interchange outside of Cape Town in heavy rain and darkness when his vehicle struck pooled water, aquaplaned, and collided with the median. The defendant road authority had appointed a consulting engineer for supervisory functions and a routine maintenance contractor for that section of road. Following the incident, the engineer issued an instruction to remove edge build-up in the area of the incident, and approximately 200 metres of vegetation and soil obstruction were cleared away from the side of the row at the low point in the road where water naturally collects.
The plaintiff sued the defendant road authority, the consulting engineer and the routine maintenance contractor. The road authority claimed a contractual indemnity and, in the alternative, a contribution under the Apportionment of Damages Act of 1956 against the engineer and contractor.
The court held that the road authority bore a legal duty to manage drainage and to monitor outsourced maintenance at the known low point by virtue of its statutory stewardship under sections 25(1) and 26(c) of the 1998 SANRAL Act, which impose responsibility for the planning, maintenance, and monitoring of national roads. That statutory framework, together with the site-specific risk at the low point, provided strong policy grounds for imposing wrongfulness and, in turn, delictual liability in principle.
The defendant relied on the independent contractor defence from Chartaprops 16 (Pty) Ltd v Silberman 2009 (1) SA 265 (SCA), arguing that it discharged its duty by appointing competent contractors. The court accepted that the defence exists in principle but held that section 26(c) specifically requires the road authority to monitor the execution and performance of outsourced work. On the evidence, the court found that the defendant’s oversight of the contractors’ performance at the known low point was reactive rather than preventative, and the defence accordingly failed on the facts.
Drawing on Chartaprops and a recent decision of the SCA, the court reaffirmed that a contractor who undertakes work capable of affecting the safety of the public assumes a corresponding legal duty towards that public to take reasonable steps. Relying on those authorities, the Court said that this duty is non-delegable and, although operational tasks may be outsourced, this does not absolve the principal where its own monitoring and supervisory systems are inadequate.
One would think that the appointment of an expert engineer with a proper brief and competent contractor for road construction and maintenance would be sufficient. It would likely cause serious disruption if the obligations of a public authority were held to carry a non-delegable duty in such circumstances. This decision is an example of the courts extending established principles to a point that may not be commercially or practically workable.
The court found that all defendants failed to take reasonable steps and were negligent. According to the court, the consulting engineer failed to issue timely instructions; the maintenance contractor failed to detect and clear the edge build-up; and SANRAL failed to exercise reasonable oversight.
The court found that, but for the edge build-up obstructing drainage at the low point, water would not have pooled to a depth sufficient to cause aquaplaning. The harm was the direct realisation of the danger that the defendants' maintenance duties were intended to prevent. The engineers and contractor incurred a legal duty because they had entered upon the work.
This judgment confirms that, while independent contractors bear responsibility for negligent performance of the work they undertake, a principal may remain liable where statute or circumstances impose a personal duty of oversight that has not been reasonably performed. A contractor who undertakes work capable of affecting the safety of the public assumes a corresponding delictual duty towards road users.
This blog was co-authored by Sasha Söderlund (candidate attorney).
Hesse v South African National Roads Agency and Others (8864/2012) [2026] ZAWCHC 118 (11 March 2026)