IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN) CASE NO: 2921/2013 DATE HEARD: 05/03/2015 DATE DELIVERED:14/04/2015 In the matter between

JOHANN FRANCOIS ELS N.O 1ST APPLICANT NICOLAS JACOBUS GERT WILHEMUS ELS N.O. 2ND APPLICANT JACOBUS WILHEMUS ELS N.O. 3RD APPLICANT IGNATIUS WALTER WAIT N.O. 4TH APPLICANT JOHANN WYNAND ELS N.O. 5TH APPLICANT JOHANN FRANCOIS ELS 6TH APPLICANT NICOLAS JACOBUS GERT WILHEMUS ELS 7TH APPLICANT And THE MEMBER OF THE EXECUTIVE COMMITTEE FOR PUBLIC WORKS, ROADS AND TRANSPORT 1ST RESPONDENT FRANK KRULL 2ND RESPONDENT ELVIN VICTOR KRULL 3RD RESPONDENT TT FARM cc 4TH RESPONDENT

JUDGMENT

___________________________________________________________________ ROBERSON J:-

[1] This is an application to review and set aside the decision of the first

respondent (the MEC) to approve an application by the second and third

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respondents (the Krulls) to “legalise” the erection of three existing gates and the

removal of fences on District Road DR 02792 (the road) situated in the Great Kei

Municipality. The road is a provincial road falling under the authority of the MEC.

The application was opposed by the MEC. No relief was sought against the other

respondents.

[2] The first to fourth applicants are the trustees of the Glen Kei Trust (the Trust).

The fifth applicant resides on Glen Kei Farm in the Komga district. The sixth and

seventh applicants, in their personal capacities, are partners in the Glen Kei Farming

Partnership (the partnership). The Trust is the owner of Glen Kei Farm (the farm) on

which the partnership conducts business. The Trust has leased the farming rights of

the farm to the partnership. It is convenient to refer to the applicants collectively

throughout this judgment.

[3] The third and fourth respondents own certain farms which form the Tyityaba

Game Reserve (Tyityaba). Wild animals on Tyityaba include rhinoceros and buffalo.

Tyityaba and the farm have a common boundary. The road runs through Tyityaba

and ends at the entrance to the farm, whereafter it becomes a minor road. It

continues across the farm and re-enters Tyityaba at a certain point on the common

boundary. The road is the applicants’ only means of access to the farm.

[4] It is common cause that the gates were originally erected without the

necessary permission of the MEC. The first gate (gate 1) was erected across the

road at the entrance to Tyityaba, the second gate (gate 2) was erected at the

entrance to the farm, alongside a cattle grid which was fenced off. The third gate

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(gate 3) was erected further along on the minor road, on the boundary between

Tyityaba and the farm. It is also common cause that fencing along the road had

been removed without the necessary permission.

[5] On 21 June 2013 this court ordered the third and fourth respondents within six

months to remove gate 1 and a guardhouse erected on the road, and to erect

adequate game fencing along the boundary between the road reserve and Tyityaba.

The MEC’s decision which is sought to be reviewed was taken on 3 July 2013.

[6] The application to review and set aside the decision is based on a number of

the grounds contained in s 6 of the Promotion of Administrative Justice Act 3 of 2000

(PAJA). It was contended (i) that the application was submitted to the MEC without

the proper statutory procedure having been followed, namely the provisions of s 17

of the Eastern Cape Roads Act 3 of 2003; (ii) that the MEC was functus officio at the

time she approved the application because she had on 14 June 2013 decided not to

approve the application; and (iii) that the MEC failed to apply her mind to the facts

before her, chiefly the concerns of the applicants over pedestrian safety and the

recommendation of her own official concerning pedestrian safety.

[7] The application has some history. It appears from a letter dated 6 July 2012

addressed to “Mr Krull” and “Mr Els” by Mr Craig McLachlan of the Eastern Cape

Roads and Public Works Department (the Department) that the MEC received an

application on 21 June 2012 for the erection of the gates (or to “legalise” them) and

the removal of fencing along the road within Tyityaba. In the letter McLachlan

referred to investigations which had been conducted and objections which had been

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received from five persons other than the applicants. In the letter McLachlan

referred to the poor relationship between the parties and stated that in respect of

gate 1 if the parties were unable to agree on criteria for its erection the Department

would determine the criteria based on requirements for public access and

recommend that the MEC approve the erection of gate 1 in terms of proclamation 4

of 2002 and the Advertising on Roads and Ribbon Development Act 21 of 1940.

With regard to the application for the removal of fences, McLachlan stated that the

Department was in the process of determining criteria for the approval of the

application.

[8] It was subsequently pointed out to McLachlan that the application had been

brought in terms of the wrong legislation and the application was withdrawn. The

Krulls were requested to re-submit the application in accordance with the provisions

of the Eastern Cape Roads Act 3 of 2003 (the Act).

[9] A second application was apparently received by the MEC although it was not

included in the record of decision which was furnished. McLachlan submitted a

report dated 29 April 2013 to the MEC in which he stated that an application had

been received to legalise three existing gates and the removal of fences on the road.

He stated that the application was made in terms of the Act and was a follow up to

an earlier application in terms of proclamation 4 of 2002 and Act 21 of 1940, which

earlier application had been withdrawn. He went on further to say:

“On consideration of the request the District Roads Engineer (the DRE) determined that the matter should go through a public participation to draw comments and possible objections from stakeholders and other members of the public.”

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[10] Under the heading “Public Participation” it was stated that there had been

public participation in terms of the initial (withdrawn) application and the outcome

was contained in annexure B to the report. There was no annexure B. There was

also reference to an advertisement which had been placed in the Daily Dispatch

newspaper on 19 November 2012 which required comments to be furnished to the

DRE within 30 days.

[11] McLachlan referred to five letters of objection which he said were from the

family or friends of the applicants. He also referred to objections which had been

received following the first application as well as letters of support. Earlier objectors

other than the applicants were prepared to accept as a solution the imposition of

criteria, which predominantly guaranteed public access through gate 1.

[12] McLachlan recommended approval of the application and set out various

conditions to be imposed for each gate. With regard to the removal of fences, the

conditions to be imposed were that the owners of Tyityaba should erect wild game

warning and speed restriction signs and that vegetation and obstacles on the road

reserve on either side, which might obscure animals from the view of motorists, be

cleared or thinned for a distance of ten metres from the centre line.

[13] Presumably the applicants were aware of this second application because on

4 June 2013 the first applicant sent an e-mail to McLachlan containing various

comments on the application.

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[14] The application was presented to various officials of the Department. S. Booi,

Deputy Director-General: Roads Infrastructure indicated that the application was

recommended, stating:

“Conditional approval includes ensuring that pedestrians are safe and letter to indemnify the Department as contained in the memo of Mr Jordaan dated 17/05/2013.”

[15] Advocate J Mlawu, Head of Department of Roads and Public Works (the

HOD) indicated that the application was not recommended and noted that clear

conditions must be developed which the owners should comply with and that a letter

outlining the conditions was to be sent.

[16] On 14 June 2013 the MEC indicated that the application was not approved.

The words “approved/not approved” were on the document on which she was to

indicate her decision and she circled the words “not approved”. She made no

additional comments.

[17] On 18 June 2013 McLachlan sent an e-mail to the parties and their attorneys

in which he informed them that the MEC had granted the application. On 19 June

2013 he e-mailed them again and apologised for the incorrect message, stating:

“The MEC has in fact not (yet) approved the application as our HoD did not recommend the matter to the MEC and has requested that “clear conditions be developed that both owners must comply with…………….. I am setting up an urgent meeting with the HoD to resolve exactly what additional conditions he requires.”

[18] Later on 19 June 2013 McLachlan e-mailed everyone again and said that the

HOD had advised him that what he meant in his comments in the application was

that both major stakeholders were to be advised of and asked to accept the

conditions to be imposed on them. If the parties accepted the conditions he would

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be willing to recommend that the MEC approve the application. McLachlan went on

to say that if one or both parties did not accept the conditions the Department would

have to consider imposing its own conditions. A letter to the parties was attached to

the e-mail, informing them that in order for the MEC to grant the application they

were to accept the conditions set out in the letters. They were warned that if one or

both of the parties did not accept the conditions (the applicants were given 7 days),

the Department reserved the right to impose its own conditions and/or not to approve

one or more of the gates and the removal of the fencing.

[19] McLachlan again submitted a report dated 26 June 2013 to the MEC which

was substantially similar to that of 29 April 2013, except that there were some

changes to the conditions to be met with regard to gate 2 and the removal of the

fencing. The additional conditions to be met for the removal of the fencing were that

the Krulls were to indemnify the Department in writing “from any vehicle or

pedestrian accident or injury within the public road reserve caused by or to wild

animals” and that the conditions were to be met within 60 days and would be binding

on any future owner of Tyityaba. McLachlan recommended that the application

should be granted subject to the various conditions. Booi and Mlawu recommended

the application and the MEC approved it on 3 July 2013. The decision was

communicated to the parties by e-mail on 8 July 2013.

[20] The conditions imposed in respect of gate 1 included the provision to the

owners of the farm of remote control devices to open the gate; the installation of a

button to open the gate on a gooseneck pole; the clearing of vegetation and

obstacles around the pole behind which someone could hide; a Tyityaba staff

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member to be available at all times to open the gate manually in the event of a fault

in the automative functioning of the gate and until the fault is repaired; the erection of

a notice on the gate containing telephone numbers and an e-mail address to which

faults could be reported.

Failure to comply with s 17 of Act 3 of 2003

[21] This section provides:

“Closing of provincial roads on application.—

(1) (a) Anyone who desires that a provincial road other than a freeway be closed, deviated or otherwise altered, may apply to the MEC in writing on payment of the prescribed fee.

(b) This section also applies to roads that have not yet been built.

(2) (a) On receipt of such an application, the MEC must publish a notice in the Gazette, and a newspaper circulating in the area, calling upon interested persons to submit to him or her, within 30 days, written comments or objections, with reasons therefor.

(b) A copy of the notice must also be posted at the office of the magistrate of the

relevant district for not less than 14 days.

(3) Within seven days of publication of the notice, the applicant must erect notice boards at

each end of the appropriate road section that are visible to approaching traffic and as nearly as possible at right angles to the road, and which are in the prescribed form and contain the prescribed particulars for a period determined by the MEC.

(4) The applicant must maintain the notice boards referred to in subsection (3) until the application is granted or refused, whereupon the applicant must remove the boards within seven days, failing which the MEC may do so and claim the costs from the applicant.

(5) After considering comments and objections, if any, the MEC may, subject to subsection

(6), grant or refuse the application, and where it is granted, proclaim the road to be closed, deviated or altered by notice in the Gazette and must include in the notice a sketch plan showing the closure or alteration.

(6) The MEC may, as a condition for acting under subsection (5), require the applicant to—

(a) pay to the MEC compensation payable in terms of section 13 (4) or such portion of such compensation as the MEC determines, for passing on to

the person entitled to the compensation;

(b) erect a fence that the MEC deems necessary;

(c) construct the provincial road concerned as required by the MEC;

(d) pay all or any of the costs incurred by the MEC in the process, and the

the person to furnish security that the MEC deems sufficient for the

fulfillment of such a condition.”

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[22] According to McLachlan who deposed to the main answering affidavit and the

MEC who deposed to a confirmatory affidavit, the application in respect of the gates

was governed by s 26 of the Act and in respect of the removal of the fences by s 18

of the Act.

[23] The relevant portion of s26 provides:

“Structures and other works on, over or below provincial roads or certain other land.

(1) (a) Except as provided in subsection (2) or (3) or allowed by section 24, and despite the provisions of other laws, no person may do the following without

the MEC’s written permission or contrary to that permission, namely— (i) on, over, or below the surface of a provincial road or land in a building

restricted area, erect, construct or lay, or establish a structure or other object (including mine excavations, dumps and stockpiles and anyth

which is attached to the land on which it stands even though it does not form part of that land

(ii) make a structural alteration or addition to a structure or object situated on, over, or below the surface of a provincial road or land in a building restriction area; or

(iii) give permission for erecting, constructing, laying or establishing a

structure or other object on, over, or below the surface of a provincial road or land in a building restriction area or for a structural alteration or

addition to a structure or other object so situated.

(b) An application for permission of the MEC contemplated in subsection (1) must be made in a prescribed manner and on a prescribed form, and must be accompanied by a prescribed fee, if any.

(2) Subsection (1) does not apply to—

(a) the completion of a structure whose erection was commenced before—

(i) the area concerned became a building restriction area; or (ii) the commencement of this Act, if such erection would have been

lawful before such commencement; and

(b) an enclosure, fence or wall which does not rise higher than 1,6 metres above the surface of the land on which it stands.

(3) (a) The MEC, according to his or her discretion, may grant or refuse

permission in terms of subsection (1). (b) When giving permission, the MEC may prescribe- (i) the specifications to which the structure, object, alteration or addition must comply;

(ii) the manner and circumstances in which, the place where and the conditions on which the structure, object, alteration or addition may be

erected, constructed, laid, established or made; or

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(iii) the obligations to be fulfilled by the owner of the land in question if

the structure, object, alteration or addition is erected, constructed, laid, established or made.”

[24] S 18 (5) provides

“(5) (a) No one may—

(i) erect a fence, wall or hedge; (ii) electrify a fence;

(iii) remove a fence, wall or hedge or portion thereof; or

(iv) erect or attach lights or lighting equipment to a fence or wall, along or across a provincial road, without the written consent of the MEC, and any person who does so is guilty of an offence.

(b) The MEC may attach such conditions to his or her consent as he deems necessary.”

[25] Unlike s 17, s 26 does not provide for a public participation and advertising

procedure. The need for such a procedure in s 17 is obvious: closure, deviation or

alteration affect the public’s normally unimpeded right of access to and use of the

provincial road in question. The public has the right to be heard. The word “alter” is

not defined in the Act. The meaning of “alter” in the Shorter Oxford Dictionary is “to

make otherwise or different in some respect, without changing the thing itself; to

modify.” If that meaning is applied in the context of a road to which the public have a

right of access, I am of the view that the placing of a gate across the road is an

alteration, in that the public’s use of and access to the road is made different or

modified. It is at least equal to a deviation, which is covered by s 17.

[26] In the present matter, with regard to gate 1, instead of being able to drive

freely along the road at the point where the gate is, the public are obliged to stop at

the gate and use the button or a remote control device to open it. In the event of a

technical fault not yet discovered or reported, motorists would have to telephone one

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of the numbers or send an e-mail. In the meantime they would be obliged to wait

until the gate is manually opened, causing inconvenience and possible exposure to

danger. Persons so inconvenienced could include the police or medical personnel

responding to an urgent call. These factors all amount to different or modified uses

of the road, as compared to normally unimpeded access, and clearly the public’s

views are required to be considered. McLachlan himself said in his report to the

MEC that “the existence of gates on a public road may affect mobility and

accessibility for the public along the road.”

[27] There was no compliance with s 17 of the Act in the bringing of the application

to the MEC. There was the advertisement in the Daily Dispatch on 19 November

2012 but that was prior to both McLachlan’s reports to the MEC. Interestingly this

advertisement stated that the application was in terms of s 17 of the Act and invited

“public opinion, comments and/or objections from all interested parties”. However it

was not in dispute that all the procedural requirements of s 17 were not met. S 17 is

couched in mandatory terms. Its procedural requirements are in my view material,

involving as they do public participation. On this ground alone therefore, the MEC’s

decision falls to be reviewed and set aside, in that a mandatory and material

procedure or condition prescribed by an empowering provision was not complied

with (s 6 (2) (b) of PAJA.)

Failure to have regard to safety of pedestrians

[28] When the application was first submitted to the MEC (when she did not

approve it), she would have been alerted to Booi’s concern for the safety of

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pedestrians. McLachlan’s reports contained information concerning the properties

served by the road, including that it ended at the farm, and the presence of wild

animals on Tyityaba. The knowledge that there was a farm at the end of the road

and that the road served the farm, would have been an indication that persons lived

and worked on the farm. The indemnity condition imposed for the removal of the

fences referred to injury to pedestrians caused by wild animals. This would have

alerted the MEC further to the potential danger to pedestrians. However none of the

conditions imposed ensured the safety of pedestrians. The indemnity only protected

the Department. It did not protect a pedestrian from being attacked by a dangerous

wild animal such as a buffalo or a rhinoceros. It was submitted on behalf of the MEC

that the interests of pedestrians were covered by the condition that the vegetation be

thinned so that large animals would not be obscured. In my view this is no protection

to a person on foot who sees a dangerous animal ten metres away as opposed to

meeting it face to face.

[29] In the founding affidavit the first applicant stated that because there was no

fence between Tyityaba and the road, wild animals on Tyityaba have unrestricted

access to the road, presenting a danger to persons travelling on the road. He

expressed concern about pedestrians using the road, and mentioned that employees

of the Trust, who do not have motor vehicles, regularly walk along the road within

Tyityaba to visit relatives on neighbouring farms or to go to town. Presently,

according to Els, these employees are too scared to do so and instead rely on

vehicles travelling from the farm to transport them beyond Gate 1.

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[30] Els alleged that the interests and safety of pedestrians had been ignored by

the MEC when approving the application, and that no steps had been taken to

ensure the safety of pedestrians. McLachlan’s response was that the Department

had set “clear and unambiguous conditions to ensure the safety of everybody and

motor vehicles using the road.”

[31] The MEC did not deal specifically with pedestrians in her affidavit. Under the

heading “Public Participation” she stated, inter alia:

“The application involved a partial limitation of the rights accruing to certain persons using the road but did not affect the general public, who do not use the road.”

And further:

“I respectfully submit that it is untenable that access to the relevant portions of the public road which is the subject matter of this application, should be entirely unrestricted. Valuable and dangerous animals are to be found on the relevant portions thereof. Some form of controlled access is obviously desirable. Nevertheless the concerns and needs of the applicant were taken into account in formulating the conditions which are an integral part of my decision.”

[32] In my view, both McLachlan and the MEC in their affidavits failed to deal

meaningfully, if at all, with the interests and safety of pedestrians using the road.

This failure, together with the lack of a meaningful condition imposed which related

to the safety of pedestrians, indicates that the interests and safety of pedestrians

was not considered at all by the MEC when she made her decision. The safety of

pedestrians was in my view highly relevant. They are as much road users as

motorists, particularly the employees of the Trust, who do not own vehicles and are

obliged to travel by foot in their personal pursuits. They have the right to do so with

dignity and without fear. McLachlan stated in his report to the MEC that the

Department had previously allowed the removal of fencing along public roads within

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game or nature reserves provided there were adequate signs warning the public

about the potential of wild animals being on or crossing the road. That may well be,

but in the present instance, there are people who live and work at the end of this

road.

[33] I am therefore of the view that the MEC in taking the decision, failed to

consider relevant considerations, namely the safety of pedestrians (s 6 (2) (e) (iii) of

PAJA). On this ground too her decision falls to be reviewed and set aside.

[34] It is therefore not necessary for me to deal with the question of whether or not

the MEC was functus officio when she made her decision on 3 July 2013.

[35] It was submitted on behalf of the MEC that in the event of the court finding

that s 17 of the Act should have been utilised, the application be remitted to the MEC

after the procedure prescribed in s 17 has been followed. I am of the view that the

only appropriate order is that the decision be reviewed and set aside. If the Krulls

wish to apply afresh, the provisions of s 17 would have to be complied with and

further information and responses than presently contained in McLachlan’s reports or

other documentation may result.

[36] Order

[36.1] The decision of the first respondent taken on 3 July 2013 to legalise the

erection of three gates and the removal of fences on District Road DR 02792

located in the Great Kei Municipality is reviewed and set aside.

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[36.2] The first respondent is to pay the costs of the application, such costs to

include the costs of two counsel.

______________ J M ROBERSON JUDGE OF THE HIGH COURT Appearances: For the Applicants: Adv EAS Ford SC and Adv BL Boswell, instructed by Wheeldon Rushmere & Cole, Grahamstown For the Respondents: Adv RG Buchanan SC, instructed by Mvulana Attorneys, Grahamstown