Els N.O and Others v Member of the Executive Committee for Public Works, Roads And Transport and Others (2921/2013) [2015] ZAECGHC 47; [2015] 4 All SA 58 (ECP) (14 April 2015)

Els N.O and Others v Member of the Executive Committee for Public Works, Roads And Transport and Others (2921/2013) [2015] ZAECGHC 47; [2015] 4 All SA 58 (ECP) (14 April 2015)

The court found that the MEC's decision to legalise the erection of gates and removal of fences on District Road DR 02792 was procedurally defective. The application should have been processed under section 17 of the Eastern Cape Roads Act, which mandates public participation and advertising due to the impact on public access. The procedural requirements were not met, and the failure was material and mandatory. Additionally, the MEC failed to meaningfully consider the safety of pedestrians, particularly those who regularly use the road on foot, and did not impose adequate conditions to protect them from wild animals. These failures constituted grounds for review under PAJA. The court held...

Citation
[2015] ZAECGHC 47
Parties
Applicant: Johann Francois Els N.O; Applicant: Nicolas Jacobus Gert Wilhemus Els N.O; Applicant: Jacobus Wilhemus Els N.O; Applicant: Ignatius Walter Wait N.O; Applicant: Johann Wynand Els N.O; Applicant: Johann Francois Els; Applicant: Nicolas Jacobus Gert Wilhemus Els; Respondent: The Member of the Executive Committee for Public Works, Roads and Transport; Respondent: Frank Krull; Respondent: Elvin Victor Krull; Respondent: TT Farm CC
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
14 April 2015
Case Number
2921/2013
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The MEC's decision is reviewed and set aside.
Judges
J M Roberson
Legal Topics
Promotion of Administrative Justice Act, Public Road Closure, Procedural Fairness, Public Participation, Road Access Rights
Administrative Law Land and Property Promotion of Administrative Justice Act Public Road Closure Procedural Fairness Public Participation Road Access Rights

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Parties

Johann Francois Els N.O

Applicant

Nicolas Jacobus Gert Wilhemus Els N.O

Applicant

Jacobus Wilhemus Els N.O

Applicant

Ignatius Walter Wait N.O

Applicant

Johann Wynand Els N.O

Applicant

Johann Francois Els

Applicant

Nicolas Jacobus Gert Wilhemus Els

Applicant

The Member of the Executive Committee for Public Works, Roads and Transport

Respondent

Frank Krull

Respondent

Elvin Victor Krull

Respondent

TT Farm CC

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the MEC's decision to legalise the erection of gates and removal of fences on a public road was procedurally compliant with the Eastern Cape Roads Act.
  2. 2 Whether the MEC failed to consider the safety of pedestrians using the road.
  3. 3 Whether the MEC's decision should be reviewed and set aside under PAJA.

Ratio Decidendi

The court found that the MEC's decision to legalise the erection of gates and removal of fences on District Road DR 02792 was procedurally defective. The application should have been processed under section 17 of the Eastern Cape Roads Act, which mandates public participation and advertising due to the impact on public access. The procedural requirements were not met, and the failure was material and mandatory. Additionally, the MEC failed to meaningfully consider the safety of pedestrians, particularly those who regularly use the road on foot, and did not impose adequate conditions to protect them from wild animals. These failures constituted grounds for review under PAJA. The court held...

Court Disposition

Application granted. The MEC's decision is reviewed and set aside.

Orders

  • 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.
  • The first respondent is to pay the costs of the application, including the costs of two counsel.