Engen Petroleum Limited and Another v City of Johannesburg Metropolitan Municipality (Formerly Greater Johannesburg Transitional Metropolitan Council) (1995/2282) [2007] ZAGPHC 302 (20 December 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 1995/2282

In the matter between:

ENGEN PETROLEUM LIMITED First Plaintiff

SANDTON GATE SERVICE STATION Second Plaintiff

and

CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY (FORMERLY GREATER

JOHANNESBURG TRANSITIONAL

METROPOLITAN COUNCIL) Defendant

J U D G M E N T

BORUCHOWITZ, J:

[1] This is a claim for damages brought against the Greater Johannesburg Transitional Metropolitan Council arising from an alleged closure or diversion of a road. The first plaintiff is Engen Petroleum Ltd which carries on business as a manufacturer and marketer of petroleum and chemical products. The second plaintiff is Sandton Gate Service Station CC which carries on the business of an automotive fu el filling and service station and public garage at a property situate at the intersection between Katherine Street and Grayston Drive, Sandton. The first plaintiff supplies Engen and Mobil products to the second plaintiff for sale of such products on the aforesaid property by the second plaintiff.

[2] During or about the period 1992 to 1994 the City Council of Sandton caused construction work to be effected to Grayston Drive, Sandton, where that road previously intersected with Katherine Street. The construction work entailed raising the central four lanes of Grayston Drive above the intersection with Katherine Street by means of a flyover road.

[3] The only issue which falls to be decided (the remaining issues having been separated in terms of Rule 33(4)) is whether the construction work constituted a permanent diversion or closure of Grayston Drive, or a portion thereof, as contemplated by section 67 of the Local Government Ordinance 17 of 1939 (T) (‘the Ordinance’). The relevant portions of the said section read as follows:

’67 Notwithstanding anything to the contrary in this ordinance contained the Council may permanently close or divert any street or portion of a street if and when the following conditions have been complied with:

…

(a) Any person who considers that his interests will be adversely affected by the proposed closing or diversion may at any time before the time for the lodging of objections and claims has expired, lodge with the council a claim, in writing, for any loss or damage which will be sustained by him if the proposed closing or diversion is carried out. If such closing or diversion is carried out the council shall pay compensation for the damage or loss sustained by such person, the amount of compensation in default of mutual agreement to be determined by arbitration. In assessing the amount of compensation the benefit or advantage derived or to be derived by the claimant by reason of the closing or diversion shall be taken into account. If such person however, fails to lodge his claim with the council during the period during which objections and claims may in terms of paragraph (3) of this section be lodged he shall not be entitled to any compensation for any damage or loss sustained by him.’

[4] The plaintiffs contend that they are entities for whose benefit section 67 of the Ordinance imposed a duty upon the City Council of Sandton to comply with the conditions prescribed by section 67, as the alleged closure or diversion adversely affected their interests.

The defendant admits that the City Council did not comply with the conditions prescribed by the section but denies that it was obliged to do so since the construction work effected did not, in its view, constitute a permanent diversion or closure of Grayston Drive or a portion thereof.

[5] The parties have agreed upon a written statement of admissions outlining the relevant facts and the approach to be followed by this court in adjudicating the dispute. The admissions therein made are the following:

‘1. The admissions made on the pleadings stand.

2. The Plaintiff admits that the southern boundary of the road reserve existing prior to the construction of the Grayston flyover has not changed subsequent to the said construction.

3. Katherine Street in the vicinity of the pre-existing intersection with Grayston Drive has remained essentially the same after the construction.

4. Prior to the construction of the flyover, the southern (east to west) portion of Grayston Drive consisted of three lanes which intersected with Katherine Street at grade level at a traffic light controlled intersection.

5. The situation pertaining after the construction of the flyover is that the southern section or portion of Grayston (accommodating traffic travelling from east to west) has now been divided into two sections such that two lanes of traffic are accommodated on the flyover whilst the remaining southern lane of traffic proceeds to the intersection controlled by traffic lights at Katherine Street.

6. The said portion of Grayston Drive proceeds across Katherine Street, past the Plaintiff’s filling station and rejoins the other two lanes of Graysto Drive after the end of the flyover.

7. The section of Grayston Drive from the intersection to where it rejoins the flyover has not been altered. Access from that section to the service station has not changed.

8. The traffic proceeding down the portion of Grayston Drive which proceeds to the grade level intersection with Katherine Street may either proceed across Katherine Street, past the filling station alternatively, turn left or right into Katherine Street.

9. Once traffic has proceeded onto the flyover on the two lanes of the Grayston Drive flyover, such traffic has no access to the Plaintiff’s filling station.

10. Without conceding any aspect of causation the Defendant accepts that this Honourable Court can assume, for the purpose of this separated issue, that if there has been a diversion or closure, the Plaintiffs are persons within the ambit of Section 66 and 67 of the Ordinance.

11. Purely for the purposes of this separated issue, this Honourable Court can assume that the Plaintiffs’ litreage figures annexed hereto as a bundle marked “A” are correct.

12. The parties accept that for the purposes of illustrating the aforementioned, the models prepared by the Plaintiffs give a fair representation of the pre-existing and post construction situations. The models shall be handed in as exhibits “A” and “B” respectively.

13. The parties agree that either party may use the bundle of admitted photographs to illustrate any feature. A copy of the said bundle is annexed hereto marked “B”.

14. The above Honourable Court is asked to determine whether the road works referred to in the pleadings whereby the level of Grayston Drive, or a portion thereof, was raised above the level of Katherine Street constituted a permanent diversion or closure of Grayston Drive, or a portion thereof, as contemplated by Section 67 of Ordinance 17 of 1939 of the Transvaal, raised by paragraph 9 of the particulars of claim and further particulars thereto as read with paragraph 6 of the plea.

15. If the answer to the aforementioned question is in the affirmative, the Honourable Court is asked to find for the Plaintiffs on this issue, with costs including the costs of two counsel, and the qualifying fees of the witnesses Markman and Von Olst, and to refer the remaining issues to trial. If the answer is in the negative, the Honourable Court is asked to dismiss the action with costs, including the costs of two counsel.’

[6] Section 67 of the Ordinance cannot be viewed in isolation but must be seen in the context of the legislative framework in which it is found. Section 63 of the Ordinance vests the control and management of all the roads, streets and thoroughfares in the Council concerned for the use and benefit of the public or to which the inhabitants have acquired a common right. Under section 66 a Council is empowered, after having given such notice as it may deem necessary, to close any street, road or thoroughfare permanently or temporarily to particular classes of traffic. The relevant portions of that section read as follows:

‘66(1) Notwithstanding anything to the contrary contained in this Ordinance, a Council may, after having given such notice as it may deem necessary –

close any street, road or thoroughfare vested in the Council;

permanently or temporarily for any particular class of traffic, procession or gathering; or

temporarily for all traffic;

divert temporarily any street, road or thoroughfare contemplated in paragraph (b).’

Section 2 of the Ordinance defines the word ‘street’ in this way:

‘“street” includes any street, road or thoroughfare shown on the general plan of a township, agricultural holdings or other division of land in respect of which the public have acquired a prescriptive or other right of way.’

[7] Section 67(10) of the Ordinance provides:

‘The council shall supply the Surveyor-General with a diagram framed by an admitted Land Surveyor showing all the details of the closing or diversion. The Surveyor-General shall thereupon cause such amendments to be made to the general plan of the township as are necessary to show such closing or diversion and the Registrar of Deeds or other registration officer concerned shall thereupon make corresponding entries in his registers.’

[8] It was argued on behalf of the plaintiffs that the raising of the central four lanes of Grayston Drive above the intersection with Katherine Street amounted to a permanent closure of that section of Grayston Drive. Once on the flyover it was no longer possible for traffic to move between the lanes accommodated on the flyover and the southern-most lane of Grayston Drive and this in effect amounted to a closure of a portion of Grayston Drive.

[9] In support of this submission reliance is placed on two decisions: S J and M M Hilcove (Pty) Ltd t/a Kentucky Fried Chicken and Another v Pietermaritzburg City Council 1988 (3) SA 319 (A) and Woodburne Service Station (Pty) Ltd v Pietermaritzburg Corporation 1966 (4) SA 40 (N). Hilcove’s case concerned the interpretation of a similarly worded provision contained in the Natal Ordinance (section 211(2) of the Local Authorities Ordinance No. 25 of 1974 (N)). The majority of the court (per Nicholas AJA, Corbett JA and Kumleben AJA concurring) held (at 331D-E) that a closure of part of a street would occur where that part is no longer available for the purpose for which it was previously used, i.e. for the passage of traffic; or where it was no longer possible for the public to use that part of the street to move between one part of it to another.

[10] In the Woodburne case it was accepted that the closing of certain medial gaps in islands constructed in the centre of a road amounted to the closing of a street within the meaning of section 153 of Ordinance 21 of 1942 (N). The Ordinance in question also contained a similarly worded provision to that under consideration in the present case.

[11] The word ‘close’ in section 67 of the Transvaal Ordinance is not defined and therefore falls to be interpreted in accordance with the customary canons of construction. It must be given its ordinary, grammatical meaning in accordance with the context in which it is found in the section. See in this regard University of Cape Town v Cape Bar Council and Another 1986 (4) SA 903 (A) at 913H-914A.

[12] Its meaning becomes clearer when viewed in the context of section 66 of the Ordinance which deals with the power of a Council to temporarily or permanently close any street, road or thoroughfare vested in the Council for particular classes of traffic. Section 66 does not permit the closure of a street or road permanently for all traffic. This can only be done under the provisions of section 67. I accept therefore that the word ‘close’ in section would include the permanent closure of a street or road for all traffic.

[13] In my view a permanent closure of a portion of Grayston Drive as contended for by the plaintiff has not occurred. It cannot be said that a portion of the street is no longer available for the passage of traffic or that it is no longer possible for the public to move between one part of it to another. Road users have a choice whether to use the flyover or not. The reconstruction makes specific provision, by means of on- and off-ramps for members of the public using Katherine Street and Grayston Drive to reach those parts of both and the properties abutting thereon which would otherwise be rendered inaccessible by the grade separation. Traffic users who wish to access the second plaintiff’s garage or the Katherine Street intersection can do so by utilising the on- and off-ramps.

The road reserve in respect of Grayston Drive has never changed. To the extent that there are changes caused by the elevation of certain of the lanes does not mean that there has been a closure of Grayston Drive. The fact that a portion of the functional street is taken up by retaining walls is incidental to the use of the street and does not of itself result in the closure of that portion of the street. The effect of such retaining walls is not to shut off the movement of the public along the street. The position in that regard is no different from that which would have occurred had a particular lane in Grayston Drive been indicated for the use of left- or right-turning vehicles only. The public is still able to use Grayston Drive as a public street albeit that access to the Katherine Street intersection is now gained from a different level by means of the on- and off-ramps. In the result I find for the defendant on the issue as to whether the road works constitute a permanent closure of a portion of Grayston Drive.

[14] I turn therefore to consider whether the said road works constituted a permanent diversion as contemplated under section 67 of the Ordinance.

[15] The meaning of the word ‘divert’ as it appears in the said section of the Ordinance received attention in the case of Bellevue Motors CC v Johannesburg City Council 1994 (4) SA 339 (W). Zulman J (as he then was) held (at 343H), after applying the customary canons of construction, that the section envisaged a diversion of a street in the sense that the street (as opposed to traffic that travels thereon) was diverted or deflected from its proper course. In considering whether there has been a diversion, one is concerned not with traffic flows or a diversion of traffic but with changes of direction in the physical location of the street.

[16] Counsel for the plaintiffs argued, somewhat faintly, that the Bellevue Motors case had been incorrectly decided and that the matter should be approached from the viewpoint of traffic. I am bound to the legal construction placed upon section 67 in the Bellevue Motors case, unless satisfied that it is clearly wrong. In my view there is no basis for such a finding.

[17] In Bellevue Motors the court had recourse to authoritative dictionaries in order to determine the ordinary meaning of the word ‘divert’. The following definitions that appear in standard dictionaries are particularly instructive:

The Oxford English Dictionary, 2nd Ed, Volume IV:

‘To turn in different directions; to turn aside from its direction or course; to turn aside out of ones course, to deviate;’

Webster’s New Twentieth Century Dictionary, 2nd Ed:

‘To turn (a person or thing aside) from a course; to deflect.’

Black’s Law Dictionary, 5th Ed:

‘To turn aside; to turn out of the way; to alter the course of things …’

Burton’s Legal Thesaurus:

‘Cause to bend, cause to curve, cause to deviate, cause to turn from, change the course of.’

What is common to all of these definitions is the notion of a change of direction from a particular course or route.

[18] It was submitted on behalf of the defendant that only horizontal as opposed to vertical changes of direction are contemplated in the Ordinance. This, it submits, is evident from the wording of sections 2 and 67(10). In section 2 a street is defined with reference to the general plan of a township. Section 67(10) stipulates that the Council is obliged to supply the Surveyor-General with a diagram showing all details of the closing or diversion which must be depicted on the general plan of the township. The general plan of a township is a two-dimensional document and would not accommodate changes which entail the raising or lowering of a street or road. Such plan can only accommodate changes of direction of a road in the sense of a horizontal movement to the left or right or to the north, south, east or west.

[19] It argues further that the absence of evidence of a change to the general plan is an indication that the no closing or diversion had occurred.

[20] The arguments advanced by the defendant are in my view unsustainable. Horizontal diversions, such as for example subways or overhead bridges where the road is lowered or raised must in some way be depicted on the general plan of the township. There is no evidence as to how such features ought to be depicted thereon. The absence of evidence of a change to the general plan to accommodate the raising of the road takes the matter no further and is not probative of the question whether the construction work effected amounts a closure or a diversion.

[21] There is nothing in the Ordinance to indicate that only lateral changes are to be considered diversions. Section 63(1) of the Ordinance expressly provides that the Council shall have the control and management of all roads, streets, thoroughfares and bridges.

This would clearly include flyovers such as that constructed in Grayston Drive, and roads and highways which necessitate a raising or lowering of the level of a street. The possibility that the term ‘divert’ may include vertical as opposed to horizontal changes was alluded to in the following footnote to section 67(4) in Local Government Law in the Transvaal by W G Berry (at p 64):

‘Note. – Divert. Modern freeway construction not frequently necessitates s substantial raising or lowering of the level of a street in relation to adjoining and nearby property, resulting in damage to the owners of such property and others. Such work is authorised by s. 79(1) (infra), which makes no provision for compensation and compensation would not be payable in the absence of negligence on the part of the council (Mayor of Freemantle v Annois, (1902) A.C. 213). The raising or lowering of the level of a street may, however, possibly constitute a closing or diversion of the street (i.e. on the vertical as opposed to the horizontal plane), which might possibly give rise to a claim for compensation in terms of s. 67(4) (see also Woodburne Service Station (Pty) Ltd v Pietermaritzburg Corporation, 1966 (4) S.A. 40 (N).’

[22] In Bellevue Motors case the court cited (at 343H) as an example of a diversion the case where one has to deviate or depart from a road or travel on another road alongside the road or in its immediate vicinity and rejoin at another part. That is precisely what has occurred in the present case. Prior to the construction of the flyover the southern portion of Grayston Drive (accommodating traffic travelling from east to west) consisted of three lanes which intersected with Katherine Street at grade level at the traffic light-controlled intersection. The post-construction position is that two lanes of traffic are now accommodated on the flyover and rejoin the other lanes of Grayston Drive after the end of the flyover. The physical location and direction of these two lanes has changed. Instead of going through the Katherine Street intersection they now go over it. The two lanes of Grayston Drive that are now accommodated on the flyover have in effect been diverted away from the intersection with Katherine Street. The fact that the southern boundary of the road reserve existing prior to the construction of the flyover has not changed subsequent to the construction and the fact that the through road comprising Katherine Street was not affected by the construction does not alter the position.

[23] For these reasons I find that the road works referred to in the pleadings whereby the level of a portion of Grayston Drive was raised above the level of Katherine Street constitutes a permanent diversion as contemplated by section 67 of the Ordinance. I accordingly find for the plaintiffs on this issue with costs, including the costs of two counsel, and the qualifying fees of the witnesses Markman and Von Olst. The remaining issues in dispute are referred to trial.

_________________________

P BORUCHOWITZ

JUDGE OF THE HIGH COURT

COUNSEL FOR FIRST

AND SECOND PLAINTIFFS ADV C PUCKRIN SC AND

ADV P L CARSTENSEN

INSTRUCTED BY KRITZINGER & CO

COUNSEL FOR DEFENDANT ADVJ M SUTTNER SC AND

ADV T MOTAU

INSTRUCTED BY KNOWLES HUSSAIN INC

DATE OF HEARING 31 OCTOBER 2007

DATE OF JUDGMENT 20 DECEMBER 2007

IN THE HIGH COURT OF SOUTH AFRICA

BORUCHOWITZ J:

SUMMARY: Local authority – streets and roads – permanent closure or diversion in terms of section 67 of Local Government Ordinance 17 of 1939 (T) – what amounts to – whether the raising of the level of a street or certain of its lanes constitutes a closing or diversion of the street – a diversion may include changes in direction in both the vertical as opposed to horizontal planes.