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)

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)

The court found that the construction of the Grayston Drive flyover did not amount to a permanent closure of a portion of Grayston Drive, as the street remained available for public passage and access to the service station was preserved via on- and off-ramps. However, the court held that the raising of the level of...

Source-derived case information.

Citation
[2007] ZAGPHC 302
Parties
Plaintiff: Engen Petroleum Limited; Plaintiff: Sandton Gate Service Station; Defendant: City of Johannesburg Metropolitan Municipality (Formerly Greater Johannesburg Transitional Metropolitan Council)
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
20 December 2007
Case Number
1995/2282
Procedural Posture
Civil Trial / Separated Issue on Permanent Closure or Diversion Under Section 67 of the Ordinance
Outcome
Plaintiffs succeed on the issue of permanent diversion; costs awarded to plaintiffs; remaining issues referred to trial.
Judges
P Boruchowitz
Legal Topics
Local Government Ordinance, Permanent Diversion of Road, Compensation for Roadworks, Interpretation of Statute
Land and Property Administrative Law Local Government Ordinance Permanent Diversion of Road Compensation for Roadworks Interpretation of Statute

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Parties

Engen Petroleum Limited

Plaintiff

Sandton Gate Service Station

Plaintiff

City of Johannesburg Metropolitan Municipality (Formerly Greater Johannesburg Transitional Metropolitan Council)

Defendant

Procedural Posture

Civil Trial / Separated Issue on Permanent Closure or Diversion Under Section 67 of the Ordinance

Legal Issues

  1. 1 Whether the construction of the Grayston Drive flyover constituted a permanent closure or diversion of Grayston Drive, or a portion thereof, as contemplated by section 67 of the Local Government Ordinance 17 of 1939 (T).
  2. 2 Whether the plaintiffs are entitled to compensation under section 67 for alleged loss or damage resulting from the roadworks.

Ratio Decidendi

The court found that the construction of the Grayston Drive flyover did not amount to a permanent closure of a portion of Grayston Drive, as the street remained available for public passage and access to the service station was preserved via on- and off-ramps. However, the court held that the raising of the level of a portion of Grayston Drive constituted a permanent diversion as contemplated by section 67 of the Local Government Ordinance. The physical location and direction of two lanes were changed, diverting them away from the intersection with Katherine Street. The court rejected the argument that only horizontal changes qualify as diversions, finding that vertical changes, such as...

Court Disposition

Plaintiffs succeed on the issue of permanent diversion; costs awarded to plaintiffs; remaining issues referred to trial.

Orders

  • It is declared that the roadworks constituted a permanent diversion as contemplated by section 67 of the Local Government Ordinance 17 of 1939 (T).
  • The defendant is ordered to pay the plaintiffs' costs, including the costs of two counsel and the qualifying fees of the witnesses Markman and Von Olst.