Mogotsi v Premier of the North-West Premier and Others (858/2008) [2011] ZANWHC 19 (9 May 2011)

NORTH WEST HIGH COURT, MAFIKENG

CASE NO 858/2008

In the matter between:

MAUNETJIE DAVID MOGOTSI ….................................APPLICANT

and

THE PREMIER OF THE

NORTH WEST PROVINCE ….............................1ST RESPONDENT

THE MEC FOR TRANSPORT, ROADS AND

COMMUNITY SAFETY OF THE NORTH WEST

PROVINCE …......................................................2ND RESPONDENT

THE DINALETSANA VILLAGE COUNCIL ….....3RD RESPONDENT

J U D G M E N T

LEEUW JP:

Introduction:

[1] The applicant approached the Court seeking an order in the following terms:

1. “That the following declaratory orders be issued:-

1.1 That the Premier’s Notice Number 4 with subjoined sketch plan, as published in Provincial Gazette number 6077 of the North West

Province dated the 26th October 2004 on pages 3 to 5, is null and void and of no force and effect;

1.2 That the road Z613 as it existed prior to the said Premier’s Notice, is still a public road;

1.3 That the deviation of the road Z613 brought about by the Premier’s Notice, is not a public road.

2. That the 1st and 2nd Respondents be ordered to immediately remove all obstacles which prevent free and unencumbered access to the road Z613 as it existed prior to the said Premier’s Notice, I (sic) particular the gate at the one end and the fence at the other end.

3. That the 1st and 2nd Respondents be ordered to immediately repair, keep in order and maintain as a public road, the road Z613 as it existed prior to the said Premier’s Notice.

4. That the 1st and 2nd Respondents shall pay the costs of this Application jointly and severally, alternatively and in the event of the 3rd Respondent opposing this Application, that the Respondents shall pay the costs of this Application jointly and severally.

5. That further and / or alternative relief is granted to the Applicant.”

[2] Although a notice to oppose the application was filed in respect of all three respondents, Matlapele Rebecca Ntshabele (Ms Ntshabele) deposed to the answering affidavit on behalf of the first and second respondents only (the respondents).

FACTUAL BACKROUND

[3] The applicant, who resides in and owns a farm Portion A of Farm Vaalboschloot 186, JQ in the district of Brits (the farm) states that the gravel road, Z613, which was a public road, gave him direct access from his farm into the public road and vice versa. He has been using this road from as early as 1987.

[4] He states that on the 27 August 1993, he was approached by the Chairman of the third respondent with a proposal to have the road deviated, which proposal he rejected.

[5] This road has not been maintained by the respondents since May 1997. Consequently, he visited the offices of the Department of Works in Ga-Rankuwa where he met a certain Mr Masilo to whom he raised his concerns about the proposed deviation of the road. Mr Masilo could not furnish him with further information regarding the third respondent’s intentions to deviate the road, but promised to revert back to him after investigating the matter.

[6] During May 1998, the road was scraped but still left unattended. He received a letter from the Secretary of the third respondent wherein he was informed that the road Z613, through which he gained direct access to his farm would be closed with effect from 1 June 1998 and that he should make alternative arrangements to access his farm.

[7] He wrote another letter to the second respondent wherein he, amongst others expressed his disquiet about the deviation of the road without the procedures prescribed in the Roads Ordinance Number 22 of 1957 (the Roads Ordinance), being complied with.

[8] When he did not receive any response, he approached one Mr Van Rensburg, an officer of the second respondent at Brits, who informed him that he authorized the deviation of the road however expressed his concerns about the closure of the road which gave applicant access to his farm, which closure was not authorized by him.

[9] On June 1998 Mr Van Rensburg, accompanied by a certain Mr Neethling and other officials met at the deviated portion of the road. They later proceeded to the tribal offices where they met Mr Kwadi, the third respondent’s chairperson as well as Mr Mosito, who is a counsellor. At this meeting, the tribal council refused to reverse their decision to deviate the road despite having being advised by Mr Van Rensburg that even though he had authorized the deviation, it was illegal to deny applicant access to his farm. It was at this meeting that Mr Van Rensburg informed the third respondent that an application will be submitted to the second respondent requesting permission for the deviation of the road.

[10] When he did not receive any progress report from Mr Van Rensburg, he wrote a letter to the first respondent (the Premier) on 25 June 1998 complaining about the deviation of the road.

[11] On 1st July 1998, whilst awaiting a response from the Premier, he discovered that a fence was erected at the point where a gate was later

installed, resulting in him being denied direct access to his farm.

[12] He reported the closure of the road to the police on the same day. The fence was removed on the 13 July 1998 but the gate was reinstalled shortly thereafter.

[13] The applicant still uses the road in order to access his farm from the public road, but after the deviation of the road, and the installation of the gate on road which goes over the stream leading towards the direction of his farm, his free access to the farm has been impeded and he is experiencing the following inconvenience:

each time he has to gain access to his farm, he has to stop and alight from his car in order to open the heavy gate;

the road is no longer maintained by the second respondent to the extent that during rainy seasons, the road becomes muddy and slippery, which also makes it difficult and cumbersome for him to open the gate;

where the road rejoins the deviated road, the road has been completely fenced off which has the effect of depriving him direct access to his farm through the road before it was deviated.

[14] Applicant further intimates that the deviation of the road was unlawful in that the procedures prescribed in the Roads Ordinance were not followed.

[15] On 4 August 1999 he wrote a letter imploring the second respondent to have the decision to deviate the road reversed but he did not receive any response.

[16] He again sought the intervention of the Premier by writing a letter on 19 July 2000 and when he did not receive any response, he approached the Public Protector during July 2002 for assistance. He received a letter on 8 July 2005 from the Public Protector which informed him that several attempts to reach him were unsuccessful and that, consequently his file in their office was closed.

[17] Because of the futile attempts to have the decision to deviate the road revoked, he decided to seek legal advice during 2006. His attorneys conducted the necessary investigations. It was established that there was a Proclamation in a form of a Premier’s Notice published on the 26 October 2004 in the North West Provincial Gazette No 6077, wherein the Premier deviated the public road Z613. The notice was never brought to the attention of the applicant until it was discovered by his attorneys during June 2006.

[18] On 5 July 2006, the applicant’s attorneys of record directed the following letter to the Premier.

“DEVIATION OF PUBLIC ROAD Z613

We act on behalf of Mr MD Mogotsi, the registered owner of portion 1 of the farm Vaalboschsloot 186 JQ. Mr Mogotsi always had access to his farm via public road Z613. Some time ago, a neighbouring community applied for the deviation of a section of public road Z613. Mr Mogotsi objected to the proposed deviation, because it would have resulted in him losing the access to his farm which he enjoyed at the time. He addressed numerous correspondences to the office of the Public Protector and attended meetings with officials of the Department of Roads in this regards.

However, despite our clients protestations, the Premier declared a deviation of public road Z613 I terms of section 48 of the Road Ordinance, 1957, in Premier’s Notice No 4 in Provincial Gazette 6077 of 26 October 2004.

When acting as a aforesaid, the Premier exercised a public power and performed a public function in terms of legislation, which adversely affected the rights of Mr Mogotsi.

It appears that the proper procedures prescribed in the Roads Ordinance for the deviation of a public road were not adhered to Mr Mogotsi needs full documentation and information regarding the matter in order to consider his position.

We were instructed to address this letter to you and to demand, as we hereby do, that the following information be made available to us in terms of the Promotion of Access to Information Act, of 2000, within 30 days of receipt of the letter:

A copy of the application made that the public road Z613 be deviated, in accordance with section 2891) and 2 of the Roads ordinance.

Whether the applicant was required to erect any notice boards in accordance with section 28(3) and 94A) of the Roads Ordinance. If so, proof that the notices were erected and maintained.

Whether the chairman or a member of the board investigated the proposal embodied in the application in accordance with section 28 (5) of the Roads Ordinances.

A copy of the chairman’s report on the investigation and his recommendations that was submitted to the Premier, if any, in accordance with section 28(6) of the Roads Ordinance.

A copy of the prescribed notice that was published in the Provincial Gazette to show cause, within, 30 days of the date of publication, for his objections, in accordance with section 29(2) of the Road Ordinance.

Copies of all objections received.

Confirmation whether the Premier required the applicant to Post or display copies of the notice at the Magistrate Office, and at each end of the portion of the road concerned, in accordance with section 29(4) and (5) of the Roads ordinance and proof that this was done.

Whether the Premier appointed a commission to inquire into objections and to report to the Premier thereon in accordance with section 30 of the Roads Ordinances. Is so, a copy of the report.”

[19] In response to this letter, a meeting was later arranged at the site of the deviated road, which meeting was attended by the officials of the second respondent, the applicant and his attorney of record.

[20] Subsequent to this meeting the attorney received a letter dated 26 October 2006 from the Director of Legal Services in the second respondent’s department, informing him that the matter was referred to the office of the Premier with suggestions to the Head of the Department on an “appropriate solution”, and promised to revert to him in due course. This did not happen.

[21] In view of the respondents’ failure to revert to the applicant’s attorney, the applicant caused this application to be instituted during 2008 because respondents failed to provide him with information or reasons for the Premier’s decision to proclaim the deviation of the public road Z613.

[22] Ms Ntshabele in her answering affidavit avers that she is the Acting Head and the Accounting Officer of the second respondent’s department; that although she has no personal knowledge of the facts in this matter, she is nevertheless qualified to attest to this affidavit based on information contained in the documentation in the departmental files relating to this matter. She further states that the officials who dealt with this matter, are no longer in the employ of the Department thus she could not verify the facts from them, but intimates that the information in the documentation retrieved from the departmental files is reliable and that she believes that it is true and correct.

Points in limine

[23] She nevertheless takes the following preliminary points against the application on the grounds that the applicant failed to comply with section 7(1)(b) read with 9 (1)(b) and (2) of the Promotion of Administrative Justice Act No 3 of 2000 (“PAJA”) in that:

(a) the Premier’s Notice was published in the North West Provincial Gazette on 26 October 2004, which was after the PAJA came into operation on 30 November 2000, and that the applicant ought to have approached the Court through the procedure prescribed in PAJA;

(b) the applicant ought to have instituted these proceedings within a period of 180 days or without reasonable delay after the cause of action as prescribed by section 7 (1)(b) of PAJA; and

(c) the applicant was neither granted an extension by the respondents as prescribed in section 7 of PAJA nor did he apply for condonation in terms of section 9 (1)(b) and (2) of this Act.

Submissions

(24) Counsel for the respondents, Ms Zwiegelaar submitted that the decision of the Premier to proclaim the deviation of the road constitutes an administrative action as contemplated in section 1 of the PAJA, and that the applicant ought to have applied for the review of the decision by utilizing the procedure prescribed in that Act.

[25] Counsel for the applicant Mr Botha argued firstly, with regard to the preliminary points raised, that the Premier’s Notice was intended to coerce the applicant to comply with the unlawful administrative act of deviating the public road. Secondly, he contended that the PAJA is not applicable in this matter because the decision to deviate the public road Z613, was taken by the second respondent, instead of the Premier as prescribed by the Roads Ordinance, and thirdly that consequently, there was no decision taken by the Premier which needed to be reviewed in the circumstances.

Is PAJA Applicable?

[26] In this application, applicant seeks an order setting aside the Proclamation deviating the public road Z613, and not a review of an “administrative action” as defined in PAJA.

[27] Section 1 (b) of PAJA defines an “administrative action” as meaning any decision taken, or any failure to take a decision, by —

“(a) ………………

(b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affect the rights of any person and which has a direct, external legal effect, but does not include —

(aa) the executive powers or functions of the National Executive, including the powers or functions referred to in section (79)(1) and (4), 84(2)(a), (b), (c), (d), (f), (g), (h), (1) and (k), 85(2)(b), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97, 98, 99 and 100 of the Constitution;

(bb) the executive powers or functions of the Provincial Executive, including the powers or functions referred to in sections 121(1) and 92) 125(2)(d), (e) and (f), 126, 127(2), 132(2), 133(3)(b), 137, 138, 139 and 145(1) of the Constitution;

(cc) the executive powers or functions of a municipal council;

(dd) the legislative functions of Parliament, a provincial legislature or a municipal council;

(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of Special Investigating Units and Special Tribunals Act, 1996 (Act 74 of 1996), and the judicial functions of a traditional leader under customary law or any other law;

(ff) a decision to institute or continue a prosecution;

(gg) a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by Judicial Service Commission terms of any law;

[Para (gg) substituted by sec 26 of Act 55 of 2003 wef 31 March 2005]

(hh) any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act, 2000; or

(ii) any decision taken, or failure to take a decision, in terms of section 4(1);” (emphasis added.)

Section 1 of PAJA defines a “decision” as meaning:

“any decision of an administrative nature made, proposed to be made, under an empowering provision, including a decision relating to —

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing of an administrative nature,

and a reference to a failure to take a decision must be construed accordingly;”

[28] “Empowering provision” is also defined in PAJA as meaning “a law, a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken.”

[29] Section 29 and 48 of Roads Ordinance empowers the Premier to either refuse or grant an application submitted in terms of section 28 and section 17 (1) (d) read with section 20 (g) thereof. (I will deal with these provisions later in my judgment).

[30] Ms Zwiegelaar argued that the Road Board in section 10 of Roads Ordinance was dissolved during 1994/1995 and that the approval for the proclamation of the deviation of the road Z613 was to be obtained from the second respondent. I find no merit in this contention because the Roads Ordinance empowers the Premier and not the MEC to proclaim the deviation of a public road.

[31] The Premier’s Notice was not proclaimed by the Premier who was empowered by the Roads Ordinance to take a decision as prescribed by either section 29 or 48 of the Roads Ordinance. This is common cause taking the contention of Ms Zwigelaar in paragraph [30] above.

[32] It could be argued that the decision taken by the second respondent to deviate the public road, contrary to the Roads Ordinance, could properly be set aside on review in terms of section 6 (2) (f) (i) of PAJA which provides that:

“(2) A court or tribunal has the power to judicially review an administrative action if —

(a) – (e) ………..

(f) the action itself —

(i) contravenes a law or is not authorized by the empowering provision; or

(aa) ………….”

[33] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at para [25], O’Reagan J stated the following:

“[25] The provisions of s 6 divulge a clear purpose to codify the grounds of judicial review of administrative action as defined in PAJA. The cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the past. And the authority of PAJA to ground such causes of action rests squarely on the Constitution. It is not necessary to consider here causes of action for the judicial review of administrative action that do not fall within the scope of PAJA. As PAJA gives effect to s 33 of the Constitution, matters relating to the interpretation and application of PAJA will of course be constitutional matters.”

[34] However, in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at para [32], the Court stated the following:

“[32] But just as some consequences might be dependent for validity upon the mere factual existence of the contested administrative act so there might be consequences that will depend for their legal force upon the substantive validity of the Act in question. When construed against the background of principles underlying the rule of law a statute will generally not be interpreted to mean that a subject is compelled to perform or refrain from performing an act in the absence of a lawful basis for that compulsion. It is in those cases —where the subject is sought to be coerced by a public authority into compliance with an unlawful administrative

act — that the subject may be entitled to ignore the unlawful act with impunity and justify his conduct by raising what has come to be known as a ‘defensive’ or a ‘collateral’ challenge to the validity of the administrative act.” On the footnote, “collateral” is explained as follows: “a challenge to the validity of the administrative act that is raised in proceedings that are not designed directly to impeach the validity of the administrative act.”

[35] The Court went further to state in par [36] that

“It is important to bear in mind that in those cases in which the validity of an administrative act may be challenged collaterally a Court has no discretion to allow or disallow the raising of that defence: The right to challenge the validity of an administrative act collaterally arises because the validity of the administrative act constitutes the essential prerequisite for the legal force of the action that follows and ex hypothesi the subject may not then be precluded from challenging its validity. On the other hand, a court that is asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to grant or to withhold the remedy. It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimizing injustice when legality and certainty collide. Each remedy thus has its separate application to its appropriate circumstances and they ought not to be seen as interchangeable

manifestations of a single remedy that arises whenever an administrative act is invalid” (emphasis added).

[36] In paragraph [37] of that case, the Court held the view that:

“While the Legislature might offer, in the interests of certainty, provide for consequences to follow from the fact of an administrative act, the rule of law dictates that the coercive power of the State cannot generally be used against the subject unless the initiating act is legally valid. This case illustrates a further aspect of the rule of law, which is that a public authority cannot justify refusal on its part to perform a public duty by relying, without more, on the invalidity of the originating administrative act it is required to take action to have it set aside and not simply ignore it.”

[37] The applicant, despite several correspondences directed to the various authorities protesting the deviation of the public road, did not receive any response. Despite his protestations, the road was deviated through the proclamation referred to above. In the circumstances, the applicant was entitled to approach the Court for a declaratory order and can establish that certain factors ought to have been considered before the proclamation of the deviation of the public road Z613, which is a collateral challenge to the validity of the second respondent’s actions as an Administrator, to coerce him to comply with an unlawful administrative act. See also V & A Waterfront Properties v Helicopter & Marine Services 2006 (1) SA252 (SCA) at par [10].

[38] I find that PAJA is not applicable in these proceedings and that the applicant is entitled to challenge the validity of the Premier’s Notice proclaiming the deviation of the public road Z613, by seeking a declaratory order.

The Law

[39] The purpose of this application is not to determine whether or not the deviation of the public road was justified, but rather to determine whether or not the correct procedures prescribed in the Roads Ordinance for deviating the public road Z613 were followed in the circumstances. It is common cause that the deviation of a section of the road Z613 was purportedly proclaimed by the Premier’s Notice in the Provincial Gazette. In terms of the Premier’s Notice, the road was a public road which was deviated in accordance with section 48 of the Roads Ordinance. The notice further stipulates that “in terms of section 5A(3) of the said Ordinance, it is hereby declared that the land taken as part of the deviation of the public road has been physically demarcated.”

[40] The Roads Ordinance was made applicable to the North West Province by Proclamation No 110 of 1974 which was published in the Government Gazette 15813 of 17 June 1994. The Administrator stated in the Roads Ordinance was substituted by the Premier.

[41] Section 48 of the Roads Ordinance of 1957 provides:

“48 Power of Administrator (Premier) to declare, close or deviate an access road.—(1) the Administrator may, upon receipt of a report referred to in section 17 (1) (d) or for the purposes of section 20 (g), by notice in the Provincial Gazette—

(a) declare that a road of a width which the Administrator deems sufficient and which affords the owner concerned access to a public road (hereinafter referred to as an access road), shall exist on any land; or

(b) close or deviate or increase the width of any access road:

Provided that without the consent of the Minister of the Mines, no access road shall be declared on land proclaimed in terms of the Mining Rights Act, 1967 (Act 20 of 1967) or on land held by any person under mining title as defined in the said Act unless the course of the access road concerned has been reserved for the purpose of a road in terms of the provisions of that Act or on land proclaimed an alluvial digging in terms of the provisions of the Precious Stones Act, 1964 (Act 73 of 1964) or in terms of any prior law.

[Sub-s. 91) amended by s. 11 of Ord. 20 of 1976.]

In respect of any notice referred to in subsection (1), the provisions of section 5A shall apply mutatis mutandis.

(3) The Administrator may cancel or amend any notice referred to in subsection (1).

[42] Mr Botha contented that section 48 does not deal with a deviation of a public road but rather of an access road. Although “access road” is not defined in the Roads Ordinance, he finds support in the wording of section 48(1)(a) which states that the “Administrator may declare that a road ….. which affords the owner concerned access to a public road (hereinafter referred to as an access road); …….” (emphasis added)

[43] It is not in dispute that the applicant accessed the public road Z613 directly from his premises before it was deviated. He did not have to use another road which was not a public road in order to access the public road Z613.

[44] He, Mr Botha further argued that the correct section applicable in this instance is section 28 of the Roads Ordinance which provides:

28. Closing of public roads.—(1) Any person who desires that any public road other than a throughway and a provincial road be closed, deviated or otherwise altered may make application to that end in the matter prescribed in this section.

[Sub-s. (1) amended by s. 11 of Ord. 16 of 1981.]

[45] Mr Botha submitted that the procedure prescribed for an application for the deviation of a public road, which the Premier’s Notice purported to do, albeit in terms of section 48, ought to have been appropriately proclaimed in accordance with sections 28 to 30 of the Roads Ordinance.

[46] Section 28 of the Roads Ordinance deals with “deviation of public roads and appointment of Commissions.” The manner and procedure prescribed for deviating a public road is provided for in section 28 as follows:

“28. Closing of public roads.—

(1) Any person who desires that any public road other than a throughway and a provincial road be closed, deviated or otherwise altered may make application to that end in the matter prescribed in this section.

(2) Such application shall first be submitted to the chairman of the board of the district in which the relevant portion of the road is situated (hereinafter referred to as the Chairman).

The applicant shall pay the prescribed fee and undertake to erect such notice boards and observe such duties as may be lawfully required of him under this Ordinance.

Within seven days of the date upon which the applicant has been so ordered by the Chairman, the applicant shall erect such notice boards at each end of the appropriate road section as will be clearly visible to approaching traffic and as nearly possible at right angles to the road.

[Sub-s. (4) amended by s. 3 (a) of Ord. 20 of 1985]

(4A) The notice boards contemplated in subsection (4) shall be maintained by the applicant until such time as the application concerned is refused or the notice contemplated in section 29 (6) or 31 (1) is promulgated, whereupon the applicant shall remove such boards.

[Sub-s. (4A) inserted by s. 3 (b) of Ord. 20 of 1985]

(4B) Where the applicant fails to comply with the provisions of subsection (4A), the Administrator may maintain or remove the notice boards concerned, as the case may be, and recover the costs thereof from the applicant.

[Sub-s. (4B) inserted by s. 3 (b) of Ord. 20 of 1985]

On receipt of the application referred to in sub-sections (1) and (2), the Chairman shall, himself or by a member of the board, or an officer in the employ of the Administration, investigate the proposals embodied in such application.

Thereupon the Chairman shall transmit the said application to the Administrator, together with a report on the investigation and with such recommendations as the Chairman may deem fit. “

[47] Section 29 of the Roads Ordinance provides that the application and documents referred to in section 28, shall be referred to the Premier for consideration, and he or she may refuse or grant the application.

[48] Section 29 (1) prescribes the following procedure to be followed where the application has either been accepted or rejected:

Administrator may grant or refuse application.—

If he grants the application, the Administrator shall cause to be published in the Provincial Gazette and in a newspaper as contemplated in section 110 of the Republic of South Africa Constitution Act, 1961 (Act No 32 of 1961), a notice calling upon any person who has any objection to show cause within thirty days of the date of publication of the notice for his objections.

[Sub-s. (2) amended by s. 11 of Ord. 10 of 1966.]

The said notice shall further intimate that if any objection is taken, the objector may be held liable for the prescribed amount of the cost in respect of a commission appointed in terms of section 30.

The Chairman shall cause one copy of the said notice in Afrikaans and one copy in English to be posted as soon as may be at the office of the magistrate of the district in which the portion of the road concerned is situated and such other places as the Administrator may direct.

The Administrator may further require the applicant to post or display copies of the road concerned, mutatis mutandis as provided in sub-section (4) of section 28 and for such period as the Administrator may determine.

[Sub-s. (5) amended by s. 13 (b) of Ord. 14 of 1984.]

Should the provisions of sub-sections (2), (3), (4) and (5) have been complied with and no objections have been received, the Administrator may, subject to the provisions of section 32, by notice in the Provincial Gazette which notice shall embody a sketch plan of the alteration, declare the road to be closed, deviated or otherwise altered, as the case may be.

[Sub-s. (6) amended by s. 7 of Ord. 20 of 1971.]

[49] Section 30 provides for the appointment of a Commission of enquiry in the event an objection has been noted in terms of section 29 (1) and (2), (3), (4) and (5) above.

[50] Section 31 further provides that:

“(1) Subject to the provisions of section 32, the Administrator may, after considering the report of the commission and after such investigation as he may deem necessary, by notice in the Government Gazette declare what road arrangement is to be made in terms of the application. Where such road arrangement entails the closing or deviation of a road, such notice shall include a sketch plan of the public road so closed or deviated.

[Sub-s. (1) amended by s. 8 of Ord. 20 of 1971.]

[51] In the Premier’s Notice referred to above, the Notice purports to have declared the land taken as part of the deviation of the public road as being physically demarcated in terms of section 5A(3) of the Roads Ordinance. Section (1) deals with a Notice issued by a Premier for the purpose of declaring —

“(a) that a public road or any deviation of a public road shall exist on any land; or

(b) ………..”

[52] Section 32 provides: Conditions which shall be complied with before certain powers are exercised by the Administrator.—

“For the purposes of the provisions of section 29 (6) and 31 (1), the Administrator may, as a condition of the exercise of any power in those sections contained, require that the person referred to in section 28 (1), shall undertake to do any or all the following:

(a) to pay on behalf of the Administrator–

(i) any compensation payable in terms of this Ordinance;

(ii) any amount payable in terms of section 95 to make good actual financial loss, or such portion of such compensation or amount as the Administrator may determine;

[Para. (a) substituted by s. 4 of Ord. 20 of 1985]

to erect any fence which the Administrator may deem to be expedient;

to construct the public road;

to pay any or all the costs incurred by the Administrator in the exercise of any such power as he may determine,

and the administrator may require such person to furnish such security as the administrator may deem sufficient for the due fulfillment of any such condition.

[S. 32 repealed by s. 4 of Ord. 18 of 1962, inserted by s. 9 of Ord. 20 of 1971 and substituted by s. 5 of Ord. 9 of 1975.]”

This section has no bearing on the public road Z613 which was a public road which was deviated. It does not create a public road on existing land.

[53] In her answering affidavit (par 26.4 thereof) Ms Ntshabele avers that the Premier was “entitled to direct the deviation and demarcation of the road in terms of section 5A, 20(g) and 48(i) and (2) of the Roads Ordinance Act of 1957”, and further that the “procedure followed was regular.”

[54] I have already dealt with sections 5A and 48(1) and (2) above, but wish to remark that section 20 (g), has no bearing on the deviation of a public road. It provides that the Premier “shall have the power in respect of —

“(g) the construction of any road affording an owner of land access to a public road, when as a result of the construction, maintenance or deviation of a public road it becomes necessary, in the opinion of the Administrator, to provide a new or altered road affording access to a public road and for the purposes of such construction the provisions of this ordinance relating to the construction of a public road shall apply mutatis mutandis ;”

[55] Even if it were to be accepted that section 48 is applicable for the purpose of deviating a public road as contended by the respondents, the procedure prescribed in section 32 has not been complied with. This section, referred to in paragraph [52] above, behoves the Premier, where there has been no objection filed to the deviation of a public road, to request the person who has applied for the deviation in terms of section 28 (1) or if a report was submitted in terms of section 48 (1) read with 17 (1) (d) of the Roads Ordinance, to make an undertaking in respect of the issues raised under 28 (1) (a) to (d).

[56] The respondents have failed to respond to the letter from the attorneys directed to the Premier, (referred to in paragraph [18] above), requesting information establishing whether or not the correct procedures were followed before the deviation of the public road Z613. Even in her answering affidavit, Ms Ntshabele is unable to furnish this Court with any further particulars in that regard.

[57] Ms Zwiegelaar has attached a memorandum dated 8 September 2004, to her heads of argument, which memorandum was addressed to the MEC of the then Department of Transport and Roads. In this memorandum, a request for approval of the deviation of a portion of the public road Z613 on the farm Elandsfontein 185 JQ was submitted for approval to the second respondent. This letter was handed up with the consent of the applicant’s counsel since it was not discovered. The request was made by the Director, to the Chief Director: Transport, and the latter escalated the request to the Deputy Director General. The Director General submitted the recommendation to the second respondent who approved the deviation of the public road on 30 September 2004. The reason for seeking the approval of the second respondent is that the Road Board was dissolved. There is nothing on record to indicate that the application for the deviation of the public road was submitted to the Premier who was empowered to either refuse or grant the application in terms of section 29 read with the procedures prescribed in section 28, 30, 31 and 32 or (if the respondents are correct) in accordance with section 48 of the Roads Ordinance.

[58] I find that the prescribed procedures for the deviation of the public road were not applied by the respondents and that the deviation of the road was unlawful. However, in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others supra, the Court dealt with the circumstances where an unlawful administrative act might simply be ignored and the basis on which the

law might give recognition to such an act. The Court held the view that “until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a Court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked.” See par [27] at p 242 A.

[59] In paragraph [38] of this judgment, the Court stated the following:

“It will be apparent from that analysis that the substantive validity or invalidity of an administrative act will seldom have relevance in isolation of the consequences that it is said to have produced—the validity of the administrative act might be relevant in relation to some consequences, or even in relation to some persons, and not in relation to others—and for that reason it will generally be inappropriate for a court to pronounce by way of declaration upon the validity or invalidity of such an act in isolation of particular consequences that are said to have been produced.” (emphasis added).

[60] The deviation of the public road Z613, only affects the free access of the applicant to his farm and perhaps his family and friends, but may not affect others who are not using that road. The pronouncement of invalidity of the deviation, may require the immediate removal of the barricade or deviation of the public road which will ease the inconvenience and burden experienced by the applicant as a result thereof.

[61] The determination of the substantive reason for the deviation of the public road Z613, is an issue to be determined at a different forum.

[62] In the circumstances, I find that the deviation of the public road Z613 is invalid and unlawful. I accordingly make the following order:

That the Premier’s Notice Number 4 published in the Provincial Gazette Number 6077 of the North West Province dated 26 October 2004 is declared unlawful and null and void.

That the deviation of a section of the public road Z613, which was effected through the Premier’s Notice No 4 referred to in 62 (a) above, is hereby set aside.

The first, second and third respondents are hereby ordered to remove all barriers on the public road Z613, including the gate, which impede the applicant’s free and direct access to his farm Vaalboschloot 186 JQ, in the district of Brits.

The first, second and third respondents are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.

____________________

M M LEEUW

JUDGE PRESIDENT

APPEARANCES:

For the Applicant : Mr Botha

For the Respondents: Adv Zwiegelaar

Date of hearing : 31 March 2011

Date of judgment : 09 May 2011