Rossouw v MEC Free State Department of Police, Roads and Transport and Others (5814/2019) [2020] ZAFSHC 240 (15 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 5814/2019

In the matter between:

THOMAS RICHARD ROSSOUW Applicant

and

THE MEC: FREE STATE DEPARTMENT OF

POLICE, ROADS AND TRANSPORT First Respondent

THE HOD: THE MEC: FREE STATE DEPARTMENT

OF POLICE, ROADS AND TRANSPORT Second Respondent

RIAAN VON WIELLIGH Third Respondent

RIAAN VON WIELLIGH N.O. Fourth Respondent

DALEEN VON WIELLIGH NO Fifth Respondent

ADRIAAN JOHANNES VON WIELLIGH Sixth Respondent

CORAM: C NEKOSIE AJ

JUDGMENT BY: C NEKOSIE AJ

HEARD ON: 15 October 2020

DELIVERED ON: 15 October 2020

[1] The applicant herein applies for the restoration of his possession, alternatively right to travel on the gravel road T133 and relief as set out in the notice of motion.

[2] The first and second respondent filed a notice to abide and the third to the sixty respondent opposes the application.

[3] It is common cause between the parties that:

3.1. The road in question is a proclaimed tertiary road;

3.2 The third to sixth respondents obstructed and destroyed a portion of the tertiary road when it ploughed the road surface and installed a pivot over the width of the road.

3.3 The applicant endeavoured to have his possession and right of way returned by way of various letters to the HOD.

3.4 The respondents conceded that it is required to apply for the deviation of the road. There has been no official decision for any deviation of the road.

[4] In order to succeed in his application the applicant must prove that;

4.1. He is a clear right;

4.2. An injury or damage is actually committed or there is a reasonable apprehension of an injury or harm and

4.3. There is no other satisfactory remedy available to him[1].

[5] It is conceded that the applicant has a clear right. The remaining aspects is to determine the harm and if there are remedies available.

[6] The obstacle has been removed from the road subsequent to these proceeding being instituted. Ex facie the papers filed there is no evidence that the road has been restored to its original useable condition. Thus I accept that harm remains.

[7] The road is presently proclaimed to be a tertiary road. The respondents have unsuccessfully, thus far, applied for the deviation

of the road. This is thus the road available to the applicant and other road uses. It would be improper for this court to determine

that the other road (alternative route) crossing other farms is a satisfactory alternative remedy, for I have no basis for same.

[8] The respondent acted outside the law when he closed the road and such conduct cannot be condoned.

[9] I am satisfied that the applicant has made out a case for the relief sort.

ORDER

[10] For the above reasons, and after careful consideration of the papers and arguments presented in court, the Court orders that:

1. Applicant's possession, alternatively right to travel on the gravel roadT133 and specifically route "A" to "B" on annexure "F5" is immediately restored;

2. The Respondents shall immediately restore Applicant's peaceful and undisturbed possession of the road to access his farm Pakpoort;

3. The Respondents shall, jointly and severally, see to the restoration and rehabilitation of the Road T133 to the same condition that it was prior to the Third to Sixth Respondent's destruction and obstruction of the road, to meet the requirements and specifications of a tertiary road;

4. Third to sixth respondent to by the party and party costs of this application.

________________

C NEKOSIE AJ

On behalf of the applicant: Adv L.A Roux

Instructed by

Van Eeden Attorneys

15 Barns Street, Westdene

BLOEMFONTEIN

On behalf of the respondent: AW Hechter

7 Brill Street, Westdene.

[1] Du Plessis v Labuschagne and Others (3799/2016) [2017] ZAFSHC 24 (16 February 2017)