White v Kheis! Municipality (429/2013) [2015] ZANCHC 41 (22 May 2015)

White v Kheis! Municipality (429/2013) [2015] ZANCHC 41 (22 May 2015)

The court held that the Roads Act does not impose a responsibility on the Agency to maintain fences along national roads, but merely grants it the competency to erect them. Section 12(6) of the Cape Roads Ordinance places the duty to maintain a lawfully erected fence on the owner of land abutting a public road, which in this case is the first defendant. The common law further supports the duty of the landowner to maintain the fence if animals are kept on the property and the fence is intended to safeguard road users. The special plea that the Agency was solely responsible for maintenance was rejected, and the first defendant could in law be held responsible for the maintenance of the...

Citation
[2015] ZANCHC 41
Parties
Plaintiff: Brandon Andrew White; Defendant: Kheis! Municipality; Defendant: Jan Mouton
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
22 May 2015
Case Number
429/2013
Procedural Posture
Civil Trial / Special Plea (misjoinder) and Stated Case
Outcome
Special plea dismissed with costs.
Judges
Olivier
Legal Topics
Maintenance of Fences, Liability of Landowner, Misjoinder, Statutory Duties, Common Law Duty
Land and Property Civil Procedure Maintenance of Fences Liability of Landowner Misjoinder Statutory Duties Common Law Duty

Case Brief

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Parties

Brandon Andrew White

Plaintiff

Kheis! Municipality

Defendant

Jan Mouton

Defendant

Procedural Posture

Civil Trial / Special Plea (misjoinder) and Stated Case

Legal Issues

  1. 1 Whether the first defendant (Kheis! Municipality) was legally responsible for maintaining the fence between its commonage and the N10 national road.
  2. 2 Whether the South African National Roads Agency Limited (the Agency) was solely responsible for the maintenance of the fence under the Roads Act.
  3. 3 Whether the plaintiff misjoined the first defendant and should have sued the Agency instead.

Ratio Decidendi

The court held that the Roads Act does not impose a responsibility on the Agency to maintain fences along national roads, but merely grants it the competency to erect them. Section 12(6) of the Cape Roads Ordinance places the duty to maintain a lawfully erected fence on the owner of land abutting a public road, which in this case is the first defendant. The common law further supports the duty of the landowner to maintain the fence if animals are kept on the property and the fence is intended to safeguard road users. The special plea that the Agency was solely responsible for maintenance was rejected, and the first defendant could in law be held responsible for the maintenance of the...

Court Disposition

Special plea dismissed with costs.

Orders

  • The first defendant's special plea is dismissed with costs.