City of Johannesburg Metropolitan Municipality (Formerly known as Johannesburg Transitional Metropolitan Council) v Engen Petroleum Limited and Another (153/2008) [2009] ZASCA 5; 2009 (4) SA 412 (SCA) ; [2009] 3 All SA 11 (SCA) (10 March 2009)

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City of Johannesburg Metropolitan Municipality (Formerly known as Johannesburg Transitional Metropolitan Council) v Engen Petroleum Limited and Another (153/2008) [2009] ZASCA 5; 2009 (4) SA 412 (SCA) ; [2009] 3 All SA 11 (SCA) (10 March 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 153/2008
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY (FORMERLY GREATER
JOHANNESBURG TRANSITIONAL
METROPOLITAN COUNCIL) Appellant
and
ENGEN PETROLEUM LIMITED 1
st
Respondent
SANDTON GATE SERVICE STATION 2
nd
Respondent
Neutral citation:
City of Johannesburg v Engen Petroleum
Ltd
(153/2008)
[2009] ZASCA 5
(10 March 2009)
Coram:
Mpati P, Cloete,
Lewis, Cachalia JJA and Leach AJA
Heard:
26 February 2009
Delivered:
10 March 2009
Summary:
The elevation of four lanes of a road above an
intersection amounts to a permanent diversion for the purpose of s 67
of the Local
Government Ordinance 17 of 1939 (T).
ORDER
On appeal from: High Court, Johannesburg
(Boruchowitz J sitting as court of first instance):
‘The appeal is dismissed with costs including the costs of two
counsel.’
JUDGMENT
LEWIS JA
(MPATI P,
CLOETE and CACHALIA JJA and LEACH AJA concur)
[
1] Grayston Drive in
Sandton, Johannesburg runs from east to west, from Rivonia Road to
Wynberg and vice versa. It is a major thoroughfare
that leads to and
from on and off ramps of the M1 Highway. The highway connects
Pretoria in the north and Johannesburg in the south.
From 1992 to
1994 the City Council of Sandton effected substantial changes to
Grayston Drive, in particular at its intersection
with Katherine
Street, also a major thoroughfare, which runs in part at right angles
to Grayston Drive. The effect of the construction
work was to
elevate four lanes of Grayston Drive (two in each direction) above
Katherine Street in such a way as to create a flyover
above it. One
lane on the southern side and two on the northern side of the flyover
remained on the same plane as previously.
[2]
The second
respondent, Sandton Gate Service Station CC (Sandton Gate), owns a
petrol filling station and a public garage on the
south-west side of
Grayston Drive, at the intersection with Katherine Street. Sandton
Gate is supplied with petrol and other products
by the second
respondent, Engen Petroleum Ltd (Engen). Sandton Gate and Engen
claimed damages from the appellant (the successor
in title to the
Sandton City Council, and to which I shall refer as the City
Council)), allegedly caused by the diversion, or closure,
of the
lanes in Grayston Drive, which, they contended, impeded access by
vehicles to the filling station owned by Sandton Gate
(the filling
station). The reduced access resulted, they alleged, in a decrease in
sales of Engen products, such that both Sandton
Gate and Engen have
suffered losses.
[3]
The right to claim
damages that the respondents assert arises from subsections 67(3) and
(4) of the Local Government Ordinance 17
of 1939 (T) which the
parties agree was in operation at all relevant times. The pertinent
provisions of section 67 follow:
‘
67 Permanent
closing or diversion of street.
–
Notwithstanding anything to the contrary in this Ordinance contained
the council may with the approval of the Administrator,
permanently
close or divert any street or portion of a street if and when the
following conditions have been complied with –
(1) Notice of the intention to
move that steps be taken for the closing or diversion of a street or
portion of a street shall be
given at a meeting of the council at
least fourteen days prior to the meeting at which the motion will be
dealt with.
(2) If the said motion be agreed
to the council shall cause a plan to be prepared showing the position
of the boundaries of the
street or portion of the street proposed to
be closed or diverted.
(3) (a) On completion of the
said plan the council shall publish a notice in the Provincial
Gazette and in at least one English
and one Afrikaans newspaper
circulating in the council’s area of jurisdiction setting out
briefly the council’s proposals,
stating that the said plan is open
for inspection at a place and during the hours specified in such
notice and calling upon any
person who has any objection to the
proposed closing or diversion or who will have any claim for
compensation if such closing or
diversion is carried out to lodge his
objection or claim, as the case may be, with council, in writing, not
later than a specified
date which shall be at least sixty days from
the date of publication of the Provincial Gazette or newspaper in
which the notice
will be published last.
(b) The council shall at least
sixty days before the time for the lodging of objections and claims
will expire –
(i) cause copies of the said
notice to be posted in a conspicuous manner on or near the street or
portion of the street which it
is desired to close or divert and
shall cause such copies to remain posted as aforesaid until the time
for lodging objections and
claims has expired;
(ii) cause a copy of the said
notice to be served on the owners or reputed owners, lessees or
reputed lessees and the occupiers
of all properties abutting upon the
street or portion of the street which it is proposed to close or
divert; provided that if the
name and address of any such owner,
reputed owner, lessee, reputed lessee or occupier cannot after
reasonable enquiry be ascertained,
a copy of the notice need not be
served on him.
(iii) …
(4) (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.
(b) If the council finds that
the payment of compensation will be too costly, it may resolve not to
proceed with the proposed closing
or diversion.
. . .
(10) 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 in
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.
. . .’
[4]
The City Council
admits that it did not comply with the conditions prescribed by
subsections 67(2) and (3). No notice was given
to any of the affected
property owners or occupiers (the City Council pleaded that since it
did not effect a permanent closure
or diversion notice was not
necessary) and thus no objections were made in accordance with the
section.
[5]
At issue before the
high court was the sole question whether the construction work
effected by the City Council constituted a permanent
diversion or
closure of Grayston Drive as contemplated by s 67 of the Ordinance.
(The high court had ordered a separation of issues
in terms of r
33(4)). Boruchowitz J found that the elevation of four lanes of
Grayston Drive did not amount to a permanent closure
of the road (and
there is no cross-appeal against that finding) but did constitute a
permanent diversion. The City Council appeals
against that decision
with the leave of the high court.
[6]
The only issue
before this court is thus whether the high court correctly found that
the elevation of four lanes above Katherine
Street amounted to a
diversion of a portion of Grayston Drive for the purpose of s 67 of
the Ordinance. There are no factual disputes.
The parties, in the
pleadings and at the trial, made several admissions. These include:
the southern boundary of the road reserve
that existed prior to the
construction of the Grayston flyover did not change after the
construction work was completed. The intersection
with Katherine
Street has remained much the same, save that four lanes of Grayston
Drive are elevated above it. Prior to the construction
of the
four-lane flyover, the southern portion of Grayston Road consisted of
three lanes which intersected with Katherine Street
at ground level,
and the intersection was controlled by traffic lights. After the
construction of the flyover, the southern portion,
accommodating the
traffic that flows from east to west, has been divided into two
sections; two lanes are on the flyover, whilst
the most southern lane
still goes through the intersection with Katherine Street. (The same
change was effected on the northern
side, two lanes proceeding at
ground level and two on the flyover.) The southern lane proceeds from
east to west across Katherine
Street past the Sandton Gate filling
station and rejoins the other two lanes going in the same direction
at the end of the flyover.
Access from the southernmost lane to the
filling station has not been affected. But once traffic proceeds on
the lanes on the flyover
it has no access to the filling station. If
the construction of the flyover does constitute a permanent diversion
or closure Engen
and Sandton Gate are persons within the ambit of s
67 of the Ordinance.
[
7] On appeal the City
Council contends that the construction of the flyover did not amount
to a permanent diversion: the elevation
of four lanes of Grayston
Drive does not divert the road. The City Council concedes that there
has been a change to Grayston Drive,
but argues that the change does
not amount to a diversion because that requires a lateral change, on
a horizontal plane. There
is no change from a course or a route, it
contends. Vehicles proceed along the same path as they would have
done before the construction
of the flyover.
[
8] The City Council
relies in this regard on
Bellevue Motors
CC v Johannesburg City Council
1
in which it was held that the reverse of traffic flow on a road did
not amount to a diversion for the purpose of s 67 of the Ordinance.

Rockey Street, Bellevue, Johannesburg, is a one-way street. The
Council changed the direction of the flow of the traffic. The court

found that this did not amount to a diversion of the road. The court
said:
2
‘
Its
[divert’s] plain meaning is related to the words ‘any street or
portion of a street’ and has nothing to do with the direction
of
traffic flows on the street however adversely these may affect a
particular party . . .
The
Oxford English Dictionary
2
nd
ed (1991) vol 4 at 888 gives the following meaning to the word
‘divert’:
‘To turn
aside (a thing, as a stream, etc) from its (proper) direction or
course; to deflect (the course of something); to turn
from one
destination or object to another.’
. . .
In my view,
the diversions of traffic flows on Rocke
y
Street . . . do not have the effect of turning Rockey Street from
its proper direction or course . . . . It seems to me that
the
section envisages a diversion of a street in the sense that the
street, I stress ‘street’, as opposed to the traffic that
travels
thereon, is diverted, in the sense that it is deflected from its
proper course.’
[
9] Boruchowitz J, in
the high court, considered that in this case the issue was different.
It was not traffic flow, or the direction
of traffic flow, that was
the diversion contended for, but the deviation of the road itself.
Prior to the construction of the flyover,
the three lanes of Grayston
Drive running from west to east had been on a level plane: after the
construction two lanes were on
a different plane. There had been a
vertical diversion – the physical location of the two lanes had
changed and been diverted
away from the intersection with Katherine
Street.
[1
0] The City Council
argues that this conclusion is not consonant with dictionary
definitions of ‘divert’. A diversion, dictionary
definitions
suggest, must be on a horizontal plane. Thus, it contends, when an
aeroplane flies at a higher or lower altitude than
planned it does
not ‘divert’ from its course: it continues in the same direction.
Sandton Gate and Engen contend, on the other
hand, that while it is
correct that various dictionary definitions indicate that the usual
meaning of ‘divert’ is to turn in
a different direction, or to
alter the course of something, dictionary definitions are not
decisive. In
Monsanto Co v MDB Animal
Health (Pty) Ltd
3
Harms JA repeated the general principle that, while dictionary
definitions may be a useful guide to the meaning of a word, the
task
of an interpreter is to ascertain the meaning of a word in its
context. The court cited the dictum of Hefer JA in
Fundstrust
(Pty) Ltd (in liquidation) v Van Deventer
4
where he had said:
‘
As a rule
every word or expression must be given its ordinary meaning and in
this regard lexical research is useful and at times
indispensable.
Occasionally, however, it is not.’
[1
1] Counsel for Sandton
Gate and Engen have provided numerous examples of statutes and cases
in the United Kingdom and elsewhere
where the word ‘divert’ is
used to indicate a change on a vertical plane. But these are all
context-specific and do not, in
my view, assist in the interpretation
of s 67 of the Ordinance. Counsel refer also, however, to W G Berry
Local Government Law in the Transvaal
(1978),
5
which, commenting on s 67(4) observes, although without reference to
authority, that: ‘The raising or lowering of the level of
a street
may, however, possibly constitute a closing or diversion of the
street (ie, 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). . . ’.
[1
2] Counsel for the
City Council, who take issue with this construction, were driven to
contend that if the four lanes of Grayston
Drive had been built
underground, in a tunnel rather than on a flyover, that too would not
amount to a diversion since there would
not be any deviation away
from the original path of the road. The fallacy in this approach is
self-evident.
[1
3] The City Council
also argues that a general plan of the road system, which is
two-dimensional, does not show any change to the
path of the road.
The plan shows only changes in direction – that is, horizontal
movements to left and right, or to north, south,
east or west. Regard
must be had, the argument continues, to the definition of ‘street’
in the Ordinance: s 2 defines a ‘street,
road or thoroughfare’ as
one shown as such on the general plan of a township. The elevation of
lanes on Grayston Drive to create
a flyover does not require a change
to the general plan, which is two-dimensional. This, it is argued,
demonstrates that there
has been no diversion. The effect of the
argument is that the general plan is determinative of the question
whether there has been
a permanent diversion.
[1
4] There is, however,
nothing in the Ordinance that suggests that a diversion is only such
if the general plan requires amendment
pursuant to its construction.
Moreover, s 67(10) requires the City Council to supply the
Surveyor-General with a diagram of a diversion
only after the work
has been completed. The question whether there has been a diversion
is one of fact, not decided by the Surveyor-General
or any other
functionary. Thus in my view whether or not a change is reflected on
the general plan cannot be determinative of the
nature of the change.
[1
5] I consider that
meaning must be given to ‘diversion’ by examining the purpose of
s 67 (read of course in the light of the
entire Ordinance). I deal
here only with a diversion since closure is not in issue: but the
principles applicable would of course
be the same. Section 67
requires notice to be given to persons affected by a permanent
diversion, who may in turn object to the
proposed change and claim
compensation for any loss sustained as a result of the diversion. The
purpose of the provision is clearly
to compensate for pecuniary loss
sustained as a result of a change to the road that has an adverse
financial effect on owners,
lessees or occupiers whose property abuts
the road. The question to be considered, then, is whether the change
to the road itself
has such an effect. If raising the elevation of
the two lanes of Grayston Road in issue has that effect then the
change must fall
within the ambit of the section.
[1
6] It is clear that
the elevation of the lanes on Grayston Drive has had a material
impact on the ability of drivers to gain access
to the filling
station. If a driver proceeding from east to west along the road is
in any but the outer (southern) lane he or she
must drive on to the
flyover over Katherine Street, and will not be able to gain access to
the filling station. Similarly, motorists
travelling in the other
direction, who before the construction could have turned into the
filling station, now cannot do so unless
they first turn into
Katherine Street, and then back again in to the southernmost lane of
Grayston Drive. The elevation of the
lanes has thus changed the
access of drivers to the filling station no matter in which direction
they are travelling. A substantial
portion of Grayston Drive has been
moved upwards, on to a different plane, such that access to and from
adjoining properties has
been materially altered. It should be noted
that s 67 contemplates permanent diversion also of a portion of a
road, not only the
whole road.
[1
7] I consider that
this is pre-eminently the kind of road change that affects adjacent
landowners, lessees and occupiers whom the
provisions of the
ordinance are designed to compensate in the event of loss. It would
be artificial to regard Grayston Drive and
the land abutting it as
being in the same position as they were prior to the construction of
the flyover. There is no justification
for construing s 67(4) so as
to limit its application to horizontal diversions. In any event, such
a limitation would give rise
to absurdity. The purpose of s 67(4) is
to compensate property owners, lessees or occupiers who suffer
pecuniary loss because of
the change in the road. If the two lanes in
Grayston Drive had been moved further to the north, for example,
rather than on to
a flyover, and that had the effect of diverting
traffic, and thus business, away from the filling station, Sandton
Gate and Engen
would have been entitled to recover their losses. If
the effect of moving the two lanes up vertically is the same, why
should they,
or any other right holder in a similar position, be
non-suited? The distinction contended for is not only illogical, but
could
lead to inequitable results. I can see no reason why s 67(4)
should allow compensation for pecuniary loss suffered only where
there
is a horizontal relocation of a road.
[1
8] I consider
therefore that the construction of the flyover did constitute a
permanent diversion for the purpose of s 67(4) and
thus that the
decision of the court below was correct on this point.
[20]
The appeal is
accordingly dismissed with costs including those attendant on the
employment of two counsel.
C H Lewis
Judge of Appeal
Appearances:
For the Appellant: J Suttner SC
T Motau
Instructed by:
Knowles Husain Lindsay Inc
Sandton Johannesburg
McIntyre & van der Post
Bloemfontein
For the 1
st
Respondent: O L Rogers SC
P L Carstensen
Instructed by:
Kritzinger & Co
Rosebank Johannesburg
Matsepes Attorneys
Bloemfontein
1
1994 (4) SA 339
(W).
2
At
343D-H.
3
2001 (2) SA 887
(SCA) para 9.
4
1997 (1) SA 710
(A) at 726H-727B. See also
De
Beers Industrial Diamond Division (Pty) Ltd v Ishizuka
1980 (2) SA 191
(T) at 196E-F, and
Seven
Eleven Corporation of SA (Pty) Ltd v Cancun Trading No 150 CC
2005 (5) SA 186
(SCA) para 24.
5
Page 64.