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[2018] ZASCA 160
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Tembu Convenience Centre CC and Another v City of Johannesburg and Others (270/2018) [2018] ZASCA 160; 2019 (4) SA 194 (SCA) (28 November 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 270/2018
In
the matter between
TEMBU
CONVENIENCE CENTRE CC
FIRST
APPELLANT
JOHN
ZAKHELE RADEBE
SECOND
APPELLANT
and
CITY
OF JOHANNESBURG
FIRST
RESPONDENT
JOHANNESBURG
DEVELOPMENT AGENCY
(PTY)
LTD
SECOND
RESPONDENT
JOHANNESBURG
ROAD AGENCY (PTY) LTD
THIRD
RESPONDENT
Neutral
citation:
Tembu
Convenience Centre CC v City of Johannesburg
(270/2018)
[2018] ZASCA 160
(28 November 2018)
Coram:
Ponnan, Tshiqi and Saldulker JJA
and Mokgohloa and Rogers AJJA
Heard
:
20 November 2018
Delivered:
28 November 2018
Summary:
Roads – Local Government
Ordinance 17 of 1939 (T) – creation of dedicated bus lane
separated by median island and physical
barriers – prior to
creation, broken barrier line permitted vehicles to cross median line
– such no longer possible
– dedicated bus lane and
attendant works not amounting to permanent closure of part of street
within the meaning of s 67
– such constituting permanent
closure of part of street for particular classes of traffic within
the meaning of s 66.
ORDER
On appeal from: The
High Court of South Africa, Gauteng Local Division, Johannesburg
(Windell J sitting as court of first instance):
The
appeal is dismissed with costs, including those attendant on the
employment of two counsel.
JUDGMENT
Rogers
AJA (Ponnan, Tshiqi and Saldulker JJA and Mokgohloa AJA concurring
[1]
The question in this
appeal is whether the creation of dedicated bus lanes and their
appurtenant structures in Mooki Street, Orlando
East, Soweto, has
resulted in a permanent closure or diversion of a part of that street
within the meaning of s 67 of the
Local Government Ordinance 17
of 1939 (Gauteng).
[2]
The appellants, contending
this to be so, instituted an action for damages against the first and
second respondents in which they
alleged that the creation of the bus
lanes and their appurtenant structures, which occurred in 2008 –
2009, caused the first
appellant to suffer a loss of custom. The
first appellant is Tembu Convenience Centre CC which conducts the
service station business
mentioned below. The second appellant,
Mr J Z Radebe, is the first appellant’s sole
member. The first and
second respondents are the City of Johannesburg
and Johannesburg Development Agency (Pty) Ltd. Third respondent,
Johannesburg Road
Agency (Pty) Ltd, was cited by virtue of any
interest it might have but no relief was sought against it.
[3]
The action was opposed.
The parties agreed to separate ‘merits and quantum’. No
separation order was made but the case
was conducted on the basis
that the ‘merits’ depended solely on the question stated
above. The court a quo answered
it against the appellants and
dismissed the action with costs. The appeal to this court is with the
leave of the court a quo.
[4]
Mooki Street, whose
orientation is east-west, is intersected by the Soweto Highway (M70),
whose orientation is south-north. To the
east of the intersection,
Mooki Street becomes Main Road. The first appellant operates an Engen
garage and convenience shop on
the north-west corner of the
intersection. Its only entrance and exit are off and onto Mooki
Street.
[5]
Before the creation of the
bus lanes Mooki Street carried two lanes of traffic in each
direction. Although opposing traffic flows
were separated by a solid
painted island, the island was broken adjacent to the entrance to the
garage, thus allowing vehicles
travelling in a westerly direction to
enter the garage by making a right turn across the eastbound lanes.
To the west of the entrance,
the painted island line was again broken
for side-road traffic entering Mooki Street from the south. This
meant that such vehicles
could cross the westbound lanes, turn right
into Mooki Street and left into the garage.
[6]
The bus lanes were created
as part of the City of Johannesburg’s Rea Vaya bus rapid
system. In Mooki Street the Rea Vaya bus
lane running in a westerly
direction has taken the place of the inner lane previously open to
all westbound traffic. The bus lane
is separated from the eastbound
lanes by a raised median island. In the vicinity of the first
appellant’s garage the westbound
bus lane is separated from the
outer westbound lane by rumbling blocks. Further to the west the
rumbling blocks are superseded
by a crash barrier with guardrails.
The result is that, in order to enter the garage, vehicles travelling
in a westerly direction,
or entering Mooki Street from the south,
must travel about 500 metres further west along Mooki Street, turn
around at a traffic
circle and continue back up Mooki Street in an
easterly direction.
[7]
There is an eastbound bus
lane, again the inner lane. Since it is the westbound bus lane and
its attendant structures that impede
the access to the garage
formerly enjoyed by vehicles travelling in a westerly direction or
joining Mooki Street from the south,
I shall not discuss the
eastbound lane further. If the establishment of the westbound bus
lane did not constitute a closure of
part of Mooki Street, the same
would be true in respect of the eastbound bus lane.
[8]
Section 67 of the
Ordinance finds application where the local authority exercises its
power to ‘permanently close or divert
any street or portion of
a street’. Where this power is exercised, the section requires
the local authority to publish a
notice of its intention. Any person
who considers that his or her interests will be adversely affected
may lodge a claim for compensation.
The respondents did not comply
with the section’s requirements.
[9]
The respondents deny that
there has been a permanent closure or diversion as contemplated in
s 67. They say that the City permanently
closed a part of the
street (the inner westbound lane) for a particular class of traffic,
namely vehicles other than Rea Vaya buses.
They contend that this
falls under s 66(1) of the Ordinance which provides in relevant
part that a local authority may ‘close
any street, road or
thoroughfare … permanently … for any particular class
of traffic…’.
[10]
Mooki Street is a street
within the meaning of these provisions. Although s 66, unlike
s 67, does not expressly refer
to a ‘portion of the
street’, the lesser is included in the greater. If the local
authority may permanently close the
whole of a street to particular
classes of traffic (as permitted by s 66), it may lawfully so
close only part of the street.
[11]
In
Bellvue
Motors CC v Johannesburg City Council
1994
(4) SA 339
(W) the court held that a street was not ‘diverted’
within the meaning of s 67(1) where only the flow of traffic
was
affected. In that case the traffic flow was changed from a one-way
flow west to east to a one-way flow east to west. Zulman
J said that
‘divert’ in s 67 qualifies the words ‘any
street or portion of the street’. A change in
traffic flow on
an unaltered street did not amount to a ‘diversion’ of
the street. Although the applicant in that case
did not argue that
the change in traffic flow was an exercise of the power to ‘close’
the street, the same reasoning
would apply. The verb ‘close’
applies to the street, not to particular traffic flows. In
Bellvue
the fact that nobody was henceforth permitted to use the street for
purposes of driving west to east did not mean that a part of
the
street had been closed, since it remained open for use by traffic
travelling east to west.
[12]
This interpretation was
confirmed by this court in
Rustenburg
Local Municipality v Mwenzi Service Station CC
[2014]
ZASCA 207
;
[2015] 1 All SA 315
(SCA) where Ponnan JA said, in regard
to closure, that s 67 applied only where the street or part of
the street was permanently
closed to all traffic (para 10). That
case, like the present one, concerned a municipality’s rapid
transport system. Certain
lanes were reserved for exclusive use by
municipal buses. In one of the relevant roads the bus lanes were
elevated above the level
of mixed traffic lanes. Elsewhere the bus
lanes were at the same level as the other lanes but separated by lane
delineators which
precluded mixed traffic from entering the dedicated
bus lanes. This court concluded (para 12):
‘
On its plain
meaning the words “permanently close or divert any street or
portion of the street” can hardly find application
in
circumstances where all that is hoped to be achieved is the simple
alteration of traffic flows on a street. Nor, in my view,
does it
apply to a situation such as this, where the establishment of
dedicated bus lanes will result in the reserving of no more
than just
a portion (not the whole) of those streets for the exclusive use of
buses, notwithstanding how adversely that may affect
a particular
party such as Mwenzi in this case. As other vehicular traffic will
continue to have unrestricted access to the remaining
portions of
those streets, the reserving of dedicated bus lanes for the exclusive
use of buses, will not amount to a closing of
streets (or even a
portion of those streets) permanently to all classes of traffic as
contemplated in s 67. On the contrary that
is the very situation
contemplated by s 66(1)(b)(i), namely the permanent closure of a
part of the street for a particular
class of traffic.’
[13]
The appellants’
counsel did not ask us to find that
Bellvue
Motors
and
Mwenzi
were wrongly decided.
His argument was that here there was not merely the creation of a
bus-only lane as a matter of traffic flow.
The creation of physical
barriers meant that vehicles travelling in a westerly direction or
entering Mooki Street from the south
could no longer use the part of
Mooki Street by which they had previously been able to turn across,
or into, the eastbound lanes.
[14]
This is not a sound
distinction. The physical barriers are features which enforce or
render safe the exclusion of traffic other
than Rea Vaya buses from
the bus lane. What prevents traffic on the south side of Mooki Road
from crossing over to the garage is
that the local authority has
reserved the bus lane for exclusive use by Rea Vaya buses. Because
vehicles to the south of the bus
lane may not enter the bus lane for
any purpose, they cannot get to the other side of the road. This
exclusion could be achieved
without physical barriers, simply by
reserved-use signs and solid painted barrier lines.
[15]
The appellants’
argument, if correct, would mean that part of a street is ‘closed’
when a broken median line is
changed to a solid median line, since
the solid median line would preclude traffic in either direction from
crossing the line for
any purpose, eg to overtake or make a right
turn. All vehicles would be precluded from using the oncoming part of
the street in
a way they had previously been able to do. This could
also be said to occur if, for example, a local authority were, at an
intersection,
to erect a traffic sign prohibiting a right turn or a
U-turn.
[16]
The appellants’
counsel conceded that there would have been no street closure if the
municipality had, at the intersections
between Mooki Street and the
side roads to the south, erected signs prohibiting a right turn. He
was driven to contend, however,
that the same result achieved by a
solid painted barrier line across the intersections would indeed have
amounted to a partial
street closure because no traffic at all could
traverse the part of the street on which the barrier line was
painted. When asked
whether the same would be true if for safety
reasons a solid painted barrier line were extended, thus preventing
overtaking, he
said no – there would only be a partial closure
if traversing the street in order to reach a destination were no
longer possible.
[17]
The distinctions which
counsel sought to draw are untenable. Restrictions of this kind –
whether achieved by traffic signs
or painted barrier lines –
are matters of traffic flow and do not constitute a closure of the
street to all traffic. No part
of the street ceases to be available
for any traffic. And the position is no different, in my view, where
the regulation of traffic
flow takes the form of, or is reinforced
by, physical barriers. The barriers simply prevent traffic from doing
that which is in
any event prohibited by painted road markings and
traffic signs.
[18]
The appellants’
counsel submitted that in
Woodburne
Service Station (Pty) Ltd v Pietermaritzburg Corporation
1966
(4) SA 40
(N) the court accepted, without specifically deciding, that
the closing of median gaps in islands amounted to closing part of the
street as contemplated in s 153(2) of Ordinance 21 of 1942 (N).
This overstates the matter. Burne J expressed considerable
doubt as
to whether the municipality had ‘closed’ part of the
street within the meaning of the section (40H). He was,
however,
prepared to assume the point in the applicant’s favour because
he found that the municipality’s act was in
any event
authorised by s 151(1) which empowered the municipality to
‘alter’ and perform other work ‘for
the general
improvement’ of streets.
[19]
The appellants’
counsel referred us to the decisions of this court in
S J
& M
M
Hilcove
(Pty) Ltd t/a Kentucky Fried Chicken & another v Pietermaritzburg
City Council
1988 (3)
SA 319
(A) and
City of
Johannesburg v Engen Petroleum Ltd & another
[2009]
ZASCA 5
;
2009 (4) SA 412
(SCA). In the former case a majority of this
court decided that part of Church Street in Pietermaritzburg had been
permanently
closed when a stretch of an outer lane was replaced by an
exit ramp from an underground tunnel which was for exclusive use by
municipal
buses and which was inaccessible to all traffic in Church
Street. In the latter case the court held that part of a street had
been
permanently diverted in its vertical plane when certain lanes of
Grayston Drive in Sandton were elevated so as to create a partial
flyover in relation to Katherine Street, the elevated lanes no longer
being adjacent to commercial premises at ground level. Both
decisions
are self-evidently distinguishable from the present case.
[20]
The court a quo thus
reached the right conclusion. The following order is made:
The appeal is
dismissed with costs, including those attendant on the employment of
two counsel.
___________________
O L
Rogers
Acting
Judge of Appeal
APPEARANCES
For
Appellants
J C Uys
(with him C de la Hunt)
Instructed
by
VK
Attorneys, Pretoria
McIntryre
van der
Post, Bloemfontein
For
Respondents
M
Sikhakhane SC (with him N C Motsepe)
Instructed
by
Mchunu
Attorneys, Rosebank
Bezuidenhout
Attorneys, Bloemfontein