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[2015] ZANCHC 41
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White v Kheis! Municipality (429/2013) [2015] ZANCHC 41 (22 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO: 429/2013
DATE
HEARD: 12/05/2015
DATE
DELIVERED: 22/05/2015
In
the matter between:
BRANDON
ANDREW
WHITE
Plaintiff
and
KHEIS!
MUNICIPALITY
1
st
Defendant
JAN
MOUTON
2
nd
Defendant
Coram:
Olivier, J
JUDGMENT
Olivier
J:
A.
INTRODUCTION
[1.]
The
plaintiff, Mr B A White, instituted an action for damages against the
first defendant, the Kheis! Municipality, and the second
defendant,
Mr J Mouton.
[2.]
The
plaintiff’s claim is basically that the second defendant’s
horse escaped from the commonage belonging to the first
defendant and
collided with his vehicle on the N10 national road and that this
happened because a fence separating the commonage
from the area of
the national road had not been properly maintained.
B.
SPECIAL
PLEA AND STATED CASE
[3.]
In
a special plea the first defendant pleaded that it had been
misjoined, that section 26 of the
South
African National Roads Agency Limited and
National
Roads Act
[1]
(“
the
Roads Act
”)
empowered the South African National Roads Agency Limited (“
the
Agency
”)
[2]
to,
inter
alia
,
“
provide,
establish, erect and maintain facilities on national roads for
convenience and safety of road users and to fence any national
road
”,
that the collision occurred on the N10 national road, and not on a
municipal public road, and that the plaintiff should
therefore have
joined and sued the Agency, and not the first defendant.
[4.]
The
special plea also made reference to section 21 of the
Fencing
Act
[3]
and to the duties of the owner of a fence crossing a public road.
[5.]
A
stated case regarding the special plea was then agreed upon and that
is what has to be decided at this stage
[4]
.
[6.]
The
second defendant has indicated that it will abide by the Court’s
decision.
[7.]
The
question here is really whether the first defendant, as a matter of
law, could be proven to have had the duty to maintain the
fence
between its property and the area of the road where the collision
occurred.
[8.]
It
is common cause that the road is a national road, as envisaged in the
Roads
Act
.
C.
THE
ROADS ACT
[9.]
Sections
25 and 26 of the
Roads
Act
form part of Chapter 3, titled ”
Functions,
powers and responsibilities of the Agency
”.
[10.]
Section
25
[5]
, under the heading “
Main
functions of Agency
”,
provides that the Agency is “
responsible
for … the national
roads
system, as well as the planning, design, construction, operation,
management, control, maintenance and rehabilitation of national
roads
for the Republic
”
(My emphasis).
[11.]
Sub-section
(2) of section 25 deals with the transfer of responsibilities and
powers from the erstwhile South African Roads Board
[6]
.
[12.]
It
is clear therefore that the responsibilities pertaining to the
“
planning,
design, construction, operation, management, control, maintenance and
rehabilitation of national roads
”
are the main functions of the Agency.
[13.]
It
is in this context that the provisions of section 26(h) of the
Roads
Act
,
upon which the special plea is based, must be considered.
[14.]
The
heading of section 26 is “
Additional
powers of Agency
”
(My emphasis). It provides that “
In
addition
to the Agency’s main powers and functions under section 25, the
Agency is
competent
”
(My emphasis) to perform certain functions, one of which is:
“
(h)
to fence any national road
”
[15.]
The
word “
fence
”
as a verb means to “
surround
or protect with a fence
”
or to “
enclose
or separate an area with a fence
”
[7]
,
in other words to erect a fence. The plaintiff’s case is
however not based on a failure to erect a fence. It
is in fact
common cause that there was a fence between the commonage and the
national road. The plaintiff’s case is
based on an
alleged failure to maintain that fence.
[16.]
While
sub-sections (e) and (f) of section 26 do clothe the Agency with the
competency to maintain facilities and toll plazas on
a national road,
the provisions of section 26 do not provide for a competency or power
to maintain any fences, let alone a responsibility
to do so.
[17.]
Furthermore,
the wording of section 26 makes it very clear that the Agency will be
“
competent
”
to perform the functions listed in its sub-sections in addition to
the main functions provided for in section 25.
It does not,
like in the case of the wording of section 25, provide that the
performance of those functions will be the “
responsibility
”
of the Agency.
[18.]
Mr
Tshavhungwa, counsel for the first defendant, argued that the use of
the word “
competent
”
in the introductory part of section 26 is misleading and wrong, and
that the legislature’s intention had been to make
the functions
listed in the sub-sections to section 26 responsibilities, and
obligations, just like the responsibility and obligation
provided for
in section 25.
[19.]
I
disagree. The wording of section of 26 is in my view very clear
and unambiguous. An interpretation of the word “
competent
”
to denote a right, and not a responsibility or an obligation, would
not lead to any absurdity and therefore the wording
of section 26
does not leave any room for the reading into section 26 of the word
“
responsible
”
in the place of the word “
competent
”
[8]
.
[20.]
To
read the word “
responsible
”
into section 26, in the place of the word “
competent
”,
and then to interpret section 26 as creating an obligation to perform
the functions listed in the sub-sections of section
26, would
inter
alia
mean that the Agency would, for instance, be obliged to operate all
national roads as toll roads
[9]
and to grant bursaries, loans and subsidies as envisaged in
sub-section (u). This could never have been the legislature’s
intention.
[21.]
Sub-section
(w) of section 26 provides the Agency with the competency and power
“
to
do anything else which is reasonably ancillary to any of its main
functions and powers in terms of section 25
”.
This makes it clear that all the other additional functions referred
to in sub-sections (a) to (v), including that
of erecting fences, are
intended to provide the Agency with subsidiary
[10]
means of fulfilling its main responsibility to construct and maintain
national roads, should that prove to be necessary.
[22.]
To
interpret the provisions of section 26 to mean that the Agency is
obliged not only to erect fences along all national roads,
but also
to maintain them, would lead to the absurd result that the Agency
would have to patrol, inspect and maintain thousands
of kilometres of
fences that not only serve to safeguard the national roads, but also
benefit the owners of all the properties
abutting national roads.
[23.]
Mr
Tshavhungwa tried to avoid this absurdity by arguing that the
obligation to maintain a fence would only rest upon the Agency
in
respect of fences erected by it
[11]
and by blaming the plaintiff for not having alleged by whom this
particular fence had been erected.
[24.]
Mr
Tshavhungwa did not, however, provide any authority for the
proposition that the responsibility to maintain a fence along a
national road would rest solely on whoever had erected the fence
there, or on his or her successors in title.
[25.]
Even
on Mr Tshavhungwa’s argument, however, it would mean that if
the fence along the N10 national road had been erected by
the Agency
or its predecessor, the Agency would have the sole responsibility, to
the exclusion of owners of land abutting the N10
national road, to
patrol, inspect and maintain the fences along that road. This
could never have been the intention of the
legislature and it does
not require much imagination to see that it would burden the Agency
with an impossible task and financial
burden.
D.
ROADS
ORDINANCE
[26.]
Section
12(6) of the
Cape
Roads Ordinance
(“
the
Ordinance
”)
[12]
which applies in the Northern Cape Province and the administration of
which was assigned to this Province
[13]
,
possibly provides the answer and reads as follows:
“
Subject
to the provisions of the Fencing Act … the owner of the land
abutting on the boundary of the statutory width of any
public road or
public path shall be responsible for the maintenance of any fence
lawfully erected on or within such boundary
”.
[27.]
None
of the provisions of the
Fencing
Act
,
and certainly not those of section 21, are applicable to the facts of
the present matter and Mr Tshavhungwa wisely advanced no
argument as
far as the provisions of that Act are concerned.
[28.]
Mr
Tshavhungwa conceded that it can be assumed that the fence concerned
in this matter had been lawfully erected.
[29.]
The
commonage is land abutting the N10 national road.
[30.]
In
view of the admission that the first defendant is the owner of the
commonage, it is unnecessary to consider the definition of
the word
“
owner
”
in section 2 of the
Ordinance
,
read with the definition of that word in Section 2 of the
Cape
Divisional Councils Ordinance
[14]
.
[31.]
Mr
Tshavhungwa submitted that in order to establish who had to maintain
the fence in terms of section 12(6) it would once again
first have to
be determined who had erected the fence. This is however not a
jurisdictional requirement of section 12(6).
The only
requirements, as far as the fence is concerned, are that the fence
must have been lawfully erected and must be on or within
the boundary
of the statutory width of the public road
[15]
.
Once these jurisdictional facts exist, the owner of such property
will be obliged to maintain such a fence.
[32.]
Mr
Tshavhungwa’s argument regarding the special plea was premised
on the submission that as a matter of law the Agency alone
had been
responsible for the maintenance of the fence, to the exclusion of the
first defendant, and that it should therefore had
been joined, and
not the first defendant.
[33.]
The
allegation in the special plea that the plaintiff was “
not
entitled to bring an action against the first defendant
”
was premised on allegations:
33.1
that the Agency was responsible for the maintenance of the fence; and
33.3
that the cause of action did not arise on a
municipal public road.
[34.]
What
a “
Municipal
public road
”
is, is not clear, and was never addressed by Mr Tshavhungwa in
argument. The special plea contains no reference to
the
requirement in section 12(6) that the road concerned must be a public
road, as defined in section 2 of the
Ordinance
.
[35.]
In
my view it is not, however, necessary for me to decide whether the
N10 national road is a public road for the purposes of section
12(6)
of the
Ordinance
.
The special plea only requires a ruling on whether the Agency was, on
the basis of the provisions of the
Roads
Act
and of the
Fencing
Act
,
solely responsible for the maintenance of this fence, in other words
to the exclusion of the first defendant.
[36.]
In
my view the provisions of the
Roads
Act
did not burden the Agency with the responsibility of maintaining this
fence.
[37.]
As
already mentioned the argument based on the
Fencing
Act
was for all practical purposes abandoned.
[38.]
That
would already dispose of the special plea, but insofar as it may be
necessary I find that the first defendant could in law
on the basis
of section 12(6) of the
Ordinance
be
held responsible, provided that the jurisdictional requirements in
that sub-section are proved, including the requirement that
the road
concerned was a public road.
E.
COMMON
LAW
[39.]
The
first defendant could in my view in any event in law be proved to
have been responsible for the maintenance of the fence on
the basis
of the common law if as the owner of the commonage and of the
property it exercised control over the fence and on the
principle
that, if it allowed animals to be kept there, it had a legal duty to
ensure that the fence was in such a condition as
to safeguard road
users from the presence of animals on the road
[16]
.
[40.]
This
makes it unnecessary for me to consider Mr Tshavhungwa’s
submissions regarding section 12(1) of the
Ordinance
in any detail. It is clear that those provisions could apply to
the first defendant in its capacity as a council, but they
have no
relevance to the first defendant in its capacity as an owner of
immovable property abutting the national road. The
absence of
an allegation that the Administrator had directed the first
defendant, in its capacity as a council, to erect this fence,
is
therefore of no relevance at all.
[41.]
In
any event, we are here concerned with the duty to maintain a fence,
and not the duty to erect a fence.
F.
CONCLUSION
[42.]
To
summarise therefore I find:
42.1
that the first defendant can in law, and provided that the statutory
or common law requirements
are proved, be held to have been
responsible for the maintenance of the fence; and
42.2
that neither the provisions of the
Roads
Act
nor those of the
Fencing
Act
would have relieved the first defendant of such a responsibility.
[43.]
It
follows that the special plea should be dismissed.
G.
COSTS
[44.]
There
is no reason why costs should not follow such a result.
[45.]
On
the other hand there is, however, also no merit in the argument of Mr
Botha, counsel for the plaintiff, that the first defendant
should, as
a punitive measure, be ordered to pay such costs within a specified
period of time. It cannot be said that the
special plea was
devoid of merit to such an extent as to have been vexatious or in bad
faith
H.
ORDERS
[46.]
The
following order is therefore made:
THE
FIRST DEFENDANT’S SPECIAL PLEA IS DISMISSED WITH COSTS.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant:
ADV. C BOTHA
Instructed
by:
ELLIOTT MARIS WILMANS & HAY
For the
Respondent:
ADV. TSHAVHUNGWA
Instructed
by:
MJILA & PARTNERS
[1]
7 of 1998.
[2]
Established and incorporated
in terms of the provisions of sections 2 and 3 of the Roads Act.
[3]
31 of 1963.
[4]
An order separating the
issues regarding
quantum
for later determination was granted by agreement.
[5]
Sub-sections (1) and (3).
[6]
As envisaged in the repealed
National Roads Act
,
54 of 1971.
[7]
Concise
Oxford
English Dictionary
,
10
th
Edition (Revised), p521.
[8]
Compare
Protective
Mining & Industrial Equipment Systems (Pty) Ltd (Formerly Hampo
Systems (Pty) Ltd) v Audiolens (Cape) (Pty) Ltd
1987
(2) SA 961
(A) on 991 G – H
.
[9]
Sub-section (f) of section 26
of the Roads Act.
[10]
Concise Oxford English
Dictionary
, 10
th
Edition (Revised), p48.
[11]
And presumably by its
predecessors, like the erstwhile Board in terms of the repealed
National Roads Act
.
[12]
19 of 1976.
[13]
By Proclamation 108 of 1994,
published in Government Gazette 15813 of 17 June 1994.
[14]
18 of 1976.
[15]
It was not the first
defendant’s case that this fence is not on or within such
boundary.
[16]
Compare
Jamneck
v Wagener
1993 (2)
SA 54
(C).