About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 263
|
|
Mbonani v Mpumalanga Department of Public Works, Roads and Transport and Others (34421/2012) [2014] ZAGPPHC 263 (30 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 34421/2012
Date:
30 April 2014
In
the matter between:
JOHANNES
MBONANI
…...........................................................................................................
Applicant
and
MPUMALANGA
DEPARTMENT OF PUBLIC
WORKS.
ROADS AND TRANSPORT
…...............................................................................
1
st
Respondent
GAUTENG
DEPARTMENT OF PUBLIC WORKS,
ROADS
AND TRANSPORT
….............................................................................................
2
nd
Respondent
VICTOR
KHANYE LOCAL MUNICIPALITY
….......................................................................
3
rd
Respondent
EMALAHLENI
LOCAL MUNICIPALITY
….............................................................................
4
th
Respondent
SOUTH
AFRICAN NATIONAL ROADS AGENCY LTD
….....................................................
5
th
Respondent
JUDGMENT
FOURIE,
J:
[1]
This application relates to the R555 road between Detmas and Witbank.
The Applicant applies for an order declaring that the
failure by the
Respondents to ensure that this road remains in a good condition is a
violation of the constitutional rights of
the Applicant and members
of the public. He also applies for an interdict ordering the
Respondents
to take all reasonable measures to repair the road. The application
is opposed by the Respondents.
BACKGROUND
:
[2]
This application already served before the urgent court on 7 August
2012 when It was struck from the roll due to a lack of urgency.
About
18 months later the Applicant re-enrolled the application without
filing any further affidavits. It came before me during
the week of
22 April 2014.
[3]
Having regard to the nature of the relief sought, more particularly
what appears to be a final interdict in the form of a
mandamus,
I
enquired from Mr Omar (who represented the Applicant) whether the
Applicant should not file a further affidavit. He declined the
invitation and decided to proceed with the application on the papers
as they stand.
CASE
FOR THE APPLICANT
:
[4]
In the founding affidavit it is alleged that the R555 road was built
during the previous political dispensation and was not
designed for
the Coal Haul. Because of the high volumes of traffic, primarily
heavy trucks, this road has fallen into a state of
disrepair and is
characterised by potholes and erosion of the road surface. According
to the Applicant it poses a hazard to road
users who, by using the
road, could become injured in accidents. Photographs depicting the
condition of the road have been annexed
to the application.
[5]
According to the Applicant this is a municipal and provincial road.
It is alleged that the Respondents have a collective duty
to provide
safe roads to members of the public, but have thus far failed to do
so. Specific reference is made to Sections 41(1),
152 and 172(1) of
the Constitution. The founding affidavit was signed on 9 June 2012.
CASE
FOR THE RESPONDENTS
[6]
According to the Respondents this is a provincial road and therefore
remains within the jurisdiction of the First Respondent.
Although the
road traverses the municipal districts of the Third and Fourth
Respondents, this does not cast a duty on them to maintain
the road.
[7]
According to the First Respondent the R555 to the west of Dei mas was
already patched and reseaied. This project commenced during
the
2010/2011 financial year and was completed during June 2011 at a
total cost of R13,736,233.00 To the east of Delmas (comprising
some
29 km between Ogies and Witbank) the road was rebuilt between June
2008 to December 2010 at a total cost in excess of R300
million.
[8]
It has also been pointed out that the First Respondent receives a
fixed annual amount from Treasury. It does not otherwise generate
an
income and is entirely dependent upon Treasury for its annua!
allocation of funds. Therefore its duty to maintain this and other
roads should be viewed in the context of available resources. The
First Respondent’s Answering Affidavit was signed on 30
July
2012.
DISCUSSION
:
[9]
During argument Mr Omar pointed out that in his replying affidavit
the Applicant specifically denied that any of the deponents
acting on
behalf of the Respondents is authorised to do so. Therefore, so it
was argued, the evidence contained in the answering
affidavits should
be disregarded. I do not agree with this submission. This issue has
already been authoritatively dealt with by
Streicher JA in
Ganes
and
Another
v Telkom Namibia Ltd
2004(3)
SA 615 (SCA) at 624H where it was held that the deponent to an
affidavit in motion proceedings need not be authorised by
the party
concerned to depose to the affidavit. It is the institution of the
proceedings and the prosecution thereof which must
be authorised.
[10]
In the present application all the Respondents are represented by
different firms of attorneys. It therefore appears, at least
prima
facie
,
that these attorneys were duly appointed to represent their clients,
the Respondents. These appointments have not been challenged
by the
Applicant. Rule 7 provides a procedure to be followed by a party who
wishes to challenge the authority of an attorney acting
on behalf of
another party. The Applicant did not avail himself of this procedure.
Therefore, in my view, the answering affidavits
filed on behalf of
the Respondents are proper before this court.
[11]
On the merits It was argued on behalf of the Applicant that a
structural interdict should be granted in terms whereof the
Respondents are ordered to take all reasonable measures to repair the
R555 road. Usually a structural interdict directs a respondent
to
rectify a breach of fundamental rights under the supervision of the
court. The kind of relief sought by the Applicant is that
of a final
interdict, in the form of a
mandamus.
No
doubt, the common law requisites (a clear right, an injury actually
committed or reasonably apprehended and no other form of
relief
available) also apply to a
mandamus
in
the constitutional context
(Pilane
vPilane
2013(4)
BCLR 431 (CC) par. 39).
[12]
A
mandamus
is
usually an appropriate manner to compel the performance of a specific
statutory duty or to comply with a constitutional obligation
(
New
National Party of South Africa v
Government
of the Republic of South Africa
1999(3)
SA 191 (CC) at par. 46). However, since this kind of interdictory
relief is always directed at present or future events,
it is
important for an applicant to set out in his/her founding affidavit
facts which relate to recent or present events to enable
a court to
decide whether a statutory or constitutional right is being infringed
or that it will in future be infringed. In the
present matter no such
evidence is before me. The founding affidavit was signed on 9 June
2012 and there is no evidence relatinc
to the present condition of
the road. For this reason alone the application should be refused.
[13]
However, there is aiso another reason why the application canno
succeed. Having regard to the evidence that certain road works
to the
west and to the east of Delmas had already been performed, the
Applicant said the following in his replying affidavit to
the Fifth
Respondent’s Answering Affidavit:
“
The
road west of Delmas has already been fixed. The road between Ogies
CBD and Witbank has also become fixed. The only outstanding
strip is
a strip of approximately 10 km between Detmas and Ogies. This is the
stretch of road that I want fixed. It is not the
whole R555."
[14]
It therefore appears that the parties are in agreement that
substantial road works on the R555 between Delmas and Witbank had
already been performed. The allegation in the Founding Affidavit that
the “
R555
between Delmas and Witbank is in a very poor condition”
therefore
appears no longer to be correct. Again, I do not know what the
present condition of the
outstanding
strip"
of
approximately 10 km is. It is possible that since August 2012 this
particular section of road had already been repaired.
[15]
In a last attempt to keep the application alive, Mr Omar argued that
it should be referred for the hearing of oral evidence.
As a general
rule such a request should be made
in
limine
and
not when it becomes clear that the applicant is failing to convince a
court on the papers (cf
De
Reszke v Maras
2006
(1) SA401 (CPD) at 413 F-J). Although rule 6(5)(g) is not limited to
cases where there is a dispute of fact, I do not think
this rule
should be invoked to allow a party to lead oral evidence to make out
a case which is not already set out in the founding
papers
(Dodo
v Dodo
1990
(2) SA 77
(W) at 91). In my view this is such a case and the request
should therefore be refused.
[16]
In the circumstances I am not convinced that the Applicant has made
out a case against any of the Respondents. I am unable
to find, on
the papers before me, that a statutory or constitutional right has
been infringed and I am also unable to find that
any of the
Respondents has failed or refused to fulfil a statutory obligation or
to perform a constitutional duty. In the present
context this means
that the application cannot succeed.
[17]
The last question to be considered relates to costs, it was argued by
Mr Omar that in matters of a constitutional nature a
court should
order that each party should pay his or her own costs. It is correct
that in constitutional litigation the Constitutional
Court has
adopted an approach to costs that is aimed at minimising the
potentially negative effect of an adverse costs order on
prospective
litigants. However, in the present matter I should also take into
account the manner in which the litigation was conducted.
First, on 7
August 2012 this application was struck from the roll due to a lack
of urgency and costs were reserved. Almost 18 months
later the same
application was set down again for hearing, without any additional
affidavits. Second, at the commencement of this
hearing the Applicant
was specifically invited to consider the possibility of filing
additional affidavits. This invitation was
declined and the
application was proceeded with almost regardless of the consequences.
In my view the salutary approach with regard
to costs in
constitutional matters should not be extended beyond its limits, for
it might invite litigants to improperly take advantage
thereof. For
these reasons 1 am of the view that the application should be
dismissed with costs including the costs reserved on
7 August 2012.
[18]
In the result I make the following order: The application is
dismissed with costs which shall include the costs reserved on
7
August 2012 as well as costs of two counsel where applicable. With
regard to costs reserved on any other occasion no order is
made.
D
S FOURIE
JUDGE
OF THE HIGH COURT
29
April 2014