REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION , POLOKWANE )
REPORTABLE · YES/NO ( 1)
(2)
(3) OF INTEREST TO THE JUDGES: YES/NO
REVISED: YES/NO
Dl.a..-
SIGNATURE /
In the matter between:
BERTE VAN ZYL (PTY) LTD
and
PIET MASIE MOHALE
THE SOUTH AFRICAN NATIONAL
ROAD AGENCY LIMITED (SANRAL)
JUDGMENT
DIAMOND AJ: CASE No:7766/2023
APPLICANT
1sr RESPONDENT
2ND RESPONDENT
Page -2
[1] The Applicant is a farming business and its main entrance to its
Head Office is situated at a gate, colloquially known as the "Ave
gate" which intersects with a certain the road, the R36, near
Mooketsi in the Limpopo Province.
[2] This intersection is used by heavy traffic, amongst others large
trucks, buses, minibus taxis, private vehicles, tractors etcetera.
[3] The First Respondent, previously an employee of the Applicant, is
a street vendor.
[4] The First Respondent parks his vendor vehicle and sets up a
vendor stall in the road intersection, referred to above and sells
products from the road reserve, which is the property of the
Second Respondent.
[5] The Second Respondent is a statutory body entrusted with the
obligation to manage intersections such as the above within the
framework of the South African National Roads Agency Ltd and
the National roads act, 7 of 1998 (Act 7 of 1998) (the "Act").
[6] The Applicant applies for certain relief against both the
respondents.
[7] The First Respondent does not oppose the application. The
Second Respondent opposes the application .
Page -3
[8] This application revolves around Sections 48 and 52 of the Act.
[9] Section 48 stipulates as follows:-
"48. Structures and other works on, over or below national roads or
certain other land. -
(1) Except as provided in subsection (2), no person may do any of
the following things without the Agency's written permission or
contrary to that permission , namely-
( a) on or over, or below the surface of, a national road or land in a
building restriction area, erect, construct or lay, or establish any
structure or other thing (including anything which is attached to
the land on which it stands even though it does not form part of
that land);
(b) make any structural alteration or addition to a structure or that
other thing situated on or over, or below the surface of, a national
road or land in a building restriction area;
(c) give permission for erecting, constructing , laying or establishing
any structure or that other thing on or over, or below the surface
of, a national road or land in a building restriction area, or for any
structural alteration or addition to any structure or other thing so
situated.
(2) Subject to any condition imposed under section 49 (3) (a) (iii) or
(iv), the provisions of subsection (1 ), except in so far as they
prohibit the erection, construction, laying or establishment of a
structure or other thing on or over, or below the surface of, a
national road, do not apply to-
( a) a structure erected or constructed by the South African Rail
Commuter Corporation Limited on land under its control;
(b) any dwelling on a farm and any other structure on a farm used
only for farming operations in the true sense.
(3) (a) The Agency, in its discretion , may give or refuse its
permission in terms of subsection (1).
(b) When giving permission , the Agency may prescribe-
(i) the specifications to which the structure, other thing, alteration or
addition for which permission is asked, must comply;
(ii) the manner and circumstances in which, the place where and the
conditions on which the structure, other thing, alteration or
addition may be erected, constructed, laid, established or made;
and
(iii) the obligations to be fulfilled by the owner of the land in question
if the structure, other thing, alteration or addition is erected,
constructed, laid, established or made.
(4) (a) If an obligation to remove a structure or other thing is
prescribed by a condition imposed under subsection (3) {b}, the
Registrar of Deeds having jurisdiction in respect of the area
concerned must, at the written request of the Agency, note the
Page -4
obligation on the title deed of the land affected thereby and in the
appropriate register kept by that Registrar.
(b) The costs in connection with that noting must be paid by the
person to whom the permission has been given.
(c) The Agency may enforce compliance with an obligation that has
been so noted. (d) The provisions of section 49 (6) (a) and (b),
reading in the changes necessary in the context, will apply to an
obligation so noted.
(5) Where a person without the permission required by subsection
(1) or contrary to any permission given thereunder , has erected,
constructed , laid or established a structure or other thing or has
made a structural alteration or addition to a structure or other
thing or given permission the ref or, the Agency by notice in writing
may direct that person to remove the unauthorised structure,
other thing, alteration or addition within a reasonable period
which must be stated in the notice but which may not be shorter
than 30 days calculated from the date of the notice.
(6) If the person to whom a notice has been issued in terms of
subsection (5), fails to remove the structure, other thing,
alteration or addition mentioned in the notice, within the period
stated therein, it may be removed by the Agency itself which may
recover the costs of the removal from that person.
(7) (a) Despite the provisions of any other law, the Agency may
remove or shift, to a place determined by it, any structure or other
thing (except a structure or thing mentioned in subsection (2))
which, before the date on which the road or route concerned is
declared a national road in terms of section 40 or was declared
a national road under the previous Act, was erected, constructed ,
laid or established on or over, or below the surface of-(i) that
national road; (ii) land in a building restriction area; or (iii) other
land situated within a distance from that national road as
specified in a condition imposed under section 49 (3) (a) (iv). (b)
In the case of a power line or telephone line, any sewage
disposal works or water reticulation , supply or disposal works or
other works so erected, constructed , laid or established subject
to a condition, imposed under any law, in terms of which any
other person is responsible for the removal or shifting thereof, the
Agency may recover the costs of the removal or shifting from that
other person.
(8) Any person who contravenes subsection (1) is guilty of an offence
and liable on conviction to a term of imprisonment not longer than
one year, or a fine, or to both the term of imprisonment and the
fine. "
[10] Section 52 stipulates as follows:-
"52. Trading on national road or in building restriction area.-
Page -5
(1) Except as provided in subsection (2), no person may without
the Agency's written permission or contrary to the terms of the
written permission , carry on any trade or expose, offer or
manufacture for sale any goods on a national road or in a building
restriction area.
(2) Subsection (1) does not apply to any person who, after the date
on which a road or route is declared a national road under section
40, continues , on land forming part of the national road or building
restriction area, any business or undertaking which was carried on
or conducted on that land immediately before that date, unless that
person, by notice in writing, has been directed by the Agency to
discontinue the business or undertaking before a date stated in the
notice, and that date has arrived.
(3) Any employee of the Agency or person authorised thereto in
writing by the Agency, any employee of the Agency mentioned in
section 54 (1), any employee of a municipality or province
designated or appointed to perform law enforcement functions on
a national road by virtue of an agreement entered into under
section 54 (3), and any person who in terms of a road traffic law is
a traffic officer for the purpose of the road traffic law, may-
(a) if such an employee , officer or person (in this section called
the competent official) suspects on reasonable grounds that a
person has performed an act for which the Agency's written
permission is required in terms of subsection (1), demand
that the person then and there produces to the competent
official the Agency's written permission to perform that act;
(b) if the person to whom the demand is made, fails to
produce such a written permission to the competent official, or
if the competent official suspects on reasonable grounds that
a person has performed on a national road or in a building
restriction area any act that is unlawful in terms of subsection
(1)-
(i) demand that the person's full name and residential
address be furnished by the latter then and there;
(ii) order that person to remove from the building restriction
area or the national road-
( aa) every article with or in respect of which that act
has been performed or which the competent official
suspects on reasonable grounds to be destined for
use for or in connection with the performance of such
an act by that person; or
(bb) any structure, tent, vehicle, implement or other
object in, on or with which that act has been
performed , or in or on which there is such an article,
or which the competent official suspects on
reasonable grounds to be destined for use for or in
connection with the performance of such an act by
that person;
Page -6
(c) remove from the national road or the building restriction
area any article, structure, tent, vehicle, implement or other
object mentioned in paragraph (b) (ii), or which the
competent official finds on the national road or in the
building restriction area and suspects on reasonable
grounds to have been used, or to be destined for use, by
any person in connection with a contravention of subsection
(1).
(4) (a) A person is guilty of an offence-
(i) upon contravening any provision of subsection (1 ); or
(ii) when failing to furnish the latter's full name and
residential address to a competent official demanding it in
terms of subsection (3) (b) (i); or (iii) upon having failed to
obey an order given to that person under subsection (3)
(b) (ii).
(b) A person convicted of an offence mentioned in paragraph (a)
will be punishable with a term of imprisonment not longer than
three months, or a fine.
[ 11] The relief sought against the First Respondent , is to interdict
the First Responden t from acting in a manner contradicting the
stipulations of sections 48 and 42.
[12] The Second Respondent concedes that the First Respondent
does indeed contradict these stipulations and submits that the
relief sought against the First Respondent is justified.
(13] The Second Respondent however submits that the relief
against the Second Respondent is not justified. It points out in
its answering affidavit that it did involve itself with attempts to
have the First Respondent stopped from transgressing
sections 48 and 52.
(14] What it did do, was to have meetings with the First
Respondent , with the community and eventually lay charges
Page -7
against the First Respondent at the police. Nothing came of
the charges.
[15] As is clear from the above sections, powers of the Second
Respondent extend beyond the mere laying of criminal
charges. In terms of section 48 it has the power is to remove
any structure (including the structure attached to the ground)
or any "thing", which has been erected in contravention of
section 48.
[16] The defence of the Second Respondent is that section 48 is
confined to an immovable structure that was erected by the
transgressor. It is clear that the First Respondent has not
erected any immovable structures . For that reason, so the
argument goes, the Second Respondent does not have the
powers to do anything beyond what it has already done, viz to
hold meetings and to lay charges with the police.
[17] The Second Respondent further argues that the orders
against the First Respondent provides sufficient remedies
against the illegal actions of the First Respondent, and that a
further order against the Second Respondent is consequently
not necessary .
[18] The Second Respondent stated clearly in its papers that to
take any steps beyond what has already been taken by the
Second Respondent will lead to unrest in the community and
Page -8
that for that reason it would be irresponsible to proceed with
any further actions.
[19] In my view, the submissions of the Second Respondents are
untenable. It is clear from a simple reading of sections 48 and
52 that the sections do not only apply to immovable structures ,
but it applies to any structures and even to a "thing" present
on the road reserve. That would include a vehicle and a
temporary a trading stall.
[20] It is also untenable that the second respondent so easily
content itself with the inaction of the South African Police
Services to proceed with prosecution of the First Respondent.
There are several mechanisms available to the Second
Respondent to prompt the South African Police Services into
prosecution of the First Respondent.
[21] It is, in my view, further mind-boggling that an organ of state
can state in open court that it will not discharge of its statutory
obligations since it fears the threats of unrest of a particular
community. To succumb so easily to such threats would mean
that the orderly governance of the country would succumb to
mob rule.
[22] Lastly, the granting of a prohibitory interdict against the First
Respondent does not stand in the way of a mandatory interdict
against the Second Respondent. The Second Respondent
Page -9
cannot be relieved of its duties in terms of the act simply
because an alternative remedy is available. The prohibitory
interdict against the First Respondent is clearly not in the
alternative to the mandatory relief against the Second
Respondent.
[23] I am also of the view that the conduct of the First Respondent,
as it appears from the papers, is so defiant, that it justifies a
cost order on a scale as between attorney and client against
the First Respondent. Furthermore , in my view the conduct of
the Second Respondent is a clear and patent derelict of duty
in clear contravention of what can be expected of the organ of
state in the position of the Second Respondent. For that
reason, I am of the view that a cost order on an attorney-client
scale against the Second Respondent is justified.
[24] For all of the above reasons I am of the view that the
application should succeed.
[25) The court consequently makes the following order: -
a) The First Respondent is interdicted and restrained from
conducting any vendor business at the main turn -off to the
entrance to the head offices of the Applicant on the R36 -road
(opposite Freshlinq Mooketsi) , or at any other place on a national
Page-10
road or in a building restriction area, in contravention of sections
48(1) and 52(1) of the South African National Road Agency
Limited and National Roads Act, 7 of 1998 (as amended) or to
permit any person to do so on his behalf;
b) The First Respondent is interdicted and restrained from
conducting any vendor business. at, or near the Donkerval gate
situated on the Houtbosdorp provincial road (D617) and/or
anywhere on the Houtbosdorp provincial road (0617);
c) The First Respondent is ordered to immediately seize any trading
as a vendor at the main turn -off to the entrance to the head offices
of the Applicant on the R36 -road (opposite Freshlinq Mooketsi) ,
or at any other place on a national road or in a building restriction
area, in contravention of sections 48(1) and 52(1) of' the South
African National Road Agency Limited and National Roads Act,?
of 1993 ( as amended) ;
d) The First Respondent is ordered to immediately seize any trading
as a vendor at or near the Donkerval gate situated on the
Houtbosdorp provincial road (D617) and/or anywhere on the
Houtbosdorp provincial road (0617);
e) The Second Respondent is ordered to comply with the provisions
of Sections 43 and 52 of the South African National Road Agency
Page -11
Limited and -National Roads Act, 7 of 1998 (as amended) , and
any other provision of such Act where applicable, in order to
prevent the First Respondent from unlawfully trading as a vendor­
at the main turn -off to the entrance to the head offices of the
Applicant on the R36 -road (opposite Freshlinq Mooketsi), or at
any other place on a national road or in 'a building restriction area
within its jurisdiction , and to take all steps necessary in that regard,
which shall include, but not be limited to, the laying of charges
against the First Respondent for the contravention of sections
48(1) and 52(1) of the South African National Road Agency
Limited and National Roads Act, 7 of 1998 (as amended) , and to
provide such assistance as may be required for the' proper
prosecution of such charges: against the First Respondent ;
f) The First and Second Responden ts are ordered to pay the costs
of the Applicant , of this application jointly and severally, the one
paying the other to be absolved, on an attorney and client -scale;
4!!!::::--·
ACTING JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
FOR THE APPELLANT
INSTRUCTED BY
FOR THE RESPONDENT
INSTRUCTED BY
DATE OF HEARING
DATE OF JUDGMENT Page -12
ADV. R. GRUNDLINGH
JOUBERT & MAY ATTORNEYS
INCOPOTARED
ADV. T. MORETLWE
MICHAEL RAPHELA ATTORNEYS
24 FEBRUARY 2025
12 MARCH 2025