IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA )
Case No.: 4894/2 023
Reportable : YES/ NO
In the matter between:
SANDILE LOCAL RESIDENTS 1st Applicant
VATHISWA MAKHAMBA 2nd Applicant
VICTOR GCORA 3rd Applicant
MSEKELI MTHIYO 4th Applicant
BONAKELE NDIKHO 5th Applicant
MZEKELO MADIKANE 6th Applicant
ALBERT STUURMAN 7th Applicant
And
MEC FOR THE DEPARTMENT OF TRANSPORT
SAFETY AND LIAISON 1st Respondent
THE SUPERINTENDANT GENER AL, HEAD OF
DEPARTMENT, DEPARTMENT OF TRANSPORT
SAFETY AND LIAISON 2nd Respondent
JUDGMENT
Cengani -Mbakaza AJ
Introduction
[1] At paragraph 1 of the notice of motion, the applicants who are cited in their capacities as concerned residents of the Great Sandile Administrative Area, Ngcobo in Eastern Cape seek an order directing the respondents to repair, surface and undertake all the necessary work to restore the
Sandile main road to good condition. The applicants further seek an order directing
the respondents to initiate the necessary steps within 30 days and complete
compliance within 120 days from the date of the order, as set out at paragraph 1 of
the notice of motion.
[2] The applicants further apply that, should the respondents fail to comply with
the order (if granted), the respondents should be directed to report back to the court,
detaili ng steps taken to comply with paragraph 1 of the notice of motion to the court’s
satisfaction.
[3] The respondents in this matter are as follows: The first respondent is the
Member of the Executive Council for Transport Safety and Liaison in the Eastern
Cape (the department) . The first respondent is the political head of the department
established in terms of the Constitution of the Republic of South Africa (the
Constitution) . The second respondent is cited and sued in his official capacity as the
person responsible for the administration of the entire department led by the first
respondent.
[4] The respondents contest the application raising the preliminary points of non-
joinder and locus standi . Both parties have set out their respective cases in the
affidavits and annexures contained in the court’s index bundle spanning pages 1-
180.
The applicants’ case .
[5] The founding affidavit of Ms Vathiswa Makhamba which is accompanied by a
list of confirmatory affidavits comprehensively set out the applicants’ case, covering
the application’s background, the road condition supported by the photographic
evidence of the road, drainage pipes, bridges and other infrastructure.
[6] The applicants state that the grievance regarding the road linking
communities to Ugie and Ngcobo has been a long-standing issue, with complaints
being repeatedly lodged with councillors and the local municipality. Despite these
efforts, their concerns have been met with no tangible results, as officials would be
appointed and leave office at the end of the term without taking meaningful steps to
address the issue. It is common cause that the municipal officials visited the
communities but failed to fulfil their commitment to report back to the communities’
grievances despite the oversight role under the current counsellor.
[7] The applicants describe the road as extremely bumpy, making travel gruelling
experience particularly in emergency situations where access to medical facilities is
crucial. The road’s poor state also results in substantial vehicle wear and tear,
translating to high maintenance costs for vehicle owners.
[8] The inaccessible road from Ugie to Ngcobo significantly disrupts their daily
lives, affecting their ability to shop, access banking services and get to work, thereby
compromising their overall well-being including the learners’ ability to get to school .
The November 2023 photographs attached to the papers, illustrate the road’s
deplorable state: a rough , uneven surface pockmarked by potholes and the stripped
off gravel due to flood erosion, revealing a lack of maintenance and re-gravelling
over years.
[9] The poorly positioned drainage pipes impede water flow, causing flooding and
resulting in a slippery road surface and further compromising road safety. The
drainage pipes are severely clogged with mud and debris, having been blocked for
an extended period.
[10] The confirmatory affidavits of the third to seventh applicants go beyond
standard confirmation, as they also vividly describe the deplorable state of the
nearby gravel roads, highlighting the significant obstacles they pose to accessing
medical emergencies, schools , shopping and other essential services.
The respondents’ case.
[11] The answering affidavit deposed by Andile Fani, Acting Head of the
department raises concerns about the non-joinder of the district and local
municipalities. He asserts that these entities are responsible for road maintenance in
Engcobo and Chris Hani municipalities as delegated by the Provincial Government.
Therefore , they are the interested parties who may be prejudiced by the litigation
outcome and thus should be joined. Furthermore, the respondents assert that the
applicants are not interested parties in these proceedings.
[12] On the merits of the application, the respondents aver that the department is
responsible for maintaining approximately 42 000 kilometres of the roads, implying
significant scope of the responsibility. Approximately 10 % of the roads are surfaced,
while about 90% are gravel roads.
[13] The department oversees a total of 6 districts, each managed by a District
Road Engineer responsible for ensuring comprehensive care of the road network.
The department receives funding from the National Department of Transport, which
allocates approximately R1 billion annually. These funds are utilised for road
maintenance, including blading of the road surfaces and re-gravelling of the roads
where blading is not feasible.
[14] The maintenance cost is approximately R500 000 per kilometre, with gravel
roads usually requiring biannual blading, adjusted according to road conditions and
local economic activity. The department is also responsible for maintaining the paved
road network, which includes resealing, rehabilitation and resurfacing of all
provincially proclaime d roads, at a close approximately R1.8 million per kilometre.
[15] Given the budget limitations and costly nature of road maintenance, the
department engaged with municipalities to enable them to prioritise road
maintenance based on the unique circumstances of these respective communities.
One area that was identified as needing was the Sandile Road. The respondents
claim that the Integrated Developmental Plan for Sandile road was completed in
December 2023.
[16] The respondent s further contend that the considerable progress has been
made since the budget was approved and contractors appointed. Furthermore, the
respondents submit that considering the time required for the site establishment and
community engagement, the photographs dated 13 February 2024 show substantial
advancement making the order unnecessary.
The applicants’ reply.
[17] In their reply, the applicants argue that the respondents failed to adequately
motivate their opposition to the application. Moreover, despite the commence ment of
road construction, the applicants note that the work has since stopped and the road
poor conditions remain a concern.
[18] The applicants counter the non-joinder claim by asserting that the main gravel
road is a provincial road clearly within the department’s jurisdiction. The applicants
assert that the department has exclusive responsibility for maintaining and repairing
gravel road, as the constitutional and legal mandate. The applicants further dispute
being informe d about the integrated developmental plan as suggested by the
respondents. Furthermore, the applicants re-iterate their legal standing in the
proceedings.
Discussion .
[19] This court has carefully considered the comprehensive oral submissions
which are consistent with the papers filed by both parties. The heads of argument in
the court’s bundle have been thoroughly examined and acknowledged.
The preliminary issues .
[20] The principles governing locus standi in iniudicio have been extensively
addressed in various cases.1 In Firm-O-Seal CC v Prinsloo & Van Eeden Inc and
Another2, the Supreme Court of Appeal (SCA) has recently reaffirmed that locus
standi is a mechanism that is controlled by the court itself. A court determines locus
standi by assuming that the facts are true. The applicant must demonst rate a direct
interest and current interest in the proceedings which is not speculative or
theoretical. According to the SCA, locus standi intersects both procedural and
substantive law.3
[21] Our Constitution, specifically section 38, deals with the enforcement of rights.
It allows individuals or anyone acting on their behalf to approach a competent court
and allege that a right in the Bill of rights has been infringed or threatened. The
purpose of section 38 of the Constitution is to ensure that individuals and groups
have access to the courts to enforce their rights. Basically , its purpose is to
safeguard human rights.
[22] In this instance, the applicants have sufficiently demonstr ated their locus
standi showing that the deplorable road conditions violate their rights not only to the
freedom of movement but also to access essential services including healthcare and
education, as evident from the founding affidavit including their confirmatory
affidavits. Therefore, this preliminary issue cannot succeed.
[23] Similarly, I find no merit in the challenge regarding non-joinder in these
proceedings. While the applicants did approach the local municipalities with their
grievances, the reference to the municipalities merely illustrate the events preceding
the litigation . These demonstrate that the applicants exhausted all the internal
remedies which are within their reach before seeking judicial intervention.
[24] The Constitution outlines the respondents’ functional responsibilities within the
transport sector including roads, traffic management and public transpo rt. As already
noted in their answering affidavits, the respondents’ acknowledg ment of their
1 Neugarten and Others v Standard bank of SA Ltd 1989 (1) SA at 808D -809E ; Watt v Sea Plant
Products BPK [ 1998] 4 All SA 109 at 113 H.
2 (483/22 ) [2023] ZASCA 107; 2024 (6) SA 52 (SCA) (27 June 2023 ) at para 6.
3 Footnote 2 above.
constitutional role speaks volumes about their accountability and commitment.
Therefore, the respondents’ acknowledgment of their role is not only importan t but
constitutionally mandated. In a nutshell, the respondents’ involvement in the case is
warranted.
[25] As acknowledged by the respondents, the municipalities operate with
delegated powers based on internal arrangement. Moreove r, their constitutional
mandate as outlined in section 152(1) of the Constitution focuses on local
governance and not explicitly on infrastructure like roads. It may well be true that the
municipalities have an interest in the matter. However, conside ring the respondents’
awareness of its enormous role in road construction and infrastructure, such interest
is not direct and substantial as contemplated under Rule 10 of the Uniform Rules of
Court. Thus, given the respondents’ overarching role in these proceedings and the
municipalities’ mandate stemming from it, there is no basis to conclude that the
municipalities would suffer prejudice from the outcome of this case.
The merits of the application.
[26] The matter involves a final mandatory interdict by the applicant s. The three
requisites governing final interdict are well settled. They are clear rights, an injury
committed or reasonably apprehended and the absence of any other satisfactory
remedy.4 As the authorities highlight, a clear right is a right which can be clearly
established.5 A final interdict is a drastic remedy, therefore , a court will not in general
grant interdict when the applicant can obtain adequate redress in some other form of
ordinary relief.6 It is a well-establ ished principle that the onus is on the appli cant to
allege and establish on a balance of probabilit ies that he has no alternat ive remedy.7
[27] In the present matter, the applicant s have clearly demonstrated the rights that
are being infringed upon, as well as the harm caused by the deplorable road
condit ions. With no other adequate remedy available, the applicants have exhausted
4 Setlogelo v Setlogelo 1914 AD 221 at 227.
5 Edrei Investments 9 (Pty) Ltd ( in liquidation) v Dis -Chem Pharmacies (Pty) Ltd 2012 (2) SA 553
(ECP) at p 556B -C.
6 Mabece -Tilana Incorporated v Basson and Others (504/2020) [2020] ZAECGHC 24 (10 March 2020)
para 10.
7 Erasmus v Afrikander Proprietary Mines Ltd 1976 (1) SA 950 (W) at 965H.
all the avenues for relief by repeatedly approaching local government entities, which
failed to address the issue.
[28] Despite the respondents’ papers, their submissions lack clarity and effectively
counter to the issues at hand. The repetitive requirements for a final interdict do not
resonate with the facts presented in their answering affidavits. The deplorable state
of the road is a common cause fact having created a well-known crisis. The
incomplete construction of the road does not resolve the issues raised. In the result,
the application must succeed.
[29] The last issue involves structural interdict with the applicants requesting the
court’s supervision of the mandatory interdict. The applicants require that the
respondents should submit progress reports on road construction with the court
retaining oversight and ensuring compliance to its satisfaction.
[30] Considering the significance of separation of powers and the risks of judicial
overreach, I conclude that this order would be inappropriate. As the applicants are
represented, they are presumably aware of the remedies applicable to them in the
event of non-compliance with the court order.
Order
[31] The following order is issued:
1. The respondents are directed to repair, fix, resurface and take the
necessary steps to restore the Sandile main gravel road located at Ngcobo
district within 120 days from the date of this order.
2. The respondents shall pay costs of this application on scale A as
contemplated under Rule 67A read with Rule 69 of the Uniform Rules of
Court, jointly and severally the one paying the other to be absolved.
____________________
N CENGANI -MBAKAZA
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
Counsel for the Applicant s : Mr T.A Nkele
NKELE ATTORNEYS
MTHATHA
Counsel for the Respondent s : Adv. Maliwa
Instructed by : STATE ATTORNEY
MTHATHA
Date heard : 13 March 2025
Date delivered : 12 June 2025