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Poor condition; lack of maintenance and repair of the road network; and the need for a plan of actio

All too frequently after downpours of rain, the lack of maintenance of South Africa’s extensive road network becomes a glaring reality with the emergence of potholes, and in rural areas with whole sections of gravel roads having been washed away. Provincial Governments; Local municipalities; numerous state owned enterprise; and Contractors appointed by government to fulfill it’s duties/responsibilities, notwithstanding public outcry and pressure from lobby groups, have been unable to repair the damage, generally due to maladministration and lack of resources.

In the matter of Agri Eastern Cape and Others versus the MEC for the Department of Roads and Public Works and Others, (High Court, Eastern Cape Division, Grahamstown, Case No. 3928/2015), the focus of which was the poor condition and lack of maintenance and repair of the road network of the farming communities in the Eastern Cape and the need for a plan of action to remedy the situation, the applicants were seeking an order inter alia declaring the respondents to be legally obliged to repair all roads within their jurisdiction and seeking compensation form the respondents by certain of the applicants for payment of amounts they had spent in repairing roads themselves.

According to the applicants, the failure by the respondents to repair and maintain the road network of farming communities in the Eastern Cape had prevailed for more than 10 years notwithstanding their correspondence and meetings, to resolve the problem without approaching the court. In their affidavits, the applicants annexed letters from a number of agricultural associations in the Eastern Cape setting out the problems they experienced as a result of the poor condition of gravel roads. The problems included: infrequent mobile clinic visits including ambulance services; poor school attendance by children of farm employees (also taxi services were not prepared to travel on the road); poor service delivery by Eskom and Telkom; complaints by the police about damage to police vehicles; lack of drainage maintenance; and very dangerous conditions after rain when access to their farms could only be achieved by a 4 x 4 vehicles or a large tractors and that occasionally the water in the road made access by any vehicle impossible; low productivity especially as perishable goods and life stock etc. could not be delivered to regularly markets resulting in the reduction in income and unemployment of temporary labour; and on occasion operators of trucks were not prepared to use the roads. As a result of the numerous issues, certain of the applicants decided to have the road repaired themselves, alternatively employed construction companies to repair the road.

It was further averred that companies who have been awarded tenders for the maintenance and road scraping were not supervised and in one mentioned instance the work done by the company resulted in blocked drains. There was no follow up by the Department’s officials to ensure that the work has been done properly.

The applicants approached the court in desperation because “the continued deterioration of the road network will spell economic disaster and social disaster for the poorer communities throughout the Province.” The applicants were of the view that a structural interdict was warranted “where the consequences of failure to comply with a court order will indeed be devastatingly serious for the economics of the agricultural community in the Eastern Cape, and employment prospects for the labour force resident in the Eastern Cape”.

Furthermore, the applicants highlighted the need for certainty on what steps individual farmers could take to repair roads themselves when the access roads to their farms are in such a state of disrepair that they cannot be used safely or at all. Farmers had spent money and time in repairing roads themselves out of necessity, and should be entitled to be recompensed, when these repairs are the responsibility of the respondents.

The respondents acknowledged that: there was a significant road maintenance backlog and that as a result of under-funding over many years; the vast majority of gravel roads in the Eastern Cape, totalling 37 000 kilometres, required extensive re-gravelling and not simply routine maintenance; the condition of the gravel roads in the Eastern Cape is the worst in the country; and the situation leaves the roads vulnerable to rain and floods and the problem is worsened by heavy rains and floods.

The respondents averred that they had tried their best with limited resources to maintain roads in a trafficable state for public use, and prioritised the maintenance of the existing road network at the expense of the construction of new roads. They wanted to minimise the problem provided adequate resources were available. The provincial roads maintenance grant which was allocated in the provincial budget was “a drop in the ocean” because of the magnitude of the problem. They acknowledged that if the problem of underfunding persisted, it would lead to a situation which was “devastatingly serious for the economics of the agricultural community and employment prospects in the Eastern Cape.

The respondents expressed the view that a court order instructing the repair the roads would amount to an instruction by the judiciary to the executive branch of government to prioritise road repairs and maintenance above other pressing social priorities. Secondly the order would not be capable of being enforced because of insufficient funds. Thirdly the applicants had no legal basis for such an order because they had not asserted any right which had been breached. The Court was referred in particular to the Eastern Cape Roads Act 3 of 2003 (the Roads Act) s 3 (1) (a) and (b) of which set out the General Powers and duties of the MEC. It was maintained that the language of the Act was permissive and deliberately chosen by the provincial legislature because implementation depended on the availability of funds. The respondents also set out the steps farmers could take in an emergency, by referring to section 4 (1) (b) of the Roads Act.

On 12 May 2016, Smith J granted an interim Order by agreement between the parties, whereby inter alia the respondents would file with the Registrar a report setting out: What steps they would take to repair roads and maintain roads in a good state of repair, within the area of their jurisdiction; the date by which it is anticipated that the respondents would have completed the necessary work; who would attend to the repair of the roads, how the repair will be achieved and when the repair work will commence; what urgent steps should be taken by individual farmers (in the absence of attention by the respondents’ employees) when the access road to his or her farm reaches such a state of disrepair that he or she is unable to use the road safely, or commercial vehicles necessary for business, refuse to use the affected road.

In accordance with Smith J’s order, the second respondent submitted a report. It stated that the problem of maintenance and upgrading of roads was exacerbated by a lack of funds and the backlog of competing social needs of poor communities in the province. It was however of the view that continuous engagement with stakeholders, in particular the farming community, would play a large part in solving the problem and will minimise litigation. Annexed to his affidavit was a document named “2016/2017 Roads Infrastructure Immovable Asset Management Plan”. The document listed several roads, the work previously done on each road, and the work, if any, planned for 2016/2017.

The applicants’ report in response, drawn largely on the material contained in the respondents’ report, consisted mostly of a proposed order which was to some extent similar to the draft order presented when the application was heard. With regard to the alleged cost of re-gravelling at R500 000 per kilometre, a quotation for an average cost of R200 000 per kilometre was annexed to their report.

At the hearing of the matter, and in spite of Smith J’s Order the respondents submitted that a structural interdict was incompetent and that there was no constitutional or statutory basis for seeking such an interdict. Reference was again made to the permissive language of section 3 of the Roads Act.

The Court found that there was a constitutional and statutory basis for seeking the interdict. Part A of Schedule 5 of the Constitution provides for the functional areas of exclusive provincial legislative competence, one of which is provincial roads and traffic. In terms of s 125 (2) (a) of the Constitution, the Premier, together with the other members of the Executive Council, exercises executive authority by implementing provincial legislation in the province. When one considers some of the consequences of the failure to repair and maintain roads illustrated in the applicants’ affidavits, fundamental rights such as basic education and access to health care are indirectly affected. With regard to the permissive language of s 3 of the Roads Act, the Court referred to the judgment in Schwartz v Schwartz 1984 (4) SA 467 (A) at 473I-474 E.

It was the Court’s view that section 3 of the Roads Act encompasses an obligation to use the power. Roads and road traffic fall within the exclusive legislative competence of the province. No person or authority other than the MEC has the power to repair and maintain roads, unless the MEC or his delegate concludes an agreement with that person or authority to take over responsibility for a provincial road (s 4 of the Roads Act). The various consequences of a failure to maintain and repair the farm roads, as detailed above by various farmers, illustrated the importance of road maintenance and repair in many respects which are in the public interest: rural development; employment opportunities; education of children; agricultural commerce; communication; access by and to emergency services; and physical safety. The submission that the section imposes no duty on the MEC could not be sustained.

What was clear, was what the constitutional and statutory obligations of the respondents are, and that their performance of those obligations is deficient.

Pertaining to structural interdicts, the Court referred to Minister of Health and others v Treatment Action Campaign and others (No 2) 2002 (5) SA 721 (CC) at para [113]; Pheko & Others v Ekurhuleni Metropolitan Municipality & Others (No 3) 2016 (10) BCLR 1308 at para [1] and Mandatory Relief and Supervisory Jurisdiction: When is it appropriate, just and equitable 2005 SALJ 325, Roach and Budlender at 331-334.

The Court considered the applicants’ proposed draft order, and it’s concerns with certain portions of it, including it’s appropriateness, and the respondents complaints to the proposed order, which was in summary that it was indefinite and did not allow the Department to change its maintenance strategy and the mechanism to deliver that strategy.

The Court found that the purpose of the application was to achieve an action plan to solve or alleviate a serious situation which has prevailed for years, a situation which the respondents themselves acknowledged and took the view that the applicants’ draft order was appropriate, the content of which finds its source in the material provided in the respondents’ report.

In terms of the Order granted by the Court, which was in line with the respondents’ proposed plan set out in their report, the respondents were inter alia ordered to: implement work and a competitive bidding process for external contractors for the maintenance/repair of roads recorded in Annexure “A” to their report; finalise Integrated Routine Maintenance contracts for gravel and surface roads; finalise service level agreements with municipalities which were prepared to enter into such an agreement, alternatively corresponding agreements with other contractors, and route maintenance contracts; provide full details of which roads are to be resealed and rehabilitated; implement the “fast response in- house maintenance” operation.

Furthermore, the Court set out a mechanism to be implemented by the respondents to allow individual farmers to perform work on the roads they use for their farming activities, who would be entitled to a refund by the first respondent of costs paid for road repairs, provided that the prescribed procedures set out in the Order had been followed.

The Court’s Order is a landmark decision, that sets a precedent for all similar matters throughout the Republic and may not necessary only be applicable to rural areas. It sets an example and framework whereby local authorises may engage with residence and relevant stakeholders to ensure that all public roads in a state of disrepair are repaired and maintained.

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