INROADS MADE TOWARDS POOR CONDITIONS OF ROADS – FARMERS TAKE MATTERS INTO THEIR OWN HANDS
– Ané Kotzé
The poor condition of some South African roads is nothing new, especially in the informal and rural areas of the country. In the matter of Agri Eastern Cape and Others v the MEC for the Department of Roads and Public Works and Others, the Applicants (Agri Eastern Cape and 9 Others herein after referred to as “Agri”) decided enough is enough and sought urgent relief through a structural interdict lodged at the Eastern Cape High Court on 28 February 2017.
The basis for the structural interdict did not only lie in the fact that the poor road conditions negatively influenced the farming communities and the rural developments of the Eastern Cape, but also obstructed the access to emergency services and schools. The structural interdict therefore demanded that regulated time frames be implemented by the Department for inter alia, road repair service contracts to be signed and concluded between the relevant parties and specific remedial actions.
Agri also requested an Order implementing a fair bidding process for external contractors for the necessary road repairs and also further made suggestions as to the appropriate steps that farmers and community members may take to repair farm roads and gravel roads on their own account, in instances where the Department fails to repair the roads timeously. A procedure and mechanism was further proposed for the reimbursement and refund of costs incurred through repairing the roads by the farmers themselves.
The Director-General of the Department of Roads and Public Works and the Member of the Executive Council, (“the Department”) admitted that at least 37 000 km of rural gravel roads in the Eastern Cape region demanded attention. The Department admitted that the gravel roads in the Eastern Cape was the worst in the country and went further to state that the reason behind the poor conditions of the roads was due to a severe backlog in terms of road maintenance, lengthy procurement processes and a lack of funding.
The Department submitted a report in terms of the Order sought by Agri, showing the Court the work previously done on the roads, and the work planned for 2016/2017. It also included the steps and methods which the Department shall take to repair and maintain the roads and the time frames by which it anticipated that the Department will have completed the necessary work.
The Department then argued that allowing farmers to repair and maintain the roads on their own accord and then to submit a request for reimbursement will open the gate for claims against the Department should any injuries be sustained during the course of such maintenance activities. The Department further argued that there is no statutory or constitutional basis for the interdict by making reference to the permissive language of Section 3 of the Eastern Cape Roads Act, Act 3 of 2003.
The Court held that the Department has a duty to repair, not only on a statutory basis but also on a constitutional basis as the Constitution provides for the functional areas of exclusive provincial legislative competence, one of which is provincial roads and traffic. The Court further held that it is in the public interest to intervene as the poor conditions of the roads influences not only the farming community but also the social standard and development of the rural community.
The Order that was eventually granted included, inter alia, that the Department has to implement the work planned for 2016/2017 as set out in their report and that a competitive bidding process for external contractors involved in road repairs and maintenance must also be implemented. The Department was further ordered to finalise, within 6 (Six) months of the Order, Integrated Routine Maintenance contracts for gravel and surface roads and to implement “fast response in-house maintenance” operations. A further triumph for Agri was the Order regarding the implementation of a mechanism to allow individual farmers to perform work on the roads they use for their farming activities, subject to certain terms and conditions, which therefore not only provided the farmer with a viable option and relief, but also put into motion a reimbursement and authorisation process between the Department and the farmer.
Even though this judgment was in Agri’s favour, it cannot be used as a precedent in other parts of the country as each province has its own provincial legislation that governs it and therefore, the circumstances of each individual case has to be considered when justifying structural interdicts of this nature. What makes this judgment noteworthy is that the public’s hands are not tied when state departments fail to act in accordance with their Constitutional mandate and that certain remedies do exist.
 (3928/2015)  ZAECGHC 20;  2 All SA 406 (ECG); 2017 (3) SA 383 (ECG) (28 February 2017)
 Agri supra n2, par. 32
 Agri supra n2, par. 33
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