Ladychin Investments (Pty) Ltd v South African National Roads Agency Ltd and Others

• Jurisdiction: South Africa
• Judge: Nicholson J
• Judgment Date: 07 September 2000
• Citation: 2001 (3) SA 344 (N)
• Docket Number: 2201/2000
• Hearing Date: 11 August 2000
• Counsel: C J Hartzenberg SC (with him C G van der Walt) for the applicants. C H J Badenhorst SC (with him C Bothma) for the first respondent.
• Court: Natal Provincial Division

Nicholson J:

Background I

The applicant is a company, with a registered office in Ladysmith, which runs a truck stop known as the Tugela Truck Inn, next to the Tugela Toll Plaza on the N3 highway. The first respondent is a public company, the shares of which belong to the State, created in terms of s 2 of the South African National Roads Agency Ltd and National Roads J

Nicholson J

Act 7 of 1998 (the Act), with a head office in Pretoria and a local provincial office in Pietermaritzburg. The second A respondent is a company with limited liability with a registered office at Bedfordview, Gauteng. It has a concession in connection with the construction and maintenance of the toll road which runs between Cedara in KwaZulu-Natal and Heidelberg in Gauteng. The third respondent is a partnership with a head office in Heidelberg, Gauteng and is a consortium of contractors. The fourth respondent B is a partnership with a head office in Pretoria and is a consortium of designers, responsible for the reconstruction of the Keeversfontein Interchange and the proposed Tugela East Toll Plaza. The fifth and sixth respondents are the Ministers of the Departments of Transport and Environmental Affairs, respectively, and the seventh respondent C is the Premier of KwaZulu-Natal.

The concession contract between the first and second respondents was concluded on 27 May 1999 and in terms thereof the second respondent was required to pay to first respondent R1,3 billion on 2 November 1999. The second respondent obtained the right to operate the N3 toll road, including the establishment of additional D toll plazas thereon, from which it would derive its income. The second respondent took over the operation of the existing toll plazas and became entitled to the revenue generated therefrom.

On or about 12 March 1999 the second respondent submitted its proposals to the first respondent in respect of the toll road E between Keeversfontein and Warden, including the precise location of the Tugela East Ramp Toll Plaza. There were three possible locations which are depicted on a map, annexure A to the notice of motion in this matter. The three locations are 600 metres apart and the first location is some 360 metres from the second location, which is in turn 240 metres from the third location. Locations 2 and 3 are to the east of F location 1.

On 26 March 1999 the first respondent agreed to location 1 and informed the second respondent that locations 2 and 3 were not feasible because they fell outside the 'road reserve'. The consent of the Premier of KwaZulu-Natal would have had to have been obtained for the road reserve to be declared a national road and any area outside G the 'road reserve' would have had to be purchased from the owners thereof.

On 11 June 1999 the first respondent issued a government notice of its intention to declare part of the N3 national highway which runs from Keeversfontein Interchange to Warden via the Van Reenen Pass as a toll road. Annexed to the said notice was a diagram depicting the said toll road and the location of the toll plazas. The H said declaration of the toll road was pursuant to powers set out in s 27 of the Act, which reads as follows:

'27 Levying of toll by Agency I

(1) Subject to the provisions of this section, the Agency -

(a)

with the Minister's approval -

(i)

may declare any specified national road or any specified portion thereof, including any bridge or tunnel on a national road, to be a toll road for the purposes of this Act; and

(ii)

may amend or withdraw any declaration so made; J

Nicholson J

(b)

for the driving or use of any vehicle on a toll A road, may levy and collect a toll the amount of which has been determined and made known in terms of ss (3), which will be payable at a toll plaza by the person so driving or using the vehicle, or at any other place subject to the conditions that the Agency may determine and so make known;

(c)

may grant exemption from the payment of toll on a particular toll road -

(i)

in respect of all vehicles of a category determined by the Agency and specified in a notice in terms of ss (2), or in respect of B the vehicles of a category so determined and specified which are driven or used on the toll road at a time so determined and specified;

(ii)

to all users of the road of a category determined by the Agency and specified in such a notice, irrespective of the vehicles driven or used by them on the toll road, or to users of the road of a category so determined and specified when driving or using any vehicles C on the toll road at a time so determined and specified;

(d)

may restrict the levying of toll on a particular toll road to the hours or other times determined by the Agency and specified in such a notice;

(e)

may suspend the levying of toll on a particular toll road for any specified or unspecified period, whether in respect of all D vehicles generally, or in respect of all vehicles of a category determined by the Agency and specified in such a notice, and resume the levying of toll after the suspension;

(f)

may withdraw the following, namely -

(i)

any exemption under para (c);

(ii)

any restriction under para (d);

(iii)

any suspension under para (e). E

(2) A declaration, amendment, withdrawal, exemption, restriction or suspension under ss (1), will become effective only 14 days after a notice to that effect by the Agency has been published in the Gazette.

(3) The amount of toll that may be levied under ss (1), any rebate thereon and any increase or reduction thereof -

(a)

is determined by the Minister on the recommendation of the Agency; F

(b)

may differ in respect of -

(i)

different toll roads;

(ii)

different vehicles or different categories of vehicles driven or used on a toll road; G

(iii)

different times at which any vehicle or any vehicle of a particular category is driven or used on a toll road;

(iv)

different categories of road users, irrespective of the vehicles driven or used by them;

(c)

must be made known by the head of the department by notice in the Gazette;

(d)

will be payable from a date and time determined by the Minister on the recommendation of the Agency, and must be specified in that notice. However, that date may not be earlier than 14 days after the date on which that notice was published in the H Gazette.

(4) The Minister will not give approval for the declaration of a toll road under ss (1)(a), unless -

(a)

the Agency, in the prescribed manner, has given notice, generally, of the proposed declaration, and in the notice -

(i)

has given an indication of the approximate position of the toll plaza contemplated for the proposed toll road; I

(ii)

has invited interested persons to comment and make representations on the proposed declaration and the position of the toll plaza, and has directed them to furnish their written comments and representations to the Agency not later than the date mentioned in the notice. However, a period of at least 30 days must be allowed for the purpose; J

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(b)

the Agency in writing - A

(i)

has requested the Premier in whose province the road proposed as a toll road is situated, to comment on the proposed declaration and any other matter with regard to the toll road (and particularly), as to the position of the toll plaza) within a specified period (which may not be shorter than 60 days); and

(ii)

has given every municipality in whose area of jurisdiction that road is situated the same opportunity to so comment; B

(c)

the Agency, in applying for the Minister's approval for the declaration, has forwarded its proposals in that regard to the Minister together with a report on the comments and representations that have been received (if any). In that report the Agency must indicate the extent to which any of the matters raised in those comments and representations have been accommodated in those proposals; C and

(d)

the Minister satisfied that the Agency has considered those comments and representations.

Whether the Agency has failed to comply with para (a), (b) or (c), or if the Minister is not satisfied as required by para (d), the Minister must refer the Agency's application and proposals back to it and order its proper compliance with the D relevant paragraph or (as the case may be) its proper consideration of the comments and representations, before the application and the Agency's proposals will be considered for approval.'

On 11 November 1999 the council of the first respondent decided to make application to the fifth respondent for his approval of the declaration of the said toll road and plazas. A E memorandum was sent to fifth respondent which set out first respondent's proposals and a report on the comments and representations received by interested parties. The memorandum also contained the first respondent's response to the comments and representations and the manner in which it had accommodated them in its proposals. F

As I have mentioned the applicant runs a truck stop known as the Tugela Truck Inn right next to the Tugela East Toll Plaza, which is depicted on the annexure to the government notice. The choice of location 1 is some 60 metres from the applicant's truck stop and, according to the affidavit of Johannes Wessels Maree, will cause it great financial hardship as the truck drivers will have to enter and G pass through the toll plaza to avail themselves of the applicant's services and then exit again through the toll plaza.

The first time that Maree became aware of the precise location of the toll plaza was in the first or second week of December 1999 when Mr Rudi Kuhn, a spokesman of first or second respondent, informed him H thereof. At this meeting the prejudice that the...