Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Joubert JA, Smalberger JA, M T Steyn JA, F H Grosskopf JA and Nicholas AJA
• Judgment Date: 30 November 1989
• Citation: 1990 (1) SA 925 (A)
• Hearing Date: 02 November 1989
• Court: Appellate Division

C Smalberger JA:

This appeal concerns the questions of the validity of the declaration of a certain portion of the national road N3 in Natal as a toll road, and whether the toll levied in respect of the use of such road has been validly determined and is being lawfully collected.

By Government Notice 1874 dated 16 September 1988 the third respondent D ('the Commission'), acting in terms of s 9(1)(a) and (2) of the National Roads Act 54 of 1971 ('the Act'), declared a portion of the N3 between the Cedara and Frere interchanges, districts of Lions River, Mooi River and Estcourt, to be a toll road ('the toll road'). The toll road is 97,8 kilometres in length. At the same time, by Government Notice 1875, the Commission, acting in terms of s 9(4)(c) of the Act, made known that the E amount of toll it was entitled to levy under s 9(1)(b) of the Act had been determined by the fourth respondent ('the Minister') in the amounts detailed in s 3 of the schedule to the notice. This notice was later amended by Government Notice 2218 dated 28 October 1988, inter alia, by the insertion of certain additional categories of toll.

F The first respondent ('Tolcon') is a consortium of major road-building and construction companies. In 1986 Tolcon entered into an agreement with the second respondent ('the Government') and the Commission relating to the rehabilitation of certain existing roads and the construction of new roads and toll plazas. The agreement was an interim G one which foreshadowed the conclusion of a final agreement between the parties at some later date. Its terms, to which more detailed reference will be made later, were embodied in a letter dated 6 November 1986 written by the Commission to Tolcon ('the interim agreement'). The interim agreement provided for the rehabilitation by Tolcon of that H section of the N3 which was later declared the toll road, and the construction of toll plazas and toll gates along its route. Tolcon duly carried out, in respect of the toll road, the work it was required to do in terms of the interim agreement, including the construction of toll plazas and toll gates at the Mooi River South and Treverton interchanges. On 4 March 1988 the Commission and Tolcon entered into a further agreement ('the delegation agreement') which made provision, I inter alia, for the delegation by the Commission to Tolcon of

'the power to collect money payable by way of a toll at a toll gate on the toll road referred to in the interim agreement and to operate such toll road and toll gate upon and subject to the terms and conditions set out in the interim agreement'.

J The delegation agreement will also be adverted to in more detail later.

Smalberger JA

A On approximately 30 November 1988 the toll road was opened for use by the public. Until 7 December 1988 the public were permitted to use the toll road free of charge. The collection of toll commenced on that date. Since then Tolcon has been operating the toll road and toll plazas, and has been collecting the toll paid at the various toll gates.

B The first appellant is an association of public hauliers. The other appellants are all major haulage companies. They make extensive use of the toll road. In doing so they are obliged to pay substantial amounts in toll charges.

On 24 February 1989 the appellants launched an application in the Natal Provincial Division in which they sought an order in the following C terms:

'(a)

That the operation of toll plazas and the levying of tolls by the first respondent at the Mooi River South and Treverton interchanges on the N3 national road is declared to be unlawful;

(b)

that the first respondent is interdicted and restrained from continuing to operate the said toll plazas and from levying D tolls on motorists passing through them;

(c)

that the declaration of the national road between the Cedara interchange and the Frere interchange, districts of Lions River, Mooi River and Estcourt commencing at the Cedara interchange at kilometre 1,60 and proceeding northwards to the Frere interchange at kilometre 38,40 (a total distance of 97,8 E kilometres), as a toll road is set aside;

(d)

it is declared that the determination of the amount of the tolls by the fourth respondent as published in Government Notice 1875 dated 16 September 1988, and Government Notice 2218 dated 28 October 1988 is unlawful and invalid;

(e)

F alternatively to (a), (b) and (c) hereof, that the first respondent is interdicted from levying tolls on motorists passing through the toll plazas at the Mooi River South and Treverton interchanges in terms of the Government Notices referred to in para (d) hereof;

(f)

that the respondents pay the costs of this application, jointly G and severally, the one paying the other to be absolved including the cost of two counsel....'

Lengthy affidavits were filed by the parties. The matter eventually came before Combrink J. He dismissed the application with costs, but subsequently granted the appellants leave to appeal to this Court. The H judgment of the Court a quo is reported in 1989 (4) SA 574 (N) ('the reported judgment').

Before considering the issues arising on appeal there are two preliminary matters that need to be dealt with. The first relates to a petition by the second, third and fourth respondents for leave to I re-open their cases and adduce further evidence. The petition related to a point which had been open to the appellants to take, but had seemingly not been in issue in the Court a quo. At the commencement of the proceedings the appellants' counsel advised us that the point in question would not be taken, and that consequently the petition was not being proceeded with. No costs order was sought in relation to the petition by any of the parties. The second matter relates to the locus J standi of the first appellant, which was

Smalberger JA

A challenged pertinently for the first time in the second, third and fourth respondents' heads of argument. It was conceded by the appellants' counsel that the first appellant did not have locus standi. Except for limiting the appeal to one by the second to fifth appellants nothing further turns on this concession. The respondents do not ask for any order as to costs arising from it. Any future reference in this B judgment to the appellants excludes the first appellant.

The appeal in the present matter raises three distinct issues. A fourth issue raised in the appellants' heads of argument was not persisted in and therefore does not merit further consideration. The C three issues are, succinctly stated, the following:

(1)

The validity of the declaration by the Commission of the relevant portion of the N3 as a toll road.

(2)

Is Tolcon lawfully entitled to operate the toll road, in particular, to collect the toll?

(3)

Has there been a proper determination by the Minister of the D toll payable by users of the toll road?

I propose to deal with each issue seriatim.

Is the declaration of the toll road valid?

The answer to this question depends upon the proper meaning to be ascribed to the words 'an alternative road' in s 9(3) of the Act.

E In terms of s 9(1)(a) of the Act the Commission may declare any portion of a national road as a toll road. Its power to do so, however, is limited by the provisions of s 9(3) of the Act. That section reads:

'The commission shall not declare any portion of a national road under ss (1)(a) as a toll road unless, in the opinion of the commission, at F the time of the notification of such declaration in terms of ss (2), and thereafter as long as the toll road retains its status as such road, an alternative road to the intended toll road, along which the same destination or destinations may be reached as that or those to which the route of the relevant toll road and national road leads, shall be available to road users, and which

(a)

has been provided by the commission; or

(b)

G is under the control of the commission or any other road authority.'

It follows from the provisions of s 9(3) that a pre-condition to the valid declaration of a toll road is the existence of an alternative road as envisaged by s 9(3). It is common cause that the alternative road which has been designated as such by the Commission extends for a distance of 119,4 kilometres. Its route, as described in the founding H affidavit, takes the following course:

'N3	36,8km	Cedara interchange to Mount West interchange
MR 147	7,7km	Mount West interchange to Nottingham Rd
MR 1	27,7km	Nottingham Rd to Hidcote intersection I
MR 172	2,7km	Hidcote intersection to Hidcote interchange
N3	42,2km	Hidcote interchange to Frere interchange
MR 11	2,3km	Frere interchange to Frere interchange with MR 1.'

This route overlaps with the toll road for a total distance of 79 kilometres, but bypasses all the toll gates on the toll road thereby J enabling motorists

Smalberger JA

A travelling along it to avoid paying toll. The roads designated to constitute the alternative road to the toll road all fall within the ambit of s 9(3)(a) and (b) of the Act.

The appellants contend that on a proper interpretation of s 9(3), it was contemplated by the use of the words 'an alternative road' that there should be two distinct, entirely separate, roads: a toll road and B an alternative road. Underlying this submission is the notion that by 'road' is meant a roadway (in the sense of 'the main or central portion of a road, esp that used by vehicular traffic' - The Shorter Oxford English Dictionary, sv 'roadway'). 'Alternative' means 'of two things: such that the one or other may be chosen, the choice of either involving C the rejection of the other' - The Shorter Oxford...