South African Roads Board v Johannesburg City Council

• Jurisdiction: South Africa
• Judge: Corbett CJ, Milne JA, M T Steyn JA, F H Grosskopf JA and Nienaber JA
• Judgment Date: 24 May 1991
• Hearing Date: 11 March 1991
• Court: Appellate Division

Milne JA:

At the outset I should mention that at the hearing of this appeal the South African Roads Board was, by consent, substituted as the appellant in place of the National Transport Commission ('the Commission'). This follows from the entrusting of the powers, functions and duties of the Commission to the Board in terms of s 3 of the I Transport Deregulation Act 80 of 1988.

The N13 is a road which runs through the southern suburbs of Johannesburg from an interchange known as Uncle Charlie's in the west to the Rand Airport in the east. It is sometimes referred to as the Southern Bypass. It has been declared a national road in terms of s 4 of the National Roads Act 54 of 1971 ('the Act'). It has not, at any time J relevant to these

Milne JA

A proceedings, been declared a toll road in terms of s 9 of the Act (nor, so it would seem, had it been so declared at the time when this appeal was argued). The Commission has, however, decided to declare it a toll road. Precisely when it made this decision is not clear but it seems that it had done so by early 1987. The reasons for this decision are in dispute, but they clearly relate to the intention of the Commission to B construct a major motorway - the M4 - between Springs and Krugersdorp, which will be a toll road, known as the Hendrik Schoeman Expressway, and, it is estimated, will take approximately seven years to construct. The link between the N13 and the M4 is the western bypass known as the N1-20. It is stated in the affidavit filed on behalf of the Commission C by a director of planning in the Chief Directorate of National Roads, that:

'(a)

The M4 will eventually replace the N13 as the link between the N1 between Pretoria and Cape Town and the N3 between the PWV and Durban, and will become part of the Krugersdorp/Springs toll way which will be known as the Hendrik Schoeman Expressway.

(b)

This whole project will lose its financial viability if the N13 is D not included as a temporary toll road in the overall project.'

It is common cause that the Commission decided to use the N13 as a toll road for as long as the M4 was under construction. In pursuance of this decision the Commission entered into a contract with Toll Highway E Development Co (Pty) Ltd ('Toll Highway'). The Commission has declined to reveal the content of this contract, but it is common cause that in August 1988, and in pursuance of that contract, Toll Highway began erecting a toll gate on the N13. The decision to declare the N13 a toll road, and the commencement of the erection of this toll gate upon it, gave rise to the proceedings in this matter.

F The body objecting to the decision and the erection of the toll gate was the respondent, the City Council of Johannesburg ('the City Council'). Its interest in this matter arises because, in the first place, the N13 falls within the municipal area of Johannesburg and, indeed, the City Council contributed some R10 million to the cost of constructing interchanges leading on to the N13. Furthermore in the G launching affidavit filed on behalf of the City Council it is stated that:

'(b)

The effect of imposing a toll on the N13 will inevitably be that certain of the traffic using that road, and in particular traffic emanating from the residential suburbs to the south of Johannesburg, will use alternative routes in order to avoid paying the toll. The effect of this will be that other roads in the vicinity will be used as alternative routes by traffic and are H likely to become congested, thereby disrupting the traffic flow in that area.

(c)

In particular, traffic to and from Soweto at present uses a road known as the old Potchefstroom road, passing on to the N13 at an interchange known as Uncle Charlie's interchange. A substantial amount of traffic uses this route. Once the proposed toll gate is I erected on the N13, it is likely that a significant proportion of this traffic will avoid the toll gate by following an alternative route through the residential suburb of Mondeor. These roads are simply not designed to cope with this volume of traffic, and major disruption of planned traffic flows will occur. Indeed, the very reason for the construction of the N13, to which the applicant made a substantial financial contribution, was to relieve the congestion J on the roads falling under the jurisdiction of the applicant.

Milne JA

(d)

A These alternative roads are all roads which vest in the applicant in terms of the provisions of the Local Government Ordinance (Transvaal) 1939. The applicant has a duty in terms thereof to maintain these roads and keep them open. The additional traffic which these roads will be required to carry if a toll were to be imposed on the N13 will inevitably result in a greater financial obligation being placed on the applicant for the upgrading and maintenance of these roads to cater for additional traffic. In B particular, one or more of the roads which will be used by this additional traffic will have to be widened to accommodate it. According to preliminary estimates which have been made of the implications for the applicant of this traffic being diverted, the cost of widening and upgrading roads as a result thereof will be approximately R3,6 million.

In confirmation of the content of subparas (b), (c) and (d) above I C refer to the affidavit of Ian Fraser Symon annexed.'

The grounds of the City Council's objections were, in essence, that

(a)

the erection of the toll gate was ultra vires the Commission because, so it was submitted, in terms of s 9(1)(c) of the Act, such a toll gate may only be erected on a toll road which has D been duly declared as such;

(b)

the erection of the toll gate was illegal since it was in pursuance of a contract whereby Toll Highway would, on behalf of the Commission, use tolls collected from the N13 to help finance the construction of the M4 in breach of s 2(3A) of the Act; and

(c)

E the decision of the Commission was liable to be set aside because the Commission did not give the City Council an opportunity to be heard before arriving at that decision.

The City Council accordingly brought proceedings against the Commission, Toll Highway and the Minister of Transport for an interdict F restraining them from proceeding with the erection of a toll gate on the N13, for an order setting aside the decision of the Commission to declare the N13 a toll road, and costs. These proceedings were successful and the judgment of the Court a quo is reported as Johannesburg City Council v National Transport Commission and Others 1990 (1) SA 199 (W).

With leave of this Court, the appellant appeals against the orders made by the Court a quo. Toll Highway did not seek leave to appeal and G has taken no further part in the proceedings. The Minister of Transport was content to abide the decision of the Court, both in the Court a quo and in the appeal. As appears from the judgment of the Court a quo, various objections were raised by the Commission and Toll Highway, including an objection that the City Council had no locus standi in H judicio. This objection was, rightly, overruled by the Court a quo, and was not pursued in the appeal.

Subject to one qualification, the only issues raised in the appeal were

(a)

whether the erection of a toll gate on a national road which has not been declared a toll road is ultra vires the Commission; and

(b)

I whether the Commission was obliged to give the City Council a hearing before deciding to declare the N13 a toll road.

The qualification referred to above is that the attack on the erection of the toll gate based upon the allegedly unlawful intention to use the funds paid as tolls on the N13 for the construction of the M4 was not abandoned by the City Council. No reference is made to this point in the J judgment of

Milne JA

A the Court a quo, nor in the appellant's heads of argument, and the matter was not fully argued - presumably because it was considered that there was a dispute of fact as to whether the tolls would be so used. It is unnecessary to say more on this aspect of the matter than that it would appear that, if tolls collected on the N13 were to be used for the B financing of the construction or maintenance of the M4, this would be in breach of s 2(3A) of the Act and accordingly unlawful.

I deal first with the powers of the Commission in relation to a toll road. The power to declare a national road a toll road and to provide for the levying of tolls and the construction of toll gates thereon was introduced for the first time when the amendments effected by Act 79 of C 1983 came into operation. Section 1 of the Act was amended to insert a definition of a toll road as

'. . . a portion of a national road which has been declared a toll road under ss (1)(a) of s 9 and of which notice has been given in terms of ss (2) of that section in the Gazette'.

D Section 9 now provides (omitting portions not relevant to this appeal)

as follows:

'(1) The Commission may -

(a)

subject to ss (3), declare any bridge or tunnel on, or any other portion of, a national road, as a toll road;

(b)

in respect of the use of any vehicle on a toll road, levy a toll E the amount of which has been determined and made known in terms of ss (4) and which shall be payable by the person so using the vehicle;

(c)

collect moneys payable as toll on a toll road, and for that purpose erect a toll gate or toll gates and facilities in connection therewith on the toll road;

(d)

. . .

(e)

. . .

(f)

F . . .

(2) A declaration under ss (1)(a) of a portion of a national road as a toll road, together with a description of such portion, shall be made known by notice in the Gazette.

(3) 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...