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• Introduction
• The Origin Of The Investigation
• The Scope Of The Investigation
• The Commission’s Working Methodology

1.INTRODUCTION

Introduction

1.1 The South African Law Commission’s consideration into Uniform National Legislation on the Fencing of Public Roads emphasises the need for a single law to regulate the problems currently encountered by broken fences resulting in animals straying into roads which cause accidents to occur.

The origin of the investigation

1.2 In August 1997 the South African Agricultural Union (SAAU) requested the Commission to investigate the possibility of enacting uniform national legislation on the fencing of public roads.

1.3 The request originated from a SAAU conference during which the problems encountered by farmers whose farms are adjacent to public roads were discussed.

1.4 From the conference it emerged that farmers were encountering the following problems:

• Fences alongside public roads were sometimes wilfully removed or damaged.
• Where fences are unintentionally damaged by motor vehicle accidents farmers or land owners are often not informed of the damage and as a result suffer losses.
• As a result of damaged or stolen fencing, farm animals strayed on to public roads causing accidents.

1.5 According to SAAU these problems are exacerbated as farmers are more often than not held accountable for the maintenance of fences along public roads. This gives rise to maintenance expenses, payment of insurance premiums, the loss of stock life and liability for damages all of which arise from accidents caused by farm animals which stray on to public roads. The SAAU is of the opinion that this places an unfair burden on farmers.

1.6 The Minister approved the inclusion of an investigation regarding possible national uniform legislation on the fencing of national roads in the Commission’s programme and the appointment of Advocate N Bawa of the Cape Bar as a consultant was confirmed to draft an issue paper relating to the enactment of national legislation of the fencing of national roads.

The scope of the investigation

1.7 This issue paper is titled “Uniform National Legislation on the Fencing of Public Roads”. As such it covers the issue of fencing on all public roads.

1.8 Fencing occurs on both national and provincial roads. The scope of the investigation is thus guided by whether all public roads should be included in the investigation.

1.9 It is important to point out that the South African National Roads Agency Limited and National Roads Act No. 7 of 1998 (“the National Roads Act”) makes provision for a national roads agency for the Republic to manage and control the Republic’s national roads system and take charge, amongst others, of the development, maintenance and rehabilitation of national roads within the framework of government policy.

1.10 In addition, various provincial ordinances regulate the management and control of the Republic’s public roads other than national roads. These provincial ordinances lack uniformity as regards the fencing of public roads.

1.11 As the scope of the investigation will have a fundamental bearing on the investigation, guidance is required as to the following questions:

The Commission’s working methodology

1.12 This issue paper introduces the investigation into uniformity in respect of fencing legislation relating to public roads. Its purpose is to provide a basis for discussion of the topic among all interested parties, including farmers, the relevant local and provincial authorities and the National Roads Agency Limited.

1.13 In order to facilitate a focussed debate, the factual position is first discussed briefly. Where appropriate, this discussion is followed by questions contained in a text box. Interested parties are invited to respond to the factual position and or to the questions, to comment on any other related issue, to suggest solutions and to indicate whether there are other questions, issues or options that should also be investigated.

1.14 Following this issue paper, a discussion paper will be prepared. The discussion paper will take the submissions on the issue paper into account, will contain draft legislation and will be circulated for general comment. On the strength of these submissions elicited a report will be prepared which will be submitted to the Minister of Justice for his consideration.