[Home] [Databases] [WorldLII] [Search] [Feedback] South African Law Commission

You are here:  SAFLII >> Databases >> South African Law Commission >> Issue Paper >> 16 >> 2.THE EXISTING LAW

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

• Introduction
• The Constitution
• The National Roads Act
• The Fencing Act 13 Of 1963
• Provincial Ordinances
• The Provinces Of The Western Cape, The Northern Cape1 And The Eastern Cape: The Roads Ordinance 19 Of 1976
• The Free State
• The Provinces Of Mpumalanga, Gauteng, Northern Province And North West: The Roads Ordinance 22 Of 19573
• The Pounds Ordinance 13 Of 1972
• The Province Of Kwazulu-Natal: The Roads Ordinance 10 Of 19684 And The Regulations Relating To The Control Of Roads And Resting Places
• Conclusion

2.THE EXISTING LAW

Introduction

2.1 It is believed that this investigation – with its focus on changes to the present legislation – should be guided by:

• The Constitution of the Republic of South Africa Act, No. 108 of 1996 (“the Constitution”).
• The South African National Roads Agency Limited and National Roads Act, No. 7 of 1998 (“the National Roads Act”).
• The Fencing Act, No. 31 of 1963.
• The various provincial ordinances.
• The common law.

The Constitution

2.2 In terms of Part A of Schedule 5 to the Constitution “provincial roads and traffic” is a functional area of exclusive provincial legislative competence.

2.3 In terms of Part B of Schedule 5 to the Constitution “fencing and fences” and “municipal roads” are local government matters which fall within the functional area of exclusive provincial legislative competence to the extent set out for provinces in section 155(6)(a) and (7) of the Constitution.

2.4 Section 155(6)(a) provides that each provincial government must establish municipalities in its province in a manner consistent with the legislation enacted in terms of sections 155(2) and (3) of the Constitution and, by legislative or other measures, must provide for the monitoring and support of local government in the province.

2.5 Section155(7) of the Constitution provides:

“The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1).”

The National Roads Act

2.6 The South African National Roads Agency Limited (“the Agency”), a public company wholly owned by the State was created 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. The National Roads Act defines the Agency's powers and functions; regulates its functioning and prescribes measures and requirements with regard to, inter alia, the Government's policy concerning national roads; the use and protection of national roads; to repeal or amend the provisions of certain laws relating to or relevant to national roads; and to provide for incidental matters.

2.7 For present purposes, the following provisions of the National Roads Act are of importance:

• In terms of section 25(1) of the National Roads Act the Agency, within the framework of government policy, is responsible for, and is empowered to perform all strategic planning with regard to the South African national roads system, as well as the planning, design, construction, operation, management, control, maintenance and rehabilitation of national roads for the Republic, and is responsible for the financing of all those functions in accordance with its business and financial plan, so as to ensure that government's goals and policy objectives concerning national roads are achieved.
• The Agency is further empowered by section 26 of the National Roads Act to, inter alia, provide, establish, erect and maintain facilities on national roads for the convenience and safety of road users and to fence any national road.
• In terms of section 58 of the National Roads Act the Minister, after consultation with the Agency, may make regulations pertaining to traffic on a national road or the use or protection of a national road or the use or presence of vehicles or animals or any other thing on a national road, provided such a regulation is not in conflict with any road traffic law or the National Roads Act.

2.8 In respect of fencing the powers of the Agency is restricted to fences alongside national roads.

The Fencing Act 13 of 1963

2.9 The purpose of the Fencing Act is to consolidate the laws relating to fences and the fencing of farms and other holdings and matters incidental thereto.

2.10 Section 21 of the Fencing Act provides for the duties and obligations placed on the owner of any fence crossing a public road. In this instance the owner bears the responsibility of allowing an opening of not less than 4.5 metres across the road and shall erect and maintain in good order a gate made of iron or wood or of an iron or wooden frame spanned with wire, placed as near as possible at right angles to the road and properly fixed by hinges or pivots to posts erected for the purpose, so as to facilitate the opening and closing of the gate and to ensure that it will swing clear of the ground. In terms of subsection (b) the responsibility to specify the details of the gate rests on the road authority, if any.

2.11 In terms of subsection (2) a provincial council may make ordinances in regard to contrivances in gaps in fences crossing or near public roads, which are designed to permit the passage of motor vehicles but to prevent the passage of livestock over or through such contrivances.

2.12 In respect of willful damaging or removal of fences section 24 of the Fencing Act specifically provides that any person who willfully damages or removes any fence or gate or any contrivance forming part or serving the purpose of a gate, shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred and fifty rand or, in default of payment, to imprisonment for a period not exceeding six months, or to such imprisonment without the option of a fine.

2.13 In terms of section 26 of the Fencing Act where damage to fencing or a gate situated on a holding or on a public road within a holding is unintentional, the person who unintentionally damages any fence, shall forthwith repair the damage or, if he is unable to repair it, report the damage and his inability to repair it to the owner or any lessee of the holding and deposit or give security for such sum as may be reasonably sufficient to cover the cost of the repair, and the owner or such lessee shall thereupon on request give such person a written acknowledgement of the sum deposited or secured.

2.14 Section 31 provides that no owner or occupier of a holding shall be held liable in damages in respect of an injury or damage caused to any person or property by such person or property coming into contact with any fence, unless the injury was occasioned by the negligence of such owner or occupier in erecting, altering, maintaining or repairing such fence.

2.15 The Fencing Act primarily regulates the fencing of boundaries of land on which farming operations are carried on. It is silent in respect of fences adjacent to public roads, irrespective whether the roads are national, provincial or local.

2.16 The fencing of public roads is not specifically regulated by national legislation. Nor do the existing national legislation place a specific legal duty on the authorities, be it national or provincial, to fence public roads.

Provincial Ordinances

2.17 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. For present purposes, it is efficacious to briefly refer to the legal position in the respective provinces.

The provinces of the Western Cape, the Northern Cape^[1] and the Eastern Cape: The Roads Ordinance 19 of 1976

2.18 Section 12 of the Roads Ordinance 19 of 1976 provides:

“(1) A road authority may, and in the case of a road authority which is a council which has been so directed by the Administrator, shall erect a fence - (a) along the boundary of the statutory width of any public road or public path of which it is the road authority; provided that the Administrator shall not so direct in respect of a minor road;

(b) around any land from which materials are being or have been raised and removed, and

(c) around any water supply provided or used by such road authority.

(2) A road authority -

(a) shall contribute not less than sixty per cent of the costs incurred by any other person in erecting a fence along the boundary of the statutory width of a main road or divisional road of which such road authority is the road authority –

(i) as a result of the issue of a notice in terms of section 13(4) in respect of such road, or

(ii) as a result of the removal of one or more gates from such road in terms of section 14, and for the purposes of this paragraph "costs" means the cost of erecting a fence in accordance with the standards of materials and construction generally or specially determined by the road authority;

(b) which is a council which has been so directed by the Administrator, shall contribute such percentage as the Administrator may generally or specially determine of the costs incurred by any other person in erecting a fence along the statutory width of any public road or public path (other than a minor road) 1 of which such council is the road authority, and

(c) may contribute to the costs incurred by any other person in erecting a fence in accordance with the standards of materials and construction generally or specially determined by the road authority along the boundary of the statutory width of any public road or public path of which such road authority is the road authority and in respect of which no notice in terms of section 13(4) has been issued.

(3)(a) No person other than the road authority may erect a fence on the boundaries of the statutory width of a public road or public path except with the written permission of and in accordance with standards and specifications determined by such road authority.

(b) No person other than the road authority may remove a fence lawfully erected in terms of paragraphs (a) or (d) except with the written permission of such road authority.

(c) If a fence which, at the commencement of this ordinance, is situate on the boundary of the statutory width of a public road or public path is, as a result of the amendment of this ordinance or the alteration of the statutory width of such public road or public path under this ordinance, at any time after such commencement situate outside such boundary, the provisions of this ordinance shall apply in respect of such fence as if such fence were situate on such boundary; provided that the road authority shall not grant permission in terms of paragraph (b) for the removal of such fence for any reason other than that the condition of such fence necessitates its replacement unless the owner of the land over which such fence runs undertakes in writing to defray the total cost of such removal and of the re-erection of such fence in accordance with standards and specifications determined by such road authority on such boundary.

(d) All fences lawfully erected on or within the boundaries of the statutory width of a public road or public path prior to the commencement of this ordinance and in existence at such commencement shall be deemed to have been erected with the permission of and in accordance with standards and specifications determined by the road authority in terms of paragraph (a).

(e) Any permission deemed to have been granted in terms of paragraph (a) in respect of the erection of a fence within the boundaries of the statutory width of a public road or public path may at any time be withdrawn by the road authority and in such event such fence shall be removed by such road authority and re-erected by it on such boundary at the cost of such road authority.

(4)(a) Any person who contravenes the provisions of subsection (3) shall be guilty of an offence and on conviction be liable to a fine not exceeding two hundred Rands or to imprisonment for a period not exceeding six months or to such imprisonment without the option of a fine or to both such fine and such imprisonment.

(b) The provisions of section 64(2), (3) and (4) shall apply mutatis mutandis in respect of any contravention of this section and the road authority concerned shall -

(i) remove any fence which has been erected in contravention of this section and re-erect such fence on the boundary of the statutory width of the public road or public path concerned, and

(ii) re-erect any fence which has been removed in contravention of this section on the boundary of the statutory width of the public road or public path concerned.

(5) Where a public road or public path is diverted the road authority may if it has contributed to the cost of any fence alongside thereof, remove such fence to the new location of such public road or public path.

(6) Subject to the provisions of the Fencing Act, 1963 (Act 31 of 1963), the owner of the land abutting on the boundary of the statutory width of any public road or public path shall be responsible for the maintenance of any fence lawfully erected on or within such boundary.”

2.19 In accordance with section 12 the relevant Road Authority may erect a fence along a public road. However, should the relevant Road Authority be a municipal or divisional council, the Administrator has the power to direct that it erect such a fence, provided that it is not a minor road (classified as a such in terms of section 4 of the Road Ordinance).

2.20 In terms of subsection 6 the owner of the land abutting on the boundary of the statutory width of any public road or public path shall be responsible for the maintenance of any fence lawfully erected on or within such boundary. Even though this is subject to the Fencing Act, the latter Act does not specifically deal with fences abutting public roads.

2.21 Section 60(1) of the Ordinance specifically provides that no action shall lie against a road authority or any employee, agent or contractor of a road authority for or in respect of any damage or injury sustained or alleged to have been sustained by any person in, Inter alia, using any part of a public road or public path other than the roadway of a public road and in using a public road or public path merely by reason of the fact that such road authority has contributed towards the costs of construction, repair, improvement or maintenance of such road or path.

2.22 In terms of subsection (2) if a person uses a public road for bona fide trekking with stock no action shall lie in respect of damage caused by such stock within a distance of forty-five meters from the boundary of such road on any side thereof on which it is not fenced, and such stock shall not be liable to be impounded while within such distance and for the purposes hereof a person shall not be deemed to have used a public road for the bona fide trekking with stock unless such trek was completed within twenty-four hours after its commencement, or unless during any twenty-four hours during which the trek lasted, a distance of at least ten kilometers in the case of small stock and twenty kilometers in the case of large stock, was covered in the same direction.

The Free State

The Local Government Ordinance 8 of 1962 (Free State)

2.23 In terms of section 146(14) of the Local Government Ordinance 8 of 1962 a municipal council may make regulations in respect of fences in order to -

• compel owners of land to fence in their properties;
• prohibit the use of barbed wire, or such other material as the council may determine, in the erection of fences, gates or other structures abutting on any public place, and for compelling the removal or reconstruction, within a specified time, of existing fences, gates or other structures so abutting, which are wholly or partly constructed of barbed wire or such other material; and
• regulate and control the erection of fences or structures (other than buildings) or the planting of trees or hedges on land abutting on any street or public place, and providing for the repair, alteration or removal of any such fence or structure or the trimming or removal of any such tree or hedge by the owner of such land or by the council at the cost of the owner, in the case where any such fence, structure, tree or hedge is unsightly, or encroaches upon any street or public place, or is dangerous, or causes annoyance to the inhabitants of the neighborhood, or obstructs traffic, or interrupts the view necessary for the safety of traffic approaching any intersection.

The Roads Ordinance 4 of 1968^[2]

2.24 In terms of section 13 of this ordinance, the Head of Department of Public Works, Roads and Transport of the Provincial Administration of the Free State may fence in or move or remove a fence alongside a public road provided that the width of a road thus fenced in shall not exceed the width prescribed for such road in the Ordinance.

2.25 Section 53 deals with animals on public roads and, inter alia, states:

“(1) When an animal is on a public road, outspan, rest or road camp contrary to the provisions of this Ordinance or the Road Traffic Act, 1989 (Act 29 of 1989), or trespasses thereon, a traffic officer, as defined in section 1 of the last-mentioned Act, or any other person authorised thereto by the responsible Member, may impound such animal in accordance with the provisions of the Pound Ordinance, 1952 (Ordinance 18 of 1952): Provided that the prohibition contained in section 19 of the last-mentioned Ordinance shall not apply in connection with the impounding of such animal.

(2) Notwithstanding anything to the contrary contained in any Ordinance, the owner of land situated within eight meters of a public road shall not be entitled to impound an animal trespassing on such land or to claim compensation for damages caused by such animal on such land unless the land is properly fenced in.”

The provinces of Mpumalanga, Gauteng, Northern Province and North West: The Roads Ordinance 22 of 1957^[3]

2.26 In terms of section 71 of the Ordinance no person shall without the written consent of the Administrator, erect a fence, gate or motorgrid on or across a public road. The Administrator may grant such consent in his discretion and subject to such conditions as he may deem necessary and he may at any time withdraw such consent.

2.27 In accordance with section 72 of the Ordinance the Administration only accepts responsibility for the erection and maintenance of fences, gates, etc. necessitated by deviations and new roads.

2.28 In fact subsection (2) provides that:

“When the making of a new road or a deviation of an existing road necessitates the removal and re-erection of an existing fence or gate or motorgrid, such removal and re-erection and the making of by-passes leading to such grid shall be undertaken at the expense of the Province.”

2.29 Other than these provisions, the Ordinance does not specifically regulate the erection and maintenance of fences along public roads.

The Pounds Ordinance 13 of 1972

2.30 Section 22 of this Ordinance holds the owner of any stock found trespassing on any land liable to the owner of such land for any damage caused by such stock to any crop or fence on such land. There is no similar provision relating to liability which may arise if stock trespasses on roads.

The Province of Kwazulu-Natal: the Roads Ordinance 10 of 1968^[4] and the regulations relating to the control of roads and resting places

2.31` Section 71 of this Ordinance empowers the Administrator to make regulations in respect of permission relating to fences and the conditions subject to which fencing shall be permitted on main, district and by-roads.

2.32 Section 72 authorises the Administrator to make grants-in-aid towards the costs incurred in respect of the fencing of main roads as well as the maintenance of roads, other than main roads falling within the area of jurisdiction of a local authority.

2.33 In terms of section 24 of the regulations headed “Fencing Alone Declared, Main and District Roads” any person who wants to erect a fence along a declared, main or district road shall consult the Director of Roads,^[5] who shall indicate to her or him the boundary of the road reserve, and no fence shall be erected within such road reserve nor shall any fence be erected on the road reserve boundary in such a way as to interfere with existing road works.

2.34 Should any person erect a fence along a declared, main or district road without having consulted the Director or otherwise in contravention of the Regulations, the Director may order the removal of the fence from the road reserve. The Director may also exercise his or her discretion in that he or she can grant written consent to the fence remaining in the position in which it has been erected, subject to conditions determined by the Director and set out in the consent.

2.35 The responsibility for the erection and maintenance of fences is as set out in Schedule E^[6] to the Road Traffic Regulations. The Administration bears the cost of the erection of fences. The adjoining landowner is responsible for the maintenance of such fences. Damage caused by a motor vehicle is repaired by the Administration if advised of such damage.

2.36 Should it be necessary to replace such fences, the administration is obliged to contribute 80% towards the cost of materials required.

2.37 The Director may undertake the maintenance of fences along district roads.^[7]

2.38 In the case of by-roads, the District Road Advisory Committee, as established by the Administrator, has the power to determine, as between parties involved, by whom and in what proportion costs should be borne arising from the provision of fences and the maintenance of a by-road.^[8]

Conclusion

2.39 The current legislative framework leaves the decision as to whether or not a specific road is to be fenced to the discretion of the relevant agency or administration. In other words, the relevant agency or administration haspermissive powers in respect of the erecting fences. There is not even a specific obligation placed on the Agency to fence national roads.

2.40 There is also a lack of uniformity in respect of who bears the responsibility for the cost of the erection of fences and furthermore in respect of the responsibility for maintenance, and the cost thereof, of fences along roads, national or provincial.

2.41 Furthermore the legislative provisions do not contain any express provisions on who is liable for damages incurred where animals stray on to public roads because of damaged or non-existent fencing.

2.42 It does not appear as if there are irreconcilable differences in the existing legislation.

2.43 The provincial ordinances of the Western Cape, Northern Cape, Eastern Cape and KwaZulu-Natal hold owners of land responsible for the maintenance of fences abutting public roads and the landowners are in control of the fences.

2.44 The provincial ordinances of the Northwest Provinces, Mpumalanga, Gauteng, Northern Province and the Free State do not explicitly deal with the question of who controls the fences abutting public roads and the question of control is determined on a case by case basis.

[1] The administration of the whole of this Ordinance has under Proclamation 108 of 1994, published in Government Gazette 15813 of 17 June 1994, been assigned to the Province of Northern Cape with effect from 17 June 1994.

[2] As amended by the Roads Ordinance Amendment Act 17 of 1998. The administration of the whole of this Ordinance has under Proclamation 113 of 1994, published in Government Gazette 15813 of 17 June 1994, been assigned to the Free State Province with effect from 17 June 1994. The provisions of the Free State Land Administration Act 1 of 1998 do not apply to any matter regulated in this Ordinance.

[3] The administration of the whole of this Ordinance has under Proclamation 114 of 1994, published in Government Gazette 15813, 17 June 1994, been assigned to the Province of Gauteng with effect from 17 June 1994.

[4] The administration of the whole of this Ordinance has under Proclamation 107 of 1994, published in Government Gazette 15813 of 17 June 1994, been assigned to the Province of Kwazulu-Natal with effect from 17 June 1994.

[5] Referred to in section 1 of the Director of Roads Designation Ordinance, 1974 (Ordinance 13 of 1974).

[6] Schedule E as substituted by P.N. 112/1987.

[7] Section 38 of Ordinance 10 of 1968.

[8] Section 42 (1)(e) and Section 47 of Ordinance 10 of 1968.