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

You are here:  SAFLII >> Databases >> South African Law Commission >> Issue Paper >> 16 >> 5.THE WAY AHEAD: ISSUES AND OPTIONS TO BE DECIDED

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

5.THE WAY AHEAD: ISSUES AND OPTIONS TO BE DECIDED

5.1 Is this really a matter upon which uniform national legislation is required? Should the national legislature be proposing guidelines for provinces to adopt or propose draft provincial legislation, if at all?

5.2 The current legal principles and position pertaining to the liability of the person in control of an existing fence do not appear to require the attention of the legislator as generally speaking, in the absence of express statutory provisions, the landowner or occupier of land adjoining public roads will in any event be held responsible for the maintenance of existing fences.

5.3 Is it practical or feasible to impose a statutory duty to maintain a fence on any person or body other than the adjoining landowner or occupier?

5.4 In Kwazulu-Natal, the administration is obliged to make a contribution to the costs of such maintenance to fences in respect of certain roads and under certain conditions. Is this a feasible example which should be followed nationally?

5.5 As far as national roads are concerned, it is certainly possible for the legislator to impose similar duties on the Agency.

5.6 Whether it is necessary or even desireable for the legislator to impose a statutory duty on any person or authority to erect fences, is debatable.

5.7 The Agency as well as the relevant provincial department, currently enjoy a discretion to erect fences. Whether it is necessary for the legislator to provide guidelines for the exercise of this discretion, is debatable.

5.8 Possibly the Agency should pass regulations irelating to the responsbilities which it will perform in respect of fences pursuant to section 26 of the National Roads Act.

5.9 Similar regulations from the respective provincial administrations could better address the problems complained of.

5.10 Clearly, financial considerations are of importance, and any discussions on possible legislation will primarily relate to financial implications. Information in this regard will be indispensable.