ZALC - Issue Paper 16 (Project 119): Uniform National Legislation on the Fencing of National Roads

“the Agency” means the national roads agency envisaged for the Republic by section 2 and which in terms of that section, is established by the incorporation of a company, named The South African National Roads Agency Limited, in accordance with section 3 of the National Roads Act.

“boundary fence” means any fence (including a jackal-proof fence), together with any necessary gate or any contrivance forming part or serving the purpose of such a gate, erected on or as near as possible to the boundary of any holding and separating such holding from any other holding.

“common law” is the law of the land created by customs and judicial decisions but excluding that created by legislation.

“cost” in relation to the erection, alteration or repair of any fence, means any cost of or incidental to such erection, alteration or repair, including the cost of transport of materials.

“Department” means the Department of Transport in the national sphere of government.

"erect" in relation to a fence includes the re-erection of a fence, the entire replacement of the material of a fence and the addition to a fence of any material not required for the purpose of repairs and maintenance.

"fence" means any structure or device which serves the purpose of a fence, together with any necessary gate or any contrivance forming part or serving the purpose of such a gate, irrespective of the materials used in or the manner of its construction and includes a wall and a hedge.

“land” means land with or without improvements and includes a real right in or over any land.

"maintenance" means the maintenance of any road, together with all bridges, ferries, and drifts in the line of such road, all road signs and all approaches, excavations, embankments, subways, furrows, drains, dams, kerbs, fences, parapets, guards, drainage works within or outside such road, and any other work or thing forming part of or connected with or relating to such road and "maintain" has a corresponding meaning.

“Minister” means the Minister of Transport in the national sphere of government.

“motor-grid" means a track through an opening in a fence designed to permit the free passage of self-propelled vehicles while preventing the passage of livestock.

“national road” means any road or route declared a national road under section 40 (1) of the South African National Roads Agency Limited and National Roads Act 7 of 1998 and includes -

(a) any road or route which was declared a national road under section 4(1)(a) of the National Roads Act, 1971 (Act No. 54 of 1971) and which immediately before the date of incorporation of the National Roads Agency existed as a national road;

(b) any part of the road which is a toll road as defined in the National Roads Act; and

(c) any bridge across the boundary between adjoining provinces in the Republic and any bridge across the boundary between the Republic and any adjoining country which is used in conjunction with a national road.

(a) save as provided in paragraph (b), the person or persons in whose name that land is registered and includes any person in whose name any lease of or other right or interest in or over the land is registered and the legal representative of an owner (as herein defined) who has died, become insolvent, is a minor, is of an unsound mind, or is otherwise under any legal disability, and the liquidator of a company owning land;

(ii) the person who holds the land under lease, licence or allotment from the State with an option to purchase it, provided the lease, licence or allotment is registered in a deeds office or other registration office;

(iii) the person who holds land which he or she has purchased but which has not yet been registered in his or her name;

(iv) the usufructuary where land is subject to a usufruct and where any person aforementioned is dead or any person or usufructuary aforementioned is a minor or is or becomes insolvent or of unsound mind or subject to some other legal disability, it includes any executor, administrator, guardian, trustee, liquidator, curator or other person having the control of the estate or assets of, or representing that person or usufructuary.

“Premier” includes the member of the Executive Council of a province designated by the Premier of the province.

“repair” in relation to any boundary fence, includes putting and maintaining such fence in good order by trimming, cutting or any other means.

(a) the land of which the road consists or over which the road reserve in question extends;

(b) anything on that land forming part of, connected with, or belonging to the road, including but not limited to all works or things of whatsoever nature forming part of, connected with or belonging to a road, motor by-passes, sidewalks, traffic circles, traffic islands, kerbing, embankments, cuttings, subways, culverts, sluits, drains, dams, fences, parapets, guards, bridges, ferries, causways, fords, approaches, direction signposts, distance indicators, signposts, directions, warnings and any portion or diversion of a road; and

"stock" means a bovine animal, horse, donkey, mule, sheep, goat, pig or ostrich.

"sufficient fence": when applied to a wire fence a fence of so many wires and of such construction as the local authority in whose area the fence is situated shall from time to time decide; in other cases a wall, fence or barrier at least 1400 centimetres high and through which no animal could pass without breaking it.

“the Constitution” means the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).

Should “the owner” of the land be more broadly defined in any proposed legislation? And if so, would this include those who may not legally own the land adjacent to the public road but have effective control over the land, for example the tenant, lessee or subtenant? Or should it read as follows: "owner" means the owner, lessee or occupier of a piece of land, or his or her lawful representative"?

South African Law Commission

GLOSSARY OF TERMS