Agri EC wins rural roads judgment against EC transport department

Agri EC has won an order in the Grahamstown High Court compelling the Eastern Cape department of transport, safety and liaison to fix dilapidated rural roads.

Agri EC had to return to court to get the order which enforces an agreement made between Agri EC and the MEC for transport, safety and liaison two years ago.

MUD BATH: Zuney Valley dairy farmer Cliffie Biggs points out one of the many bad patches along the busy DR1948 Picture: Eugene Coetzee

A number of farmers joined as applicants in the suit in their individual capacity, while the director-general of transport, safety and liaison and Makana Municipality were co-respondents.

In a previous judgment, Judge Judith Roberson issued an order that to a large extent accorded with the draft order proposed by the applicants to compel the MEC to address “the poor condition and lack of maintenance and repair of the road network of the farming communities in the Eastern Cape”.

The MEC and her co-respondents appealed the judgment so it went to the Supreme Court of Appeal (SCA).

While the matter was pending before the SCA, Agri EC and the respondents entered an agreement in May 2018 that became the subject of the latest court case.

The MEC had agreed to make R15-million available in the 2018 financial year for urgent maintenance and repairs to the roads brought to their attention by Agri EC.

Agri EC’s attorneys undertook to provide this information within one month of the agreement. The MEC had agreed, as far as reasonably possible, to give effect to the required repairs within a period of six months.

The MEC further agreed to enter into negotiations with both the national and provincial Treasury and other stakeholders to discuss possible solutions for the ongoing problems with repair and maintenance of provincial roads used by commercial farmers.

The MEC had also agreed to report to the high court within six months of the agreement on progress made in respect of such negotiations, while Agri EC undertook to make representations as needed each year to lobby the department for budget allocations for road repairs and maintenance.

Both parties had agreed that if Agri EC and its co-applicants were unhappy with the budget allocation, they could request reasons and approach the high court for relief.

Agri EC and its co-applicants returned to court because they said the MEC had not complied with the terms of the settlement agreement.

Opposing the application, the MEC asserted that the department had spent more than R10-million on road repairs. The MEC said making the agreement an order of court would go against the spirit of co-operation envisioned by the agreement.

Judge J Beshe disagreed. He said the MEC had already agreed to the terms and all that Agri EC was seeking was “compliance by the respondents with their side of the bargain”.

The judge said the MEC and her co-respondents had “displayed a clear unpreparedness to give effect to the terms of the agreement they concluded with the applicants”.

Agri EC also said they had had no meetings with the department since October 2018.

The MEC also argued that making the agreement an order of court would “infringe on the principle of separation of powers”. In response, Beshe said the court was not being asked to order the respondents to do anything other than what they had agreed to.

“The respondents cannot bemoan judicial oversight in this matter,” he said. “The agreement that they entered into with the applicants, provides for such judicial oversight.”

The agreement first ran into problems when the MEC failed to sign the agreement, even after a court order. To date, the MEC has never signed the agreement. It was ultimately signed by the sheriff of the court on his behalf.

The MEC and co-respondents argued that their agreement to submit a progress report to the high court within six months would be superfluous as they would be involved in quarterly meetings with Agri EC. The judge disagreed.

Beshe said the MEC and her co-respondents had “displayed a clear unpreparedness to give effect to the terms of the agreement they concluded with the applicants”.

The settlement agreement was made an order of court and the MEC was ordered to file a report within 30 days all maintenance carried out on the roads identified from June 2018, record and report on all planned future maintenance, and report on progress in respect of negotiations with Treasury.

The MEC and co-respondents also have to pay costs.

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