Obstruction through construction – A commuter’s nightmare

How many times have you sat in traffic with no end in sight, only to discover that the hold-up was caused by a property developer constructing a large building that had decided to make the public road its own?

It is not uncommon for the average commuter to be faced with at least one blocked or severely constricted public road on their daily commute to and from work as a result of construction that is being undertaken. Commuters are forced to tolerate such construction, with ostensibly scant regard being had to the rights of such commuters and/or the public. Commuters often simply assume that such obstructions are permissible.

The status of such construction needs to be fully investigated in order to determine whether or not the obstruction by a Developer of a public road is lawful.

Of relevance in this regard are the Public Road and Miscellaneous By-laws (“the by-laws”) for the City of Johannesburg Metropolitan Municipalities, published in terms of section 13(a) of the Local Government: Municipals Systems Act, 2000.

In terms of section 19 of the by-laws:-

“No person may deposit or cause to be deposited or leave or cause to be left any building material of whatever nature on any portion of any public road, sidewalk or footway unless it is deposited within an enclosure in respect of which the prior written permission of the Council has been obtained.”

Furthermore, prior to commencing work on a road reserve (the full width of a public road, including the verge and the roadway), it is incumbent upon a construction company to obtain from the Johannesburg Roads Agency a wayleave. Work in the road reserve includes the erection of structures that require approved building plans in terms of the National Building Regulations, as well as road closures.

No work may be done before a wayleave in respect of the work to be undertaken has been issued by the Johannesburg Roads Agency. Once a wayleave has been obtained, the work described in the wayleave must commence within 90 days of issue of the wayleave, failing which the wayleave lapses and a re-application is required.

The by-laws also make provision that, to the extent that users of a public road are inconvenienced in that an obstruction as defined causes these users a “time delay cost”, the person responsible for the time delay cost is liable to pay to the Johannesburg Roads Agency “lane rental”. Lane rental is also to be charged if a footway is affected by the work undertaken by the construction company.

As is clear from what is stated above, public roads must be free from obstruction. This is also clear from legislation pertaining to traffic within the Republic. In this regard, the National Road Traffic Regulations, 2000, are of importance, specifically section 319, which states that:-

“No person shall wilfully or unnecessarily prevent, hinder or interrupt the free and proper passage of traffic on a public road.”

Furthermore, it is stated in section 319, that:-

“No person shall place or abandon or cause to be placed or abandoned on a public road any object that may endanger or cause damage to traffic on such road.”

In the circumstances, to the extent that construction is being undertaken without the proper permissions being obtained and/or the appropriate lane rental being paid, and where such construction obstructs a road, such obstruction is unlawful and appropriate action can be taken.

Commuters and the public, in general, should not have to tolerate the requisitioning by Developers of public roads that are meant for the use and enjoyment of all. Don’t let traffic unlawfully caused by Developers drive you up the wall. Know your rights and seek appropriate legal advice to enforce them.

 

Written by Lennard Cowan and Nastassya Naude of
Cowan-Harper-Madikizela Attorneys

Lennard Cowan of Cowan-Harper-Madikizela Attorneys
Nastassya Naudé for Cowan-Harper-Madikizela Attorneys