Facts called into question

The letter “Court ruling on roads” (DD May 24) necessitates a response. Certain statements reportedly made by the spokesperson are incorrect and a number of facts are conveniently omitted. Agri Eastern Cape (AEC) at no time engaged with the Department of Transport prior to the Supreme Court of Appeal hearing. In an attempt to settle the matter, the department presented AEC with a draft order on the morning of the hearing.

AEC sought the advice of its legal team and was advised to follow the suggestion by the Supreme Court of Appeal that the draft order be made an agreement between the parties. The primary responsibility of AEC to its members in this regard is to bring about an improvement in the maintenance and condition of the province’s rural roads and not to engage in protracted legal battles.

The draft order and subsequent agreement was in essence a capitulation by the department. Its previous stance, as reflected in its heads of argument submitted to the Supreme Court of Appeal, was that it did not have an obligation to repair roads but merely a permissive responsibility regarding road maintenance and could choose whether or not to repair roads. AEC has effectively achieved its primary objective of getting the department to engage with its members effectively on the maintenance of rural roads.

The spokesperson further conveniently omitted to state that the department has tendered to pay AEC’s legal costs for both the appeal and initial application. Furthermore, that the department has made R15-million available within the next six months for repairs to roads identified by AEC. AEC sees this as a good faith gesture. The agreement between the parties, which in effect replaces the Grahamstown High Court judgment of Justice Roberson, gives AEC an opportunity to make representations regarding the department’s annual budgetary allocation. Should AEC disagree with the allocation, the department can be requested to provide reasons.

If AEC is dissatisfied with the reasons provided, an application to the Grahamstown High Court (on the same case number that led to the appeal) can be made for appropriate relief. Furthermore, the department has agreed to report by means of an affidavit to the Grahamstown High Court within six months on progress made in respect of negotiations and possible solutions to the maintenance and repair of relevant roads. The Grahamstown High Court thereafter shall make a further order as it deems necessary.

The closing statement in the letter, as per the department’s spokesperson, that the agreement has no legal effect is completely without substance. It was the department’s unwillingness to effectively engage with AEC on road maintenance that led to the initial application being launched.

AEC has every intention of holding the department to the spirit and letter of the agreement. AEC will not hesitate to approach the Grahamstown High Court as provided for in the legally binding agreement should the department default or attempt to stall on meaningful progress. — Doug Stern, Agri Eastern Cape president