Sinegugu Zukulu is adamant he will not be bulldozed by the government, the South African National Roads Agency Limited or the N2 Wild Coast Consortium in giving in to the toll road. which is due to run partially through his ancestral land. Zukulu and his community were from the start opposed to the 560km toll road extending from the N2 Gonubie interchange near East London to the N2 Isipingo interchange, south of Durban.
They steadfastly refused to give up the land, which they have been living on for generations. The community felt that while they needed improved local roads, they did not need a sleek highway, which they feared was being built for ulterior purposes. They feared that the toll road was planned to assist proposed mining in the region, against which they were also vigorously opposed.
The battle for the ancestral land eventually led to divisions within the community, who had mostly meanwhile abandoned their legal fight - all but Zukulu. In a first round victory for him, the high court in Pretoria gave him the go-ahead to fight his legal battle further. Zukulu’s aim is to take on the giants and ultimately to have the toll road project set aside by the court.
Judge Neil Tuchten said if it was Zukulu’s desire to have his day in court, he should have it.
“It would be most unjust if the doors of the court were closed to him.”
Zukulu at first approached the court, along with 49 of his community members, in an attempt to shut down the toll road project. This was after they fought a fierce battle over the years with the government to internally vent their opposition to the toll road. But their objections fell on deaf ears and they internally appealed against the government’s refusal of their objections. This was yet again turned down by the Department of Environmental Affairs.
They then turned to the court to fight their battle further and to ask the court to review the entire project, as well as the government’s refusal to listen to them. Then the community members decided to withdraw from the review proceedings, which left Zukulu to fight alone. The government opposed his application on technical grounds and told the court that he had not exhausted all his internal remedies and that he could thus not be assisted by the court at this stage.
But Judge Tuchten found that he had exhausted his internal remedies. He remarked that this technical objection should not be used by administrators to frustrate the efforts of an aggrieved person or to shield the administrative process from judicial scrutiny. The judge also found that in this case it would serve no purpose to send Zukulu’s plight back to the government for reconsideration, as he doubted the outcome of such an internal appeal would be any different.
“Where the pursuit of an internal appeal would be futile, a court may permit a litigant to approach the court directly,” the judge pointed out, adding that the spirit of the constitution was that the courts exist to decide disputes. He said it was not desirable for the doors of the court to be closed to Zukulu before his dispute was adjudicated.
The legal door has now been opened to Zukulu to further fight the government.