Ready To Learn

Across a Bridge, onto a Bus

In an effort to ensure that all learners have safe transportation options and access to their schools, the Legal Resources Centre (LRC) attorneys have been involved in strategic litigation in both KwaZulu-Natal and North West Province. In particular, the LRC has endeavoured to support schools and communities in their efforts to compel the State to build bridges across dangerous rivers and busy roads, and to provide scholar transport to displaced learners. The LRC takes the view that in order to be in a position to realise their full potential, children across South Africa must be a orded safe, reliable and a ordable means of accessing their fundamental constitutional right to a basic education.

Over the last several years, the LRC’s Durban office has been involved in litigation to construct pedestrian bridges near a busy, and notoriously dangerous, intersection in an industrial section of KwaZulu-Natal’s largest city. Three public schools at the heart of the litigation – Clairwood Boys Primary School, Durban South Girls Primary School and Clairwood Secondary School – have a combined learner population of over 3,300 coming from both formal and informal settlements in the central and southern areas of the city. After having travelled long distances to school, learners must then disembark from their trains, taxis and buses at an intersection that has borne witness to several fatal accidents in the recent past.

As a result of the very real danger posed by the industrial and vehicular obstacle course that students face at the beginning and end of each school day, the schools argue that the best interests and very lives of their learners can only be protected by the construction of two pedestrian bridges at the troubled intersection. LRC Durban’s e orts to negotiate with the municipality involved have been almost entirely unsuccessful. As the Durban o ce prepares for trial, two more students have been struck this year by vehicles. The LRC therefore continues to monitor the situation in this community closely.

LRC Durban has also been actively engaged in another matter involving safe access to places of learning in the KwaMaphumulo District, some 30 kilometres from the coast in rural KwaZulu- Natal. Inkolovuzane Primary School, with its 126 learners and 4 staff members, is located near the wide Mvoti River, known to be both fast- owing at times and a carrier of debilitating waterborne diseases such as bilharzia. As there were no bridges within walking distance of the school, students and community members had no choice but to swim across the river several times a day, which resulted in a high rate of illness. Furthermore, poverty in the surrounding communities is such that many local residents, including learners and school staff members, have no option but to use river water for drinking, cooking and washing. LRC staff found there to be a high rate of illness among community members, and noted with concern that the school itself lacked regular access to clean drinking water and had an insu cient number of pit latrines.

As a result, the LRC sought not only to engage with local and provincial o cials to facilitate safe transit across the river, but also to advocate for the improvement of the sanitation facilities for learners, educators, and the wider community. Representatives of the LRC met with the Departments of Education and Transport, and a bridge was later constructed near the school that allowed both pedestrians and vehicular traffic to safely cross the river. Although this served to address one element of this community’s infrastructure needs, access to clean drinking water and proper sanitation remains illusory
for Inkolovuzane Primary School and others like it in deep rural areas of the province. The LRC will therefore continue to support this school, and the surrounding community, in an e ort to secure much needed additional resourcing for the overall health and well-being of local residents.

Elsewhere in the country, in the remote North West Province, members of the LRC legal team represented a group of parents from Siga Village who were struggling to secure reliable scholar transport for their children. The provincial Department of Education had advised the parents verbally that the local school would be closed and their children would therefore need to be transferred to one of two schools located in a community 25 kilometres away. The protests of these concerned parents, and their reasonable requests for state assistance in providing transport for the scholastic displacement of their children, went unanswered for nearly two years. The high cost of funding scholar transport without state subsidies led to increased dropout rates in the community: those parents who could a ord to pay the R200 per month transport fee were left to worry about how their unsupervised children would navigate the public transportation system on their daily journey to and from the distant new schools.

Fundamentally, a lack of safe, reliable and a ordable scholar transport made available by the State stood in the way of these children realising their right to a basic education. Although the government initially ignored all intervention e orts made by the LRC, the LRC was able to secure an interim settlement following the institution of legal proceedings on behalf of the affected parents and the Centre for Child Law (CCL), which is based in the Faculty of Law at the University of Pretoria. This interim settlement agreement required the provincial Departments of Education, Public Works and Transport to provide transport for learners to and from Siga Village, on the understanding that necessary plans for long term measures for scholar transport for Siga Village would be forthcoming. Considering the disruption to the education of these learners, and the potential for the violation of their rights in the future, it is critical that the LRC continue to monitor this case to ensure enforcement of the settlement agreement and continued access to safe and reliable scholar transport for this remote community.

In the High Court of South Africa (Durban and Coast Local Division)

Case No. 2336/2007
Clairwood Boys Primary School

First Applicant

Samuel Eric Vedanayagam John

Second Applicant

Durban South Primary School

Third Applicant

Kisten Kisten

Fourth Applicant

and

Ethekwini Municipality

First Respondent

MEC For Education (Kwazulu-Natal)

Second Respondent

MEC For Transport, Community Safety and Liaison (Kwazulu-Natal)

Third Respondent

South African National Roads Agency Limited

Fourth Respondent

Notice Of Motion

KINDLY TAKE NOTICE THAT the applicants intend to make application to his court for the following orders:

1. THAT it is declared that:

1.1 The eThekwini Municipality is under a constitutional duty to provide diligently and without delay, a pedestrian bridge(s) at the intersection of South Coast and Blamey Roads, Clairwood, Durban, KwaZulu-Natal, to ensure that the safety of learners attending public schools in and around the intersection are respected, protected and promoted; and

1.2 The failure of the eThekwini Municipality, to do so diligently and without delay, has been and continues to be unlawful and
in contravention of their constitutional obligations.

2. The first respondent, alternatively the first respondent assisted either the second, third or fourth respondents is ordered, without delay, to provide a pedestrian bridge(s) at the intersection of South Coast and Blamey Roads, Clairwood, Durban, KwaZulu-Natal, to ensure that the safety of learners attending public schools in and around the intersection are respected, protected and promoted; and

3. The first respondent, alternatively the first respondent as assisted by the second, third and fourth respondents is ordered to deliver an affidavit reporting to this court and to deliver it to the applicants within one month, detailing,

3.1 the progress they have already made towards compliance;

and

3.2 the manner in which and dated by which they will fully comply with the order in paragraph 1 above.

4. The applicants are given leave, if they contend that the first respondent, alternatively the first respondent as assisted by the second, third or fourth respondents, is not fully and satisfactorily complying with this order, to enrol this application on reasonable notice to the respondents, for such further relief as might be appropriate to ensure full and satisfactory compliance with this order.

5. Pending the final determination of this matter, alternatively the period it will take for the first respondent to obtain the resources needed to build the pedestrian bridge(s) described in paragraph 1 hereof, the first respondent is ordered with immediate effect to institute urgent and appropriate tra c calming measures to ensure the safety of the learners using intersection described in paragraph 1 hereof.

6. The first respondent is ordered to pay the applicants’ costs of suit, such costs to include the costs of two counsel and to be paid jointly and severally with any other respondent opposing this application.

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Plaintiffs’ Declaration

The First Plaintiff is THE CLAIRWOOD BOYS PRIMARY SCHOOL which is:-

(a) a public school as contemplated in Chapter 3 of the South African Schools Act No. 84 of 1996;

(b) a juristic person in terms of the provisions of Section 15 of the South African Schools Act No. 84 of 1996;

(c) situated at 43 Doone Road, Clairwood.

1. The Second Plaintiff is SAMUEL ERIC VEDANAAYAGAM JOHN, an adult male, principal of the First Plaintiff whose address for the purposes of these proceedings is 43 Doone Road, Clairwood, Durban.

2. The Third Plaintiff is THE DURBAN SOUTH PRIMARY SCHOOL which is:

(a) a public school as contemplated in Chapter 3 of the South African Schools Act No. 84 of 1996;

(b) a juristic person in terms of the provisions of Section 15 of the South African Schools Act No. 84 of 1996;

(c) situated at 10 Blamey Road, Clairwood, KwaZulu-Natal.

3. The Fourth Plaintiff is KISTEN KISTEN, an adult male, principal of the Third Plaintiff and resides at 625 Silverglen Drive, Silverglen, Chatsworth.

5. The First and Third Plaintiffs are public schools situate in the vicinity of Blamey and South Coast Roads, Clairwood, KwaZulu-Natal, with a large learner population of minors in excess of 3000, many of whom are below the age of 7 years and many others below the age of 14 years.

6. (a) Blamey and South Coast Roads lie in an industrial area forming part of the Durban South Basin.

(b) Learners from the First and Third Plaintifs are required to cross South Coast and Blamey Roads that intersect each other, at street level, to reach the First and Third Plaintifs and to return home after school.

(c) The conditions at the said intersection present pedestrians with abnormal and challenging conditions arising inter alia from the high tra c volumes on these roads, an unusually high percentage of heavy vehicles, complex signal settings for pedestrians, small pedestrian islands and narrow pedestrian crossing widths.

7. Many of the learners are culpa incapax and are incapable of coping with the challenging conditions facing pedestrians to cross the said roads safely in the prevailing conditions.

8. Over the years:

(a) the intersection has been the site of numerous accidents involving young learners;

(b) the community has made numerous representations to the First Defendant and its predecessor to address the dangerous situation facing young learners at the intersection, and to construct a pedestrian bridge.

9. During or about March 2003 the First Defendant effected certain improvements at the intersection, however these have failed to improve the safety aspects of the intersection for the learners.

The First Defendant commissioned a road safety audit along a section of South Coast Road that included the above intersection, which was obtained from VKE Engineers in March 2004, in which:

(a) the latter investigated the conditions at the said intersection and made recommendations for upgrades to be carried out at the intersection;

(b) recommended the construction of a pedestrian bridge, to address the dangers facing learners of young age.

10. Following thereon further representations were made to the First Defendant to improve the conditions at the intersection to provide for the safety of the learners and to construct the pedestrian bridges.

11. On 4 April 2005 the governing bodies of the First and Third Plaintiffs, made representations through their attorneys to the First Defendant, in terms of the public process initiated by the First Defendant to receive representations in preparing the municipal budget for 2005/2006, to include the cost of erecting the pedestrian bridge.

13. The First Defendant thereafter took no
steps to improve the conditions to provide for the safety of learners at the intersection, and maintained that it taken all reasonable measures in this regard.

14. In a recent report dated 15 April 2009 from the CSIR, obtained for the purposes of attempting to resolve the application, the following concerns were expressed regarding the safety of pedestrians, in the report:

“With respect to pedestrian safety and the general pedestrian mobility perspective, four main issues emerged as being negative with respect to the safety performance of the intersection. These are:

1. As a result of the need for vehicular tra c capacity, the intersection is big with pedestrian crossings over 6 to 8 traffic lanes which mean that pedestrians are highly exposed to vehicular traffic when crossing. The median islands are also narrow and are not safe as refuge areas so as to allow multi-stage crossings;

2. The tra c signal cycle time is extraordinary long and the phasing is focused on vehicular tra c. The result is that pedestrians have to wait very long to receive respective green indications which will lead to the pedestrian signals being ignored and this has been observed as actually being the situation. During the inspection in the o -peak period, no pedestrians were observed obeying the pedestrian signals.

3. Slipways have been provided on the two quadrants of the intersection where pedestrian movements, specifically also scholar movements are prominent. Filtering phases have also been provided and these limits the time available for pedestrians to use the intersection.

4. Fencing has been implemented on the median islands on three of the four approaches of the intersection notably to prevent pedestrians from crossing these approaches haphazardly. There is however other safety implications in that pedestrians move alongside the fence on a very narrow median where they are highly exposed to the vehicular tra c particularly since they cannot walk on the median in a stable manner. A further implication is that the fencing will inhibit the free access to any incident on the approaches to the intersection and contribute to longer response times which may be particularly critical when emergency services have to attend to a crash involving injuries.”

See: annexure “C”, pg 567

15. The report of the CSIR raised the following concerns relating to the safety of pedestrians wishing to cross the intersection:

(a) that the pedestrian timings do not accommodate the large pedestrian tra c demands during certain peak periods in the day;

(b) inasmuch as the intersection is used mainly by learners who require special consideration, the pedestrian timings must accommodate their needs, and the waiting periods to cross should not be as long as it is at present;

(c) traffic signs ought to be erected warning drivers of the traffic signal ahead and of scholars crossing;

(d) the traffic islands ought to be free of unnecessary items such as an unusable traffic pole and a precast concrete litter bin, as they impede pedestrians and limit the capacity of the traffic islands;

(e) the rail barriers fail to protect pedestrians;

(f) the intersection suffers from general lack of maintenance with overgrown tree branches that limit the sight vision of drivers;

(g) the warning traffic signs of scholars ahead are inconspicuous and placed in an inappropriate position to cause information overload to drivers;

(h) the southern approach has a lack of a kerbed median, the pedestrian fencing lacks a clear demarcation from the rest of the roadway, pedestrians have no protection whilst crossing on the pelican marking and are placed in an unsafe situation.

16. The above upgrades and improvements mentioned in the CSIR report that were required to the intersection, were only accepted by the First Defendant on 15 October 2009 as being necessary to improve the conditions at the intersection, in a Notice served in terms of Rule 34 (2). A copy thereof is annexed marked “A”.

17. The undertaking by the First Defendant in terms of annexure “A” was one to only implement the recommendations in the CSIR report.

18. The said undertaking is insu cient to constitute compliance with the First Defendant’s constitutional obligations to take reasonable measures to provide for the safety of learners.

19. Such improvements as are foreshadowed in the undertaking do not take into account that:

(a) the learners are a vulnerable section of the community;

(b) many of the learners travel to the schools from their homes from far distances and have to return home without adult supervision;

(c) a large proportion of the learners use public transport to get to school and to return home;

(d) many of the learners are culpa incapax, they do not have the capacity to act diligently and according to the standards expected of reasonable pedestrians

(e) the learners are prone to acting impulsively and to be confused by the complicated tra c signals, to also mimicking older pedestrians taking unreasonable risks whilst crossing the intersection and lack the capacity for
a sufficient understanding of the duty of motorists and to take avoiding action in the face of negligent motorists.

20. In the result the learners face an unreasonable risk to their own safety that will not be abated in a reasonable manner by the improvements referred to in the undertaking.

21. The First Defendant is a juristic entity contemplated within the scope of Chapter 7 of the Constitution.

22. Section 152(1) of the Constitution provides that municipalities such as the First Defendant must ensure the provision of services to communities in a sustainable manner, promote social and economic development and promote a healthy and safe environment.

23. In terms of Section 208 of the Local Authorities Ordinance No. 25 of 1974 the ownership, management and control of all public streets in its municipal area vests in the First Defendant.

24. Section 209(1) of the Ordinance gives the First Defendant statutory powers “to make, construct, lay, alter and keep clean and in repair” public streets, pavements, sidewalks and bridges, for the public benefit, in its municipal area.

25. The learners attending the First and Third Plaintiffs:

(a) are children who enjoy the constitutional rights in section 28 of the Constitution;

(b) enjoy the right to life in terms of section 10 of the Constitution;

(c) enjoy the right to freedom and security of their person in terms of section 12 of the Constitution;

(d) enjoy the right to an environment not harmful to their health and well-being in terms of section 24 of the Constitution;

(e) enjoy the right to basic education in terms of section 29.

26. The First Defendant is under a legal obligation to take reasonable measures to minimize the risk of injury to the learners attending the First and Third Plaintiffs by upgrading and improving the conditions at the intersection.

27. Despite its statutory and constitutional obligations to take reasonable measures to provide for the safety of learners crossing the intersection the First Defendant has failed to:

(a) upgrade and improve the conditions at the intersection and provide for the safety of the young learners crossing the intersection;

(b) construct a pedestrian bridge or bridges or implement other improvements to the intersection that would provide reasonably for the safety of learners crossing the intersection.

28. The failure to take reasonable measures as aforementioned, infringes the constitutional rights of the learners referred to above.

29. The failure by the First Respondent to improve the conditions at the intersection constitutes conduct that does not meet with the precepts
for legality in terms of the Constitution, and is unlawful.

30. The Plaintiffs aver that the First Defendant has breached its constitutional obligation to take reasonable measures to address the unsafe situation facing learners at the intersection.

31. The Plaintiffs accordingly aver that the granting of the declaratory orders and a structural order as sought herein are necessary and appropriate to provide for effective relief arising from the breach of the First Defendant’s constitutional obligations.