- Rhone Hill Polo said the road was damaged by floods, abandoned, and not used by any other property owner.
- Emily Moon River Lodge explained that it had depended on the road for over 18 years to reach its sewage plant and to connect different parts of its property.
- A court set aside the minister’s decision and ordered that the matter be reconsidered.
The Western Cape Minister of Infrastructure’s decision to close a public access route used by Emily Moon River Lodge near Plettenberg Bay has been set aside.
Acting Judge ZL Mapoma, with Judge CN Nziweni agreeing, found that incorrect information had a significant impact on the outcome. The court ordered the minister to reconsider the application and pay the lodge’s legal costs, together with Rhone Hill Polo (Pty) Ltd.
Dispute over public access
Minor Road OP07233 runs through Portion 13 of Farm Hangklip, owned by Rhone Hill Polo, and provides access to Portion 2 of Farm Millard. This is where Emily Moon River Lodge operates its hotel and guesthouse in the Bitou River Valley.
Rhone Hill Polo applied to close the road in July 2019. The application was advertised in August 2020 and again in May 2024, which led to objections from several stakeholders, including the lodge.
The company said the road was permanently damaged in the 1981 Laingsburg floods, was never repaired, and had not been used for about 30 years. It also argued that no other property owner used the road and that closing it would not affect anyone else.
On 6 June 2025, the provincial infrastructure minister approved closing the road, with conditions that included changing the affected section into a public pedestrian servitude.
Emily Moon River Lodge challenged the decision under the Promotion of Administrative Justice Act (PAJA). The lodge said the minister had relied on incorrect information and had not properly considered its objections.
Road essential to lodge operations
The lodge told the court it had used the road regularly for more than 18 years. The route gave vehicle access to its sewage plant on the lower-lying northern part of its property, including for the local authority’s honey-sucker truck to empty the septic tank.
The road also connected the southern part of the property, where the lodge hosts weddings, with the northern section beside the Bitou River, where the River Deck venue is located. The lodge said the steep slope and geography between the two sections made it impossible to drive directly across its own property.
Rhone Hill Polo opposed the review, saying the minister had considered the objections and other relevant information before approving the closure. The company claimed that the alleged factual errors were disputed and that the lodge used the route for convenience and cost, not because it was truly necessary.
The company also said there was an internal route available and that the pedestrian servitude would keep public access open. It also argued that the dispute was connected to the lodge’s use of a River Deck structure on the riverbank, which it claimed did not have the necessary environmental compliance. The court said the legality of those activities was not the issue to be decided in this case.
The minister and the provincial infrastructure department chose to abide by the court’s decision and did not submit affidavits explaining how the closure decision was made.
Court finds incorrect information influenced decision
The court considered whether the minister’s decision could be reviewed under Section 6(2)(e)(iii) of the Promotion of Administrative Justice Act 2000. This section allows administrative decisions to be reviewed if irrelevant considerations were taken into account or relevant considerations were ignored.
Acting Judge Mapoma explained that a serious mistake of fact can justify a review when the error concerns facts that are not disputed and can be objectively verified.
The court found that the route was still part of the public road network and that the lodge had used it regularly for years. The judges also accepted that the road was the only way to drive between the two sections of the lodge’s land through the neighbouring property.
The judge found that the claims that the route had been washed away and abandoned, and that no other landowner would be affected by closing it, were incorrect. The court rejected Rhone Hill Polo’s argument that these errors were too contentious to justify a review. The judges found that the incorrect information had a real impact on the minister’s decision.
The judge concluded that the minister had not properly determined the road’s condition, whether it was still in use, or how closing it would affect the lodge. The court found that if the minister had known the facts, the decision could not reasonably have been made on the same basis.
The court therefore found that the minister had not properly exercised his discretion under PAJA and had not adequately considered the public interest.
Minister must reconsider application
The court set aside the minister’s decision of 6 June 2025 and sent the matter back to him for reconsideration.
The minister and Rhone Hill Polo were ordered to pay the costs of the application, including the counsel’s Scale C fees.
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