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[2018] ZAWCHC 70
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Minibus Taxi Industry Task Team and Others v Santaco, Western Cape and Others (22419/2017) [2018] ZAWCHC 70 (6 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 22419/2017
In
the matter between:
MINIBUS
TAXI INDUSTRY TASK TEAM
First Applicant
CAPE
ORGANISATION OF DEMOCRATIC
TAXI
ASSOCIATIONS
Second
Applicant
TAXI
ASSOCIATIONS AFFILIATED TO CODETA
Third
Applicant
CAPE
AMALGAMATED TAXI ASSOCIATION
Fourth
Applicant
TAXI
ASSOCIATIONS
AFFILIATED
TO CATA
Fifth
Applicant
PARK CITY TAXI
OPERATORS ASSOCIATION
Sixth
Applicant
KENFACTA TAXI
ASSOCIATION
Seventh
Applicant
ROUTE 7
TRANSPORT SERVICES
Eighth
Applicant
MITCHELLS PLAIN
CENTURY CITY TAXI ASSOCIATION
Ninth Applicant
MAIN ROAD TAXI
ASSOCIATION
Tenth Applicant
PROTEAVILLE
TAXI ASSOCIATION
Eleventh
Applicant
and
SANTACO,
WESTERN CAPE
First
Respondent
VERNON BILLET
N.O.
Second
Respondent
MR. MATA
N.O
Third
Respondent
MR. NAZEEM
ABDURAHMAN N.O.
Fourth
Respondent
MR. M. DIBELA
N.O
Fifth
Respondent
MR. L.W. NGIXI
N.O.
Sixth
Respondent
MR. S AMSTERDAM
N.O
Seventh
Respondent
MR. M. ADAMS
N.O.
Eighth
Respondent
MR. D.C.
SCHOLTZ N.O
Ninth
Respondent
MR. W.D. JOSEPH
N.O.
Tenth
Respondent
MR. N.
MATAYITAYI N.O
Eleventh Respondent
THE MEC FOR
TRANSPORT AND PUBLIC WORKS,
WESTERN
CAPE
Twelfth
Respondent
SANTACO
NATIONAL
Thirteenth
Respondent
Heard: 24 April
2008
Delivered:
6 June 2018
JUDGMENT
BOQWANA,
J
Introduction
[1]
This
case involves a long drawn out dispute between taxi associations
within the Western Cape and the first and thirteenth respondents
respectively (i.e. SANTACO Western Cape and SANTACO National). The
applicants have approached this Court seeking relief ranging
from
declaratory to mandatory orders, as follows:
“1.1 Declaring
that the purported abandonment of the Constitution of SANTACO Western
Cape at the special
general meeting held on 5 – 8 October 2008
was irregular.
1.2
Declaring that the upcoming elections of the regional and provincial
structures in the Western
Cape shall be governed by the aforesaid
Western Cape Constitution, save insofar as the Western Cape
Constitution is in conflict
with the National Constitution of
SANTACO.
1.3
Declaring, for the reasons as set out in Judge Farlam’s
supplementary opinion, that
there are only 8 regions in First
Respondent.
1.4
Declaring that the provisions of clauses 1.2, 2.4, 2.5 and 3.3 of the
MANCO working document
dated 29 March 2017 are inconsistent with the
provisions of the SANTACO National Constitution and as such are
invalid.
1.5
Compelling Thirteenth Respondent, alternatively First Respondent, to
announce the dates
for the regional and provincial elections in the
Western Cape and to hold said election.
1.6
Directing Second to Eleventh Respondents to vacate the offices of
First Respondent one month
prior to the date of the elections, as
provided in clause 15.6 of the Western Cape Constitution.
1.7
Prohibiting Second to Eleventh Respondents from purporting to
represent the Western Cape
minibus taxi industry either in
discussions with Government or at the SANTACO structures prior to the
date upon which they vacate
the office of First Respondent.
1.8
Directing Twelfth Respondent to arrange a pre-elective conference, to
be attended by the
chairpersons and secretaries of all 156 registered
taxi associations in the Western Cape, for the purpose of discussing
the rules
of the forthcoming elections and the Constitutional
provisions to be applied to said elections, in accordance with the
agenda attached
hereto as ‘A’.
1.9
Prohibiting the outgoing members of First Respondent from attending
the regional and/or
provincial conference as delegates and/or from
standing for election unless they have been nominated for election by
the local
or regional structures.
1.10 Interdicting
Thirteenth Respondent from holding the national elective conference
until such time as
the Western Cape regional and provincial
conferences have been finalised and the results ratified by the
independent electoral
observers appointed by Twelfth Respondent.
1.11 Costs. ”
[2]
The
applicants advised the Court that they were not persisting with
prayers 1.7 and 1.10 respectively. In respect of prayer 1.10,
I was
advised that that prayer has been superseded by events, as the
SANTACO National elections have already taken place.
[3]
The
first to tenth respondents, on the other hand, have brought a
counter-application seeking declaratory orders “
that
the Constitution of the Western Cape Provincial Taxi Council adopted
by the full Council of the Western Cape Provincial Taxi
Council at
Montague in March 2006 is invalid and of no force and effect
”
and that the “
Western
Cape Provincial Taxi Council is governed by the South African
National Taxi Council (SANTACO)”.
[4]
SANTACO
National filed an answering affidavit. However, it neither filed
heads of argument nor appeared in Court at the hearing
of the matter
on 24 April 2018.
[5]
For
convenience, the first to tenth respondents will be referred to
collectively as “the respondents”. The twelfth respondent
as “the MEC”, the thirteenth respondent as “SANTACO
National” and the first respondent as “SANTACO
Western
Cape”. The eleventh respondent is deceased.
[6]
The
first
applicant
is a group that styles itself as a task team nominated and mandated
by representatives of the minibus taxi industry, who
attended the
draft Comprehensive Integrated Transport Plan (“CITP”)
hosted by the City of Cape Town on 28 to 30 August
2017 to, amongst
others, engage with the MEC in calling for a pre-elective conference.
The other applicants are various taxi associations,
some of whose
legal standing, along with that of the first applicant, was
challenged by the respondents in their answering papers.
Mr Bridgman,
who appeared for the respondents, however, advised during oral
argument that they were not persisting with that point,
as a
sufficient number of applicants had the requisite
locus
standi.
[7]
There
was also an issue of the non-joinder of the City of Cape Town raised
on the respondents’ answering papers, which was
hardly argued
before me. It, in any event, would not take the matter any further.
Background
[8]
SANTACO
is an acronym for the South African National Taxi Council, which is
an umbrella body formed to organise, develop and restructure
the taxi
industry in South Africa and to engage with government on behalf of
its constituent members. Its constitution (“National
Constitution”) was adopted in 2001 and subsequently amended in
2005. Various provincial structures were established
in terms
of the National Constitution, which would, together with SANTACO
National, liaise with government on behalf of their constituent
members. Government in turn communicates and consults with the
taxi industry through SANTACO National or the relevant provincial
body of SANTACO. It enters into agreements with SANTACO and
allocates funding to SANTACO and its Provincial Councils for
the
functioning of its national and provincial offices, for developmental
projects and for the holding of national, provincial
and regional
conferences, including the elective conferences at which the office
bearers in the various structures are elected.
[9]
Membership of
SANTACO comprises Provincial Taxi Councils (“PTC(s)”)
from all nine provinces
established
in terms of the National Constitution, individuals/operators,
together with their sub-structures and affiliates. The
National
Constitution, amongst others, also provides for the Management
Council (“MANCO”) and the National Executive
Committee
(“NEC”). A PTC is the highest organ of SANTACO in
each province, and in terms of clause 26.5 of the
National
Constitution such PTC shall call a Provincial Conference every 4
years. The PTC shall, in terms of clause 26.6,
consist of a
maximum of 300 delegates, 60% nominated equally from the respective
regions and the remaining 40% to be determined
by the PTC by way of
proportional representation, having regard to the membership in the
respective region.
[10]
The
PTCs shall carry out the decisions of the National Conference, MANCO
and the NEC.
Applicants’
case
[11]
In
March 2005 SANTACO Western Cape drafted and adopted a Western Cape
Provincial Taxi Council Constitution (“Provincial
Constitution”).
This constitution was purportedly
abandoned in October 2008 in a special meeting of the Provincial
Council for the Western
Cape, and the National Constitution was
adopted in that meeting to operate in its stead. Although
subsequent elections were
held in 2013 in accordance with the
National Constitution, the applicants allege that the abandonment of
the Provincial Constitution
was not valid.
[12]
According
to the applicants, the purported abandonment of the Provincial
Constitution meant that there were no longer any constitutional
provisions in terms of which the membership of SANTACO in the Western
Cape could hold the provincial structure accountable for
its
decisions. For instance, the Provincial Constitution set a
formula by which proportional representation at the Council
was
determined; it provided for 90 members of the Provincial Council to
meet quarterly; it set out the terms of office of the Council
and the
executive and provided detailed rules governing the election
process. Save to state that the term of office of the
elected
executive shall be 4 years, the National Constitution, which now acts
as a Provincial Constitution in the Western Cape,
does not, according
to the applicant, specifically address any of these issues.
[13]
The
abandonment of the Provincial Constitution also led to a marked
decrease in the level of interaction between the provincial
structure, the regional structures and the local taxi associations,
with the result that the associations and the members are not
consulted before policy decisions are taken by the executive, or
before SANTACO Western Cape gives its support to a national policy
decision. There have been no Provincial Council meetings since
the elective conference of 2013 and there have been very few
regional
conferences since then. The lack of engagement has led to a
complete breakdown in the trust relationship between
local, regional
and provincial structures. In the view of the industry, there
is a leadership vacuum in the province.
[14]
Since
the last elections were held in March 2013, as both the Provincial
and the National Constitutions required them to be held
every 4
years, no elections were called or held prior to June 2017.
Representatives of some of the applicants engaged with
the MEC to
convey to him their concerns, such as the holding of elections and to
request that he calls a pre-elective conference
at which the industry
could discuss their concerns surrounding the impending elections.
They were, however, consistently
told that the MEC would only
engage with the recognised representatives of SANTACO Western Cape
and not with a “splinter”
group.
[15]
On
or about 20 July 2017 SANTACO Western Cape addressed a letter to all
regional persons and secretaries, advising that the SANTACO
Western
Cape regional and provincial elections would take place during the
period of September to November 2017. Complaints
arose
regarding having sufficient time to consult. Irregularities,
browbeating and intimidation of members, in certain regions,
were
also raised. These, together with the breakdown of
communication between SANTACO Western Cape and the associations,
and
the alleged refusal of the MEC to engage with the representatives of
the minibus taxi industry, led to a wide provincial withdrawal
of
services, or a “strike”, by members of the industry on 18
September 2017, which threatened to continue until such
time as the
MEC agreed to meet with the minibus taxi industry representatives,
with the view to discussing the need for elections
and for a
pre-elective conference.
[16]
Following
the strike, a meeting was held between the first applicant, the MEC
and the executive of SANTACO Western Cape, on 20 September
2017, at
which meeting the MEC proposed that a retired Judge be appointed to
provide him with an opinion on the issues in dispute
between the
industry and SANTACO Western Cape, and the legality of the demands
made by the first applicant. Both the first
applicant and
SANTACO Western Cape agreed to this proposal and Judge Farlam,
assisted by Advocate Tanya Golden SC, was appointed
to provide a
legal opinion and to further mediate the disputes between them.
Parties were given an opportunity to provide
Judge Farlam with a list
of issues that they wanted him to address and also to provide him
with written submissions. The
issue of the abandonment of the
Provincial Constitution was amongst the issues that he was asked to
determine.
[17]
He
was further requested to provide an opinion on the following other
issues: whether the office of the executive of SANTACO Western
Cape
was vacant, given that their four year term of office had lapsed at
the very latest in June 2017; whether MANCO is empowered
to issue an
electoral working document setting out the rules governing the
regional, provincial and national elections; whether
the exclusionary
provisions in clauses 2.4, 2.5.3 and 2.5.4 of the MANCO document were
constitutional and whether the provisions
of clause 3.3 of the MANCO
document was constitutional, insofar as it related to the local
regional and the provincial elections.
[18]
Judge
Farlam provided the parties with his legal opinion on 20 October
2017, wherein he expressed a view that the National Constitution
did
not prohibit PTCs from adopting constitutions of their own, save that
the Provincial Constitution shall not be inconsistent
with the
provisions of the National Constitution. Secondly, that the
October 2008 resolution which purportedly adopted the
National
Constitution and which replaced the Provincial Constitution of the
Western Cape, was invalid. Thirdly, the current
office bearers
of SANTACO Western Cape were validly elected at the 2013 elections,
which were based on the National Constitution.
Fourthly, the
current executive committee holds office until a new committee is
elected in the upcoming elections. Fifthly,
that the election
working document adopted at a special meeting of MANCO on 29 March
2017 is valid, save for paragraphs 2.4, 2.5.4
and 3.3 thereof, which
are inconsistent with the National Constitution and accordingly
invalid. Judge Farlam added that the
election working document
could otherwise be regarded as a useful checklist of what was
required to conduct the elections. Finally,
he found that
clauses 11.1 and 11.2 of the Provincial Constitution are inconsistent
with clause 26.6 of the National Constitution
and accordingly
invalid. He found that the composition of the delegates at the
Provincial Taxi Conference, provided for in
clause 26.6 of the
National Constitution, comprises 60% of the number of delegates
nominated equally from the respective regions,
and the remaining 40%
is to be determined by the PTC by way of proportional representation,
having regard to the membership of
the respective regions.
“Membership” refers to individual members as
opposed to associations. He identified
other invalid provisions
of the Provincial Constitution that had a direct bearing on the
elections, which I need not repeat.
[19]
The
applicants do not seem to have a quarrel with Judge Farlam’s
opinion, save for some concerns regarding the manner in which
the
Provincial Council is to be constituted. According to them the
formula set out in the National Constitution, and discussed
by Judge
Farlam in his opinion, does not neatly work out when applied to 8
regions, as opposed to 9. There would either have
to be a
Provincial Council of more than 90 members, which would necessitate a
constitutional amendment of the Provincial Constitution,
or there
would have to be a change in how the 90 members are nominated. This
issue, as well as that of proportional representation
(which accounts
for 40% of the Council in terms of clause 26.6 of the National
Constitution), would need to be determined prior
to the elections, at
a pre-elective special conference, as members are not able to
nominate representatives without certainty as
to the number of
potential representatives.
[20]
According
to the applicants, after the receipt of Judge Farlam’s opinion,
instead of discussing arrangements for the elections,
parties began
to revisit the issues that had already been dealt with by Judge
Farlam in his opinion. It was clear that there
was no
reasonable prospect of achieving a solution to the impasse. Members
of the first applicant accordingly withdrew from
the mediation
process. The applicants allege that notwithstanding SANTACO
Western Cape’s alleged willingness to hold
elections, no
elections have been held to date in the Western Cape, and the
applicants are concerned that the present executive
will remain in
office indefinitely, or that an election would be called prior to the
issue of the constitutions, and the MANCO
clauses, being decided upon
by this Court. They allege that the issue of the outgoing
clause, with regards to the current
executive members, is crucial,
because the MANCO clause effectively allows an additional 24 votes at
Provincial level, thus increasing
the total potential number of votes
to 114 (i.e. 90+24 = 114).
[21]
The
applicants seek to have an extraordinary meeting (pre-elective
conference) of the minibus taxi industry prior to the elections,
following the decision to be given by this Court on the issues that
they have outlined. In this pre-elective conference a
number of
other practical issues would be discussed, including: how the
proportional representation is to determined; the status
of the
persons who were suspended by SANTACO Western Cape in relation to the
elections; whether they will be allowed to vote; and
what would the
election criteria and the nomination process be, as well as other
ancillary matters relating to the manner in which
the elections are
to be run.
[22]
The
applicants allege that these issues would ordinarily have been dealt
with by the Provincial Council at one of its annual meetings,
or at a
special meeting or at an extraordinary Provincial Conference.
However, because there had not been any Provincial
Council
meetings since the last elective conference, and there is no
functional Provincial Council in existence at the moment,
the
applicants seek an order directing the MEC to call a taxi indaba, or
pre-elective conference, prior to the elections.
Respondents’
Case
[23]
The
respondents devote the bulk of their answering affidavits to
criticising the applicants for causing instability in the taxi
industry, by being responsible for carrying out route invasions and
hostile takeovers. They single out the supporters of
the second
applicant, CODETA, and those of the fourth applicant, CATA, as being
responsible for such acts.
[24]
Insofar
as the issue at hand is concerned, the respondents allege that the
Provincial Constitution is, in and of itself, invalid,
as it was
adopted by the Western Cape PTC and not by a Conference. The
deponent to one of the respondents’ answering
affidavits, Mr
Vernon Billet, who is the chairman of SANTACO Western Cape, alleges
that whilst the Provincial Constitution bears
the date of March 2006
and records the place of adoption as Montague, it was adopted by
Council at Avalon Springs in 2006, and
that he was present at that
meeting. He alleges further that the Council did not have the
authority to make Constitutional
amendments and that this power
vested with the Conference, as set out in Judge Farlam’s legal
opinion. He contends
that Judge Farlam rejected the notion that
there was no difference between Council and Conference meetings, and
as a consequence
of that the Provincial Constitution must also be
invalid. He further contends that Montague could not have held
a Conference,
because there had been a Conference four months
earlier. For all these years he had been under the impression
that the Provincial
Constitution adopted in Montague was valid. He
only realised this not to be the case when he had access to the
relevant documents
in 2017. He alleges that he had been
prevented from bringing this information to Judge Farlam’s
attention, because
SANTACO Western Cape’s executive was denied
access to their offices. This was done on the pretext advanced
on behalf
of the first applicant that the executive had automatically
ceased to hold office as required by paragraph 15.6 of the Provincial
Constitution.
[25]
He
contends further that because the National Constitution is supreme,
and the Provincial Conference is prescribed in clause 8 of
that
constitution, “
a
question must be asked whether an organ of SANTACO National has the
competence to create a Constitution which gives SANTACO Western
Cape
a legal personality separate from SANTACO National.”
[26]
He
states further that SANTACO National had to consult before it
approved a standard Provincial Constitution, and that, that had
not
been done. He alleges that the adoption of the Provincial
Constitution may also be considered to be contrary to paragraph
6 of
the National Constitution, particularly paragraph 6.4, which
states that no member shall have dual membership with another
organisation of a similar nature without the prior written consent of
SANTACO having been sought and obtained. He alleges
further
that the Provincial Government supported the Provincial Constitution
and that he and others acted as though it was valid,
as did Judge
Farlam. It nevertheless appears to be obvious now that it was
invalid from the beginning.
[27]
According
to him when they followed the Special Council directive of 6 October
2008, and the MANCO directive of 29 March 2017, to
ignore the
Provincial Constitution and follow the National Constitution, they
may have done so for the wrong reasons, but they
were right to reject
the Provincial Constitution.
[28]
Although
SANTACO National was not present in Court, it is worth referring to
its answering affidavit, which was deposed to by Mr
Phillip
Taaibosch, its president. Mr Taaibosch alleges that
in
2008
SANTACO
National instructed all its provincial, regional and local structures
to revisit their constitutions and policies, if any,
to ensure that
they were in line with the SANTACO National Constitution and that
such constitutions be amended to conform to the
National
Constitution, alternatively be abolished. He contends that the
said structures
had
to adhere to the provisions of their then constitutions and policies,
insofar as the process to amend and abolish was concerned.
The SANTACO National procedure to amend or abolish the constitution
could not be applied by the said structures, as it was
not yet
applicable to their processes. He further contends that all
provinces abolished their constitutions and have since
been relying
on the SANTACO National Constitution, and that all other structures,
such as regions and local taxi associations affiliated
to SANTACO,
have new constitutions which have been endorsed and approved by
SANTACO National, as they are in line with the SANTACO
National
Constitution.
[29]
He contends
further that all provincial, regional and local taxi associations are
independent from SANTACO National with respect
to running their
affairs.
However,
all actions conducted by their branches and members must be in line
with the National Constitution. SANTACO National does
not get
involved in elections or participate in them; they merely provide
each province with dates on which to hold executive elections
and the
SANTACO National election committee would then attend such elections.
[30]
SANTACO
National only gets involved in the affairs of the provinces if there
are internal disputes which need to be resolved through
internal
mediation processes.
Referring
any SANTACO dispute to any other body for intervention before
exhausting internal mediation processes, would be irregular.
[31]
As per clause 27.1
of the SANTACO National Constitution, each province is responsible
for establishing and determining its demarcations,
as far as regions
are concerned
.
He further contends that all constitutions not in line with the
SANTACO National Constitution are not recognised and therefore
not
applicable in any of their structures. According to him, the
Western Cape Province attended to the process of abolition
of their
constitution and all subsequent elections of the Western Cape were
conducted in line with the National Constitution.
[32]
SANTACO
National does not recognise the mediation process by Judge Farlam, as
it engaged on issues outside its jurisdiction. SANTACO
National also
does not recognise the legal opinion he provided and it is not
considered to be binding on it. The national office,
however, agrees
with his view that the Provincial executive remains in office until
the next elections. SANTACO National
could not intervene in the
process of abolishing the Provincial Constitution, in that the
National Constitution was not applicable
to the then provincial
structure. Their office was only notified of the outcome (that
same had been abolished) and no issues
as to procedure were raised
until now by the applicants, after 12 years. (
The
applicants allege that Mr Taaibosch was present at the special
meeting where the Provincial Constitution was abolished
and provided further transcripts of that meeting as part of their
replying papers to confirm that).
[33]
SANTACO
National, had, on 14 February 2018, attempted to meet with the
applicants and SANTACO Western Cape to resolve this matter,
but its
efforts were in vain.
[34]
SANTACO
National undertakes to issue dates for the next Provincial election
for the Western Cape; however, the National elections
could not be
held up by just one province. As already mentioned, I have been
informed the National elections proceeded before the
hearing of this
matter. Mr Taaibosch is of the view that any Court decision in
this matter would be premature. In his
view, the issues that
the applicants allege would be discussed at the pre-elective
conference can only be entertained by a SANTACO
National Conference
at the Annual General Meeting or Special Meeting.
[35]
The issue of the
Provincial Conference and special general meeting remain the
prerogative of the provincial structure and its members.
The
calculations of the percentages depend on the province’s
demarcation, as determined by the provincial structure concerned.
[36]
Furthermore,
a
suspended member cannot be allowed to participate in any SANTACO
activities.
Twelfth
respondent’s case
[37]
Insofar
as the MEC’s involvement is concerned, he alleges that this
matter has to do with a dispute between different groups
in the taxi
industry, that it would be inappropriate for him to get involved in
internal organisational disputes, and that therefore
the relief
sought against him is misplaced. Insofar as there is an
allegation that he made an undertaking to fund a pre-elective
conference, such undertaking is not borne out by evidence and is in
any event something a Court cannot compel him to do.
Analysis
[38]
This
case, in my view, largely turns on the validity of the Provincial
Constitution. This is because the respondents seem
to have made
common cause with the fact that the Provincial Constitution was
irregularly abandoned (albeit for “wrong reasons”
as they
allege). The respondents’ entire case is premised on the
fact that the Provincial Constitution was invalid
on a number of
fronts. I agree with Ms Ipser who appeared for the applicants
that, on the constitutional invalidity point,
the respondents should
the bear the onus as this issue is raised as a counter-application.
[39]
The
respondents’ first contention, that the Provincial Constitution
was adopted at a place called Avalon Springs as opposed
to Montague,
is without merit. Montague clearly appears on the first and
last pages of the Provincial Constitution and there
is no reason to
invalidate the constitution on that basis.
[40]
As
to the issue that the Provincial Constitution was adopted by a
Council, rather than a Conference as required by the National
Constitution, the last page of the Provincial Constitution records
that: “
This
Constitution was adopted by the full council of the
Western
Cape Provincial Taxi Council
on the 5
th
of March 2006
at
the Montague Conference
.”
In terms of clause 26.10 of the National Constitution, the PTC may
call extraordinary Provincial Conferences if requested
to do so by
two-thirds of all the regions in the PTC. Clearly, the PTC
called a Conference. It is clear from the last
paragraph of the
said constitution that the Provincial Constitution was adopted at a
Conference and by the full council.
It appears from paragraph
81 of the applicants’ replying affidavit that, in March 2006, a
special conference was called specifically
for the adoption of the
Provincial Constitution. This Provincial Constitution was
adopted by 90 members of the full council.
The demarcation plan
attached as an annexure to the applicants’ replying affidavit,
states in its preamble that
“[
a
]
t
the four day Provincial Conference of the Western Cape Provincial
Taxi Council (WCPTC) held at Montague from the 5
th
– 8
th
of March 2006
,
it was resolved during the morning session on the 2
nd
day of that conference that the 18 regions and/or motherbodies be
rationalized into 8. The following clustering of the regions
and/or motherbodies was adopted
:
…”. (Own emphasis)
[41]
Dr
Achmat
Dason, who is the chairman of the sixth applicant, deposed to an
affidavit and provided a brief background to the adoption
of the
Provincial Constitution in 2006. In his affidavit, he alleges
that a special conference was held in Montague in March
2006 for the
adoption of the Provincial Constitution. Mr Sikulela Victor
Wiwi, the chairman of the fourth applicant, also
asserts that he was
present at the Provincial Conference in Montague in March 2006, and
could confirm that the Provincial Constitution
was properly heard by
the full council sitting in conference. With all this evidence,
there can be no doubt that the Provincial
Constitution was properly
adopted in March 2006.
[42]
It
is instructive that Mr Billet, who now disavows the validity of the
adoption of the Provincial Constitution in Montague, had
at all times
regarded it as valid, until fairly recently. He was also
present in Montague when it was adopted. His
attack on the
validity of Provincial Constitution’s adoption accordingly does
not withstand judicial scrutiny.
[43]
As
to the point that the Provincial Constitution is invalid because it
contained clauses that are in conflict with the National
Constitution, that argument also does not hold, because any
inconsistency with the National Constitution simply means that the
impugned clauses would be trumped by the provisions of the National
Constitution, as Judge Farlam stated in his opinion. They
do
not invalidate the entire constitution.
[44]
The
strongest of the respondents’ arguments, is that clause 7
dealing with the “Character of the Council” makes
the
Provincial Constitution repugnant. In terms of this clause the
Provincial Council:
“
7.1.1
is a corporate and juristic
personality with perpetual succession and legal existence independent
of its affiliates;
7.1.2 may sue and be sued in its own
name;
7.1.3 has the power to enquire, and
dispose of movable and immovable property in its own name
.”
[45]
In
the first instance, I agree with Ms Ipser that the challenge was not
framed, in the answering papers, in the same manner as it
was argued
by Mr Bridgman on behalf of the respondents. During oral
argument, my understanding of the respondents’
submission was
that the clause purporting to give SANTACO Western Cape its own
juristic personality, sought to diminish SANTACO
National’s
stature as the only SANTACO organisation, and that that cannot be
done without SANTACO National’s clear
consent. It creates
a Provincial structure as a separate body, making the constitution
repugnant.
[46]
The
issue in the respondents’ answering papers was whether it was
competent to create a constitution “which gives SANTACO
Western
Cape a legal personality separate from SANTACO National”.
[47]
Clause
7 of the Provincial Constitution is identical to clauses 2.1 to 2.3
of the National Constitution. It seems as though
it was simply
copied, as is, from the National Constitution. SANTACO National has
expressed that Provincial structures can or are
entitled to have
their own constitutions and to govern their own affairs, provided
that such constitutions do not contradict or
are not in conflict with
the provisions of the National Constitution.
[48]
Following
the debate on this issue in Court, I asked counsel to present me with
supplementary notes to address the issue of whether
the essence of
clause 7 in the Provincial Constitution made the constitution void.
Mr Bridgman conceded, in his supplementary
note, that there is no
authority to support a proposition that a Provincial body is not
permitted to assume juristic personality
separate from its mother
body.
[49]
It
seems, from my reading of the respondents’ supplementary note,
that they agree that it is possible for an organ such as
the
Provincial Council of SANTACO to have its own legal personality; the
point of contention is that such cannot be done “
without
the cooperation and consent of SANTACO National”.
[50]
The
answering affidavit suggested that a Provincial structure, as an
organ of SANTACO National, does not have the competence to
hold
separate legal personality. Nowhere was it alleged by the respondents
that SANTACO National’s consent was required before
the
creation of separate legal personality by a Provincial structure.
[51]
The
National Constitution does not prevent the PTCs from adopting their
own constitutions. That much is confirmed by Mr Taaibosch
in
his answering affidavit. It further does not specifically
provide for consent to be obtained from the SANTACO National
Executive office prior to the adoption of a Provincial Constitution.
[52]
In
any event, even if that were to be the case, there is no evidence to
suggest that the reason for the abandonment of the Provincial
Constitution in 2008, was because it was not accepted by SANTACO’s
National office. In fact, both Mr Bisset and Mr
Nazeem
Abdurahman, on behalf of the fourth respondent, stated in their
answering affidavits that the Provincial Constitution may
have been
abandoned for the wrong reasons. Close scrutiny of the documentary
evidence, particularly the transcript of the special
meeting held in
October 2008 where the Provincial Constitution was abandoned, shows
that the Provincial Constitution was abandoned
because it contained
gaps - certain loopholes. For instance it did not provide for
the appointment of deputies in certain
positions. There was
never any suggestion in that meeting that the Provincial Constitution
was being abandoned because of
its being repugnant as it created
juristic personality, amongst others, or that it did not have the
blessing of the SANTACO National
office. It was suggested at
the meeting that the
loopholes
identified presented impracticalities as regards to the functioning
of the provincial structure, as a result of the constitution
not
making provision for certain positions
.
There was also no
suggestion that SANTACO National had instructed that the Provincial
Constitution be abandoned at that meeting,
as Mr Taaibosch seems to
suggest.
[53]
Mr
Taaibosch
admitted that the Provincial structures are allowed to operate
independently of SANTACO National. Indeed they are
allowed to
manage and control the funds and assets of SANTACO in the province,
in terms of clause 26.18.4 of the National Constitution.
They
are also empowered to perform many other functions in terms of clause
26.18, such as organising, establishing and servicing
all structures
in the province in terms of clause 26.18.6; developing the policies
of SANTACO in the province as per clause 26.4;
deciding on the
date and the venue of the Provincial Taxi Conference as per clause
26.15; determining where their head
offices shall be, as stated
in clause 26.3; and calling Provincial Conferences every 4 years, at
which office bearers would be
elected in accordance with the
processes determined by the Conference (as per clauses 26.5, 26.6 and
26.7).
[54]
As
is apparent from the papers, SANTACO National and SANTACO Western
Cape do not consider each other to be two separate juristic
persons,
in the sense of being two independent bodies. The PTC is an
organ of SANTACO National as well as its Provincial
structure. The
issue which all the parties seem to be in agreement about is that the
Provincial structures must conduct themselves
in line with the
National Constitution. To the extent that any provisions of the
Provincial Constitution are in conflict with the
National
Constitution, the provisions of the National Constitution will
prevail and there should be no controversy about that.
[55]
If
SANTACO Western Cape is correct that it cannot operate as a juristic
entity independent of SANTACO National that may mean that
it lacks
the necessary
locus
standi
to even be sued in these proceedings in the first place. The
proper respondent in this regard would be SANTACO National.
Secondly, it may mean that SANTACO Western Cape is not capable
of entering into any agreements, only SANTACO National, and
it may
not be capable of incurring rights and obligations in its own right,
which may include any contractual relationships with
the Provincial
Government, including its ability to independently source funding
provincially.
[56]
To
sum up on this issue, there seems to be no quarrel with the argument
that nothing prevents a Provincial Structure from having
a separate
legal personality for practical purposes; the only issue was that
SANTACO National’s consent should have been
obtained and it was
not. No legal basis or evidence was presented to support this
contention.
[57]
Turning
to the issue of the irregular abandonment of the Provincial
Constitution in 2008, I need not spend much time on the issue.
The
special meeting did not have the power to pass a resolution
abandoning the Provincial Constitution. Abandoning the Provincial
Constitution because it did not provide for certain positions, and
replacing it with SANTACO National Constitution, amounted to
the
amendment of the Provincial Constitution. The Provincial
Constitution could only be amended by the full council at the
Provincial Conference, if the amendment was passed by two-thirds of
the 90 member council sitting in conference (see clause 24
of the
Provincial Constitution). The special general meeting held in
2008 where the Provincial Constitution was abandoned
was not a
Provincial Conference. It was not a four year conference as
provided for in clause 22.2 of the Provincial Constitution,
nor was
it an extraordinary provincial conference as permitted by clause
26.10 of the National Constitution. This is clear
from the
agenda for the meeting, stated in a letter dated 11 September 2008,
and the utterances of the speaker at the special meeting,
as appears
in the transcribed record of the meeting. The proposal of the
abandonment of the Provincial Constitution was raised
impromptu
at the meeting by a speaker, which issue seems to have been supported
by those that attended. There is no evidence that it
was
adopted by two-thirds of the full council. In the circumstances, the
submissions made by the applicants that the abandonment
of the
Provincial Constitution was irregular and invalid must stand. Judge
Farlam’s conclusion in this regard was correct.
Relief
sought
[58]
This
takes me to the question of whether the relief sought by the
applicants can be granted. I have no difficulty in granting an
order
declaring that the Provincial Constitution was irregularly
abandoned.
[59]
As
regards a declaratory order that the impending elections shall be
governed by the Provincial Constitution, save in insofar as
it is not
in conflict with the National Constitution, clause 22 of the
Provincial Constitution dealing with Provincial Conferences
is not in
conflict with the National Constitution. There is no reason why
this order should not be granted save that it must
be worded in the
inverse: that the elections will take place in terms of the National
Constitution and those provisions of the
Provincial Constitution
dealing with elections which are not in conflict with it.
[60]
The
next relief deals with the validity of the amendment made by SANTACO
Western Cape in 2010, in relation to the regional demarcations
in the
province. In terms of clause 27.1 of the National Constitution, the
provincial structure is responsible for determining
the regions in a
province. The regional demarcations in the Western Cape, as defined
in the Provincial Constitution were amended
at the 2010 Provincial
Conference, which was only attended by 51 members. The conference
thus did not quorate and could not amend
the Provincial Constitution
in that manner. Judge Farlam was therefore correct in holding
that only 8 regions would be eligible
to participate in the
conference, one of which would be the “old” undivided
Boland region. The evidence provided by
the applicants in this
regard, and the conclusions reached by Judge Farlam, have not been
disputed. The respondents have
simply taken the position, as
they have done in respect of other allegations, that the Provincial
Constitution is invalid and thus
Judge Farlam’s finding was not
applicable. There is accordingly no reason not to uphold the
applicants’ allegations
in this regard and to grant the relief
sought.
[61]
I
turn to deal with the validity of certain clauses in the MANCO
election working document dated 29 March 2017, which sets out the
rules governing the elections that are to take place. The
National Constitution does not provide for the issuance of a document
regulating elections by MANCO; instead clause 15.11.1 of the National
Constitution makes provision for the NEC to establish an
electoral
committee which shall facilitate the electoral process in regard to
the national conference, MANCO, the NEC and the PTC.
Be that as it
may, the only issue that is before me for consideration in this case,
is whether clauses 1.2, 2.4, 2.5 and 3.3 of
the MANCO working
document are valid.
[62]
Clause 1.2
provides that: “
The
Elections will be strictly conducted by SANTACO and with no
substitution of the constitution of SANTACO.”
To the extent that this clause seeks to suggest that the Provincial
Constitution may not govern the elections it is invalid.
[63]
Clause
2 of the MANCO document provides a list of who may stand for
elections. In terms of clause 2.4: “Candidates
wishing
to stand for elections must have been members of Associations with a
Permit/Operating
Licence for at least 5 years in order to qualify
.
”
(Own emphasis.)
[64]
Clause
2.5 provides that:
“ All members should be:
“ 2.5.1
SANTACO members who are registered members in the Associations
2.5.2
Permit holders
2.5.3
Vehicle owners
2.5.4
Current COF/ Roadworthy Certificate
2.5.5
SANTACO card carrying members
2.5.6
Must have an ID ”
(Own
emphasis)
[65]
Clause
3.3 states as follows: “
All
present Executive members in all these structures are delegates to
the various Conferences and if eligible, can stand for elections
.”
[66]
The applicants
allege that these clauses for eligibility are not contained in both
the National and Provincial Constitutions. There
is no requirement in
either of the constitutions that a member of an association must have
held an operating licence for at least
5 years and be in possession
of a current roadworthy certificate in order to participate in the
elections as required in clause
2.4 of the MANCO document.
[67]
As regards clause
2.5 it is not clear why the applicants, in their Notice of Motion,
seek a striking out of the entire clause 2.5
of the MANCO document,
because before Judge Farlam they submitted that the requirements in
sub-clauses 2.5.2 and 2.5.3 “
can
possibly be implied from the requirement that a member should belong
to a registered taxi association
”.
In any event, even in their argument before me they seemed to press
more against sub-clause 2.5.4. Other sub-clauses in
2.5 were not
forcefully challenged by the applicants as being provisions that can
present a challenge to voting members, except
if they are properly
communicated. To that end, it seems to me only the offending
paragraphs of the MANCO document should
be struck out. Clauses
2.4 and 2.5.4 are indeed in conflict with the National Constitution,
as there are no requirements
in the National Constitution that
members should have a current COF/Roadworthy Certificate, or a valid
operating licence, for at
least five years.
[68]
The applicants are
correct that these requirements effectively amend the National
Constitution without the necessary process for
doing so having been
followed; they are accordingly invalid. Mr Bisset stated in his
answering affidavit that this order
is unnecessary as the respondents
“
will take due
regard for the opinion of Justice Farlam
.”
[69]
Clause 3.3 is
inconsistent with clauses 26.6 and 27.4 of the National Constitution,
which provide that the delegates would be drawn
from their respective
regions or local councils in a 60/40 ratio. There is no
provision in the National Constitution for
the outgoing or
ex-officio
executive members to be delegates at the Conference or for them to
vote at the Conference in their capacity as the outgoing executive.
The only clause in the National Constitution which provides for
ex-officio
executive members is clause 10.2.3, which relates to the National
Conference. Clause 10.2 states that the National Conference shall
comprise of a maximum of 800 delegates and that that includes,
amongst others, all ex-officio member of the NEC.
[70]
SANTACO Western
Cape contends that the provision relating to the National Conference
was also intended to be followed in respect
of the composition of the
Provincial Conference, and for this reason, the ex-officio members of
the SANTACO Western Cape Exco have
always attended Conferences as
voting delegates. They also allege that the National
Constitution will be amended to clear
up this error.
[71]
It is clear that
clause 3.3 of the MANCO document is inconsistent with the National
Constitution and therefore invalid.
[72]
The
next issue to be considered is whether this Court can compel SANTACO
National, alternatively SANTACO Western Cape, to announce
the dates
for the regional and provincial elections in the Western Cape and to
hold those elections. The respondents have stated
that it is
unnecessary and unwarranted to grant this order, because they all are
eager to hold the elections and they have made
this clear in their
affidavits. They allege that it is the actions of the applicants
which have prevented the holding of elections.
Apart from stating
that it would be unnecessary to grant such an order, the respondents
have not argued that it would be improper
for the Court to grant such
an order. It should then follow that the respondents should
have no difficulty in ensuring that
they act in accordance with the
respective constitutions and arrange for elections to be held within
a reasonable period after
the granting of the judgment by this Court.
[73]
Regarding
prayer 1.6, which seeks the Court to order the second to tenth
respondents to vacate office, it would be inappropriate,
in my view,
to grant relief of this nature in circumstances where no infringement
has been alleged. The Court cannot anticipate
that there would
be an infringement of the Provincial Constitution by the second to
tenth respondents. It follows that once
a date for the
elections has been provided in terms of clause 15.6 of the Provincial
Constitution, the second to tenth respondent
would have to comply
with the Constitution, which requires them to vacate their office one
month prior to that date.
[74]
As
regards directing the MEC to arrange and convene a pre-elective
conference, I agree with Mr Potgieter SC who appeared with Mr
Coetzee
for the MEC that this matter concerns the internal affairs of private
associations. Whilst the MEC is the custodian
of public
transport in the Western Cape, he cannot be forced to convene a
process that falls squarely within the constitutional
boundaries of
the relevant taxi industry and associations.. There is,
therefore, neither a factual nor a legal basis for
the relief sought
against the MEC.
[75]
The
applicants also stated that the MEC gave an undertaking that he would
fund a pre-elective conference and accused him of having
acted in bad
faith. This allegation, in my view, is not supported by
evidence. A pre-elective conference has not been agreed
to by the
relevant parties, therefore even if an undertaking to fund a
pre-elective conference had been made, it would be premature
to
accuse the MEC of having reneged on a promise to fund such a
conference.
[76]
Insofar
as it is suggested that the Court must direct the MEC to fund the
pre-elective conference, the Court would be trespassing
impermissibly
on the terrain of the executive. In the absence of any facts
supportive of a clear agreement by the MEC, it would
be improper for
a Court to hold it to such an agreement. In any event that is
not the relief that is being sought against
the MEC.
[77]
Dealing
with prayer 1.9, which seeks the Court to order that the outgoing
members of SANTACO Western Cape are prohibited from attending
the
Regional and the Provincial Conferences as delegates, and/or from
standing for elections, unless they have been nominated for
election
by the local or regional structures, in my view the Court would be
going too far if it were to grant such an order.
It is
sufficient for the Court to have found that clause 3.3 of the MANCO
elective document is in conflict with the National Constitution.
[78]
The
Court does not have to dictate every bit of detail that should take
place in the Conferences in terms of the respective constitutions
and
grant orders in respect of events that have not yet occurred.
The Court, therefore, declines to grant prayer 1.9.
Costs
[79]
As
to costs, in view of the fact that this has been a protracted battle
between the parties, lasting a number of years, and that
it is a
matter that presents complex organisational constitutional issues and
dynamics between the two groups, being SANTACO Western
Cape and the
local associations as well as SANTACO National, it seems to me that
each party should be ordered to pay its own costs.
Although the
relief against MEC was incompetent, it would not be appropriate in
these circumstances to grant a cost order against
the applicants.
Conclusion
[80]
In
conclusion, I hope that the parties will put their differences aside
and focus on the interests of the members of SANTACO, the
taxi
associations, and other relevant stakeholders, who most importantly
and ultimately are the consumers of their services, i.e.
members of
the public whom they serve and who rely on their services. It
is also in the interest of all the parties that
some form of an
indaba or special conference be called before the elective conference
in the Western Cape is held, so as to set
out and agree on the issues
that are not clear in the constitutions and the elective working
document of MANCO. It is also
in the interest of the
organisation that SANTACO National provides the necessary support to
the Provincial structure, as well as
the MEC, to do whatever he can
within permissible parameters and within his capabilities, in the
interest of stability in the taxi
industry. It seems to me all
parties should approach this special conference with an open mind,
with a view to finding a
workable solution to this protracted battle.
[81]
It
is also important that a Provincial Conference be held as soon as
possible. SANTACO National and SANTACO Western Cape must
announce the dates of the elections and hold the elections in
accordance with both the National and Provincial Constitutions, it
being recorded that the provisions of the National Constitution
prevail, insofar as there is any conflict between the two. The
respective respondents have expressed their keenness to hold lawful
elections. They must follow suit in ensuring that, that happens.
There should be no reason why they should not be willing to announce
the election dates as a matter of urgency.
[82]
For
these reasons, the following order is made:
1.
It is declared:
1
.1
That the purported abandonment of the Constitution of the
Western Cape Provincial Taxi Council (“SANTACO Western
Cape
Constitution”), dated March 2006, at the special general
meeting held on 5 – 8 October 2008, was irregular;
1.2 That
the impending elections of the Regional and Provincial structures in
the Western Cape shall be governed by the relevant
sections of the
Constitution of the South African National Taxi Council (“SANTACO
National Constitution”) and those
provisions of the SANTACO
Western Cape Constitution which are not inconsistent therewith;
1.3 That
for the reasons as set out in this judgment there are only 8 regions
in the First Respondent;
1.4 That
the provisions of clauses 1.2, 2.4,
2.5.4
and
3.3 of the SANTACO Management Committee (“MANCO”)
election working document of 29 March 2017, are inconsistent with
the
provisions of the SANTACO National Constitution and as such are
invalid.
2.
The Thirteenth and/or First Respondents are directed to announce the
dates for the Regional and Provincial elections in the Western
Cape
within 30 days of this order;
3.
The relief sought in paragraphs 1.6, 1.8, and 1.9 of the Notice of
Motion, is refused;
4.
The Counter-Application brought by the First to Tenth Respondents is
refused.
5.
Each party is to pay its own costs.
_____________________
N P BOQWANA
Judge of the High Court
APPEARANCES
For
the Applicant:
Adv. M. A. Ipser
Instructed
by:
Holmes Attorneys, Cape Town
For
the First Respondents:
Adv. M. Bridgman
Instructed
by:
Parker Attorneys, Cape Town
For the
Twelfth Respondents:
Adv. D Potgieter
SC with Adv. A Coetzee
Instructed
by:
State Attorney, Cape Town
For the
Thirteenth Respondent:
No appearance
Instructing
Attorneys:
Mangena Attorneys, Pretoria