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[2015] ZAGPJHC 178
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Vulindlela Bergville Long Distance Taxi Association v Gauteng Provincial Ragulatory Entity and Another (13135/2011) [2015] ZAGPJHC 178 (5 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 13135/2011
DATE: 05 AUGUST 2015
In the matter between:
VULINDLELA BERGVILLE
LONG DISTANCE TAXI
ASSOCIATION
...................................................................................................................
APPLICANT
And
GAUTENG PROVINCIAL RAGULATORY
ENTITY
...............................................................................................................
FIRST
RESPONDENT
SIZWE TRANSPORT TAXI
ASSOCIATION
.............................................................................................
SECOND
RESPONDENT
J U D G M E N T
MALI AJ
[1] This is an application to review
and set aside the decision of the first respondent of 2 June 2010,
that:
1.1. The original members of Vulindlela
Taxi Association who are duly registered in KwaZulu- Natal be
transferred back to Bergville
Taxi Association;
1.2. The Vulindlela Taxi Association
members who are registered in Gauteng Province be catered for by the
Registrar of Public Transport
in Gauteng without losing their rights
to operate on the route from Johannesburg to Bergville and back.
These members will be registered
under Sizwe Transport Taxi
Association without losing their right to operate on the route from
Johannesburg to Bergville and back;
1.3. The operational agreement that
exists between Sizwe and Bergville Taxi Association be extended to
cover the members who have
returned from Vulindlela Long Distance
Taxi Association
[2] The applicant is a Taxi Association
an association as defined in Section 1 of the National Land Transport
Transition Act, No.
22 of 2000 (“NLTTA”) and Section 2 of
the Gauteng Public Passenger Road Transport Act, No. 7 of 2001 (“
the Gauteng
Transport Act”).
[3] The first respondent is the Gauteng
Regulatory Entity appointed in terms of Section 60 of the Gauteng
Transport Act read with
Section 53 of the NLTTA. It is also referred
as Gauteng Transport Registrar. The second respondent is Sizwe
Transport Taxi Association
(“Sizwe”). The second
respondent is an association as defined in Section 1 of the NLTTA and
Section 2 of the Gauteng
Transport Act.
[4] The applicants advanced the
following grounds of review:
4.1. The transport registrar being an
administrator acted under a delegation of power which was not
authorised by the empowering
provisions; in that the registrations
and other matters relating to minibus taxi industry was created and
regulated by legislation
under Chapter 2 of NLTTA.
4.2. The administrator was not
authorised by the empowering provision in that amongst other things;
the Gauteng Transport Act does
not give the first respondent extra
powers to finalise allocation and determine the authentic operator of
the route from Johannesburg
to Bergville as he purported to unless
he is dealing with registration. The first respondent further
summarily and without reason
divided the members of the Applicant
into two and allocated them to two other associations, including the
second respondent who
does not have a right to operate on the route
operated by the applicant. The administrator further ordered that the
agreement between
the second respondent and another association be
extended and to bind them even when they were not parties to the
agreement.
4.3. The administrator was biased or
reasonably suspected of bias in that the verdict and the reasons for
his verdict clearly shows
that he did not consider the written
submissions and arguments presented at the inquiry because his
reasons are unrelated to and
totally foreign to the issues raised.
4.4. The administrators’ action
was materially influenced by an error of law in that the first
respondent incorrectly interpreted
and misunderstood his powers and
functions under the NLTTA and Gauteng Transport Act and the
provisions thereto.
4.5. The administrator’s action
was for a reason not authorised by the empowering legislation , for
an ulterior motive,
irrelevant consideration were taken into account
and relevant considerations were not taken into account, it was taken
in bad
faith, arbitrarily and capriciously.
4.6. The administrator’s action
itself is not rationally connected to the purpose for which it was
taken, the purpose of the
empowering legislation, the information
before the administrator or the reasons given for it by the
administrator; and that
4.7. The administrators’ action
is otherwise unconstitutional and unlawful.
[5] The above grounds of review are in
line with the provisions of the Promotion of Administrative Justice
Act, 2000 (Act 3 of 2000)
(“PAJA”)
[6] In Bato Star Fishing v Minister of
Environmental Affairs [ citation]; O’ Regan J held that: An
order declaring the administrator’s
decision invalid;
“there are no two systems of law
regulating administrative action- the common law and the
Constitution- but only one system
grounded in the Constitution. The
courts’ power to review administrative action no longer flows
directly from the common
law, but rather from the constitutionally
mandated PAJA and from the Constitution itself. The grundnorm of
administrative law is
now to be found in the first place not in the
doctrine of ultra vires, nor in that of parliamentary sovereignty, or
in the common
law itself, but rather in the principles of the
Constitution. The common law informs the provisions of PAJA and the
Constitution,
and derives its force from the latter. The extent to
which the common law remains relevant to administrative review will
have to
be developed on a case- by- case basis as the courts
interpret and apply the provisions of PAJA and the Constitution”.
[7] The role of the Courts has always
been to ensure that the administrative process is conducted fairly
and that decisions are
taken in accordance with the law and
consistently with the requirements of the controlling legislation. If
these requirements are
met, and if the decision is one that a
reasonable authority could make, Courts will not interfere with the
decision.
[8] Counsel for the applicant stated
that in June 2005, the second respondent brought a review application
to this honourable court
against the applicant and the first
respondent. The second respondent sought to review and set aside the
decision of the first
respondent to register the applicant. The
second respondent’s complaint regarding the registration of the
applicant by the
first respondent involved the routes operated and
registered by the applicant in particular the route from Johannesburg
to Bergville
Taxi Rank and return. The second respondent was not
operating on that route. On 7 September 2009, Matojane J dismissed
the review
application with costs.
[9] The applicant further submitted
that on 12 March 2010 the first respondent mysteriously conducted an
enquiry wherein it effectively
decided to set aside the
abovementioned decision. The applicant referred to an extract in
annexure “TAM 3” page 41
of paginated documents; the
“verdict” which reads as follows:
“The two associations have been
having a dispute over the above mentioned route for a long time. This
matter had several rulings
from the Office of the Registrar, the
Appeal Board and the High Court of South Africa (South Gauteng). The
recent High Court order
could not be implemented based on the
misrepresentation of facts.”
[10] It is accordingly contended by the
applicant that the actions of the first respondent are irrational and
unreasonable as they
set aside the court’s judgment. As a
result the first respondent dissolved the applicant from operating
and merged it with
the second respondent.
[11] The applicant further argued that
the said judgment by Matojane J had already determined the issues in
particular the issue
that the Registrar of Transport which is now the
Gauteng Provincial Regulatory Entity (the entity represented by the
first respondent)
was empowered by the Act to exercise its discretion
to register the applicants without the required minimum of 30
members. It is
important to note that this issue was fully canvassed
and properly decided by Matojane J. The court correctly found that
the first
respondent who was the second respondent in that matter
carefully took into consideration that the applicant and the second
respondent
did not share the same routes.
[12] The first respondent is not
opposing the application. On behalf of the second respondent it was
argued in limine that the applicants
on 14 December 2010 had appealed
the first respondent’s verdict to the Gauteng Public Passenger
Appeal Board (“the
Board”).
[13] The Board had dismissed the
appeal. Therefore the applicants should have joined the Board in
these proceedings. The applicants
submitted that the Board does not
exist anymore as it was replaced by the first respondent. The second
respondent did not challenge
this contention by the applicant.
Accordingly the point in limine fails and falls to be dismissed.
[14] Counsel for the second respondent
further made a detailed argument on how the applicants could not have
been registered by
the first respondent as they do not qualify in
many respects including that the number of their members did not
reach 30. It was
further argued that the registration of the
applicant by the first respondent was provisional. In this regard the
applicants submitted
and proved that the first respondent finally
registered them.
[15] In my view the issue of
registration of the applicant which appears to be the gravamen of
this application had been exhausted
fully in the judgment of the
honourable Matojane J. What is clear to me is that the respondents
are not welcoming of the judgment.
Actually I put it mildly they
should be considered contemptuous.
[16] It is trite law that any party who
is not satisfied with the court’s judgment is entitled to
appeal to the higher court.
It was open for the second respondents
to appeal the alleged non- implementable judgment of the high court
order.
[17] Having regard to the above I find
that the actions of the first respondent were irrational,
unreasonable and not within the
spirit of law.
ORDER
[18] In the result the following is
ordered:
1. The decision of the first respondent
is invalid and accordingly set aside;
2. The first and second respondents are
ordered to pay costs, jointly and severally with the one paying the
other to be absolved.
MALI AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES
Counsel for the Applicant: Adv G.J.
Lidovho
Instructed by : Sisa Nhlabathi
Counsel for 2nd the Respondent : Mr
M J Mashavha
Instructed by : HR Munyai Attorneys
Date of Hearing : 30 April 2015
Date of Judgment :05 AUGUST 2015