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[2016] ZAGPJHC 18
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Kale v Carletonville United Taxi Association (07965/2013) [2016] ZAGPJHC 18 (12 February 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
07965/2013
DATE: 12
FEBRUARY 2016
In the matter between:-
MALESELA DONALD KALE
(Identity No:
[6……………])
...................................................................................................
Applicant
And
CARLETONVILLE UNITED
TAXI
ASSOCIATION
.......................................................
Respondent
JUDGMENT
CORAM: CRUTCHFIELD AJ
[1]
This application for final interdictory
relief came before me during the course of the opposed motion roll of
the week commencing
25 January 2016.
[2]
At the commencement of the proceedings, the
respondent raised an issue of non-joinder as a point
in
limine,
in respect of which I heard
full argument from both counsel. I reserved my decision in respect of
the non-joinder issue.
[3]
Subsequently, I granted the applicant
condonation for the late filing of the replying affidavit delivered
on 14 August 2013, and
the supplementary replying affidavit delivered
on 9 May 2014.
[4]
The respondent objected to the condonation
of the applicant’s affidavits, alleging prejudice pursuant to
the “
new matter”
contained therein. I granted the respondent ten (10) days to deliver
its further affidavit to the replying and supplementary replying
affidavits, insofar as new matter only is raised in the applicant’s
affidavits.
[5]
The balance of the issues was postponed
sine die
.
[6]
Given that approximately one (1) hour of
court time was utilised to argue the non-joinder issue, and that it
was a crisp self-contained
point on the papers, I was not inclined to
postpone it to be dealt with yet again by another court, as and when
the necessity for
a postponement of the balance of the issues arose.
I considered it appropriate and in the interests of justice that I
determine
the point
in limine
,
rather than postponing it along with the remaining issues.
[7]
I reserved my decision in respect of the
wasted costs of the postponement, to be handed down
simultaneously with my determination
regarding the non-joinder issue,
which I deal with hereunder.
[8]
This matter incepted during February 2013,
almost three (3) years prior to the hearing before me. I was
concerned at the long delay
in finalising the matter. More
especially, given that the litigants are not moneyed people, and the
delay in bringing this application
to finality is resulting in the
rights of the applicant in particular, being held in abeyance and
prejudiced accordingly.
[9]
The importance of this matter to the
litigants was demonstrated by the presence of both the applicant and
various representatives
of the respondent, in court for the hearing.
I add, however, that both parties were represented by counsel.
[10]
The applicant claimed:
10.1
Final introductory relief against the
respondent and anyone acting under its authority and authorisation,
from interfering with,
preventing and stopping the applicant from
operating within its area of jurisdiction/operation, alternatively
within the Magisterial
District of Carletonville, without
disturbance;
10.2
An order compelling the respondent to
furnish the applicant with all the relevant documentation given to
all its other members for
purposes of operating within his area of
jurisdiction; and
10.3
Costs of suit.
[11]
The respondent furnished supplementary
heads of argument alleging
‘
that a
party must of necessity by joined in proceedings if that party has a
substantial direct and legal interest in those particular
proceedings’.
[1]
[12]
The factual allegations relevant to the
determination of the non-joinder issue are set out hereunder.
[13]
The applicant is the holder of a licence in
respect of a vehicle, as envisaged in the National Land Transport
Act, 22 of 2000
(‘the Act’),
which operating licence pertains to a 13-seater CAM Amandla vehicle
(‘licence’)
having
operating licence number [LG……….]. A copy of the
licence was attached to the founding papers as annexure
‘MDK1’.
[14]
On 13 September 2012, the then secretary
general of the respondent, furnished the applicant with a letter
confirming the applicant’s
membership of the respondent, and
recommending the applicant’s application for credit in respect
of a new vehicle to be purchased
by the applicant (‘the
applicant’s credit application’).
[15]
The applicant’s credit application
was duly approved and the CAM Amandla vehicle was purchased and
financed by First Rand
Bank Ltd (“
the
bank”
).
[16]
Thereafter, during November 2012, the
applicant advised the respondent that he intended to utilise the
licence referred to afore
(annexure ‘MDK1’), in respect
of the new vehicle. The authenticity of ‘MDK1’ was
then challenged
by the respondent.
[17]
Despite the applicant’s tender to the
respondent to have the operating permit verified, the respondent has
not sought to do
so.
[18]
The applicant alleged that various
additional problems were raised by the respondent, and
notwithstanding the applicant’s
attempts to finalise the
dispute regarding the veracity of the permit, the matter has not been
resolved.
[19]
Moreover, the alleged ‘disciplinary
proceedings’ to which the respondent sought to subject the
applicant, have not taken
place and the applicant’s rights are
obviously being prejudiced as a result.
[20]
On 25 October 2012, the applicant procured
the replacement of the Toyota Quantum (the applicant’s previous
vehicle), with
the new CAM Amandla vehicle aforementioned, on the
permit (annexure ‘MDK1’), previously issued to him.
[21]
The applicant alleged that the entire
replacement procedure was done as per the receipt of payment,
annexure ‘MDK4’
(‘MDK4’), issued by the
Gauteng Department of Transport, Randfontein (‘GDT’).
[22]
The GDT, in terms of section 73 of the Act,
is the sole entity authorised to issue, amend or transfer, an
operating licence, and,
in terms of section 79 of the Act, the sole
entity authorised to withdraw, suspend or amend an operating licence
or permit.
[23]
The respondent referred to a document
entitled ‘
AGREEMENT OF THE SALE OF
A USED MOTOR VEHICLE TAXI PERMIT’
(‘the agreement’), which agreement was allegedly
concluded by the applicant as the seller, and one Mathew Ngwako
Senyolo,
in respect of the sale of the applicant’s licence to
the purchaser, on various terms.
[24]
Paragraph 4 of the agreement provides, in
respect of ‘risk and transfer of vehicle’, as follows:
‘
The
purchaser will in order to use the public permit register his vehicle
(Toyota Quantum) into the name of the Seller and the parties
hereby
agree that the vehicle remained the property of the Purchaser.
The risk in the said vehicle shall remain with the
Purchaser who
shall remain liable for the maintenance and insurance of the
vehicle.’
[25]
The applicant conceded that he entered into
the agreement but alleged that it failed to come to fruition.
[26]
‘
MGK4’ reflects
inter
alia
‘
OL
REPLACEMENT (FROM [V……..] TO [CB……..])’
.
The applicant is reflected on ‘MDK4’ as the applicant in
respect of the replacement of the operating licence.
[27]
However, vehicle [
VM……..]
,
the Toyota Quantum, is, as I understood the respondent’s
argument, not the vehicle used by the applicant, but is utilised
at
all relevant times by one Elisa Tseko Khumoeng (‘
Khumoeng’
),
whom, the respondent alleged, claims the rights to the operating
licence, it allegedly being her ‘undisputed testimony
(according to the respondent), that the Toyota Quantum registration
number [V…..….] belongs to her and that she is
also the
legitimate title holder of the operating licence’.
[28]
The respondent argued that rather than it
being the applicant who is earning an income from the operating
licence/vehicle in dispute,
it is Khumoeng who is doing so and
accordingly, she will be prejudiced should the court proceed with the
application absent Khumoeng’s
joinder.
[29]
According to the respondent, Khumoeng has
rights under and in terms of the permit. In the event that the
relief sought by
the applicant were to be granted, it would cause
irreparable prejudice to Khumoeng. This according to the respondent
is in itself,
sufficient to dismiss the application.
[30]
Regard being had to the contents of the
applicant’s supplementary replying affidavit as they refer to
Khumoeng, absent a determination
of the non-joinder issue in favour
of the respondent, Khumoeng will be deprived of an opportunity to
answer to such allegations.
[31]
The respondent alleged that a ‘direct
and substantial interest’
[2]
refers to an interest in the right which is the subject matter of the
litigation and not merely a financial interest. Hence
the
respondent argued, Khumoeng has a substantial direct and legal
interest in the proceedings, and it would be unfair to proceed
with
the application in her absence as her rights will be adversely
affected.
[32]
The court in the
Henri
Vijoen
case,
supra
,
analysed the concept of “
direct
and substantial interest”
and
concluded that it refers to an interest in the right which is the
subject matter of the litigation and not merely a financial
interest.
[33]
The applicant denies that Khumoeng has a
direct and substantial interest
in the right which is the subject matter of the litigation (as
opposed to merely a financial interest), and denies that Khumoeng
would be prejudiced or that it would be unfair to her, were the court
to proceed with the application and grant the relief claimed
by the
applicant.
[34]
The respondent informed me from the bar
that in the event that the matter was dismissed pursuant to the
non-joinder, the respondent
undertook to hold the disciplinary
enquiry referred to afore.
[35]
In short, the respondent’s case was
that there are two (2) vehicles operating under the same permit,
these being Khumoeng’s
vehicle and the applicant’s new
CAM Amandla.
[36]
The applicant objected to the point
in
limine
, arguing
inter
alia
that it must fail pursuant to the
respondent’s failure to allege the legal conclusion arising
from the point
in limine
,
which must be stated in the papers.
[3]
Absent such a statement, the point cannot succeed.
[37]
The applicant stated that the relief
claimed in the notice of motion does not impact upon Khumoeng. As a
result, the issue raised
by the respondent regarding the alleged
interest of Khumoeng, does not qualify as the subject matter of the
litigation.
[38]
The applicant referred to the
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[4]
in respect of the interpretation of the court order which would
follow if the relief claimed by the applicant was granted, and
that
the alleged rights of Khumoeng would not be impacted in any manner
whatsoever by an order in terms of prayers 1 and 2 of the
notice of
motion.
[39]
Furthermore, the respondent could not
demonstrate that Khumoeng has a valid operating licence in her name.
In this regard, Khumoeng
requires a permit to be sourced from the
statutory entity referred to aforementioned, which is not evident on
the papers.
[40]
Section 77 of the Act provides that:
40.1
An operating licence or permit may not be
ceded or otherwise alienated by the holder, except in terms of a
transfer under section
58, and no person may be a party to such a
cession or alienation;
[5]
40.2
or be hired out by the holder or be hired
by any other person.
40.3
A transaction concluded in contravention of
(paragraph 41.1) is invalid and has no legal force.
[41]
Accordingly, insofar as the respondent
sought to rely upon the alleged agreement aforementioned providing
for the sale/transfer
of the disputed operating permit, over and
above the alleged forgery, the transaction purportedly recorded in
the agreement of
sale is invalid and without legal force, pursuant to
the absence of a transfer in terms of section 58 of the Act.
[42]
Section 58 of the Act provides for the
renewal, amendment or transfer of
operating licence or permit
and
stipulates the procedure to be adopted in respect thereof.
[43]
To my mind, it is self-evident from the
content of prayers 1 and 2 of the notice of motion, that this court
is not called upon to
determine the alleged dispute which is the
subject matter of the disciplinary proceedings, more particularly,
the rights of
Khumoeng. Hence, there is no purpose to the
joinder of Khumoeng to this application.
[44]
Khumoeng’s alleged interest in this
matter, does not qualify as a
direct and
substantial interest
, as envisaged in
Henri Viljoen
supra
.
[45]
Accordingly, it appears to me that the
applicant’s point
in limine
in
respect of the non-joinder of Khumoeng, lacks merit and must fail.
[46]
I turn at this stage to the issue of the
wasted costs pursuant to the postponement.
[47]
As stated above, the applicant’s
replying and supplementary replying affidavits were delivered on 14
August 2013, and 9 May
2014 respectively, since when they have been
in the respondent’s possession. Notwithstanding that a
significant period of
time has passed in the interim, the respondent
did not see fit to prepare or file an affidavit to be used in the
event that the
replying and supplementary replying affidavits were
allowed.
[48]
Instead, the respondent was satisfied to
seek a postponement of the matter, in order to deal with the alleged
new matter, rather
than facilitate the finalisation of the matter
expeditiously, by having the affidavit ready and available for use at
the hearing.
[49]
It is the policy of these courts
[6]
that parties be allowed to articulate their arguments and the facts
upon which they rely, fully, thereby preventing piecemeal
determination of the litigation and delay.
[50]
Notwithstanding the applicant inviting the
respondent in the course of correspondence between the respective
attorneys of record,
to deal with the further affidavit in the
interim, the respondent failed to take any steps whatsoever in
respect thereof, causing
the postponement of the application as a
result.
[51]
Nor did the respondent utilise the remedies
in terms of Rule 30 (or Rule 30A), to have the irregular filing of
the applicant’s
affidavits set aside.
[52]
In effect, the respondent was content to do
nothing, thus forcing a postponement in the context of proceedings
which commenced just
short of three (3) years ago and are yet to be
finalised. The interests of justice would have been served by
the respondent
having prepared and filed whatever affidavit(s) it
considered necessary pursuant to the applicant’s replying
affidavits.
[53]
Practitioners operating in this court are
under a continuous obligation to narrow the disputes between them,
and work towards finalising
matters as quickly as possible, which the
respondent failed to do.
[54]
The respondent’s purported reliance
upon the cost implications arising from its preparation of such
further affidavit(s) in
advance, is misplaced in the light of the
respondent having to incur the costs of the postponement as a result
of its failure.
[55]
In the circumstances, it is my view that
the respondent sought to procure the further postponement of the
matter by failing to prepare
the affidavit(s) aforementioned, in
advance, such that the matter could have been dealt with in its
entirety at the hearing before
me.
[56]
Accordingly, the respondent should bear the
wasted costs pursuant to the postponement.
[57]
I make the following the order:
57.1
The point
in
limine
in
respect of non-joinder is dismissed with costs.
57.2
The respondent is ordered to pay the wasted
costs of the postponement on 29 January 2016.
A A CRUTCHFIELD
ACTING JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
COUNSEL FOR
APPLICANT
INSTRUCTED
BY
COUNSEL FOR RESPONDENT
INSTRUCTED
BY
DATE OF
HEARING
DATE OF
JUDGMENT
? FEBRUARY 2016
[1]
Amalgamated Engineering Union v Minister of
Labour
1949 (3) SA 627
(A) at 659
[2]
Henri Viljoen (Pty) Ltd v Awerbuch Brothers
1953
(2) SA 151
(O); Standard Bank of South Africa Ltd v Swartland
Municipality & Others
2011 (5) SA 257
(SCA) at [9]
[3]
The National Director of Public Prosecutions v
Zuma
2009 (2) SA 263
(SCA)
[4]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) at [17]
[5]
Section 77(1)(a)
[6]
Pangbourne Properties Ltd v Pulse Moving CC &
Another
2013 (3) SA 140
(GSJ)