About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2010
>>
[2010] ZAGPJHC 68
|
|
Witwatersrand African Taxi Owners Association v MEC for Roads and Transport (2010/12454) [2010] ZAGPJHC 68 (3 September 2010)
Links to summary
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 2010/12454
DATE: 03/09/2010
In the matter between:
THE WITWATERSRAND AFRICAN
TAXI OWNERS ASSOCIATION
Applicant
and
THE MEC FOR ROADS AND TRANSPORT
Respondent
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1] This is a review
application. The applicant seeks to have reviewed and set aside the
decision by the respondent to close all
taxi routes and the portion
of the ranks operated by the applicant to the operation of mini-bus
taxi type services commencing at
00h01 on 12 May 2010 until 4 June
2010. More directly stated, the applicant seeks an order reviewing
and setting aside the Regulations
made by the respondent under s 93
of the Gauteng Public Road Transport Act 7 of 2001 (“
the
Act
”) as
published in Notice 1334 of 2010 in the Provincial Gazette on 6 May
2010 (“
the
Regulations
”).
The Regulations had led to the decision referred to in the first part
of this paragraph.
THE PARTIES
[2] The applicant is the
Witwatersrand African Taxi Owners Association (“
WATA
”),
an association of taxi owners, and also the entity named in the
General Notice 1334 of 2010 published in the Provincial
Gazette
Extraordinary of 6 May 2010.
[3] The respondent is the MEC
for Roads and Transport, cited as the Member of the Executive
Committee, the duly appointed representative
in the control of the
Department of Roads and Transport, an organ of State as defined in s
239 of the Constitution. He is also
the person empowered to
promulgate Regulations under the empowering provisions of s 93(2) and
(3) of the Act.
SOME BRIEF BACKGROUND
[4] The relationship between the
parties, characterised by disputes in relation to the applicant’s
routes needs to be stated
briefly in order to place a proper context
on the current application. It is not in dispute that the
tempestuous relationship
just described was further marred by the
introduction of a new bus system which has commonly become known as
the Bus Rapid System
(“
BRT
”).
In this regard, the applicant has not only raised various issues in
regard to the BRT system, but also persistently made
representations
to the respondent about the implementation of the bus routes, as well
as what it perceived to be the consequences
of the BRT system to both
the applicant and its about 1 200 members. It is also not in dispute
that other taxi associations, besides
the applicant, have embarked on
protest action opposing the implementation of the BRT bus system.
Furthermore, the respondent previously
attempted to close the routes
and ranks operated by the applicant. As a consequence, an urgent
application was instituted by the
applicant on 29 March 2010 to set
aside what it labelled the unlawful attempts by the respondent to
close the applicant’s
taxi ranks and routes. The applicant was
successful in the urgent application in that on 29 March 2010, Coppin
J granted an interim
order in favour of the applicant. The effect of
the order was essentially to interdict the respondent from closing
all the routes
and the portion of the ranks operated by the
applicant. In a clear endeavour to rectify the shortcomings
attendant in the above
urgent application, the respondent published
General Notice 1070 of 2010 in the Provincial Gazette Extraordinary
on 6 April 2010.
In this Notice, the respondent withdrew the
previous notice (Notice No. 1023 of 2010) of 26 March 2010, which had
the intention
of closing the ranks and routes of the applicant. The
reason for the withdrawal of the Notice was given as, “
as
it was published in error
”.
Furthermore, in the General Notice 1070 of 2010, the respondent
stated that in terms of s 93(1) of the Act, he was declaring
the
implicated routes operated by WATA to be routes characterised by
violence, unrest or instability warranting special measures.
In
addition, the respondent gave notice of his intention to promulgate
regulations in terms of s 93(2)(a) of the Act affecting
routes and
ranks which would be measures taken to normalise the area. Of
significance and relevance in Notice 1070 of 2010, are
the following
separate statements by the respondent: “
The proposed
regulations will be in force and effect until further notice
”,
and “
I am therefore inviting interested and affected
persons to lodge or submit their written requests for reasons or
written representations
by faxing, posting or handing them in, on or
before 16/4/2010 …
”.
(my underlining)
[5] In the second phase of the
procedure, the respondent proceeded to publish General Notice No.
1334 of 2010 on 6 May 2010. This
was also in terms of the Act. The
gist of the notice is contained in the schedule thereto, which
provides:
“
All routes and the portion of the ranks operated by the
Witwatersrand African Taxi Owners Association are closed to the
operation
of minibus taxi-type services commencing at 00h01 on 12 May
2010 until the 4
th
of June 2010.
”
This notice, once more, prompted the applicant to launch an urgent
application in this Court. In the first part of the relief,
the
applicant sought an urgent interdict against the respondent,
preventing the respondent from closing the routes and taxi ranks
operated by the applicant as envisaged in General Notice 1334 of
2010, pending the present review proceedings. The applicant also
sought an order directing the respondent to provide reasons together
with a substantive response to the applicant’s representations
made on 16 April 2010. On 11 May 2010 Nicholls J granted the interim
interdict order sought by the applicant. The order is currently
in
place. Pursuant to the interdict, the applicant supplemented its
founding papers, whilst the respondent filed a supplementary
answering affidavit. This was followed by a replying affidavit from
the applicant. I deal with the contents of these affidavits
later on
the merits of the present application. All of the above are not in
dispute or no issue has seriously been taken in connection
therewith.
[6] The main issue for determination in this application, and which
is in dispute, is whether or not a situation is in existence
where it
could be said that the ranks and routes operated by WATA are
characterised by violence, unrest or instability. In other
words,
was the respondent justified in his attempts to close the ranks and
routes?
[7] Prior to dealing with the various grounds of review, the
opposing contentions of the parties in connection therewith, as well
as the disputed facts, it is instructive to have regard to the
provisions of the Act, in particular those relevant to the
application.
The purpose of the Act is set out in s 1 as follows:
“
1. Purpose of this Act.
– (1) The
purpose of this Act is to promote and provide for an effective public
passenger road transport system for Gauteng.
This can be achieved by
fulfilling the primary objects of the Act, which are to –
implement provincial and national government policy relating to
public passenger road transport services and facilities, monitor
the
implementation of such provincial policy, conduct investigations
into issues arising from the implementation of such policy
and make
necessary policy adjustments;
promote and facilitate the increased utilisation and development
of public passenger road transport in the Province;
use the planning and development of public transport as a tool
for restructuring society so as to –
enable and encourage workers to reside nearer to their places of
work, especially where locational disadvantages were created by
previous discriminatory policies;
encourage residential areas to be located nearer to work areas;
promote easier movement of persons in the Province;
promote urban renewal, densification and mixed land uses;
integrate and co-ordinate public passenger transport modes and
transport planning with land use and development planning to improve
mobility through an efficient public passenger road transport
system;
take the necessary steps to promote co-ordination between
transport authorities and other planning authorities in the
province,
or between such authorities and the Province, with a view
to avoiding duplication of effect;
promote co-ordination between modes of public passenger road
transport and the seamless movement of passengers in the system;
promote public consultation and participation before taking any
decision or performing any official act and to prescribe the
procedures
to be followed in that regard;
control and regulate public passenger road transport services
through issuing operating licences to operators of those services,
and excluding persons without valid and specific operating licences
from operating such services;
permit motor vehicles to be used for public passenger road
transport services only in relation to the types of services
offered;
provide for the registration of operators providing certain types
of public passenger road transport services and associations of
those operators;
promote the safety and interests of passengers using public
passenger road transport services;
establish institutional structures to support the objectives of
this Act;
promote effective and efficient enforcement of laws relating to
public passenger road transport, including road traffic and road
safety laws;
promote professional operating practices by the operators of
public passenger road transport services;
promote the co-ordinated provision of adequate and accessible
public passenger transport infrastructure, subject to specific
legislation
dealing with roads, railway lines and other transport
infrastructure;
promote a system where users pay for the services they receive,
except where subsidies are needed to enable affordable transport
and
effective land use, to provide for the accessibility and mobility of
special categories of passengers or for other sound
policy reasons,
and to ensure that services are subsidised only in those
circumstances;
provide for competitive tendering for subsidised public passenger
road transport services;
provide for effective and integrated data bases and management
information systems for public passenger road transport operations;
provide for a demerit system for operators of public passenger
road transport services; and
promote small, medium and micro enterprises and operators
previously disadvantaged by unfair discrimination.
(2) This Act replaces Chapter 3 of the National Act with regard
to matters dealt with in this Act.
”
In this regard, sub-sections (1)(a), and (1)(g), (1)(k) and (1)(m)
are pertinent to the present application. From the definitions
s 2
of the Act, it is plain that the respondent is indeed “
an
organ of State
” as defined in s 239 of the Constitution,
and therefore an “
administrator
”, as defined in
the Promotion of Administrative Justice Act 3 of 2000 (“
PAJA
”).
[8] More importantly, s 93 of the Act provides as follows:
“
93. Special emergency measures.
– (1)
The MEC may, by notice in the Gazette, declare an area in which the
special measures provided for in this section will
apply, where he or
she is of the opinion that this is necessary to normalize the
situation in the area characterised by violence,
unrest or
instability.
(2) (a) The MEC may make regulations providing that one or more
routes or ranks as specified, or that all of the routes and ranks,
without specification, are closed to the operation of public
passenger road transport services in an area declared under
subsection
(1) for a period stated in the notice, and that no person
may undertake specified services on the affected route or routes or
in
the affected rank or ranks during the period.
(b) The regulations may provide that the contravention thereof
will constitute an offence and prescribe penalties in respect
thereof.
(3) Before making regulations under subsection (2), the MEC must
cause a notice to be published in the Gazette or in a newspaper
circulating in the declared area stating –
(a) a brief description of the nature and purpose of the
intended action;
the route or routes and rank or ranks that will be closed, or
that it is proposed to close all routes or ranks in the declared
area;
the period for which the proposed regulations will be in force;
that interested or affected persons may request reasons for the
proposed regulations;
that any interested or affected person may make representations;
the time within which representations may be made, which may not
be less than 24 hours;
the address to which representations must be submitted; and
the manner in which representations may be made.
(4) The MEC must consider any representations received under
subsection (3) before making regulations under subsection (2).
”
From these provisions, it is plain that the respondent has a
discretion to promulgate the notice for special measures in an
area/areas
where, “
he or she is of the opinion that this is
necessary to normalise the situation in the area characterised by
violence, unrest or instability
”. Similarly, the
respondent has the discretion to make regulations to the effect that
routes and ranks are closed to operation
of public passenger road
transport services in an area inflicted by violence, unrest or
instability. However, of significance
in s 93(2) is that the closure
of the ranks and routes should be, “
for a period stated in
the notice
”. More significantly, s 93(3) provides that
before making the regulations, the respondent must cause a notice to
be published
in the Gazette or in a newspaper circulating in the
declared area stating,
inter alia
, the period for which the
proposed regulations will be in force; that interested or affected
persons may request reasons for the
proposed regulations, and that
any interested or affected persons may make representations.
Notably, s 93 concludes in 93(4) that,
“
The MEC (the
respondent) must consider any representations received under
subsection (3) before making regulations under subsection
(2)
”
(my insertion). I deal herein later with the applicant’s
request for reasons and representations made as well as
the
respondent’s reaction thereto.
[9] I now turn to the applicant’s grounds of review. These
are essentially four in number. Firstly, the applicant contends
that
the decision of the respondent in making the regulations closing the
ranks and the routes operated by the applicant was irrational
and not
proportional to the existing circumstances, as to the information the
respondent claims to have in its possession regarding
the alleged
violence, unrest or instability at the ranks or routes operated by
the applicant and its members. This ground of review,
and indeed,
the others dealt with below, ought to be reviewed both on the basis
of the provisions of PAJA, and the Constitution.
This is also the
least parameter required by Administrative Law.
[10] Section 6(1) of PAJA provides as follows:
“
6. Judicial review of administrative action.
–
(1) Any person may institute proceedings in a court or a tribunal for
the judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an
administrative action if –
(a) the administrator took it –
(i) was not authorised to do so by the empowering provision;
acted under a delegation of power which was not authorised by the
empowering provision; or
was biased or reasonably suspected of bias;
a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
the action was procedurally unfair;
the action was materially influenced by an error of law;
the action was taken –
(i) for a reason not authorised by the empowering provision;
for an ulterior purpose or motive;
because irrelevant considerations were taken into account or
relevant considerations were not considered;
because of the unauthorised or unwarranted dictates of another
person or body;
in bad faith; or
arbitrarily or capriciously;
the action itself –
(i) contravenes a law or is not authorised by the empowering
provision; or
is not rationally connected to –
the purpose for which it was taken;
the purpose of the empowering provision;
the information before the administrator; or
the reasons given for it by the administrator;
the action concerned consists of a failure to take a decision;
the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power or
performed
the function; or
the action is otherwise unconstitutional or unlawful.
(3) If any person relies on the ground of review referred to in
subsection (2)(g), he or she may in respect of a failure to take
a
decision, where -
(a) (i) an administrator has a duty to take a decision;
there is no law that prescribes a period within which the
administrator is required to take that decision; and
the administrator has failed to take that decision,
institute proceedings in a court or tribunal for judicial review
of the failure to take the decision on the ground that there has
been
unreasonable delay in taking the decision; or
(b) (i) an administrator has a duty to take a decision;
a law prescribes a period within which the administrator is
required to take that decision; and
the administrator has failed to take that decision before the
expiration of that period,
institute proceedings in a court or tribunal for judicial review
of the failure to take the decision within that period on the ground
that the administrator has a duty to take the decision
notwithstanding the expiration of that period.
”
[11] In the respondent’s answering affidavit, attested to by
Mr M Thulare, Chief Director, Legal and Contract Manager, in
the
employ of the respondent, reasons are advanced for the decision of
the respondent. He was not directly involved in this matter,
but
alleges that, “
we spent countless hours with him (the
respondent) discussing the appropriate response that Government
should take to the violence
and instability that accompanied the
Applicant opposing to this programme. His decision to issue the
regulations was not arrived
at easily
” (my insertion). As
in the case of the respondent in his later supplementary affidavit,
Mr Thulare relies on certain incidents
of violence which occurred
between 12 March 2010 and 20 April 2010. These incidents are
contained in Annexures A1-A10 of the respondent’s
supplementary
answering affidavit. Mr Thulare also alleges that he was aware of an
incident on 30 April 2010 when a BRT bus was
shot at on one of the
routes operated by the applicant. However, he does not specify the
route. During such incident, he says,
eight people were injured, one
critically. He says, “
These were all innocent commuters
whose only crime was to travel on the BRT buses
”. In
support of his assertions, Mr Thulare annexed to his affidavit
newspaper cuttings from The Star Newspaper on 3 April
2010. In
paragraph 1(4) of his affidavit, Mr Thulare concludes, “
Accordingly
I submit that the MEC’s decision to promulgate the regulations
was made in the interest of the general safety
of commuters, the
general public and members of the applicant …
”. One
other allegation Mr Thulare makes, and which is denied vehemently by
the applicant, is that situations of unrest and
instability were
caused by the applicant due to the applicant’s decision to
expel certain of applicant’s members for
their involvement in
negotiations with the respondent regarding the BRT programme. These
expelled members subsequently approached
the respondent and voiced
their unhappiness about their expulsion. There were, however, no
confirmatory affidavits from these
expelled members whose number Mr
Thulare puts at over thirty.
[12] In his supplementary affidavit, the respondent, in large
measure, aligns himself with the allegations made by Mr Thulare.
He
also relies on the information contained in Annexures A1-A10 referred
to by Mr Thulare. The incidents of violence for the period
12 March
2010 to 20 April 2010 are contained in Annexures A1-A10, entitled
“
Violent Incidents on Routes Operated by WATA
”.
They are ten in number. In his view, the respondent says he was
perfectly justified in terms of s 93(2) of the Act to
issue the
relevant Notice, and to promulgate the Regulations since Annexures
A1-A10 clearly indicate that the routes are characterised
by
instability and unrest. In justifying his decision as rationale, the
respondent also relies on the written reasons furnished
to the
applicant previously. I shall deal later with these reasons. It
will also be necessary to briefly analyse closer the incidents
of
violence relied on by the respondent. In paragraph 8.6 of the
supplementary answering affidavit, the respondent states:
“
8.6 In my reasons dated 30 April 2010 (Annexure ‘A’
to the affidavit of Thulare), I clearly indicated that I was
satisfied,
based on information provided by the relevant officials
that the routes and ranks forming a subject matter of this
application
are indeed characterized by violence, unrest or
instability. In addition to the information provided by the relevant
officials,
I further referred in my reasons to specific incidents of
instability within the applicant itself. These incidents relate to
members
of the applicant who have been expelled from the applicant
for reasons related to their involvement in BRT negotiations and are
prevented by the applicant from operating on the affected routes and
ranks.
”
[13] The applicant, on the other hand, on the disputed issue,
contends, firstly, that there is no violence at all on its routes.
Alternatively, that the alleged violence was not of such high level
to justify the drastic emergency measures resorted to by the
respondent. The applicant has also given undertakings to
disassociate itself from any form of violence surrounding the
introduction
of the BRT bus system. In this regard it is appropriate
to quote
in
extensio
the relevant portions of the
applicant’s founding papers, supplementary affidavits, the
replying affidavit, as well as the
respondent’s reaction
thereto.
[14] In paras 12 and 13 of its supplementary founding affidavit, the
applicant states:
“
12. There are a number of observations which underlie the
respondent’s resort to this drastic emergency provision:
First, in the first urgent application proceedings before Coppin
J on 29 March 2010 the applicant gave undertakings that it would
not in any way associate itself with any violence directed at the
BRT and/or its operations. The applicant has not breached
those
undertakings which were given on 29 March. The undertaking is
repeated here.
Second, there were three incidents of unrest alluded to by the
respondent in the schedule attached as Annexure 10 to its answering
affidavit. On 9 April a tavern was robbed and a cellphone was
stolen; on 17 April petrol was thrown inside a depot but no
damage
was reported; and on 19 April the tyres of three buses were spiked
on the BRT route. It is noteworthy from this that
–
12.2.1 The robbing of a tavern and the theft of a cellphone can
hardly be said to be significant enough to trigger drastic emergency
provisions since this is merely the kind of crime that occurs all
over Johannesburg; and
The incident involving petrol and the spiking of tyres, again,
does not seem drastic enough to justify the use of an
extraordinary
emergency provision – besides: The applicant
has not in any way been associated with these incidents, no
accusations
have been levelled at the applicant and the applicant
has, upon hearing these incidents, distanced itself from the
violence
(as it did with the shooting that happened on 30 April
2010).
12.3 Third, I should point out that the only incidents of unrest
(which are relatively minor) all took place after the MEC had already
made his decision to bring the Regulations into effect (he notified
the world of his intention to bring the Regulations into effect
on 6
April 2010).
13. For the three reasons given above, it is patently clear that
the respondent’s decision to invoke the emergency provisions
is
completely unrelated to the purpose that section 93 was enacted to
combat. In addition, the nature of the unrest is not severe
enough
to warrant the drastic resort to any emergency statutory provision.
The reaction from the MEC is clearly disproportionate
(although, as I
have already pointed out, his conduct was in fact not a reaction
because those ‘relied upon’ events
had not yet
happened).
”
In the same affidavit, the applicant in paras 26 and 27.2 and 27.3
states:
“
26. At this juncture I point out that the applicant, in
paragraph 20 of the founding affidavit in Part A, conceded that it
was
aware of one isolated incident of violence which occurred on 29
April 2010. That is, presumably, the same incident that the
respondent
refers to in its answering affidavit although the parties
disagree on the date – the applicant thinks the shooting took
place
on 29 April whilst the respondent thinks it happened on 30
April. The date is not what is relevant, what is relevant is that I
have now been able to ascertain that the shooting did not take place
on a route operated by WATA but rather on a route operated
by a rival
taxi organisation ‘STS’ (Soweto Taxi Services). WATA
has, in the press, repeatedly distanced itself from
the shooting and
made it patently clear that it was not responsible nor does it in any
way condone this kind of violence. Due
to the pressure under which
this affidavit was prepared, I am still gathering that proof and
reserve the right to provide it in
reply as the respondent denies
that it happened on an ‘STS’ route.
”
Paras 27.2 and 27.3:
“
27.2 Factually there does not appear to be any violence of
the kind that meets the threshold needed to trigger the use of an
emergency
provision.
27.3 The trivial incidents of petty crime attached to the MEC’s
reasons do not meet the threshold although, the shooting of
29/30
April may meet that threshold (although the point is not conceded)
but WATA had nothing to do with the only possible event
that could
have called for a reaction of the kind contemplated by the MEC.
”
In paras 8.18 and 8.19 of his supplementary answering affidavit, the
respondent states:
“
8.18 The applicant argues that the incidents of unrest in
the affected area are not severe enough to justify my decision to
invoke
the emergency measures. Presumably, the applicant suggests
that the emergency measures can only be invoked under circumstances
where there is loss of lives. This argument is simply unsustainable.
I am not expected to sit back wait until such time that there
is loss
of lives before invoking the emergency measures …
8.19 … even in the event that this Honourable Court finds
that the incidents of violence, unrest or instability referred
to
above are not serious enough, this Honourable Court ought not to
interfere with the Regulations purely because there may be
a better
balance which could have been arrived at by attributing more weight
to other factors.
”
Finally, in the applicant’s replying affidavit prepared for the
purposes of Part B (p 135), it states the following:
“
15.6 The applicant notes the respondent’s denial of
our allegation that, factually, there is no violence, unrest or
instability
which justifies the invocation of the emergency measures.
In reply the applicant points out that:
It is not the applicant’s contention that there has been
no violence, unrest or instability in the affected areas, but
merely that insufficient violence, unrest or instability exists to
justify invoking the drastic emergency measures in these
circumstances;
The only evidence offered by the respondent, to date, is
contained in the answering affidavit filed during the course of
the
Part A proceedings yet, notably, the incidents of violence,
unrest or instability are either unrelated to the taxi industry or
else they simply do not meet the threshold required under a
rationality and/or reasonableness enquiry; and
The respondent, despite adequate opportunity, has failed to
produce any additional evidence and so it must, therefore, be
assumed that no additional evidence exists.
”
In paras 15.8 up to 15.8.3 of the same affidavit, the applicant
states as follows:
“
15.8 The applicant admits that it has expelled certain
members from its organisation but denies that this in any way created
violence,
unrest or instability. But, more importantly, I have been
advised to point out that:
15.8.1 The respondent’s submission that this is the cause
of violence, or unrest or instability has been made in a broad
sweeping manner and is devoid of any violence to support it;
15.8.2 A bare unsubstantiated averment cannot be permitted to
justify a grave denial of rights in the absence of, at the very
least,
substantiated facts; and
15.8.3 The respondent has not taken the court into its confidence
by providing evidence to support and/or substantiate the broad
sweeping allegation.
”
In para 15.11 the applicant states:
“
15.11 The applicant denies that the taxi route targeted by
the respondent is characterised by instability. No evidence has been
produced by the respondent to substantiate this allegation and I am
not aware of any actual instability.
”
Further on in para 15.15 the applicant states as follows:
“
15.15 The applicant denies, for reasons already averred,
that:
15.15.1 A factual situation characterised by violence, unrest or
instability prevailed or currently prevails;
15.15.2 Regulations were needed to ensure the safety of commuters
who travel on the WATA routes; and
15.15.3 That there is an abnormal situation that needs to be
normalised.
”
In para 15.16 of the same affidavit the applicant states as follows:
“
15.16 The applicant does not suggest that emergency
measures can only be invoked where there has already been a loss of
lives.
Instead, the applicant merely contends that:
15.16.1 Where the legislature expressly mandates that a factual
set of circumstances prevail before emergency provisions can be
triggered then, at a minimum, such factual situation must prevail;
15.6.2 Emergency measures cannot be threatened and/or used to
coerce members of the public into co-operating with government
because,
to do so, would be an improper use of power; and
15.6.3 Decision makers afforded a discretion by the legislature
must always exercise that discretion in a rational and reasonable
manner.
”
[15] Prior to dealing with the law applicable to the first ground of
review raised by the applicant, it is indeed prudent to first
deal
with the disputed issue, that is the presence or otherwise of
violence on the ranks and routes operated by the applicant.
It is a
critical and decisive issue for determination since it prompted the
respondent to promulgate the challenged regulations
under discussion.
The versions of the parties as mirrored in the respective
affidavits, quoted above, are clearly at variance.
The technique
generally used by the courts in resolving factual disputes has been
set out in various decided cases, notably
SFW Group Ltd and
Another v Martell Et CIE and Others
2003 (1) SA 11
(SCA) at para
[5]. The critical issue is whether the respondent’s
allegations of the presence of violence at the affected
ranks and
routes create a real dispute of fact. A genuine dispute of fact will
not exist merely because the respondent has put
up a different
version. In
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd
1949 (3) SA 1155
(T) at 1163 it was said:
“…
it does not appear that a respondent is entitled to
defeat the applicant merely by bare denials such as he might employ
in the pleadings
of a trial action, for the sole purpose of forcing
his opponent in the witness box to undergo cross-examination. Nor is
the respondent's
mere allegation of the existence of the dispute of
fact conclusive of such existence.
”
There is also authority for the proposition that a court must
sometimes take a robust, common-sense approach to a motion. See
in
this regard
Soffiantini v Mould
1956 (4) SA 150
(E) at 154G.
In the present matter, the evidence of Mr Thulare, as described
above, is largely of a hearsay nature on the disputed
issue. He
relies partly on newspaper cuttings. Regrettably, the respondent’s
assertions that “
he has reason to believe
”, or
else that, “
it has come to his attention
”, that
violence, unrest or instability characterised the WATA routes, are
not sufficient in the circumstances of the matter.
Surely, in a
matter of such huge public interest, affecting the rights of so many
people, some form of concrete evidence is called
for. More the
reason if such drastic measures as closing public routes and ranks.
When I questioned counsel for the respondent,
Mr Khoza, in argument
as to how and what is the respondent’s source of the
information, he argued that the respondent was
not like “
a
bobby on the beat
”. Once more, this is insufficient to
justify the decision of the respondent, especially in the light of
the responsible
purpose of the Act, as set out in s 1 above.
[16] Indeed, a close examination of the contents of Annexures A1-A10
(violent incidents on routes operated by WATA) on which both
Thulare
and the respondent for their assertions of violence rely, shows that
the incidents are rather scanty. The alleged incidents
are also
unrelated to the applicant or its routes. For example, the very
first incident on 12 March 2010 relates to:
“
Rea Vaya bus carrying few Rea Vaya drivers was shot at by
passengers in a Toyota Corolla in Kliprivier Valley area.
”
The incident on 31 March 2010 states:
“
Two STS members’ houses were petrol bombed. Mr
Sabelo’s house in Pimville was attacked at 01h00. The windows
were broken
and the curtains burnt. There was slight damage to the
car. Mr Ramabanta’s house was petrol bombed at 01h00 in
Naledi.
He fired shots at the culprits but they got away.
”
The incident on Friday 9 April 2010 reads:
“
3 armed men robbed Tavern opposite a BRT Station. Station
Guard robbed of his cellphone when trying to intervene.
”
None of the above incidents directly or conclusively implicate the
applicant especially when one considers the undertakings given
by the
applicant to refrain from any violence. The other difficulty with
Annexure A1-A10 is that it has no known author or compiler.
Moreover,
none of the victims or entities of the violence have testified. Where
applicable, no police dockets or witness’s
statements were
produced. Indeed, there are strong suspicions that taxi owners and
drivers are opposed to the introduction of the
BRT system. However,
once more, there is no credible evidence linking the applicant to the
violence. In the same manner, the assertions
of both Thulare and the
respondent that violence was created when the applicant expelled some
of its members, were not substantiated
at all. None of the expelled
members made any statements or affidavits to this effect.
[17] Applying the above stated legal principles of resolving factual
disputes to the present matter, the respondent’s version
that
the ranks and routes operated by the applicant are characterised by
violence, unrest or instability, is not credible and conclusively
proved. There simply was no factual existence of violence
attributable to the applicant. The use of the words “
unrest
”
or “
instability
”, seems to be misplaced or
exaggerated. The submission of the applicant that the incidents
mentioned in Annexures A1-A10
simply do not reach a level of severity
which justifies the drastic invocation of the draconian s 93
emergency provisions, has
considerable merit.
[18] It is clear that in order to meet the threshold required under
the rationality test, there must be a certain credible degree
of
evidence of violence attributable to the applicant before the
respondent can resort to the special measures. In
Carephone (Pty)
Ltd v Marcus NO
1999 (3) SA 304
(LAC), the full bench of the
Labour Appeal Court, at para [37] said:
“
[37] Many formulations have been suggested for this kind of
substantive rationality required of administrative decision-makers,
such as 'reasonableness', 'rationality', 'proportionality' and the
like (cf, for example, Craig Administrative Law (op cit at 337
- 49);
Schwarze European Administrative Law (1992) at 677). Without denying
that the application of these formulations in particular
cases may be
instructive, I see no need to stray from the concept of
justifiability itself. To rename it will not make matters any easier.
It
seems to me that one will never be able to formulate a more
specific test other than, in one way or another, asking the question:
is there a rational objective basis justifying the connection made by
the administrative decision-maker between the material properly
available to him and the conclusion he or she eventually arrived at?
In time only judicial precedent will be able to give more
specific
content to the broad concept of justifiability in the context of the
review provisions in the LRA.
”
Subsequently, the formulation of the question in
Carephone (Pty)
Ltd
, was approved by the Supreme Court of Appeal in
Trinity
Broadcasting (Ciskei) v Independent Communications Authority of South
Africa
2004 (3) SA 346
(SCA) at para [21] G , where Howie P said:
“
It is clear that the standard expressed in those cases
approximates, to all intents and purposes, to the one constituted by
s 6(2)(h)
of the
Promotion of Administrative Justice Act. The
word
'perversity' may be appropriate (I need express no opinion on the
subject) to the standard set by
s 6(2)(h)
and Wednesbury Corporation
but it has no bearing on the rationality test set by
s 6(2)(f)(ii)
and explained in Pharmaceutical Manufacturers, Bel Porto and
Carephone. It is the latter test with which we are concerned in the
present case. In the application of that test, the reviewing Court
will ask: is there a rational objective basis justifying the
connection made by the administrative decision-maker between the
material made available and the conclusion arrived at?
” See
also
Rustenburg Platinum Mines v CCMA
2007 (1) SA 576
(SCA) at
para [25]. It is indeed so that in reviews, both under
s 6
of PAJA,
quoted earlier, or under the Constitution, public authorities such as
the respondent in the present matter, are obliged
to act rationally.
The latter is therefore the minimum standard set by the Constitution,
and also set by Administrative Law as
is apparent from s 6(2)(f)(ii)
of PAJA, which states as follows:
“
(2) A court or tribunal has the power to judicially review
an administrative action if the action itself is not rationally
connected
to:
(a)
the purpose for which it was taken;
(b)
the purpose of the empowering provision;
the information before the administrator; or
(d) the reasons given for it by the administrator.
”
[19] With the above in mind, a close look at s 93 of the Act, quoted
earlier, in order to determine exactly what the respondent
may or may
not do in the context of rational decision-making is critical.
Section 93(2) of the Act, also quoted above, authorises
the
respondent to make regulations closing taxi routes or the operation
of a taxi services on particular routes if it acts in accordance
with
s 93(1) of the Act, also quoted above. It is therefore clear that the
legislature’s purpose is to invoke these special
emergency
measures only where violence, unrest or instability prevails.
19.1 In interpreting the provisions of s 93(1) of the Act, which
clearly invade the rights of citizens, such as the applicant,
and
commuters, a close and careful scrutiny is expected of the courts.
In our democratic state, a state of emergency, which may
be followed
by exceptional measures necessary to restore peace and order, may
only be declared by the State President in terms
of
s 37
of the
State
of Emergency Act 64 of 1997
. In terms of the latter s, a state of
emergency may only be declared in terms of an Act of Parliament, and
only when the life
of the nation is threatened by war, invasion,
general insurrection, disorder, natural disaster or other public
emergency, and the
declaration is necessary to restore piece and
order. Once a state of emergency has been declared, the State
President may make
emergency regulations in respect of “
any
area in which the state of emergency has been declared and for as
long as the proclamation declaring the state of emergency
remains in
force, by proclamation in the Gazette … as are necessary or
expedient to restore peace and order and to make
adequate provision
for terminating the state of emergency, or to deal with any
circumstances which have arisen or are likely to
arise as a result of
the state of emergency
”. (See s 2 of Act 64 of 1997.) The
emergency measures taken, clearly will have the consequence of
depriving the rights entrenched
by the Bill of Rights, but such
deprivation is carefully circumscribed by s 37 of the Act. One of
the requirements is that a derogation
must be proportional to the
emergency. No derogation from s 37 itself is permissible, and all
the requirements are justiciable.
This means that the jurisdiction
of the Courts, unlike the pre-Constitution era, cannot be excluded
during emergencies. From these
provisions it is abundantly clear that
the resort to emergency measures, as in the case of the respondent in
the present matter,
is not a light and trivial matter.
19.2 The provisions of s 93(1) of the Act must also be interpreted
with regard to ss 22 and 39(2) of the Constitution Act 108
of 1996.
The provisions must also be given their plain ordinary meaning.
Section 22 of the Constitution guarantees the right
to freedom of
trade, occupation and profession. Section 39(2) enjoins the courts
when interpreting any legislation, and developing
the common law or
customary law, to promote the spirit, purport and objects of the Bill
of Rights. Furthermore, the words “
emergency measures
”
in s 93(1) of the Act must be interpreted in the context of the Act
as set out earlier in this judgment. Lexical research
can be useful
and at times indispensible. (See
Fundstrust (Pty) Ltd (In
Liquidation) v Van Deventer
1997 (1) SA 710
(A) at p 726-727.)
The expression “
special measures
” suggests “
extra
measures
”. In
Rex v Pocket
1948 (2) SA 938
(SR) at
p 941 Regulations which were made as “
necessary or
expedient
” to alleviate or control the effects of existing
drought, were regarded as an “
emergency measure
”.
The Concise Oxford Dictionary (10
th
ed), defines the word
“
special
” as “
better, greater, or
otherwise different from what is usual … something designed or
organised for a particular occasion or
purpose etc.
”.
Similarly, the word “
emergency
” is defined as, “
a
serious, unexpected, and potentially dangerous situation requiring
immediate action
”. The word “
measure
”
is defined as “
a plan or course of action taken to achieve a
particular purpose
”. All of these ordinary meanings
suggest that, in the context of the present matter, the respondent
must have more than
cogent reasons to resort to special emergency
measures in exercising his powers under s 93(1) of the Act.
I have already examined the incidents of violence alleged by the
respondent and concluded that factually there is no violence
attributable to the applicant. It follows that an attempted
promulgation based on these grounds will therefore be irrational
based
on the Constitution and the provisions of PAJA. The minor
incidents of violence, to the extent admitted by the applicant, do
not
justify the decision of the respondent. I should add that the
only minor incidents of unrest, all took place after the respondent
had already made his decision to bring the Regulations into effect.
This was on 6 April 2010. The conclusion that the respondent’s
decision to invoke the emergency provisions was completely unrelated
to the purpose of s 93, becomes irresistible. In addition,
the
reaction of the respondent is clearly disproportionate to the unrest
involving the BRT system. For these reasons, the applicant’s
first ground of review falls to succeed.
[20] I turn to the second ground of review advanced by the
applicant. That is that, in the process of promulgating the
Regulations,
the respondent did not comply with the provisions of s
93 of the Act. In deciding this issue, it is unavoidable to bear in
mind
the evidence considered in evaluating the first ground of
review. The finding made in respect of the first ground of review
also
impacts largely on the second ground. To this must be added the
following common cause factors. After the contents of Notice No
1070
of 2010 of 6 April 2010 (Annexure FA4) was brought to the attention
of the applicant, the applicant requested reasons from
the respondent
and also made representations to the respondent concerning the need
to use these drastic emergency provisions.
This was on 16 April 2010
by means of a letter, (Annexure FA5) addressed to the respondent by
the applicant’s attorneys of
record. The request for reasons
was rather extensive. However, paras 4, 5, 6 and 7 read as follows:
“
4. Our client hereby requests reasons behind the intended
regulations as more fully set forth in the above notice.
5. In this regard, it is asked that you identify the violence,
unrest or instability forming the basis for the MEC’s opinion,
as is required by Section 93(1) of the Gauteng Public Passenger Road
Transport Act No 7 of 2001 (‘the Act’).
6. We record that for the preceding 6 (six) weeks there has been
no violence, unrest or instability, in any of the areas reflected
in
the schedule annexed to the above notice, or at all.
7. To the extent that you are of the view that there has been
violence, unrest or instability, in relation to the routes more fully
reflected in the schedule, we ask that you identify those routes and
provide us with particularity of such violence, unrest and
instability, together with news clippings in support thereof (to the
extent that clippings exist).
”
There was no immediate response to the request for reasons until much
later. In the answering affidavit, Mr Thulare contends that
the
respondent responded to the request on 30 April 2010. The letter in
response to the request, Annexure A1 to the answering affidavit,
was
hand dated 30 April 2010. It was surprisingly posted to the
applicant. On the other hand, the applicant contends that it
only
became aware of this response when it received the answering
affidavit in May 2010. For present purposes, it is unnecessary
to
pronounce on the delay in furnishing the reasons, which complaint the
applicant has abandoned. The crisp issue under this ground
of review
is really whether the respondent in promulgating the Regulations,
acted within the parameters of s 93 of the Act. To
answer this
question, regard must be had, once more, to the Constitution and the
applicable provisions of PAJA.
[21] In
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC), at paras [56], [57] and [58], the court said:
“
[56] These provisions imply that a local government may
only act within the powers lawfully conferred upon it. There is
nothing
startling in this proposition - it is a fundamental principle
of the rule of law, recognised widely, that the exercise of public
power is only legitimate where lawful. The rule of law - to the
extent at least that it expresses this principle of legality -
is
generally understood to be a fundamental principle of constitutional
law. This has been recognised in other jurisdictions. In
The Matter
of a Reference by the Government in Council Concerning Certain
Questions Relating to the Secession of Quebec from Canada
the Supreme
Court of Canada held that:
'Simply
put, the constitutionalism principle requires that all government
action comply with the Constitution. The rule of law principle
requires that all government action must comply with the law,
including the Constitution. This Court has noted on several occasions
that with the adoption of the Charter, the Canadian system of
government was transformed to a significant extent from a system
of
Parliamentary supremacy to one of constitutional supremacy. The
Constitution binds all governments, both federal and provincial,
including the executive branch (Operation Dismantle Inc v The Queen
[1985] 1 SCR 441
at 455). They may not transgress its provisions:
indeed, their sole claim to exercise lawful authority rests in the
powers allocated
to them under the Constitution, and can come from no
other source.'
In Germany, art 20(3) of the
Basic Law confirms the rechtstaatprinzip which is related to the
concept of the rule of law.
Article
20(3) provides that:
'The legislature shall be bound by the
constitutional order, the executive and the judiciary by law and
justice.'
The importance
attached to this principle is underscored by the fact that art 79(3)
prohibits any amendment of it. It is a principle
which applies also
to the Länder or provinces.
[57] The principle is also expressly recognised in the 1996
Constitution. Section 1 provides that:
'The
Republic of South Africa is one, sovereign, democratic State founded
on the following values:
(a)
Human dignity, the achievement of equality and the advancement of
human rights and freedoms.
(b)
Non-racialism and non-sexism.
(c)
Supremacy of the constitution and the rule of law.
(d) Universal
adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government,
to ensure
accountability, responsiveness and openness
.'
[58] It seems central to the conception of our constitutional
order that the Legislature and Executive in every sphere are
constrained
by the principle that they may exercise no power and
perform no function beyond that conferred upon them by law. At least
in this
sense, then, the principle of legality is implied within the
terms of the interim Constitution. Whether the principle of the rule
of law has greater content than the principle of legality is not
necessary for us to decide here. We need merely hold that fundamental
to the interim Constitution is a principle of legality.
”
In addition, in this regard s 6(2)(a)(i) of PAJA is instructive.
[22] The preamble to the Act provides,
inter alia
, that, it
sought:
“
To change the law governing public passenger road transport
in Gauteng, and for that purpose –
to provide for a public passenger road transport system as part of
an integrated system of land transport for Gauteng, compatible
with
the national land transport system and the land transport systems of
the other provinces;
to provide for the planning of public passenger road transport
operations and infrastructure integrated with land use planning;
to provide for the regulation and control of public passenger road
transport by provincial and local government;
…
and to provide for matters connected therewith.
”
From this, it is plain that
integrated public passenger transport, the control and regulation
thereof, by provincial and local government,
is prominent. The
purpose of the Act has been set out earlier in this judgment. The
purpose in subsections (a), (f), (g), (k) and
(m) of s 1 is more
relevant to the present matter.
[23] Section 93 of the Act, the
main bone of contention, makes it clear that its provision is a
“
special
emergency measure
”
and it is inserted in Part 13 of the Act, under the heading, “
LAW
ENFORCEMENT
”.
Section 93(1) explains what is the trigger-point of the special
emergency measure envisaged. The determinative phrase
in s 93(1) is
“
where he or she
is of the opinion that this is necessary to normalize the situation
in the area characterised by violence, unrest
or instability
”.
There is, unfortunately no definition of “
characterised
by violence, unrest or instability
”
in the Act. However, as shown and found under the previous ground of
review, the nature of the alleged presence of violence
by the
respondent does not warrant the invocation of the emergency
provision. This, in spite of the respondent’s assertion
in his
reasons that, “
I
as the MEC responsible for Roads and Transport, indeed I am of such
opinion. After careful considering of the information provided
by the
relevant officials
,
I decided that the closure of the routes specified in the schedule
attached to Notice 1070 of 2010 (‘the routes’),
was
required
” (my
underlining). I have already found that there was no factual basis
for this opinion. The identity of the relevant officials
is not
disclosed. The same applies to the manner of gathering the
information.
[24] Section 93(2) and (3) show
that the respondent has to deal with the process in two stages. The
two stages cannot be kept
separate, strictly speaking. First, the
respondent must publish a notice, and secondly, he must make the
Regulations. It is significant
that the publishing of the Notice
must meet the requirements as set out in s 93(3) of the Act, in
particular sections 93(3)(c),
(d) and (e). It is unnecessary to
repeat the provisions. However, what is plain is that the Notice,
which is attached to Annexure
FA4 to the founding papers does not
contain a specific period as is required by s 93(3)(c) of the Act. In
this regard the Notice
merely states:
“
The proposed regulations will be in force and effect until
further notice.
”
The notice is therefore blatantly defective in that regard. I have
previously dealt with the issue of the applicant’s request
for
reasons and the respondent’s reply thereto. The reasons were
requested on an urgent basis on 16 April 2010. However,
the
respondent did not respond immediately, as stated earlier. But
instead later posted its reasons by surface mail for reasons
not
satisfactorily explained. The result was that the applicant did not
receive the reasons before the Regulations were made, nor
did the
applicant receive the reasons until the respondent’s answering
affidavit was served. The respondent’s argument
that emergency
measures were a decision which had to be taken quickly to normalise
the situation in the affected area is not convincing
at all. Further
that if the respondent was expected to first furnish reasons, and
then wait for the applicant to supplement its
representations, the
process would almost certainly have been contentious and drawn out.
This argument of the respondent does
not ameliorate the situation. It
ignores the prejudice suffered by the applicant in the process.
[25] Section 93(4) of the Act which provides that:
“
The
MEC
must
consider any representations received under subsection (3) before
making the regulations under subsection (2)
”,
is undoubtedly mandatory. In para 16 of his supplementary answering
affidavit the respondent states:
“
16. I accordingly deny that I have fallen foul of the
requirements of sections 93(3) and (4) of the Act. Even in the
unlikely
event of this Honourable Court finding that I failed to
comply strictly with the requirements of sections 93(3) and (4) of
the
Act (which is denied), I am advised that having regard to the
objects of section 93, the nature and purpose of, and the need to
make the Regulations, and the urgency of the Regulations, that it was
reasonable and justifiable in the circumstances for me to
depart from
the requirements of section 93(3) and (4) of the Act. Further
argument in this regard will be addressed to the Honourable
Court at
the hearing of this matter.
”
In
Nkisimane and Others v Santam Insurance Co Ltd
1978 (2) SA
430
(A), the court was concerned with the interpretation of s 25 of
the Compulsory Motor Vehicle Insurance Act 56 of 1972. After dealing
with the historical interpretations placed on peremptory and
directory statutory requirements, Trollip JA at p 434A-D said:
“
These
must ultimately depend upon the proper
construction
of the statutory provision in question, or, in other words, upon the
intention of the lawgiver as ascertained from
the language, scope,
and purpose of the enactment as a whole and the statutory requirement
in particular (see the remarks of VAN
DEN HEEVER J in Lion Match Co
Ltd v Wessels
1946 OPD 376
at 380). Thus, on the one hand, a
statutory requirement construed as peremptory usually still needs
exact compliance for it to
have the stipulated legal consequence, and
any purported compliance falling short of that is a nullity. (See the
authorities quoted
in Shalala v Klerksdorp Town Council and Another
1969
(1) SA 582
(T)
at
587A - C.) On the other hand, compliance with a directory statutory
requirement, although desirable, may sometimes not be necessary
at
all, and non- or defective compliance therewith may not have any
legal consequence (see, for example, Sutter v Scheepers
1932 AD 165).
In between those two kinds of statutory requirements it seems that
there may now be another kind which, while it is regarded as
peremptory, nevertheless only requires substantial compliance in
order to be legally effective (see JEM Motors Ltd v Boutle and
Another
1961
(2) SA 320
(N)
at
327 in fin - 328B and Shalala's case supra at 587F - 588H, and cf
Maharaj and Others v Rampersad
1964
(4) SA 638
(A)
at
646C - E). It is unnecessary to say anything about the correctness or
otherwise of this trend in such decisions. Then, of course,
there is
also the common kind of directory requirement which need only be
substantially complied with to have full legal effect
(see, for
example, Rondalia Versekeringskorporasie Bpk v Lemmer
1966
(2) SA 245
(A)
at
257H - 258H).
”
See also
Special Investigation Unit v Nadasen
[2002] 2 All SA
170
(A). In
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC), Ngcobo J (as he then
was), at paras [90] and [91] said:
“
[90] The emerging trend in statutory construction is to
have regard to the context in which the words occur, even where the
words
to be construed are clear and unambiguous. Recently, in
Thoroughbred Breeders' Association v Price Waterhouse, the SCA has
reminded
us that:
'The
days are long past when blinkered peering at an isolated provision in
a statute was thought to be the only legitimate technique
in
interpreting it if it seemed on the face of it to have a readily
discernible meaning. As was said in University of Cape Town
v Cape
Bar Council and Another
1986
(4) SA 903 (A)
at
914D - E:
''I am of the opinion that the
words of s 3(2) (d) of the Act, clear and unambiguous as they may
appear to be on the face thereof,
should be read in the light of the
subject-matter with which they are concerned, and that it is only
when that is done that one
can arrive at the true intention of the
Legislature.''
The
well-known passage in the dissenting judgment of Schreiner JA in Faga
v Dönges NO and Another; Bhana v Dönges NO and
Another
1950
(4) SA 653 (A)
at
662G - 663A was also quoted with approval. It is of course clear that
the context to which reference is made in the latter case
must
include the long title and chapter headings. (Compare Swart en 'n
Ander v Cape Fabrix (Pty) Ltd
1979
(1) SA 195
(A)
at
202C
.)'
[
91] The technique of paying
attention to context in statutory construction is now required by the
Constitution, in particular, s
39(2). As pointed out above, that
provision introduces a mandatory requirement to construe every piece
of legislation in a manner
that promotes the 'spirit, purport and
objects of the Bill of Rights'. In Investigating Directorate: Serious
Economic Offences
and Others v Hyundai Motor Distributors (Pty) Ltd
and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and
Others this Court explained the meaning and the
interpretive role of s 39(2) in our constitutional democracy as
follows:
'This
means that all statutes must be interpreted through the prism of the
Bill of Rights. All law-making authority must be exercised
in
accordance with the Constitution. The Constitution is located in a
history which involves a transition from a society based
on division,
injustice and exclusion from the democratic process to one which
respects the dignity of all citizens, and includes
all in the process
of governance. As such, the process of interpreting the Constitution
must recognise the context in which we
find ourselves and the
Constitution's goal of a society based on democratic values, social
justice and fundamental human rights.
This spirit of transition and
transformation characterises the constitutional enterprise as a
whole.'
”
It is equally true and trite that it is a
primary rule of statutory construction that words in a statute must
be given their ordinary
grammatical meaning in the light of their
context.
[26] From the above principles, it is plain
that the use of the word “
The MEC must
”, in s
93(4) of the Act creates a mandatory provision. There is no
discretion. The respondent was therefore not entitled
to make the
Regulations until such time as he had considered the applicant’s
representations made after receiving the respondent’s
reasons.
This did not happen despite the respondent’s assertions to the
contrary. In fact, para 16 of the respondent’s
supplementary
answering affidavit quoted above, shows that the respondent fails to
appreciate the distinction between mandatory
provisions on the one
hand, and directory provisions, on the other hand. Cora Hoexter
Administrative Law in South Africa
(2007) at p 47 states that:
“
As a general rule statutory
requirements must be observed: A court will not likely accept that
the legislature has used words in
vain. It is of course open to the
legislature to stipulate what the consequences are of non-compliance
with the provision. Where
he does not do so, the question arises
whether non-compliance or less than perfect compliance will lead to
invalidity. The answer
depends at least partly on whether the court
regards the provision as ‘mandatory’ or merely
‘directory’
(permissive). If it is the former, strict
compliance may be required on pain of invalidity; if the latter,
partial compliance
or even non-compliance is more likely to be
acceptable.
”
Indeed, a statute that takes away the existing rights of citizens,
such as the present application, should be constructed restrictively.
There is ample authority for this proposition. Indeed, public
officials such as the respondent, who act in public interest, should
comply diligently with Regulations and other directions aimed at the
attainment of transparency and accountability. See in this
regard
Choice Decisions v MEC, Department of Development, Planning and
Local Government, Gauteng, and Another (No. 2)
2003 (6) SA 304
(W). For all these reasons, the review based on the ground that the
respondent failed to comply with the provisions of s 93 of
the Act,
must also succeed.
[27] I now turn to the third ground of review advanced by the
applicant, namely that in making the Regulations, and closing the
ranks and the routes, the respondent acted with an ulterior purpose
or ulterior motive. This is undoubtedly, a serious allegation
levelled against the respondent. The respondent vehemently denies
the allegation. In paras 18, 19 and 20 of his supplementary
answering affidavit, the respondent states:
“
18. I deny that I used the emergency measures under
section 93 of the Act for an ulterior purpose of ulterior motive.
19. The emergency measures under section 93 of the Act are
intended for purposes of normalizing the situation in an area that is
characterized by violence, unrest or instability.
20. The applicant seeks to suggest that there must first be a
bloodbath before I am permitted to legitimately invoke the provisions
of section 93 of the Act. This can simply not be the case. On a
plain reading of the section, all that it requires is that the
area
must be characterized by violence, unrest or instability. If anyone
of the jurisdictional facts is present, and provided
I am of the
opinion that the measures are necessary to normalize the situation,
then I am entitled to invoke the provisions of
section 93 of the
Act.
”
Furthermore, in para 12.3 of his reasons (page 101 of the bundle),
which purports to be his actual purpose and/or motive, the respondent
states as follows:
“
12.3 The closure of the Routes is an interim measure aimed
at securing the safety of commuters who travel in particular areas
that
are characterised by unrest and instability, and whose safety,
therefore, has been compromised. Your client will be free to operate
on the Routes once the unrest and instability has ceased and the
Routes have been re-opened.
”
Indeed, the applicant admits that there was only one serious incident
that can be correctly described as or characterised as “
violence,
unrest or instability
”. This is the shooting incident that
occurred on 30 April 2010. In this regard, the applicant, in para 26
of its supplementary
founding affidavit states as follows:
“
26. At this juncture I point out that the applicant, in
paragraph 20 of the founding affidavit in Part A, conceded that it
was
aware of one isolated incident of violence which occurred on 29
April 2010. That is, presumably, the same incident that the
respondent
refers to in its answering affidavit although the parties
disagree on the date – the applicant thinks the shooting took
place
on 29 April whilst the respondent thinks it happened on 30
April. The date is not what is relevant, what is relevant is that I
have now been able to ascertain that the shooting did not take place
on a route operated by WATA but rather on a route operated
by a rival
taxi organisation ‘STS’ (Soweto Taxi Services). WATA
has, in the press, repeatedly distanced itself from
the shooting and
made it patently clear that it was not responsible nor does it in any
way condone this kind of violence. Due to
the pressure under which
this affidavit was prepared, I am still gathering that proof and
reserve the right to provide it in reply
as the respondent denies
that it happened on an ‘STS’ route.
”
However, the applicant argues that since the shooting did not occur
on WATA routes, but on STS (Soweto Taxi Services) routes, the
subsequent closure of the WATA routes, displays an improper motive.
I have already found that, on the basis that there is no genuine
factual dispute on the issue of violence, the respondent’s
conduct and decision in closing the ranks and routes of the applicant
was irrational and beyond the powers of the respondent conferred by
the Act. Although there is no factual violence, implicating
the
applicant and its routes and ranks, I am unable to agree with the
applicant’s submission that the respondent had an ulterior
motive. There is no conclusive proof, on a balance of probabilities,
for the submission. The applicant admits the presence of limited
violence, although not occurring on its routes. Furthermore, having
in mind the duties and responsibilities of the respondent
as
envisaged in the purpose and object of the Act, it is difficult to
conclude reasonably that the respondent, albeit mistakenly,
did not
have in mind the safety of passengers. In para 45 of his
supplementary heads of argument, the respondent in fact argues
that
the closure of the routes is a measure aimed at securing the safety
of commuters who travel in particular areas that are characterised
by
unrest and instability. The respondent therefore sees this as a valid
reason, once more, albeit mistakenly, for invoking the
special
measures. It must be remembered that the applicant is not the only
taxi association that services the estimated 60% of
South Africans or
South Africa’s commuters who use mini-bus taxis. The motives
suggested by the applicant, namely that the
Government is co-ercing
the applicant into buying into the BRT system by closing the ranks
and the routes, is plainly not the only
reasonable inference to be
made. There is no factual basis for this.
[28] For these reasons, there is accordingly no basis for the
complaint made by the applicant in regard to this ground of review.
[29] I deal with the final ground of review pursued in closing
argument. This is that, by closing the ranks and the routes the
respondent is arbitrarily depriving the applicant of its property.
The complaint is that the respondent’s conduct in bringing
the
Regulations into effect under the guise of the empowering provisions
of s 93 of the Act, which will limit and/or interfere
with the taxi
owners’ property, is what falls to be scrutinised for
constitutional muster. For this submission, the respondent
relies on
s 25(1) of the Constitution, as well as certain case law.
[30] In the light of the finding in favour of the applicant on the
first two grounds of review above, it becomes unnecessary to
deal
extensively with the instant ground of review. The previous findings
must, of necessity, impact on the applicant and its
members’
rights to property. Furthermore, the crisp contention of the
respondent is that there is a clear rational relationship
between the
closure of the routes and the end sought to be achieved thereby
being, to normalise the situation in the affected areas.
The
respondent in fact concedes that the implementation of the
Regulations will have the effect of depriving members of the
applicant
of the income they would have earned through their
operations. This, however, the respondent argues will be of
temporary duration.
Alternatively, the respondent argues that the
deprivation of property is not at all arbitrary, and that the
provisions of s 36(1)
of the Constitution were applicable. Both
parties on this aspect rely on
First National Bank SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service
[2002] ZACC 5
;
2002 (4) SA
768
(CC).
[31] The concessions made by the respondent, by implication, meet
the contention of the applicant that if the Regulations remain
in
place, the following are inescapable consequences. The taxi routes
are closed; taxi owners will not receive an income from
the fare that
they charge commuters; and income and money, because they contribute
to one’s estate can properly be called
‘
property’
for the purposes of constitutional protection; members of the
applicant organisation operate their taxis and ranks along certain
routes; and that the taxi owners earn an income from their taxi
operations.
[32] Section 25(1) of the Constitution indeed guarantees the right
to all property-holders, in the following terms:
“
No one may be deprived of property except in terms of law
of general application, and no law may permit arbitrary deprivation
of
property.
”
The constitutional issue under consideration is whether or not, by
closing the ranks and routes operated by the applicant, the
respondent is arbitrarily depriving the applicant of its property.
In the light of the respondent’s concessions referred
to above,
as well as his reliance on s 36(1) of the Constitution, it is
unnecessary to decide the issue whether the property of
the applicant
is implicated. It clearly is implicated. It is equally not
necessary to decide the issue whether the Regulations
actually
deprive the applicant of its property. The only issue to be
determined is whether the deprivation of property facilitated
by the
invocation of the Regulations is arbitrarily.
[33] As far as back as 1942, many years before our democratic order,
and in
Loxton v Kenhardt Liquor Licensing Board
1942 (A) 275,
the court considered the word “
arbitrary
” in
regarding to s 29(1) of the Liquor Act 30 of 1928. This case involved
the cancellation of two liquor licences of the
applicant by the
respondent. The court had to decide whether in cancelling the
licences, the Liquor Board exercised its powers
in an arbitrary or
grossly unreasonable manner. In upholding the appeal, Feetham JA
approved the test laid down by Tindall J in
Pietersburg Club Ltd v
Pietersburg Licensing Board
[1931] TPD 217
at p 224. The test
was in the following terms:
“…
But in the present case we are not dealing with
the common law; the Statute allows a review if the Board exercised
its powers in
an arbitrary or a mala fide or a grossly unreasonable
manner. As the expression ‘grossly unreasonable’ is used
as
an alternative to mala fide it cannot be argued that the
unreasonableness must be so gross as to justify an inference of mala
fides.
I think, therefore, that there is no need for the
unreasonableness to be so gross as to give rise to an inference of
one or other
of the elements mentioned in the judgment cited; it is
sufficient if the powers have been exercised in a grossly
unreasonable
manner. Restrictions in a licence seem to me grossly
unreasonable where they are so unreasonable where they are so
unreasonable
that no reasonable man, applying his mind to the
condition of affairs dealt with, would impose such restrictions.
”
Indeed, this appears to be still good law today. If not, the issue
was resolved in
First National Bank of SA t/a Wesbank v
Commissioner, South African Revenue Services
(
supra
). The
Court had to deal with the constitutional challenge by the appellant
to the provisions of s 114 of the Customs and Excise
Act
91 of
1964. At paras [65]-[67] of the judgment, Ackermann J said:
“
[65] In its context 'arbitrary', as used in s 25, is not
limited to non-rational deprivations, in the sense of there being no
rational
connection between means and ends. It refers to a wider
concept and a broader controlling principle that is more demanding
than
an enquiry into mere rationality. At the same time it is a
narrower and less intrusive concept than that of the proportionality
evaluation required by the limitation provisions of s 36. This is so
because the standard set in s 36 is 'reasonableness' and
'justifiability', whilst the standard set in s 25 is 'arbitrariness'.
This distinction must be kept in mind when interpreting and
applying
the two sections.
[66] It is important in every case in which s 25(1) is in issue
to have regard to the legislative context to which the prohibition
against 'arbitrary' deprivation has to be applied; and
also to the nature and extent of the deprivation. In
certain circumstances the legislative deprivation might be such that
no more
than a rational connection between means and ends would be
required, while in others the ends would have to be more compelling
to prevent the deprivation from being arbitrary.
[67] De Waal et al
Above
n 79 at 422.
are of the view that a deprivation 'is arbitrary' for purposes of
s 25(1) 'if it follows unfair procedures, if it is irrational,
or is
for no good reason'. The protection against unfair procedure has
particular relevance to administrative action - which protection
is
provided for under s 33 of the Constitution - but it could also apply
to legislation and be relevant to determining whether,
in the light
of any procedure prescribed, the deprivation is arbitrary. Although
the learned authors
conclude that
'the
substantive element of s 25(1)'s non-arbitrariness requirement
probably does not involve a proportionality enquiry',
their conclusion that deprivation would be arbitrary if it took
place 'for no good reason' seems to import a stricter evaluative
norm
than mere rationality, although less strict than the proportionality
evaluation under s 36.
”
After examining extensively, approaches
followed in other democratic systems, Ackermann J concluded on the
meaning of ‘arbitrary’
in s 25 of the Constitution, as
follows in para [100], as follows:
“
[
100]
Having regard to what has gone before, it is concluded that a
deprivation of property is 'arbitrary' as meant by s 25 when
the
'law' referred to in s 25(1) does not provide sufficient reason for
the particular deprivation in question or is procedurally
unfair.
Sufficient reason is to be established as follows:
(a) It is to be determined by evaluating the relationship between
means employed, namely the deprivation in question and ends sought
to
be achieved, namely the purpose of the law in question.
(b) A complexity of
relationships has to be considered.
(c) In evaluating the deprivation in question, regard must be had
to the relationship between the purpose for the deprivation and
the
person whose property is affected.
(d) In addition, regard must be had to the relationship between
the purpose of the deprivation and the nature of the property as
well
as the extent of the deprivation in respect of such property.
(e) Generally speaking, where the property in question is
ownership of land or a corporeal moveable, a more compelling purpose
will have to be established in order for the depriving law to
constitute sufficient reason for the deprivation than in the case
when the property is something different and the property right
something less extensive. This judgment is not concerned at all
with
incorporeal property.
(f) Generally speaking, when the deprivation in question embraces
all the incidents of ownership, the purpose for the deprivation
will
have to be more compelling than when the deprivation embraces only
some incidents of ownership and those incidents only partially.
(g) Depending on such interplay between variable means and ends,
the nature of the property in question and the extent of its
deprivation,
there may be circumstances when sufficient reason is
established by, in effect, no more than a mere rational relationship
between
means and ends; in others this might only be established by a
proportionality evaluation closer to that required by s 36(1) of the
Constitution.
(h) Whether there is sufficient reason to warrant the deprivation
is a matter to be decided on all the relevant facts of each
particular
case, always bearing in mind that the enquiry is concerned
with 'arbitrary' in relation to the deprivation of property under s
25.
”
Ackermann J went on to find that
the deprivation in s 114 of the Customs and Excise Act 91 of 1964 was
accordingly arbitrary for
purpose of s 25(1) of the Constitution, and
therefore a limitation (infringement) of the concerned person’s
rights. See
also
Mkontwana
v Nelson Mandela Metropolitan Municipality
[2004] ZACC 9
;
2005 (2) BCLR 150
(CC) at paras [34]-[35].
[34] Based on the above legal
principles, as well as the common cause facts, and the concessions
made by the respondent in the
present matter, the Regulations are
plainly both procedurally and substantively arbitrary in the
circumstances. Having regard
to the purpose and scope and, in
particular the public interest functions of the Act, as described
earlier in this judgment, there
is nothing constitutionally that
prevents Government from depriving citizens of their property.
However, the Government cannot
do so in an arbitrary manner. In the
present matter, there is no justifiable relationship between the
closure of the ranks and
the routes, and the end sought to be
achieved thereby. The purpose is to normalise the situation
allegedly characterised by unrest
and instability. There is no
credible evidence of unrest and instability. The argument that the
Regulations are to endure for
a limited period or will expire should
the situation become normal, is without merit at all. Although of
paramount consideration,
the safety of commuters is being advanced as
the reason for the closure of the ranks and routes unjustifiably.
Similarly, the
argument advanced that the limitation of the
appellant’s property rights is reasonable and justifiable in
terms of s 36(1)
of the Constitution, is misplaced. There is plainly
no credible evidence or submission present that might be relevant in
applying
s 36(1) of the Constitution. On the papers, it is clear
that the harm likely to be suffered by members of the applicant
hugely
outweighs any benefits to society. There is no evidence of
harm. On the other hand, if the Regulations remain in place, both
members
of the applicant and ordinary commuters who require taxi
services are likely to suffer substantial prejudice. Therein lies
the
proportionality assessment which impacts adversely on the
constitutional rights of the applicant. The Regulations are
undoubtedly
unconstitutional. Consequently, the ground of review
based on the deprivation of property on an arbitrary manner, must
succeed
as well.
[35] I conclude that for all the
above reasons, the decision and/or operation of the decision by the
respondent to close all routes
and the portion of the ranks operated
by the applicant to the operation of mini-bus taxi type services
calls to be reviewed and
set aside. The costs ought to follow the
result. It has not been argued otherwise.
ORDER
[36]
1. An order is granted in terms of prayer (1) of Part B of the
Notice of Motion dated 27 May 2010.
2. The respondent is ordered to pay the costs of the application,
including the costs incurred under Part A of the Notice of Motion.
______________________________
D S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT K HOPKINS
INSTRUCTED BY SCHINDLERS ATTORNEYS
COUNSEL FOR THE RESPONDENT M G KHOZA SC
WITH M J RAMAEPADI
INSTRUCTED BY THE STATE ATTORNEY
DATE OF HEARING 2 JUNE 2010
DATE OF JUDGMENT 3 SEPTEMBER 2010