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[2010] ZAWCHC 345
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Overstrand Taxi Association and Others v Uncedo Taxi Association: Hermanus and Others (7779/09) [2010] ZAWCHC 345 (9 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
Number: 7779/09
In
the matter between:
OVERSTRAND
TAXI ASSOCIATION
First
Applicant
JULIA
ALAM
Second
Applicant
JEFFREY
ZOLILE ALAM
Third
Applicant
and
UNCEDO
TAXI ASSOCIATION: HERMANUS
First
Respondent
SIMON
NODOM
Second
Respondent
MONGEZI
PALISO
Third
Respondent
Z
SOQWANTULO
Fourth
Respondent
Z
MAXIBUKWANA
Fifth
Respondent
M
POSWA
Sixth
Respondent
B
MPONDOMBINI
Seventh
Respondent
WIZANA
MEJE
Eighth
Respondent
SEBENZILE
MGWADLA
Ninth
Respondent
M
MPONDOMBINI
Tenth
Respondent
T
MAXAMBA
Eleven
Respondent
W
MNASENI NTUTHO
Twelfth
Respondent
OVERSTRAND
MUNICIPALITY
Thirteenth
Respondent
JUDGMENT
DELIVERED ON 9 DECEMBER 2010
Baartman
J
[1]
This is an application for a final interdict, interdicting the
respondents from operating any mini bus taxi service in the
Overstrand Municipal area as a route based or short distance taxi
service (route based taxi services), commonly known as the mini
bus
taxi service, and further ancillary relief.
[2]
In this judgment, I deal only with the relief sought against the 1.
3, 4, 6, 7, 8, 11 and 12 respondents (the respondents).
On 8 March
2010. this court granted default judgment, a final interdict, against
the
2,
5
and 9 respondents. In these proceedings, the applicants have not
sought any relief against the 13
,ft
respondent.
[3]
On 8 May 2009, Goliath, J granted the following interim relief:
1)
The application is postponed forbearing on Monday 1 June 2009.
2)
A rule nisi do issue returnable on Monday 1 June 2009 calling upon
the first to twelfth respondents to show why an order should
not be
made in the following terms:
2.1.
Interdicting and restraining the first to twelfth respondents from
operating any mini bus taxi contrary to the conditions contained
in
the operating licence pertaining to such mini bus taxi;
2.2.
Interdicting and restraining the first to twelfth respondents from
operating any mini bus taxi in the Overstrand Municipal
area as a
route base or short distance taxi;
2.3.
Interdicting first to twelfth respondents from intimidating,
harassing, assaulting or using any form of violence against the
applicants and the members of the first applicant;
2.4.
Interdicting and restraining the first applicant from organizing or
encouraging the operation of a taxi association involved
with illegal
taxi business within the Overstrand Municipal area;
2.5.
Ordering the first to twelfth respondents to pay the cost of this
application;
3)
Paragraphs 2.1, 2.3 and 2.4 shall operate as an interim interdict
pending the return day;
4)
The applicants consent to an order that they be interdicted, pending
the return day. from intimidating, harassing, assaulting
or using any
form of violence against the respondents and the members of the first
respondent;
5)
First to twelfth respondents shall file their answering affidavits by
noon on Wednesday20 May 2009 ..."
BACKGROUND
[4]
The Overstrand Taxi Association (the first applicant) and the Uncedo
Taxi Association (the first respondent) conducted route
based taxi
services in the Overstrand Municipal area. The first applicant
alleged that its members did so legally and that the
second
respondent's members did so illegally. Members of the two
associations have been in dispute for a number of years, which
has
resulted in violent confrontations in which a number of persons have
lost their lives. Despite, the attempts to resolve the
issue by both
parties and law enforcement agencies, the violent confrontations have
continued even after the interim order referred
to above.
[5]
The applicants alleged that they held permits permitting them to
operate route based taxi services but that members of the first
respondent did not. In addition, so the applicants alleged, some of
the first respondent's members held temporary charter licences
permitting only the performance of charter services, while others
held no valid licences.
[6]
The National Land Transport Transition Act 22 of 2000 (the NLTTA)
provided for the issue of both licence types and permitted
the
performance of different functions in respect of each licence. The
NLTTA has been repealed but its provisions are relevant
to these
proceedings because it was the operative legal position at the times
relevant to this judgment. The
National Land Transport Act 5 of 2009
,
which commenced on 9 December 2009, has replaced the NLTTA. However,
the definitions for a mini bus taxi/type service and a charter
service are in essence the same in both acts. The NLTTA's different
services were as follows:
'Minibus
taxi type service' means an unscheduled public transport service
operated on a specific route or routes, or where applicable,
within a
particular area, by means of a motor-car. minibus or midibus, subject
to
Section 31.
'Charter
service" means a public transport service operated by road
involving the hire of a vehicle and a driver for a journey
at a
charge arranged beforehand with the operator, where -
Neither
the operator nor the driver charges the passengers individual fees;
The
person hiring the sen/ice has the right to decide the route, date and
time of travel; and
The
passengers are conveyed to a common destination."
[7]
In opposition, the first respondent alleged that all its members held
valid licences to operate route based taxi services. The
respondents
have further alleged that their licences were the same as those held
by members of the first applicant. The respondents
therefore asserted
the right to operate route based taxi services similar to the
applicants* operation.
[8]
The applicants have argued in this matter that "the respondents
systematically, and in an organised way, operate their
minibus taxis
in the Overstrand Municipal area as route based or short distance
taxis, which is contrary to the terms and conditions
of the temporary
charter licences that they have produced".
[9]
The
respondents called upon the applicants to produce their licences.
They did, although some only produced copies of their licences.
After
perusal of the licences, Mr Nombambela, the respondents legal
representative, conceded that the first applicants members
held
different licences to the first respondent's members, except for two
of the first applicants members. They held valid charter
licences but
the remainder held licences authorising them to operate route based
taxi services It does not appear from the papers
that those two
members had operated contrary to their licences. Mr Nombambela
further conceded that none of the respondents held
a licence
authorising that member to conduct route based taxi services.
[10]
Mohamed Joolay (Joolay), the chairperson of the Western Cape
Provincial Operating Licensing Board, attested to an affidavit
in
these proceedings and said that the policy of the Western Cape
Provincial Operating Licence Board (the Board) was to have only
one
taxi association operating in a particular area.
a)
The Board made exceptions in areas where parties had reached
agreement.
b)
He said that the Board did not issue temporary licences for route
based taxi operations.
c)
He further said the requirements and conditions for a temporary
operating licence (
charter
licence
)
were that it had a specific starting point as well as an end point,
with a specific reference to the group of people who were
to be
conveyed and the specific purpose for which the conveyance of the
persons was taking place.
d)
The temporary operating licence was intended for a once-off charter
of people for a specific function and/or event and not for
a route
based or short distance conveyance of persons for monetary gain.
Usually the same passengers must undertake the forward
and return
journey and the entire group must be picked up at the same place and
be returned to the same place on the departure.
[11]
The applicants have in the affidavits of Sharon Telling, Melvyn
Kepkar (Kepkar), Sam Nywebeni (Nywebeni), Matiwane Ntlapo.
Maria Yawa
(Yawa). Zolisa Msopi and Jeffrey Alam alleged that the respondents
operated route based taxi services contrary to their
licences. The
respondents have failed to deal with the allegations in those
affidavits; therefore those averments stand to be accepted.
(See
Moosa
and Another v Knox
1949(3)
SA 327(N) at 331.)
The
allegations contained in the uncontested affidavits
[12]
It is apparent tram Kepkar's affidavit that the first respondent's
members operated route based taxi services from a shack
on municipal
land, in Landlela Street, Zwelihle in the Overstrand area. The 13
th
respondent, the owner of the property, has since demolished the
shack; therefore the applicants sought no relief against the
13
ln
respondent. However, at the time when these proceedings were
instituted, the respondents operated route based taxi services from
that shack. It was the applicant's case that it was an illegal taxi
rank.
[13]
Bangile Nodom (Nodom), who attested to the respondents' founding
affidavit, confirmed that the first respondent's members
operated
from the shack.
"...we
the members of Uncedo Taxi Association operate from the said shack
indeed as our 'safe haven" for the following
reasons:...
Some
of our members have been shot and killed e.g. Anele Mgidlana and
Madodo William. ..."
[14]
It appears from Nywebeni's affidavit that he had noticed that
members of the first respondent "had started operating
more
openly and intentionally picking up commuters on our routes since
March 2009, whereas before they operated long distances
to the
Eastern Cape". He claimed that "I have also experienced
loss of my income as a taxi owner since Uncedo (first
respondent)
started operating in the Overstrand area during 2006."
[15]
Mr Ntlapo echoed the same sentiments, he said:
"I
operate out of the taxi rank in Zwelihle. Along with all the other
taxi drivers, I have noticed that since Monday. 16
March 2009, the
Uncedo Taxi Association has started to act far more forcefully than
ever before. They openly pick up passengers
and drop them off next
to our taxi rank in a challenging way that they have never done
before.'
[16]
Yawa made the following allegations:
"On
10 October 2006, for the first time ever, some Toyota Venture pirate
taxis started loading passengers in Gansbaai to
take them to the
Eastern
Cape.
/
will
never forget that day. I was shocked because I realized that I
now
had
to deal with unlawful competition.
I
went to the police and laid a complaint. The police came and
arrested the drivers of the Venture pirate taxis. They were fined
R1
000.00 and their vehicles were given back to them.
That
evening, a crowd of people came to my house and threw stones at my
house and sang songs of intimidation and toyi-toyied outside
my
house. I was very scared. I could hear them saying that I was a
witch and that I was jealous and that I wanted to make money
alone.
My husband has a gun. He shot into the air and they all ran away.
During
November 2006, my taxi was stopped in Graaff-Reinet by members of
Uncedo Taxi Association. They robbed my driver of R1200.00
and then
wrote a receipt for that amount. My husband was driving my taxi at
the time. This was done as an act of revenge against
me for having
caused Uncedo members to be fined by the police in Gansbaai. ...
Since
2006,1 have made no further complaints against the illegal taxi
operations of Uncedo in Gansbaai at the SAPS Gansbaai. ...
/
am no longer targeted and intimidated because I simply allow the
members of Uncedo Taxi Association to do what they want. I
am too
scared to try and stop them."
[17]
Mr Msopi said that he had experienced a reduction in income because
of the respondents' illegal taxi operations.
[18]
I am persuaded based on the uncontested affidavits that the first
respondent's members were at the times relevant to these
proceedings
operating route based taxi services. They have produced charter
licences that do not permit route based taxi services.
A
final interdict is justified
[19]
I now determine whether the applicants have, in the light of the
finding above, made out a case for a final interdict. The
requirements for a final interdict are well established. It is so
that the applicant for a final interdict must first establish
a
clear right. The applicant must also establish an act of
interference by the respondent and thirdly that there is no other
remedy available to such an applicant. (See The Law and Practice of
Interdicts at 42244 and Chevron South Africa (Pty) Ltd v
Awaiz at
110
Drakensberg
CC
(2008) 1 SA 557(T).)
[20]
Below, I deal with each requirements:
Clear
Right
[21]
The applicants alleged that they had a right to operate route based
taxi services in the Overstrand area, being authorised
in terms of
their permits. The applicants annexed the second and third
applicants' licences to their founding papers. It appears
from these
licences that the second and third applicants had indefinite
licences to operate route based taxi services. The licences
were
issued on 15 December 2005 and on
16
September
2005 respectively. I have indicated above that the respondents
called for the licences of all the first applicant's
members and
that the ones produced were primarily valid route based taxi
licences.
[22]
The applicants have established a clear right to operate freely
without intimidation in terms of the licences issued to them.
Act
of Interference
[23]
The applicants have alleged that since March 2009 the respondents'
illegal activities have caused a R200 per day per taxi
decrease in
their regular earnings. Sharon Telling said: (one of the uncontested
affidavits referred to above)
"I
have noticed a drop of about R200.00 per day in the money brought in
by my husband's taxis. We used to earn about R650.00
and R550.00 per
day per taxi. When Uncedo Taxi Association is operating forcefully,
we earn between R450.00 and R350.00."
[24]
Nodom said the following about the alleged drop in the applicants'
earnings:
"If
members of the first applicant are negatively affected financially
that is not known to me and my colleagues. However,
I would imagine
that indeed it could be ofenonvous frustration to have competition,
hence on 24 March 2009,. I was shot at and
injured at my place."
[25]
The respondents have asserted the right to compete with the
applicants. However, as indicated above, not one of the first
respondent's members had a licence authorising him/her to conduct
route based taxi services. The applicants have further alleged
that
the respondent's actions constituted unlawful competition. I agree.
[26]
Kepkar said that, on Saturday 27 February 2007, the first
respondents' members attempted to take over the applicants* taxi
rank at the Zwelihle taxi rank in the Overstrand area. Kepkar said
they ordered passengers out of the taxi he was in the process
of
loading and that he had sought police assistance as a result.
Despite police assistance, the act of aggression caused Kepkar
to
abandon his taxi operations for that day.
[27]
The respondents have not denied the alleged decrease in the
applicants' earnings; instead the respondents have alleged that
the
Overstrand offered adequate business opportunity for both sides.
Nodom said the following:
"...
we
dispute
in the strongest terms that we were issued with shuttle service
licences as our licences are not different to those of
the members
of the first applicant. Further thereto, Mr Mo Joolay, has not made
any confirmatory affidavit to what the deponent
has averred. It is
clear that the members of the first applicant are prepared to try
anything and everything to stop members
of the first respondent from
competing with them, even though members of the first respondent are
prepared to join forces with
them on an equal basis."
[28]
It is clear that the respondents competed with the applicants for
the route based taxi services. They did so illegally. I
am of the
view that the applicants have shown that the respondents have
interfered with their ciear right. (See V&A Waterfront
Properties v Helicopter & Marine Services 2006 (1)SA 252}
No
other
alternative remedy
[29]
The applicants have alleged that they have no other remedy. They
indicated that despite police interference the dispute,
between the
parties has resulted in violence and death.
[30]
Mr Nombambela submitted that the dispute should be referred to
mediation. The respondents want an amalgamated taxi association
and
the applicants want the respondents to join the first applicant as
individual members. Such members would have to submit
to the first
applicant's rules The parties are clearly not able to resolve their
dispute amicably.
[31]
In my view there is no alternative remedy. The applicants have thus
met the 3 requirements for a final interdict
ORDER
[32]
I, for the reasons set out above, make the following order.
"X"
BAARTMAN,
J