About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 12
|
|
Mafisa v Greater Bloemfontein Taxi Association and Another (3235/2022) [2023] ZAFSHC 12 (23 January 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 3235/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
RETSHEDISITSOE
ISAAC
MAFISA
Applicant
And
GREATER
BLOEMFONTEIN TAXI ASSOCIATION
1
st
Respondent
MOFEREFERE
SHADRACK MAPHISA
2
nd
Respondent
HEARD
ON:
17 NOVEMBER 2022
JUDGMENT
BY:
MHLAMBI, J
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
hand-down are deemed to be at 14h30 on 23 January 2023
[1]
The applicant successfully obtained an order on 21 October 2022
interdicting the respondents
from preventing his vehicle from loading
passengers with his licencing permit at the Majakathata taxi rank.
The rule
nisi
was granted on the following terms:
“
1.
The forms, service and time periods prescribed in terms of the
Uniform Rules of Court be dispensed with
and the matter be admitted
on the roll as one of urgency in terms of rule 6 (12) of the Uniform
Rules of Court.
2.
The rule nisi is issued in terms whereof the First and Second
Respondents are called upon
to show cause on the
3rd of November
2022, at 9h30
why an order in the following terms should not be
made a final order of the above Honourable Court.
2.1
That the respondent be interdicted from preventing the applicant’s
vehicle from loading at the Taxi Rank known as Majakathata Taxi Rank
in line with a permit with number: [....]held by the applicant
for
the vehicle in question.
2.2
That the respondent be interdicted from instructing or affecting
or
causing any driver of the Applicant to vacate the Taxi rank where he
is supposed to load.
3.
Prayer 2.1 and 2.2 above shall serve as an interim interdict against
the Respondents until
the return date.
4.
The Respondent are entitled to anticipate the return date on 24 hours
written notice to the Applicant’s
attorney.
5.
The applicant is granted leave, in the event that the respondents
fail or omit to comply
with the order referred to in paragraph 2.1
and 2.2 supra, to approach the court on the same papers, duly
supplemented where necessary,
for an order of contempt of court.
6.
This Court Oder must be served on the First and Second Respondent by
the Sheriff of this
Court at [....] [....] B [....] Road, Heidedal,
Bloemfontein within 24 hours of the date of the order.
7.
The respondent is ordered to pay the costs of the application on an
attorney and client scale.”
[2]
The applicant is a member of the first respondent to whom the second
respondent is affiliated.
The applicant bought an operating licence
on 6 August 2019 from one Ms. Nontsokolo May. The second respondent
refused to issue
the applicant with a letter to facilitate the
registration of the vehicle in his name. Ms Nontsokolo May obtained
an order on 6
August 2020 compelling the first respondent to sign all
necessary documents to facilitate the transfer of the licence into
the
name of the applicant.
[3]
The second respondent having complied with the court order, the said
Ms May refused
to sign the transfer documents. Another court order
was granted against her to sign such transfer documents on 24 March
2022. Another
court order was obtained against the chairperson of the
first respondent when both Ms. Nontsokolo May and the chairperson of
the
first respondent refused to sign the relevant transfer documents.
The order was granted on 8 September 2022. The documents were
signed
by the first respondent and the operating permit was issued by the
Free State Licencing Board on 19 October 2022.
[4]
The second respondent and the chairperson of the Majalathata Taxi
Rank prevented the
applicant from loading passengers at the
Majakathata Taxi Rank on 20 October 2022. The applicant approached
the office of the first
respondent for intervention and was referred
to the office of the Majakathata Association as he had an operating
licence. He did
so on 21 October 2022, but his vehicle was prevented
from loading passengers by the second respondent. The applicant then
approached
the court on an urgent basis for the necessary relief.
[5]
In its papers, the first respondent expressed its co-operation in
securing the applicant
his operating licences
[1]
and that it complied with the court order
[2]
.
Save to lament and to completely go off on a tangent on procedural
matters which included the loading of passengers, the first
respondent admitted that the applicant approached the chairperson of
the first respondent to discuss his concerns.
[3]
The counsel for the first respondent called it a day after a brief
oral address during the court proceedings. Mr Bahlekazi, counsel
for
the applicant, was prompted to submit that it was not clear to him
why the first respondent opposed the application; more so
that it was
acknowledged that the permit was valid.
[6]
The second respondent raised the following preliminary points: the
lack of urgency,
the non-joinder of the MEC for Police, Roads and
Transport, Free State Transport Licencing Board and Ms Nontsokolo
May, the non-compliance
with Rule 12 (1)(b) of the Uniform Rules of
Court and the lack of a clear right. It is opportune to state that
during argument,
the second respondent’s counsel conceded and
did not oppose that a final order be granted in respect of prayer 2.1
of the
interim interdict of 21 October 2022 but took up issue with
prayer 2.2 of the same order. These two prayers serve as an interim
interdict. The rationale of separating the second prayer from the
first is not clear.
[7]
On receipt of the urgent application, the second respondent, as
chairman of the Majakathata
Taxi Rank, and his deputy, called Ms
Nontsokolo May to discuss the applicant’s reasons and the
“
purported
urgency
”
raised in the application.
[4]
It
was stated in the affidavit that it was not true that the applicant
struggled to pay the bank as he was, on his own version,
been active
in the taxi industry since 2019.
[5]
The Majakathata Taxi Rank Association took a decision based on a
complaint by Ms May in July 2021 not to allow the applicant to
transport passengers to far-flung destinations, an aspect of the
decision he accepted and never challenged for more than a year.
[6]
It had taken the applicant a period of a year, from July 2021 until
21 October 2022, to bring the present application on an urgent
basis
on the basis that he was unable to pay the bank.
[7]
[8]
The second respondent missed the point and, clearly, did not read the
papers properly.
The interim interdict referred to a specific permit,
granted on the 19
th
of
October 2022 and the events giving rise to the application took place
on 20 to 21 October 2022. Nowhere in the applicant’s
papers was
it alleged, as the second respondent suggested, “
that
the applicant cannot now bring this matter on an urgent basis simply
because he wants Majakathata to add him as a new member,
to wit, to
be the number 23 member forgetting and misdirecting himself to the
real issue that regardless of its alleged permit,
he still has to
operate under the umbrella of the permit holder Miss Mei in terms of
their own private arrangement.”
[8]
[9]
It is clear that the second respondent, instead of addressing the
issues at hand,
referred to historical and irrelevant issues. The
attitude of the second respondent in this application is captured in
the following
paragraph:
“
these
standing rules of our taxi association of The Greater Bloemfontein
Taxi Association that says, only 22 members are the members
of
Majakathata Long Distance Association under the umbrella of Greater
Bloemfontein Taxi Association, I submit that it is a well-known
standing rule by both the applicant and Miss Mei even before they
could enter into these private arrangements (or be it to be
questionable) since both of them are members of Greater Bloemfontein
Taxi Association and only Ms Nontsokolo Mei is a member of
Majakathata Long Distance of which the applicant is not our member.
He only operates with us at Majakathata Long Distance route
under the
umbrella of Ms Nontsokolo Mei as gleaned from the attached annexures
marked “F1”, “F2” and “F3”
referred at paragraph 4.1.1.7 herein above. The applicant is not on
the listed 22 members of Majakathata Long Distance Route Association
and this fact can be confirmed as well by both Greater Bloemfontein
Taxi Association the mother body and Miss Nontsokolo Mei who
entered
into such private dealings with Applicant.
4.1.1.10
(a) In this regard I challenge the applicant to prove who granted him
membership if any, to join Majakathata Long Distance
Route
Association, except than what we know as fact that, he nearly
operating under the umbrella wing of our member Ms Nontsokolo
May.”
[9]
[10]
The second respondent submitted that the applicant was not prevented
from loading commuters at
the Majakathata Long Distance Rank as long
as he complied with the terms and conditions of the private
arrangement with Ms May
relating to the sale agreement of the taxi
permit which, in their view, was illegal as it flaunted the
provisions of the
National Land Transport Act 5, 2009
. Their private
arrangement should not affect the standing rules and practices of the
Greater Bloemfontein Taxi Association and
the Majakathata Long
Distance Rank.
[10]
[11]
The preliminary points of non-joinder and the lack of a clear right
do not hold water and should
be disregarded. The Free State Operating
Transportation Board resorts under the Department of Transport. It
issued and granted
an operating licence L[....]under the umbrella of
the Greater Bloemfontein Taxi Association, which was valid from 17
October 2022
to 28 April 2023. Surely this document authorises the
applicant to conduct a transportation business for the conveyance of
passengers
as per the conditions set out therein without the
interference of third parties. Having issued a valid and lawful
operating licence,
I do not see any logic of joining the parties as
suggested by the second respondent. The second respondent is free to
approach
the MEC and other parties if aggrieved and so chooses.
[12]
On perusal of the papers, it is evident that the second respondent is
the person who is at the
root of the current problem.
[11]
There is no reason whatsoever why the first respondent opposed the
application and, in doing so, pushed up the costs of the application.
Both parties should be liable for the costs and in the given
circumstances, costs on a punitive scale are appropriate. Both
parties
failed to adduce reasons and/or show cause why a final order
should not be granted. Consequently, I make the following order:
Order:
1.
The rule nisi is confirmed.
2.
First and second respondents are to pay the
applicant’s costs on an attorney and client scale, jointly and
severally, the
one paying the other to be absolved.
MHLAMBI,
J
On
behalf of applicant:
Adv. NM Bahlekazi
Instructed
by:
Lwandle Nkontso Inc Attorneys
54
Kellner Street
Bloemfontein
On
behalf of the first respondent:
Adv. LW Mohale
Instructed
by:
OMM Attorneys Inc.
Regus
Business Centre
Unipark
Building
Brandwag
Bloemfontein
On
behalf of the second respondent:
Mr MJ Ponoane
Ponoane
Attorneys
Suite
110
Library
House
44
Westburger Street
Bloemfontein
[1]
Paragraph 6 and 9 of the Answering Affidavit.
[2]
Paragraph 8 of the Answering Affidavit.
[3]
Paragraph 12.1 of the Answering Affidavit.
[4]
Paragraph 4 of the Second Respondent’s Answering Affidavit.
[5]
Paragraph 4.1.1.5 of the Second Respondent’s Answering
Affidavit.
[6]
Paragraph 4.1.1.6 of the Second Respondent’s Answering
Affidavit.
[7]
Paragraph 4.1.1.8 of the Second Respondent’s Answering
Affidavit.
[8]
Paragraph 4.1.1.11 of the Second Respondent’s Answering
Affidavit.
[9]
Paragraph 4.1.1.10 of the Second Respondent’s Answering
Affidavit.
[10]
Paragraph 4.1.1.9 of the Second Respondent’s Answering
Affidavit.
[11]
See also the Founding Affidavit paragraph 3.