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[2023] ZAFSHC 433
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Welkom United Taxi Association and Others v Majakathata Long Distance Taxi Association (Odendaalsrus Majakathata Long Distance Taxi Association) and Others (5348/2021) [2023] ZAFSHC 433 (30 October 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other
Judges: NO
Circulate to Magistrates:
NO
Case No: 5348/2021
In
the matter between:
WELKOM
UNITED TAXI ASSOCIATION
1
st
Applicant
TSUKULU
JOEL MATLATSA
2
nd
Applicant
KGATELOPELE
TAXI ASSOCIATION
3
rd
Applicant
and
MAJAKATHATA
LONG DISTANCE TAXI ASSOCIATION
1
st
Respondent
(ODENDAALSRUS
MAJAKATHATA LONG DISTANCE
TAXI
ASSOCIATION)
MOHAHLAULA
TAXI ASSOCIATION AND OTHERS
2
nd
Respondent
(ODENDAALSRUS)
MEC:
DEPARTMENT OF POLICE, ROADS, AND
3
rd
Respondent
TRANSPORT
AND OTHERS
FREE
STATE PROVINCIAL REGULATORY AUTHORITY
4
th
Respondent
FREE
STATE TRANSPORT REGISTRAR
5
th
Respondent
MATJHABENG
LOCAL MUNICIPALITY
6
th
Respondent
HEARD
ON:
27 JULY 2023
JUDGMENT
BY
:
MHLAMBI,
J
DELIVERED
ON:
30 October 2023
[1]
On 16 November 2021, The applicants launched an application seeking
the following relief:
“
1.
That the 1st and 2nd respondents and their respective members, be
ordered to restore, immediately,
the 3rd applicant’s peaceful
and undisturbed possession of their offices situated at MEDEX
BUILDING, 4th Floor Room 16, Welkom
with immediate effect.
2.
That the 1st and 2nd respondents and their respective members be
interdicted and restrained
from operating on the Applicant’s
routes, being routes FS255, FS788 and FS 139, without valid permits
and or licences, with
immediate effect.
3.
That the 1st and 2nd respondents and their respective members, being
interdicted and directed
to desist from operating from an illegal
taxi rank situated at Erf No, 2[...], Township Welkom, Ext, 2 also
known as PTN of 2[...],
Welkom and/or any illegal taxi rank or
premises without any proper and/or valid authority.
4.
That the 1
st
and 2nd respondents and their respective
members be directed to remove or demolish an illegal taxi rank
situated at Erf No. 2[...],
Township Welkom, Ext 2 also known as PTN
of 2[...], Welkom and/or any taxi rank established without any proper
and/or valid authority.
5.
That 1
st
and 2nd respondents and their respective members
be interdicted from interfering, threatening, assaulting, insulting
and/or abusing
the Applicants, verbally and/or physically and/or in
any other manner with immediate effect.
6.
That the 3rd and/or 4th and/or 5th and/or 6th respondents and/or
their appointee be directed
to necessary action in terms of the
powers granted to them by the Free State Transport Act 4 of 2005 and
Free State Public Transport
Regulations, 2010 against the 1st and/or
2nd respondents and their respective members for operation or
providing taxi services
on routes FS255, FS788 and FS139, without
valid permit or licences and for establishing and operating from an
illegal taxi rank
situated behind the Shoprite in Errarat Street,
Welkom or at Erf No. 2[...], Township Welkom, Ext 2 also known as PTN
of 2[...],
Welkom and/or any premises without any proper and valid
authority with immediate effect.
7.
That in the event that the 1
st
and 2nd respondents fail
and/or refuse and/or omit to give the 3
rd
Applicants
access to their offices situated at 4029/30 K1, Kutlwanong ,
Odendaalsurs, 9480 and/or remove the illegal taxi rank
situated
behind Shoprite in Errarat Street , Welkom or at Erf 2[...], township
Welkom, extension 2 also known as PTN of 2[...],
Welkom within 5 days
of the order, the sheriff of the above honourable court be authorised
and/or directed to remove all locks
or obstacles put by the 1
st
and 2nd respondents on the said offices and to demolish the
aforementioned taxi rank.
8.
That 1
st
and 2nd respondents pay the costs of the
application, and in the event that any of the other respondents
oppose the application,
it/he/she/they be ordered to pay the costs of
the application jointly and severally with the 1
st
and 2nd
respondents, the one paying the other to be absolved.
9.
Further and/or alternative relief.”
[2]
Even though the first and second respondents filed a joint notice to
oppose the application on
3 December 2021, only the first respondent
filed an answering affidavit as well as heads of argument. The sixth
respondent did
not oppose the application. The third, fourth and
fifth respondents filed a notice to abide the decision of the court
in the matter.
[3]
On 21 December 2021 the first respondent filed its answering
affidavit. On 7 November 2022, the
applicant’s current
attorneys filed a notice of substitution of attorneys of record
replacing the applicants’ erstwhile
attorneys firm, Mphafi
Khang Incorporated. On the same day the applicants filed a notice in
terms of Rule 30 giving notice that
the first respondent’s
heads of argument filed on 25 January 2022 constituted an irregular
step as the first respondent had
not filed its answering affidavit.
The applicants withdrew this notice on 17 November 2022. On 23
February 2023 the applicants
filed and served a condonation
application for the late filing of their replying affidavit and
simultaneously filed a supplementary
founding affidavit.
[4]
The first respondent resisted the application on two grounds namely:
1.
That the application was not urgent as it was styled in terms of
Uniform Rule 6 (12) and
sought an interdict and a restrained order
against the first and second respondents together with their uncited
members.
[1]
On the merits, the
respondents contended that all the licences attached to the founding
affidavit were
ad
hoc
authorisations
issued in terms of section 65 of the Act
[2]
which were meant for sports events, funerals or weddings. These
authorisations could not be used to convey passengers in the manner
alleged by the applicants. The applicants were operating illegally
with the express authorisation of the authorities.
[3]
On the other hand, the members of the first respondent operated on
the disputed routes for years with the express knowledge and
approval
of the registrar and it could not be said that they were operating
illegally.
[4]
The application
should therefore be struck off the roll with punitive costs for lack
of urgency.
[5]
[5]
On 25 January 2022, the first respondent’s local correspondent,
Messrs E.G. Cooper Majiedt
Inc., addressed a letter to Ramos AJ which
reads as follows:
“
1.
The above matter refers.
2.
Our offices hereby kindly request that the matter don’t proceed
on Thursday, 27 January
2022.
3.
Our offices are the local correspondent Attorney for the first
Respondent in this matter and we
are quite surprised that this matter
was enrolled. Our offices don’t know who enrolled the matter
and we also did not receive
a Notice of Set Down.
4.
We confirm that our colleague who was the Attorney of Record for the
Applicants has passed away
in December 2021.
5.
We also confirm that the Applicants’ Attorneys didn’t
index the pleadings. They also
haven’t filed their Heads of
Argument and Practice Notes.
6.
We apologise for any inconvenience caused and we will instruct
counsel to remove the matter from
the roll on Thursday, 27 January
2022 with costs to stand over.
7.
We trust that you find the above in order.
……
.
”
[6]
On 27 January 2023, Ramos AJ granted an order removing the
application from the roll and costs were
to stand over for later
adjudication.
[7]
On 23 February 2023, the applicants filed and served on the
respondents a condonation application for
the late filing of the
replying affidavit, the replying affidavit and the supplementary
founding affidavit. Despite having been
served with these documents
on 23 February 2023, the respondents failed to react thereto. The
applicants contended that the supplementary
affidavit should be
admitted as the respondents would suffer no prejudice. The
application had not been set down when it was filed
and served on the
respondents and they had ample time to respond thereto.
[8]
In the condonation application, the
applicants stated that they were not the cause of the delay for
the
late filing of the replying affidavit but that the delay was caused
by the applicant’s former attorney’s health
condition and
subsequent death
[6]
in December 2021. The first respondent’s answering affidavit
was dispatched by email to this attorney and the current attorneys
only became aware of the answering affidavit on 16 November 2022
after the Rule 30 notice was served on the first respondent.
[7]
The applicants thereafter consulted with their legal representatives
and members. The services of counsel were secured and a consultation
was held on 25 January 2023.
[8]
[9]
Both the applications for the condonation of the late filing of the
replying affidavit and the admission
of the supplementary affidavit
were dismissed. The answering affidavit was filed on 21 December 2021
and the condonation application
was filed on 23 February 2023. The
applicants failed to give a full and reasonable explanation, which
covered the entire period
of delay.
[9]
[10]
In the founding affidavit, the applicants stated that they and their
members were holders of permits and
taxi licences which authorised
them to operate taxis on the routes assigned to them in line with
their permits.
[10]
They
operated the taxi business from the taxi ranks provided to them by
the relevant authorities while the first and second respondents
were
operating without valid permits and/or licences on the routes not
assigned to them in terms of the Act and the regulations.
[11]
Apart from operating from unlawful taxi ranks, the first and second
respondents blockaded the routes assigned to the applicants
and
assaulted the members of the first and third applicants as a result
of which they could not operate freely and without fear.
[12]
The first and second respondents unlawfully invaded the third
applicant’s offices situated at 4029/30 K1, Kutlwanong
Odendaalsrus,
broke the locks and replaced them with their own.
[13]
The third applicant has since gained access to the said premises but
the first and second respondents continued with their unlawful
conduct which was brought to the attention of the third, fourth,
fifth and sixth respondents without success.
[14]
[11]
The applicant’s erstwhile attorneys addressed several letters
in 2018 to the MEC, the Department of
Police, Roads and Transport
[15]
as well as the first and second respondent’s attorneys, Messrs
Mashala Komane Masekela Incorporated,
[16]
informing them of the respondents’ illegal operations on routes
FS 255, FS 887 and FS139 assigned to the applicants and that
the
respondents should desist from this unlawful behaviour of assaulting
the applicants and their members, locking up and closing
their
offices. These pleas and demands fell on deaf ears and no decisive
action was taken against the first and second respondents
for their
unlawful conduct.
[12]
Save for the bare denial that the respondents’ members
committed the alleged crimes and that they
were
never arrested by the police, the allegations mentioned above and
contained in the founding affidavit were not addressed in
the first
respondent’s answering affidavit.
[13] It
is indeed so that the applicants stated in their founding affidavit
that they had satisfied the requirements
which are applicable to
interim relief whereas they sought a final interdict. In oral
address, Mr Mphulane submitted that the applicants
sought a final
relief and not an interim relief. The drafter of the documents had
erred in referring to the requirements of an
interim interdict in the
founding affidavit. He contended that the prayers in the notice of
motion clearly showed that a final
and not an interim interdict was
sought. The abortive applications for condonation for the filing of
the interim interdict and
the admission of the supplementary
affidavit would have borne this out. He contended that the
supplementary affidavit sought to
correct paragraph 9 of the founding
affidavit by stating that the applicants had satisfied the
requirements for the granting of
a final interdict. The applicants
had a clear right as holders of valid taxi permits who were lawfully
assigned taxi routes on
which to operate.
[14]
The question that arises is whether the applicants should stand and
fall by their founding affidavit or,
put otherwise, whether the
applicants are entitled to the relief sought on the papers as they
stand. The applicants were of the
view that the appropriate relief
should be granted whereas the respondents argued to the contrary and
prayed for the removal of
the application from the roll with costs.
The respondents referred me to a full bench decision of this court
under case number
A154/2020 between the same parties where the court
upheld the present respondents’ appeal against the applicants.
The relief
sought in that case was essentially the same as
in
casu.
The order of the court a quo was set aside and replaced
with an order striking the application from the roll with costs. The
court
held that the respondents (applicants in this application)
failed to make out a proper case for urgency.
[15]
Mr Sthene, for the respondents, argued that the respondents had come
to meet a case of urgency as set out
in paragraph 9 of the founding
affidavit. He contended that the application was formulated along the
lines of Rule 6(12) and the
application was, therefore, urgent. The
applicants could not seek a final interdict without securing an
interim order. This argument
is flawed. The application is in long
form and in the notice of motion the respondents were required,
within five days after the
receipt of the application, to notify the
applicants’ attorneys in writing of their intention to oppose
the application and
twenty days thereafter, to file their opposing
affidavits.
[16]
It is evident from the papers that the parties had
been at loggerheads for a considerable period of time.
[17]
The respondents failed to respond to the damning allegations (which
are the substratum of the relief sought) contained in paragraph
6 of
the founding affidavit. The respondents were only content to state in
this regard that the applicants used ad hoc authorisations
to convey
passengers and it was illegal for the applicants to do so on any
routes.
[18]
The respondents’
interpretation of section 65 of the applicable Act
[19]
is not correct or does not reflect the true position of the section.
[17]
It was further contended that the members of the first respondent had
operated on the disputed routes for
years with the express knowledge
and approval of the Registrar and it could not be said that they were
operating illegally. No
proof of any form of authorisation was
furnished in support of these allegations. Section 65(1) of the Act
provides as follows:
“
65 Ad
hoc
authorisations
(1)
No one may undertake public transport services in connection with a
particular occurrence, such as
a sports event, funeral or wedding,
except under the authority of an ad hoc authorisation
issued and completed under
this section.
(2)
Subsection (1) does not apply where-
(a)
a charter service will be operated in terms of an appropriate
operating licence or permit; or
(b)
the operator will provide the service in terms of an operating
licence or permit which already authorises the relevant transport
on
the route or in the area in question.
(3) ……
[18]
It is obvious that the respondents focussed solely
on Section 65(1) and did not have regard to Section 65(2)
of the Act.
On perusal of annexures “C1-C13” and (“D1-D11”),
[20]
the ad hoc authorisations were issued in terms of section 65(2)(b) of
the Act. The ad hoc authorisations were issued in conjunction
with
the applicable Public Operating Licence Numbers. The Operating
Licence authorised and was restricted to the conveyance as
set out in
the conveyance of passengers on a particular route. The ad hoc
authorisation was granted when an applicant had applied
to the Free
State Operating Licensing Board for a transfer, renewal etc. of the
operating licence and the application was awaiting
consideration by
the Board.
[21]
[19]
The respondents’ approach to the application is technical and
they chose not to respond to the factual
allegations against them.
Pointed allegations were made of the respondents’ illegal
occupation of the applicants’ properties,
assault on the
applicants’ members and blockading the routes assigned to the
applicants. Mr Mphulane correctly pointed out
that the applicants
were in peaceful and undisturbed possession of their offices when the
respondents unlawfully invaded such premises,
thus committing
spoliation.
[20]
Finally, the question that begs an answer is
whether the applicants should be penalised for having “
styled
their application in terms of Rule 6(12)”
[22]
instead of citing the requirements of a final interdict. The are
three requirements for a final interdict:
(a) A
clear right on the part of the applicant.
(b) An
injury actually committed or reasonably apprehended.
(c) The
absence of any other satisfactory remedy available to the applicant.
[19]
In
Hotz
v University of Cape Town,
[23]
Wallis
JA stated that the purpose of an interdict is to put an end to
conduct in breach of the applicant’s rights. The
applicant
invokes the aid of the court to order the respondent to desist from
such conduct and, if the respondent does not comply,
to enforce its
order by way of the sanctions for contempt of court. He stated
further that in granting an interdict, the court
is enforcing the
principle of legality that obliges courts to give effect to legally
recognised rights. In the same way, the principle
of legality
precludes a court from granting legal recognition and enforcement to
unlawful conduct. To do so is “the very
antithesis of the rule
of law”.
[24]
[20]
I have already stated that the respondents'
opposition is technical in nature. It is clear that the application
is not based on urgency and that the ad hoc authorisations were not
impermissible and unlawful. Mr Sthene argued that the founding
affidavit told them nothing about what they were doing in court on
the date of the hearing. He contended that the applicants failed
to
go to the police station to report the transgressions as an
alternative remedy. The application was frivolous and should be
struck from the roll with punitive costs for lack of urgency which
should include the wasted costs of 27 January 2023.
[21]
This argument lost track of the contents of the
founding affidavit and its annexures which went unanswered.
Mr Sthene
referred and handed up a copy of the appeal case, number A 154/2018,
in which the court stated:
“
On 30 July 2018
the respondents laid criminal charges against the appellants and
their members. The situation became ‘so dire
and threatening’
that the Respondents’ attorney interrupted his sick leave to
assist
”.
[25]
Mr Sthene represented the appellants in that case.
[22]
Having considered the above, I am of the view that
failure to mention the legal requirements of a final
interdict in the
founding affidavit was not fatal as the factual exposition for the
relief sought was adequately set out therein.
To insist on such an
approach in the given circumstances of this case would be elevating
form above substance. I find that the
respondents’ opposition
is without merit and the applicants should succeed in the relief they
seek.
[23]
It is trite that the successful party is entitled
to the costs. As regards the costs of 27 January 2021,
it is not
clear who enrolled the matter.
[26]
According
to the notice of motion, the matter would have been enrolled for 27
January 2022 if the respondents failed to file the
requisite notices
and/or answering affidavits. The necessary notice and answering
affidavit were already filed in December 2021.
[24]
Consequently, I make the following order:
Prayers 1 to 8 of the
notice of motion are granted.
MHLAMBI, J
On
behalf of the Applicants:
Adv.
P.S. Mphulwane
Instructed
by:
Maqoma
Attorneys
119
St Andrews Street
Bloemfontein
On
behalf of the respondent:
Adv.
Smanga Sthene
Instructed
by:
EG
Cooper Majiedt Attorneys
77
Kellner Street
Bloemfontein
[1]
Paragraphs 7, 11 and 12 of the AA.
[2]
Free State Public Transport Act 4 of 2005.
[3]
Paragraph 12 of the AA
[4]
Paragraph 21 of the AA.
[5]
Paragraph 27 of the AA.
[6]
Paragraph 3.1 of the RA.
[7]
Paragraph 3.2 of the RA.
[8]
Paragraph 3.4 of the RA.
[9]
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae
)
2008
(2) SA 472 (CC)
,
[10]
Para 6.1 of the FA.
[11]
Para 6.4 of the FA.
[12]
Para 6.6 of the FA.
[13]
Para 6.7 of the FA.
[14]
Para 6.9 of the FA.
[15]
Annexure “E2” to the FA.
[16]
Annexure “E3” to the FA.
[17]
Para
6 of the FA.
See
also paras 9-14 of Case A154/2020 supra.
[18]
Para
21 of the AA.
[19]
The Free State Public Transport Act 4 of 2005.
[20]
Pages 41 to 76 of the FA; Para 6.2 of the FA.
[21]
See annexures on pages 41-76.
[22]
Para 7 of the AA.
[23]
2017(2)
SA 485 SCA para 36.
[24]
Para
39.
[25]
Para
12 of the judgment.
[26]
Para 5 above.