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[2022] ZAKZPHC 10
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Kwadukuza/ Stanger Taxi Owners Association v Maphumulo Taxi Owners Association and Others (AR240/2020) [2022] ZAKZPHC 10 (28 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
Case No: AR240/2020
In
the matter between:
KWADUKUZA
/ STANGER TAXI OWNERS ASSOCIATION
APPELLANT
and
MAPHUMULO
TAXI OWNERS ASSOCIATION
FIRST RESPONDENT
PROVINCIAL
REGULATORY ENTITY
SECOND RESPONDENT
LOCAL
TRANSPORTATION BOARD KWAZULU-NATAL THIRD
RESPONDENT
MEC
DEPARTMENT OF TRANSPORT KWAZULU-NATAL FOURTH RESPONDENT
KWADUKUZA
MUNICIPALITY
FIFTH RESPONDENT
ORDER
The
following order is granted:
a)
The appeal succeeds partially in substituting the decision of the
Court below with the finding that the appellant,
the
Kwadukuza/Stanger Taxi Owners’ Association had standing to
represent its members.
b) The
appeal is dismissed on the merits.
c)
The Kwadukuza/Stanger Taxi Owners Association is ordered to pay the
costs of the first respondent Maphumulo
Taxi Owners Association.
JUDGMENT
D.
Pillay J (K. Pillay J et Mnguni J concurring)
Introduction
[1]
The appellant is KwaDukuza/Stanger Taxi Owners Association (STOA).
The
first respondent is Maphumulo Taxi Owners Association (MTOA). The
STOA and the MTOA are associations of taxi operators based in
KwaDukuza. The second respondent is the erstwhile Provincial
Taxi Registrar, now referred to as the Provincial Regulatory
Entity
(PRE) for KwaZulu-Natal. The third respondent is the Local
Transportation Board, KwaZulu-Natal. The fourth respondent is
the
Member of the Executive Council for the Department of Transport
KwaZulu-Natal (MEC). The fifth respondent is the KwaDukuza
Municipality. The second to fifth respondents abide the decision of
this Court.
[2]
The appellant appeals the judgment of Balton J. The cause of the
conflict
is competition for limited licences issued for specific
routes. Balton J detailed the history of the internecine and
protracted
conflict between the associations in her judgment. For the
purposes of this judgment, an attenuated account of that history will
suffice.
Background
[3]
On 5 December 2003 the STOA and the MTOA submitted a dispute to
arbitration
to determine the MTOA’s entitlement to operate
overlapping long distance routes and to the rank facilities at
KwaDukuza.
In paragraph 6 of the Terms of
Reference
for Arbitration, the parties agreed that the award of the arbitrator
would be final and binding upon them and that it
may be made an order
of court. The Department of Transport KwaZulu-Natal facilitated the
arbitration by bearing the costs of the
venue for the arbitration.
[4]
In paragraph 17 of the Terms of Reference, should any party be
dissatisfied
with the arbitration and seek to have the award reviewed
and set aside, the parties agreed that, pending the outcome of such
review,
the award would stand and be made an interim order by the
court, and that the parties would be obliged to give effect to it.
[5]
The arbitrator, Mr
Pammenter SC
resolved the dispute about the
routes in favour of the MTOA. As regards the taxi rank, he determined
that both associations should
operate from a single taxi rank in
KwaDukuza. He granted ancillary relief relating to operations at the
rank. The award and accompanying
reasons were issued on 22 December
2003.
[6]
In terms of paragraph 3 of the award, paragraph 2 relating to the
arbitrator’s
determination of the operation of the taxi rank
would commence with effect from 31 January 2004; until then the
Interim Operating
Agreement concluded by the parties on 5 December
2003 would remain in effect. Certain provisions of the award relating
to the taxi
rank were to continue until the KwaDukuza Municipality,
which was also party to the arbitration, the STOA and the MTOA
concluded
a written agreement, to be approved by the Taxi Registrar,
another party to the arbitration, varying the terms of paragraph 2 of
the award, such agreement to take effect not before 31 January 2005.
There
is no evidence of any such agreement materialising. In any case, the
STOA’s appeal relates to the licences rather than
the rank.
[7]
Subsequently, MTOA as first applicant and STOA as third respondent
took
an order by consent under case number 14323/2005. MTOA was
declared a registered minibus taxi association in terms of the
KwaZulu-Natal
Interim Minibus Taxi Act 4 of 1998. Its members who had
valid public road carrier permits were allowed to operate their
minibuses
in terms of those permits. The KwaDukuza Municipality was
directed to ensure that the taxi ranks in KwaDukuza, which it had
established
for use by the MTOA and its members pursuant to the
arbitration award, were once again made available to the MTOA and its
members.
Effectively, the court order enforced the award.
[8]
On 29 June 2017 the STOA, cited as KwaDukuza Taxi Association (KTOA),
applied under case number 2317/2017 for condonation, delivery of the
records of the arbitration, and to review and to set aside
the award.
That application in which the
STOA
was represented by its erstwhile ‘newly elected’
chairperson Bonginhlanhla Bhekhi Gwala was not finalised. It appears
to have been overtaken by this application in which Dumisani Mhlongo
deposed to the founding affidavit as the chairman of the STOA.
[9]
In 2009, s
49(1) of the National Land Transportation Act 5 of 2009 (NLTA), which
repealed the National Land Transport Transition
Act 22 of 2000
(NLTTA), provides for existing permits to remain valid subject to
subsection (3). Section 49(3) of the NLTA provides
that permits
issued for minibus taxi type services for indefinite or definite
periods that have ‘not yet expired, must lapse
seven years
after the date of commencement of this Act.’ However, ‘the
holder [of a permit] may apply within that period
for its conversion
to an operating licence to the [PRE] that is responsible for
receiving applications for operating licences for
the relevant
services.’
[1]
Grounds
of appeal
[10]
Against this brief background, the primary ground of appeal is the
dismissal of the STOA’s
application seeking an order in the
following terms:
‘
Granting
a confirmatory order, that the Arbitration award granted in 2005 can
no longer continue to have any legal effect in relation
to the issue
of operating licences post seven (7) years from the commencement date
of the National Land Transportation Act No.5
of 2009 and as by the
enactment of the act the Order has become unenforceable’.
[11]
The remaining relief sought in the notice of motion hinges on the
primary ground succeeding.
In paragraph 2 of the notice of motion,
the STOA sought an order declaring unlawful and irrational the
refusal or failure by the
PRE and the MEC to consider the
‘Applicant’s application’ for the issue of
operating licences based on the interpretation
and the application of
the order enforcing the award. Furthermore, in paragraph 4 it
claimed confirmation ‘to allow
the applicant rights to trade on
the long distance routes’.
[12]
The secondary ground of appeal relates to the finding of the Court
below that the MTOA
had applied for the conversion of its licences
and that its members are therefore holders of valid licences. An
ancillary ground
of appeal relates to the standing of the STOA to
institute proceedings on behalf of its members. I deal first with the
validity
of the licences, the relief sought and then the standing of
the STOA.
The
status of the licences
[13]
The STOA did not apply to review and set aside taxi operator licences
issued to members
of the MTOA. That was the process it should have
pursued under the
Promotion of Administrative Justice Act 3 of 2000
when the licences were granted. Having failed to do, so it was
already on the backfoot when it contested the validity of the
licences
in the arbitration.
[14]
Turning to the Terms of Reference of the arbitration, the parties
agreed to be bound by
the arbitrator’s award, unless and until
it was reviewed and set aside. The award has not been reviewed and
set aside. Consequently,
the award remains binding on the STOA and
the MTOA by virtue of their agreement to be so bound.
[15]
The STOA
and the MTOA also agreed to make the award an order of court which
they duly did by consent. On the authorities cited in
the judgment of
Balton J,
[2]
an arbitration award that is made an award of court acquires the
status of an order of court, which remains in force as such until
it
is set aside. Accordingly, both associations also bound themselves to
the order which made the arbitration award an order of
court. That
court order remains extant under case number 14323/2005.
Together,
the award and the court order give effect to the underlying taxi
operator licences issued to members of the MTOA.
[16]
The next
question is whether the NLTA unravelled the order of court. The NTLA
was promulgated four years after the court issued
the order. Unless
specifically provided for, the repeal of legislation does not have
retrospective effect.
[3]
Consequently, all that was done and any rights, privileges,
obligations and liabilities acquired prior to the 2009 amendment of
the NLTA remained extant.
[17]
However, the requirement in
s 47(1)
and (2) of the NLTA that ‘all
permits’ will lapse after seven years after the commencement of
the NLTA, applies to
those permits that the order of court enforced.
The MTOA attested to having applied within seven years of the
commencement of the
NTLA for converting its operating licences. The
STOA disputes that the MTOA made any such application. Alternatively,
if it did,
then it was not valid.
[18]
Applying
the principle in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[4]
this Court accepts the evidence of the MTOA that it applied for
conversion of its operating licences and that it did so within
seven
years before they lapsed automatically by operation of law.
Section
47
requires that the application must be made, but not necessarily be
granted, before they lapsed. The application for conversion suspended
the lapsing of the permits.
[19]
As for the STOA’s attacks on the validity of the application
for conversion, that
is a matter for determination by the PRE
responsible for receiving and determining such applications.
Consequently, whatever the
STOA submits as defects in the application
for conversion, it is not for this Court to pronounce on, at least,
not before the PRE
determines the conversion application.
[20]
In the circumstances, I find, on substantive grounds, that the
arbitration award, the order
of court and the operating licences
granted to MTOA for the five long distance routes starting from
Stanger to Durban, to Empangeni,
to Eshowe, to Kranskop and to
Tongaat are valid and enforceable. In other words, neither the STOA
nor its members are entitled
to them. The confirmation the STOA
sought in the first paragraph of its notice of motion must be
refused, as the Court below correctly
did.
The
relief sought
[21]
In claiming the relief in paragraphs 2 and 4 of its notice of motion,
the STOA labours
under the misapprehension that the licences are
issued to associations instead of to its members who are taxi
operators.
Section 64(1)
of the NLTA provides:
‘
An
operating licence may only be issued to and held by the person
registered, in terms of the National Road Traffic Act, as the
owner
or operator of the vehicle, as defined in that Act, and specified in
the operating licence.’
[22]
This had also been the position under s 87 of the NLTTA.
Consequently, the STOA’s
claim to be issued with the licences
was impermissible. The finding by the Court below that the relief
sought was incompetent stands.
This finding, together with the
finding that the licences are validly held by the MTOA, would dispose
of this appeal, but for the
question of standing.
Standing
of STOA to institute proceedings
[23]
Section 38 of the Constitution
provides:
‘
Enforcement of
rights
Anyone listed in this
section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been
infringed or threatened, and the
court may grant appropriate relief, including a declaration of
rights. The persons who may approach
a court are –
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their own
name;
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.’
[24]
Counsel for the MTOA, Ms
Richards
contested the STOA’s
standing to institute and represent its members in legal proceedings
on the basis a secondary ground
of appeal firstly, that the STOA did
not plead or argue that any right in the Bill of Rights was infringed
or threatened; secondly,
not all members of the STOA signed the
resolution to institute proceedings and the resolution did not
mandate it to represent
its members; and thirdly, the STOA had no
direct and substantial interest in the proceedings which it purported
to institute in
the interests of its members.
[25]
In the Court below, the STOA
did not identify the right in the Bill
of Rights that was infringed or threatened. It does so in its
heads of argument in
this appeal. That, it alleges, was the right to
ensure that its members enjoy just or fair administrative action
under s 33 of
the Constitution. Counsel for the STOA, Mr
Xulu
submitted from the bar that the STOA also relied on s 22 of the
Constitution which recognises the freedom to trade. The Court
below found that the STOA lacked standing.
[26]
Ms
Richards’s
contention that if a constitutional case
is not pleaded then ‘the applicant is confined to the common
law prescripts pertaining
to locus standi,’ insinuates that we
have two systems of law, one under the Constitution and the other
under the common law.
That is incorrect. Repeatedly, the
Constitutional Court
5
and this division emphasised that:
‘
There is only one
system of law. It is shaped by the Constitution which is the supreme
law, and all law, including the common law,
derives its force from
the Constitution and is subject to constitutional control.’
6
5
Pharmaceutical Manufacturers Association of South Africa &
another: In re Ex Parte President of the Republic of South Africa
&
others
[2000] ZACC 1
;
2000 (2) SA 674
;
2000 (3) BCLR 241
(CC)
para 44;
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism & others
[2004] ZACC 15
;
2004
(4) SA 490
;
2004 (7) BCLR 687
(CC) para 22;
Minister
of Health & another v New Clicks South Africa (Pty) Ltd &
others
[2005]
ZACC 14
;
2006
(2) SA 311
;
2006
(1) BCLR 1
(CC)
paras 118, 432438;
NAPTOSA
& others v Minister of Education, Western Cape, & others
2001
(2) SA 112
(C).
6
Naidoo v
Director of Public Prosecutions & others
(12180/2017) [2020] ZAKZDHC 39 (13 August 2020) para 100 citing
Pharmaceutical
Manufacturers
.
[27]
Furthermore, s 39(1) and (2) concerning the interpretation of the
Bill of Rights states:
‘
a
court, tribunal or forum (a) must promote the values that underlie an
open and democratic society based on human dignity, equality
and
freedom . . . (b) . . . and when developing the common law or
customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.’
[28]
Thus, it
rests upon all of us to advance the constitutional project at every
opportunity.
[5]
Consequently, even though the STOA did not specifically plead and
argue its case on standing, the Court below became aware of it
when
the MTOA raised the issue. The Court had to apply s 39(1) and (2) and
the Constitutional Court’s generous approach adopted
in several
cases
[6]
and summarised as follows in
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
:
9
‘
These cases make
it plain that constitutional own-interest standing is broader than
the traditional common law standing, but that
a litigant must
nevertheless show that his or her rights or interests are directly
affected by the challenged law or conduct. The
authorities show:
(a)
To establish own-interest standing under the Constitution a litigant
need not show the same
“sufficient, personal and direct
interest” that the common law requires, but must still show
that a contested law or
decision directly affects his or her rights
or interests, or potential rights or interests.
(b)
This requirement must be generously and broadly interpreted to accord
with constitutional
goals.
(c)
The interest must, however, be real and not hypothetical or academic.
(d)
Even under the requirements for common law standing, the interest
need not be capable of
monetary valuation, but in a challenge to
legislation purely financial self-interest may not be enough –
the interests of
justice must also favour affording standing.
(e)
Standing is not a technical or strictly-defined concept. And
there is no magical formula
for conferring it. It is a tool a court
employs to determine whether a litigant is entitled to claim its
time,
and to put the opposing litigant
to trouble.
(f)
Each case depends on its own facts. There can be no general rule
covering all cases.
In each case, an applicant must show that he or
she has the necessary interest in an infringement or a threatened
infringement.
And here a measure of
pragmatism is needed’. (footnotes omitted)
[29]
Pertinently
to the taxi industry, the Supreme Court of Appeal reiterated in
Polokwane
Local and Long Distance Taxi Association v Limpopo Permissions Board
& others
:
[7]
‘
The courts are
impelled to adopt a broad and liberal approach to standing when
interpreting s 38(
e
) of the Constitution.’
[30]
In this case, both associations have sued each other without
questioning their respective
standing. An example already referred to
above is the application that resulted in the order by consent in
which the MTOA, as applicant,
cited the STOA as third respondent. The
MTOA is open to the same criticisms that it levels against the STOA.
Applying the doctrine
of peremption, the Court below should have
barred the
MTOA
from contesting the STOA’s standing. Now that the issue has
been raised as a ground of appeal, it is necessary to investigate
and
determine whether the STOA, as a matter of law and fact has
standing.
[31]
Whether the STOA has standing in this case to represent all or some
of its members, depends
firstly, on the internal arrangements between
the STOA, its members and their obligations under their constitution
and other instruments.
The constitution of the STOA is not before me.
However, the resolution passed by some of the members of the
association on 11 July
2018 to which they attached their names and
signatures is sufficient proof that those members authorised the STOA
to institute
legal proceedings on their behalf. In the context of
this application, a more formal or higher standard of proof of its
mandate
is unwarranted.
[32]
Secondly,
associations in the taxi industry are not ordinary voluntary
associations. The decision to form an association is voluntary.
Under
the NLTTA, they were highly regulated institutions interfacing
between their members as taxi operators, the State and the
public
they serve.
[8]
Notwithstanding the repeal of the NLTTA, the mutuality of these
interests persist in the form of the Kwazulu-Natal Interim Minibus
Taxi Act 4 of 1998 (KZN Act). Although the KZN Act was repealed in
its entirety by the KwaZulu-Natal Public Transport Act 3 of
2005,
Part X, headed ‘Legitimisation Process for Members of
Registered Associations’ survives. In s 47 of the KZN Act,
the
stated objective of the legitimisation process is:
‘
to legitimise the
operations of
bona fide
members of provisionally registered
minibus taxi associations and to enable such members to acquire
permits in terms of the Road
Transportation Act, 1977 (Act No. 74 of
1977).
[33]
Under s 48(2) the KZN Act, for an operator to be eligible for
legitimation, he must be:
‘
(
a
)
a member in good standing of a provisionally registered minibus taxi
association in terms of section 43 or fully registered minibus
taxi
association in terms of section 44’.
Although
ss 43 and 44 were repealed, the import of s 48 about the nexus
between operators and associations is clear.
[34]
Included in the information that minibus taxi associations are
required to submit to the
Provincial Taxi Registrar under s 49(2)(a),
is the number of members it claims to have. Furthermore, s 53(3)
reaffirms that transfer
of minibus taxi permits are not transferrable
except from an operator’s deceased estate and between members
of the same association.
[35]
The
statutory scheme elevates the status of associations to stakeholders
and social partners in the taxi industry. As such, I find
that the
STOA has standing under subsections (a), (c) and (e) of s 38 of
the Constitution at least, and probably also under
(d) having regard
to its responsibilities as a provider of a necessary public service
in a ‘sensitive’ industry.
[9]
The STOA has standing to act in its own interests, and in the
interests of its members, who are taxi operators, as a group or class
of persons. Importantly, it is also required to act in the public
interest to provide a peaceful, problem-free transport service.
Additionally, the guidelines proffered in
Giant
Concerts
support recognising that the STOA has a direct, substantial and
mutual interest in this litigation. Consequently, the Court below
erred in finding that the STOA did not have standing.
Costs
[36]
The appeal succeeds partially in setting aside the finding of the
Court below that the STOA did not have standing. As important
as
correcting this finding is for the taxi industry, it is
inconsequential in this case because the substantive remedy the STOA
claimed was impermissible under the NLTA. Consequently, the appeal
must be dismissed. Costs must follow the substantive outcome.
Order
[37]
The
following order is granted:
a)
The appeal succeeds partially in substituting the decision of the
Court below with the finding that the appellant,
the
Kwadukuza/Stanger Taxi Owners’ Association had standing to
represent its members.
b) The
appeal is dismissed on the merits.
c)
The Kwadukuza/Stanger Taxi Owners Association is ordered to pay the
costs of the first respondent Maphumulo
Taxi Owners Association.
D.
Pillay J
Judge of the High Court
of KwaZulu-Natal
I
agree
K.
Pillay J
Judge of the High Court
of KwaZulu-Natal
I
agree
PP
Mnguni
J
Judge of the High Court
of KwaZulu-Natal
APPEARANCES
NB:
With the consent of the parties, judgment was handed down
electronically and emailed the parties.
Counsel
for the appellant
: Advocate Xulu
Instructed
by
:
M Dlamini
Attorneys
c/o
M.F Shezi & Associates Email:
mfsheziandassociates@gmail.com
admin@mdlaminilaw.co.za
Counsel
for the respondent
:
Advocate
Richards
Instructed
by
:
Hulley &
Associates
Email:
baronr@hulleyinc.co.za
Date
of Hearing
:
22
January
2021
via
zoom
Date
of Judgment
:
28
January
2021
[1]
Section 47(2) of the NLTA.
[2]
Government
of the United Republic of Tanzania v Steyn & others
(28994/2019) [2019] ZAGPJHC 312 (4 September 2019); 2019 JDR 1690
(GJ) para 9;
Bezuidenhout
v
Patensie
Sitrus Beherend Bpk
2001 (2) SA 224
(E) at 229B-D.
[3]
Section 12(2) of the Interpretation Act 33 of 1957.
[4]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA
51
;
1984 (3) SA 623
(A) at 634E-635C.
[5]
See
Naidoo
para 117-118 fn 107-108.
[6]
For example
Ferreira
v Levin NO& others; Vryenhoek & others v Powell NO &
others
[1995] ZACC 13
;
1996 (1) SA 984
;
1996 (1) BCLR 1
(CC);
Lawyers
for Human Rights & another v Minister of
Home
Affairs & another
[2004] ZACC 12
;
2004 (4) SA 125
;
2004 (7)
BCLR 775
(CC);
Limpopo Legal Solutions v Vhembe District
Municipality & others
[2017] ZACC 30
;
2018 (4) BCLR 430
(CC). See also C F (Neels) Swanepoel ‘The judicial application
of the "interest" requirement for standing in
constitutional cases: "A radical and deliberate departure from
common law"’ 2014
De Jure
63.
9
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd & others
[2012]
ZACC 28
;
2013 (3) BCLR 251
(CC) para 41.
[7]
Polokwane
Local and Long Distance Taxi Association v Limpopo Permissions Board
& others
(490/2016)
[2017] ZASCA 44
(30 March 2017) para 25.
[8]
See for instance ss 52; 57(a)(i) and (iv); 60; 61; 62; 111; 112(1);
115(a)-(c); 116(1); 117 and 118 of the NLTTA.
[9]
Section 5(2) of the Kwazulu-Natal Interim Minibus Taxi Act 4 of 1998
refers to the ‘sensitivity of the minibus taxi operations’.