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[2011] ZASCA 138
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Moruleng and District Taxi Association and Another v North West Provincial Department of Transport and Others (254/10) [2011] ZASCA 138 (23 September 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 254/10
In the
matter between:
MORULENG AND DISTRICT TAXI ASSOCIATION
….....................................
First
Appellant
JOHANNES BOITUMELO MOKATSE
…....................................................
Second
Appellant
and
NORTH
WEST PROVINCIAL DEPARTMENT OF TRANSPORT &
27
OTHERS
…......................................................................................................
Respondents
Neutral
citation:
Moruleng and District Taxi Association v North West
Provincial Department of Transport & 27 others
(254/10)
[2011] ZASCA 138
(23 September 2011)
Coram:
Harms AP, Maya, Bosielo and Shongwe JJA and Plasket AJA
Heard: 29 August 2011
Delivered: 23 September 2011
Summary:
National Land Transport Transition Act 22 of 2000
–
conversion of radius-based permits into operating licences –
requirements – granting of operating licences
reviewed and set
aside.
ORDER
On appeal from
: North West High Court (Mafikeng) (Leeuw AJP,
Hendricks J and Kgoele AJ sitting as a court of appeal):
1. The appeal is upheld.
2. The fourth to twenty fourth respondents and the twenty sixth
respondent shall pay the appellants’ costs, including the
costs
of two counsel, jointly and severally, the one paying, the others to
be absolved.
3. The order of the court below is set aside and replaced with the
following order:
(a) The appeal is upheld with costs, including the costs of two
counsel.
(b) The order of the court below is set aside and replaced with the
following:
The decision of the second respondent to grant operating licences to
the members of the fourth respondent for the route from
Moruleng to
Mogwase and back is reviewed and set aside.
The respondents shall pay the costs of the applicants jointly and
severally, the one paying the others to be absolved.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
BOSIELO JA (Harms AP, Maya and Shongwe JJA and Plasket AJA
concurring)
[1] This is an appeal against a judgment of the full court of the
North West High Court, Mafikeng (per Hendricks J, Leeuw AJP and
Kgoele AJ concurring), in terms of which the court set aside a
judgment of the court of first instance (per Landman J) and found
that the operating licences issued to members of the fourth
respondent (the Mogwase Taxi Association) were properly issued and
thus valid. The appeal is with the leave of this court.
[2] For some time the taxi industry across the country has been
plagued by the so-called taxi wars. These wars, which in many
instances resulted in the unnecessary loss of lives of innocent
people who were caught in the cross-fire, revolve primarily around
disputes involving routes. Not surprisingly, the dispute herein
revolves around a disputed claim to provide a mini-bus taxi type
service on a particular route. The disputed route herein is described
as the Mogwase–Moruleng taxi route in North West Province.
Members of the first appellant, the Moruleng and District Taxi
Association, have the right to operate the route. Members of the
Mogwase Taxi Association applied for the conversion of their
radius-based permits into route-based licences for this route by the
North West Provincial Operating Licence Board (the Board). The
applications were successful and the Moruleng and District Taxi
Association then sought to have the decisions reviewed and set aside.
[3] What follows are the background facts leading to this appeal. The
Moruleng and District Taxi Association and Mogwase Taxi Association
are rival taxi associations. During or about 1983 the members of
first appellant broke away from fourth respondent to form their
own
separate association. Before the new
National Land Transport
Transition Act
1
as
amended (the NLTTA) was passed, members of both first appellant
and fourth respondent had radius-based permits which authorised
them
to undertake public transport services for commuters on the disputed
route. The main purpose of the NLTTA is to transform
and restructure
the Republic’s land transport system.
[4] The NLTTA aims to achieve a smooth transition from the old system
of radius-based permits to route-based operating licences,
(s 2
of
the NLTTA). The old Road Transportation Act
2
provided for radius-based permits; the radius was calculated on
kilometres from a specific point. In terms of this system, a permit
holder was authorised to conduct a taxi business from one point to
any destination which fell within the radius covered by the
permit.
This system provided a fertile ground for perennial clashes and
concomitant violence between taxi drivers and taxi associations
as
they fought over lucrative routes. At one stage the flames of these
taxi wars had spread to almost every part of the country.
One assumes
that the NLTTA was introduced as an attempt to regulate the taxi
industry better and more efficiently and hopefully
to stop the
ubiquitous taxi wars. Undoubtedly, the vision is to convert old taxi
permits from the uncertain radius-based description
to a more
specific route-based licence. In terms of s 85(3)(f) and (g) of the
NLTTA such an operating licence is required to disclose
a detailed
route or routes to be used for operation of the taxi and
specifications of the relevant street names, road numbers,
beacons or
landmarks for each city, suburb, town, village or settlement as well
as authorised ranks or terminals and other points
where passengers
would be picked up or allowed to alight. Clearly this was intended to
ensure that each taxi driver operate strictly
within the terms of his
or her operating licence.
[5] From as far back as 1998 a dispute had been simmering between the
members of both first appellant and the fourth respondent
regarding
who was in law entitled to operate on the disputed route. Many
attempts to resolve this dispute through the intervention
of, amongst
others, the transport authorities and the local police failed.
Regrettably, at some stage the dispute got out of hand
and became
violent. In an attempt to resolve this impasse legally, and acting on
the advice of the Registrar of the Department
of Transport, North
West Province, members of the fourth respondent applied to the Board
in terms of s 79 of the NLTTA for the
conversion of their permits
into operating licences for the disputed route to legalise their
operations on the disputed route.
The applications were granted.
[6] The appellants instituted review proceedings in the high court to
have the decision of the Board reviewed and set aside on
the basis
that the operating licences were not properly issued. Although
conceding that members of the fourth respondent had previously
held
radius-based permits to operate in the disputed area, the appellants
contended that members of the fourth respondent never
operated on the
disputed route as required by s 80(1) of the NLTTA. In their response
members of the fourth respondent denied that
the conversion of their
taxi permits into operating licences were not issued properly.
Essentially, they asserted that they complied
with all the statutory
requirements prescribed by the NLTTA. Concerning the requirements of
regular service as envisaged in s 80(1),
the respondents contended
that they provided the regular service as required by the NLTTA as,
although they concede that they did
not actually operate on this
disputed route, their radius-based permits nonetheless covered the
disputed route before the conversion.
[7] Members of the fourth respondent had also raised a point in
limine that the application for review offended the provisions
of s 7
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) in
that it was not instituted without unreasonable delay
and not later
than 180 days after the date, subject to subsection (2)(c), on which
any proceedings instituted in terms of internal
remedies as
contemplated in subsection (2)(a) have been concluded or where no
such remedies exist, on which the person was informed
of the
administrative action; became aware of the action and the reasons for
it or might reasonably have been expected to have
become aware of the
action and the reasons.’
[8] The court of first instance upheld the point in limine and
dismissed the application for review. Aggrieved by the judgment,
the
appellants appealed to the full court, which found that the court of
first instance had erred in upholding the point in limine.
The full
court upheld the appeal against the order upholding the point in
limine but dismissed the appeal on the merits.
[9] In refusing the application to review and set aside the decision
by the Board to grant the members of the fourth respondent
the
conversions, the court below held that ‘it cannot therefore be
established that the Mogwase operators did not apply for
the
Moruleng–Mogwase route. On the probabilities, they must have
applied that is why the said route is specified on their
operating
licences.’ Concerning the requirement of a regular service as
contemplated in s 80(1), the court below held that
‘Section 80
does not cater for a situation where an applicant is prevented from
operating on a specific route in compliance
with the stipulated 180
days’ period. That being the case, it must be accepted on the
probabilities that the Mogwase operators
did apply to operate on the
said route and that the Board,
in the exercise of its discretion
,
correctly granted the conversions’. The appellants’
appeal is against these findings. I pause to state that the first
to
third respondents (North West Provincial Department of Transport,
North West Provincial Operating Licence Board and the Chairperson
of
the North West Provincial Operating Licence Board) are not parties to
the appeal.
[10] It is regrettable that we were not furnished with copies of the
minutes of each of the meetings held by the Board where the
applications for conversions by members of the fourth respondent were
considered. It appears from the record that these minutes
were lost
and could not be found. As a result it was difficult for us to
determine with certainty what factors the Board considered
before
granting the applications for conversion. The affidavit of Mr
Kubheka, the second respondent’s acting secretary, was
of no
use to us because of the paucity of relevant information. This is due
to the fact that he was only employed by second respondent
after the
conversions had already been granted.
[11] However, for purposes of this judgment, I am prepared to accept
that members of the fourth respondent did submit applications
for the
conversion of their radius-based permits to route-based operating
licences in terms of s 79 of the NLTTA. The question
for
determination remains whether they met the requirements of the NLTTA,
in particular s 80 thereof.
[12] The application for a conversion of a permit into an operating
licence is governed by s 79 of NLTTA. The relevant parts of
the
section provide:
‘
S
79 Continuation and conversion of existing permits
Subject to this Part, any
permit issued for an indefinite period and any permit issued for a
definite period which, on the commencement
of this Act, has not yet
expired, remains in force temporarily as provided for in this
section.
The holder of such a permit may
have it converted to an operating licence in accordance with this
Part by applying for the conversion,
in the manner prescribed by the
MEC –
(a) in the case of a permit for
an indefinite period, before the expiry of the period determined by
the Minister under s 32(2).’
[13] Section 32(1) provides peremptorily that all permits must be
converted to operating licences by the date mentioned in s 32(2).
A
failure to apply for a conversion of a permit will result in such a
permit lapsing.
[14] Section 80 in turn sets out a necessary pre-condition for the
conversion of a permit into an operating licence. It reads as
follows:
‘
S
80 Conversion of permits not allowed in certain circumstances
(1) A permit may not be
converted to an operating licence unless the transport service that
it authorises, has been provided on
a regular basis for a period of
at least 180 days before the date on which application is made for
conversion, except where the
permit was issued less than 180 days
before the date of such application.
(2) The applicant must furnish
proof to the satisfaction of the board that the requirement set by
subsection (1) has been met, by
supplying written confirmation from
the relevant planning authority, or by such other method as the board
deems sufficient.’
[15] It should thus be clear that before an application for a
conversion of a permit into an operating licence can be granted,
there must be proof to the satisfaction of the board, that the
applicant has provided a transport service for a period of at least
180 days before such application. Such proof must be in the form of a
written confirmation from the relevant planning authority
which is in
charge of the area where the transport service is to be provided or
any other means that the Board may choose.
[16] There was a debate between the respective counsel regarding the
interpretation to be accorded to s 80(1). Does the section
require
the transport service to be actually rendered as submitted by the
appellant’s counsel or does it require the mere
providing or
making of such transport available as contended for by the
respondents’ counsel?
[17] To my mind it is clear from the wording of s 80(1) that the
requirement that a transport service be rendered on a regular
basis
for at least 180 days before the application for conversion is the
jurisdictional fact which an applicant has to meet. It
is a
pre-condition which must be met before an applicant can get a
conversion. The pertinent question to be answered is whether
members
of the fourth respondent rendered the required transport service on
the disputed route at least 180 days before they applied
for
conversion as required by s 80(1). The other question would be
whether they furnished the second respondent with the written
confirmation of such transport service from the relevant planning
authority as required by s 80(2).
[18] It is clear to me that the purpose of the section is to ensure
proper conversion of the radius-based permits which were issued
in
terms of the old legislation to new route-based operating licences
provided for by the NLTTA. In line with s 81(1) of the NLTTA
the
conversion is intended to ensure that an applicant for an operating
licence retains the same authority as that which he or
she enjoyed
under the old permit. The corollary hereof is that nobody should be
granted an operating licence on a route on which
he or she did not
operate within the prescribed period. It follows that in order to
achieve this, the board must be satisfied that
the particular route
was utilised by an applicant before the application for conversion.
This must be done by submitting together
with the application for
conversion, ‘a detailed description of the route(s) or
network(s) on which, or, where applicable,
the particular areas in
which, the vehicle has been used for the service to which the permit
relates for the period of at least
180 days prior to the date of
application…’ (Regulation 5(1)(k) of the regulations
promulgated in the North West Extraordinary
Provincial Gazette No
5851, 25 February 2003). Evidently it would militate against the
spirit and purport of the section to grant
an applicant rights to
operate on a route on which he or she never operated at least 180
days before the application for conversion.
I am of the view that the
provisions of s 80(1) and (2), which constitute essential
jurisdictional factors for a valid conversion,
are peremptory. The
Board has no discretion to condone non-compliance with the section. A
failure to comply renders the granting
of the application invalid.
[19] Addressing this peremptory requirement of the NLTTA the court
below had found that it could not be said that members of the
fourth
respondent did not operate on the disputed route at least 180 days
before the date on which the application for the conversion
of their
radius-based permits into route-based operating licence as required
by s 80(1) of the NLTTA. This conclusion was based
on the finding by
the court below that members of the fourth respondent were in fact
unlawfully prevented from operating on the
disputed route, first by
an interdict obtained by the appellants against them and secondly by
violence levelled against them. I
do not agree.
[20] Firstly the interdict was directed against stopping members of
the fourth respondent ‘from using the areas of the Mogwase
taxi
rank marked 1 and 2 on the attached diagram…’. It is
clear that this interdict did not prevent members of the
fourth
respondent from operating on the disputed route during the relevant
period. This interdict was issued pending the application
for the
present review by the appellants of the decision of the Registrar of
Transport to award permits to members of the fourth
respondent to
operate on the disputed route.
[21] Secondly, there is no evidence on record to support the finding
by the court below that members of the fourth respondent were
prevented from operating on the disputed route by violence. All that
the evidence shows is merely that there were protracted and
acrimonious disputes between members of the two taxi rivals. To the
contrary, counsel for the fourth respondent contended before
us that
members of the fourth respondent did not operate on the disputed
route because, in an attempt to avoid ongoing confrontations
with
members of the appellants, they opted to comply with the advice given
by the Registrar, Department of Transport, North West
embodied in a
letter dated 28 May 1999 to submit their applications for the
conversion of their radius-based permits into route-based
operating
licence for its members to regularise their permits, instead of
insisting on operating this route.
[22] In any event the finding by the court below on this crucial
aspect is refuted by the telling concession made by one Isaia
Nke who
deposed to an answering affidavit on behalf of the fourth respondent
where he unequivocally conceded that the fifth to
twelfth, fourteenth
to twenty fourth as well as the twenty sixth respondents did not
operate on the disputed route for at least
180 days before the
applications were made as required by the NLTTA. To my mind this
concession is subversive of the finding by
the court below.
[23] Having found that the respondents did not render a transport
service on this disputed route on a regular basis at least 180
days
before the application for the conversion of their permits into
operating licences as required by s 80 of the NLTTA, I am
constrained
to find, as I hereby do, that their applications for conversion of
the permits into operating licences for the disputed
route were
invalid and should not have been granted.
[24] In the result I make the following order:
1. The appeal is upheld.
2. The fourth to twenty fourth respondents and the twenty sixth
respondent shall pay the appellants’ costs, including the
costs
of two counsel, jointly and severally, the one paying, the others to
be absolved.
3. The order of the court below is set aside and replaced with the
following order:
(a) The appeal is upheld with costs, including the costs of two
counsel.
(b) The order of the court below is set aside and replaced with the
following:
The decision of the second respondent to grant operating licences to
the members of the fourth respondent for the route from
Moruleng to
Mogwase and back is reviewed and set aside.
The respondents shall pay the costs of the applicants jointly and
severally, the one paying the others to be absolved.
____________
L O Bosielo
Judge of Appeal
APPEARANCES:
For
Appellants: C A Da Silva SC
(with him M S Mangolele)
Instructed
by:
A O Ndala
Inc., Mmabatho
Matsepes
Attorneys, Bloemfontein
For Fourth
to Twenty-Seventh Respondents: J H F Pistor SC
(with him C J Zwiegelaar)
Instructed
by:
S M
Mookoletsi Attorneys, Mmabatho
NW
Phalatsi & Partners, Bloemfontein
1
The
National Land Transport Transition Act, 22 of 2000
which came into
operation on 1 December 2000. (This was repealed by
section 94
of
the
National Land Transport Act of 2009
which came into operation on
8 December 2009).
2
The
Road Transportation Act 74 of 1977.