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[2017] ZASCA 44
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Polokwane Local and Long Distance Taxi Association v Limpopo Permissions Board and Others (490/2016) [2017] ZASCA 44 (30 March 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 490/2016
In
the matter between:
POLOKWANE
LOCAL & LONG
DISTANCE
TAXI ASSOCIATION
APPELLANT
and
LIMPOPO
PERMISSIONS
BOARD
FIRST RESPONDENT
THE
PROVINCIAL TAXI REGISTRAR,
LIMPOPO
PROVINCE
SECOND RESPONDENT
MEC:
DEPARTMENT OF ROADS
AND
TRANSPORT, LIMPOPO PROVINCE
THIRD RESPONDENT
RSA
TAXI
ASSOCIATION
FOURTH RESPONDENT
Neutral
citation:
Polokwane
Taxi Association v Limpopo Permissions Board and others
(490/2016)
ZASCA 44 (30 March 2017)
Coram:
Maya AP and Willis, Mbha and Mocumie
JJA and Fourie AJA
Heard:
23 February 2017
Delivered:
30 March 2017
Summary
:
Court Practice:
locus standi
:
whether appellant could bring the application: whether appellant had
direct and substantial interest in the subject matter.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Mavundla J, Pretorius and Phatudi JJ sitting as
court of appeal):
1.The
appeal is upheld with costs, including the costs consequent upon the
employment of two counsel, where employed.
2.
The order of the full court is set aside and substituted with the
following order:
‘
(a)
The appeal is upheld with costs
(b)
The order of the court a quo is substituted with the following order
–
i)
The applicant has the necessary
locus
standi in iudicio
to institute the
application.
ii)
The point
in
limine
is dismissed with costs.
(c)
The application is referred back to the court a quo for consideration
of its merits.’
JUDGMENT
Mbha
JA (Maya AP and Willis, Mbha, Mocumie JJA and Fourie AJA concurring):
[1]
This appeal is against the judgment of the full court of the Gauteng
Division of the High Court, Pretoria (Mavundla J with Pretorius
and
Phatudi JJ concurring) made on 29 January 2016, upholding the finding
of the high court of the same division (AA Louw J), that
the
appellant lacked the necessary
locus
standi
to have instituted the
application proceedings in question. Special leave to appeal to this
court against the aforementioned judgment
and order of the full court
was granted by this court on 3 May 2016.
[2]
During 2012 the appellant, a taxi association duly registered in
terms of the Limpopo Interim Passenger Transport Act, 4 of
1999 (the
Act), instituted urgent application proceedings in the high court.
The appellant sought certain interim relief pending
review, and the
setting aside of a ruling made by the first respondent, the Limpopo
Permissions Board (the Board), on 2 March 2012.
In terms of this
ruling, which was conveyed to the appellant on 2 April 2012, the
appellant’s members who are taxi owners
and operators, who
wished to operate on the route from Polokwane to Johannesburg and
return, could do so only if they became members
of the fourth
respondent, the RSA Taxi Association, a taxi association registered
in terms of the Act.
[3]
The appellants sought to review and set aside the above ruling on the
basis that it compelled the appellant’s members
to join the
fourth respondent, should they wish to operate the aforesaid route,
in violation of the appellant’s members’
right to freedom
of association which is guaranteed in s 18 of the Constitution of the
Republic of South Africa, 1996 (the Constitution).
[4]
The application proceeded as an opposed matter. The high court,
having raised the issue of the appellant’s standing
mero
motu
, dismissed the application after
finding that the appellant failed to make out a case for the relief
it sought because it lacked
the necessary standing. In arriving at
this conclusion, the high court reasoned that as an operating licence
is a personal right
which is issued to a specified person and in
respect of a specific vehicle and time, only the owner or operator of
an operating
licence has an inalienable direct and substantial
personal legal interest in any issue or dispute arising from that
operating licence.
Accordingly, it is such owner or operator only who
can enforce the rights conferred by such licence.
[5]
The high court then concluded that the appellant, a
universitas
,
which is a separate legal entity, could not enforce the rights of its
members which they possess by reason of their membership
to the
association, and did not institute the proceedings to protect or
enforce an interest which it had as an association. Instead,
it had
sought rather to protect or enforce rights acquired and held by its
members in their personal capacities. The high court
also held that
all of the appellant’s members mentioned in the annexure to the
founding affidavit should have been cited
as applicants and, not only
be required to individually prove their operating licences, but also
fully set out why relief in respect
of their specific licences should
be granted.
[6]
Unhappy with the outcome the appellant appealed, with leave of the
high court, to the full court. The sole issue for determination
by
the full court was whether the appellant had
locus
standi
to litigate on behalf of its
members in circumstances where the individual members have not in
their individual capacity instituted
the action nor filed verifying
affidavits.
[7]
In determining the appeal, the full court agreed with the high court
that the appellant, being a
universitas
,
was a legal entity capable of suing and being sued in its own name,
and possessed rights independent of its members. It also held
that in
order to bring the application on behalf of its members, the
appellant had to show that it had a direct and substantial
interest
in the outcome of the proceedings. In other words, what was required
was that it had a legal interest in the subject matter
of the action
which would be prejudicially affected by the judgment.
[8]
The full court relied on the matter of
Ex-TRTC
United Workers Front & others v Premier, Eastern Cape
Province
[1]
,
to find that the appellant lacked a direct and substantial interest
in the subject matter Van Zyl J stated that:
‘
The
second consideration … is whether there exists a sufficient
nexus between the individual members in their capacities
as members
of the association, and the right that forms the subject matter of
the litigation. Applied to the present matter, the
first plaintiff
did not, in my view institute these proceedings to protect or enforce
an interest which it had as a body or organisation.
Stated otherwise,
it does not propose to enforce the rights of its members which they
possess by reason of their membership of
the association. As stated
earlier, the right to claim damages from the defendant for the
alleged breach of contract is a personal
right that vests in each one
of the members of the association individually. The right which they
pursue in these proceedings therefore
exists independently of their
membership of the first plaintiff… It did not arise by virtue
of their membership of the first
plaintiff
.’
[9]
The full court went on to find that the appellant did not institute
the proceedings with a view to assert or protect an interest
which
vested in it as an association. Furthermore, the full court held that
the granting of a licence to an individual was not
dependent on his
membership to the appellant and, as the latter had not alleged any
right in respect of the licences of its members,
it could not assert
any such right to any particular route in its individual capacity nor
could it do so on behalf of its members.
[10]
In relation to s 38(
e
)
of the Constitution, the full court held that a party seeking to rely
on this section had the onus of persuading the court that
it
possessed such a right and must make specific averments, buttressed
with facts, that this right was threatened and required
protection.
However, in this matter the appellant did not acquit itself of
the onus resting on it to show that the rights
of its members were so
intertwined with its rights and that as such, that it had a legal
interest in bringing these proceedings
and possessed the standing to
do so.
[11]
Although it is so that this appeal concerns only the rulings and
findings in respect of the judicial review, in which both
the high
court and the full court agreed that the appellant was not possessed
of standing, before us the fourth respondent attempted,
however, to
raise a preliminary point in limine namely, that the appeal is moot.
This point was raised on the basis that since
the appellant does not
appeal the second ground upon which the high court dismissed the
review application, namely that the relief
sought was vague, the
dismissal of the review must in fact stand even if this court were to
uphold the appeal on the issue of
locus
standi
.
[12]
This point which the fourth respondent’s counsel, quite
correctly, did not pursue with much vigour is clearly misconceived
and cannot succeed. First, a simple reading of Louw J’s
judgment reveals that no such order was in fact made. Furthermore,
reference to any vague, relief was clearly no more than a remark made
in passing. Secondly, both the high court and the full court
clearly
discerned that the only issue for determination related to the
appellant’s standing to institute the proceedings.
Likewise,
this remains the single issue for determination in this appeal.
[13]
The point of mootness raised fails on another ground. S 16(2)(
a
)(i)
of the
Superior Courts Act 10 of 2013
provides that:
‘
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone’.
It
is trite that this court has a discretion which must be exercised
according to what justice requires, deciding issues on appeal
even
where they no longer present existing or live controversies.
[2]
A prerequisite for the exercise of this discretion is that any order
which the court may make will have some practical effect on
the
parties or on others.
[14]
The full court’s decision that a duly registered taxi
association in the appellant’s position, lacks standing to
bring proceedings on behalf of its members holds potentially
prejudicial future repercussions for the entire taxi industry as a
whole, should the import of the decision remain unchallenged.
[15]
The question whether or not the appellant was possessed of standing
to institute the proceedings must first be determined with
reference
to the specific relief it had sought. The relevant paragraphs of the
Notice of Motion read as follows:
‘
5.
That the decision of first respondent to force those members of
applicant who are entitled to travel on the route from Polokwane
to
Johannesburg and return, to become members of the fourth respondent
prior to being entitled to operate such mini-bus taxi service,
is
declared to be invalid and set aside;
6.
That the first respondent is ordered to issue to applicant an amended
route registration to include to route from Polokwane to
Johannesburg
and return;
7.
That the first respondent is ordered to issue licences to applicant’s
members who have previously operated a mini-bus taxi
service on the
route from Polokwane to Johannesburg and return, to include the route
in its operating licences, without having
to register with the fourth
respondent as members;
8.
Alternatively to prayers 6 and 7, that the decision that applicant’s
members who have previously operated a mini-bus service
on the route
from Polokwane to Johannesburg and return, have to join the fourth
respondent as members, before being able to do
so in future, be
referred back for reconsideration with the instruction that the first
respondent may not impose a condition to
force members of applicant
to join fourth respondent, prior to operating a mini-bus taxi
service.’
[16]
As has been mentioned earlier, it is not disputed that the appellant
is a duly registered taxi association. Both the high court
and the
full court found that it is a
universitas
with legal standing distinct from its members, and with the capacity
to sue and be sued in its own name. This categorisation of
the
appellant was not challenged by any of the parties. It is also common
cause that one of the Board’s functions is to register
a taxi
association to a specific allocated route through a register referred
to as “RAS” (Route Allocation System).
[17]
In light of the aforegoing, it is clear that the full court did not
give weight to the full import of the relief sought in
paragraph 6 of
the Notice of Motion, in which the appellant sought an order
compelling the first respondent to register and allocate
to appellant
an amended route from Polokwane to Johannesburg. This is
self-standing relief that was sought by the appellant in
its own
right without any reference whatsoever to its members.
[18]
Clearly, the appellant has a direct and substantial interest in the
outcome of the relief sought in this paragraph, which accords
fully
with the reasoning in the matter of
AAIL
(SA) v Muslim Judicial Council,
[3]
where Tebbutt J explained the concept of a direct and substantial
interest in a matter, in the following terms:
‘
It
is clear that in our law a person who sues must have an interest in
the subject-matter of the suit and that such interest must
be a
direct one (see
Dalyrymple
& Others v H Colonial Treasurer
1910 TS 372).
In
P
E Bosman Transport Works Committee & Others v Piet Bosman
Transport (Pty) Ltd
1980 (4) SA 801
(T) at 804B, ELOFF J states that:
"It
is well settled that, in order to justify its participation in a suit
such as the present, a party... has to show that
it has a direct and
substantial interest in the subject-matter and outcome of the
application”.
The
learned Judge cited with approval the view expressed in
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953
(2) SA 151
(O), approved by CORBETT J in
United
Watch & Diamond Co (Pty) Ltd & Others v Disa Hotels Ltd &
Another
1972 (4) SA 409
(C),
that
the concept of a "direct and substantial interest" connoted
"an interest in the right which is the subject-matter
of the
litigation". Corbett J went on to say at 415H:
‘
This
view of what constitutes a direct and substantial interest has been
referred to and adopted in a number of subsequent decisions,
including two in this Division... and it is generally accepted that
what is required is a legal interest in the subject-matter
of the
action which would be prejudicially affected by the judgment of the
Court’.
[19]
Regard being had to the content of paragraph 6 in the Notice of
Motion, it cannot be disputed that the appellant has a direct
and
substantial interest in the order it seeks in terms of this
paragraph. In other words, the appellant had the right to institute
the proceedings. On this ground alone, this appeal ought to succeed.
[20]
With regard to the relief the appellant sought on behalf of its
members as contained in paragraphs 5, 7 and 8 of the Notice
of
Motion, it is significant that the appellant’s averment in the
founding affidavit, that it was duly authorised to institute
the
proceedings on behalf of its members by virtue of a special power
attorney duly signed by the members and attached thereto,
was neither
challenged nor disputed. The full court ignored this important fact
and did not pronounce itself in any way on the
significance of such
authorisation. This authorisation cried out for attention by the full
court. Clearly, this authorisation vested
the appellant with the
necessary standing to institute the proceedings on behalf of its
members.
[21]
The full court’s finding that the appellant lacked
locus
standi
on the basis that the granting
of a licence to an individual was not dependent on his membership of
the appellant, and that the
right to a particular route arose from
the allocation of that licence, is wrong on two fronts. First, in
terms of s 39(11) of the
Act ‘[n]o permission may be granted
unless the applicant is a member of an association that has been
registered by the Registrar
under s 29 and the application is
supported in writing by the association, or the Registrar certifies
in writing that the applicant
qualifies as a registered non-members
under that section and has applied for registration as such’.
To this extent the issuing
of a taxi licence is dependent on
membership of an association. Secondly, the appellant in its
application for judicial review,
relies upon the fact that this is a
decision that affects its members. The focus of the enquiry by the
full court should therefore
have been the standing of the appellant
and should not have been on ancillary issues.
[22]
The full court overlooked the fact that the relief relating to the
setting aside of the Board’s decision compelling the
appellant’s members to join and belong to the fourth respondent
if they wished to operate on the aforementioned route, was
predicated
on an alleged infringement of the appellant’s members’
right to freedom of association as contained in the
Bill of Rights.
This right, contained in s 18 of the Constitution, provides that
everyone has the right to freedom of association
and the founding
affidavit makes specific allegations and references to the first
respondent’s actions thwarting the appellant’s
members’
rights to freedom of association.
[23]
The full court further erroneously failed to recognise that the
appellant was, in terms of s 38(
e
)
[4]
of the Constitution, within its rights to approach a competent court
as an association acting in the interest of its members, alleging
that their constitutionality guaranteed right to freedom of
association has been infringed or threatened. In terms of these
provisions
an association acting in the interest of its members 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
then grant appropriate relief.
[24]
The relief of review sought by the appellant to set aside the
impugned decision which prejudicially affects the rights of its
members falls squarely within the ambit of s 38(
e
).
Accordingly, the appellant had the necessary standing to have
instituted the proceedings on behalf of its members to protect
their
constitutional rights.
[25]
The full court misdirected itself by ignoring the import of s 38(
e
)
of the Constitution which refers specifically to cases in which a
right in the Bill of Rights is infringed or threatened. It instead
relied on the matter of
Ex-TRTC
United Workers Front v Premier, E Cape
by requiring that the appellant show that it has a direct and
substantial interest in the outcome of the proceedings to wit, a
legal interest in the subject matter of the application that would be
prejudicially affected by the judgment. In my view,
Ex-TRTC
United Workers Front v Premier, E Cape
is distinguishable. The full court did not consider the full import
of s 38(
e
)
of the Constitution as a mechanism conferring statutory standing on
an association similar to the appellant, acting on behalf
of its
members. Moreover, the Constitutional Court has cautioned against the
adoption of a narrow approach to the issue of standing
in
constitutional cases. In
Ferreira
v Levin NO & others
,
[5]
Chaskalson P explained as follows in relation to s 7(4)(
b
)
of the interim Constitution (the precursor to s 38):
‘
whilst
it is important that this court… should devote its scarce
resources to issues that are properly before it, I can see
no good
reason for adopting a narrow approach to the issue of standing in
constitutional cases. On the contrary, it is my view
that we should
rather adopt a broad approach to standing’
.
The
courts are impelled to adopt a broad and liberal approach to standing
when interpreting s 38(
e
)
of the Constitution.
[26]
The full court adopted too restricted an approach in determining
standing. The appeal must therefore succeed. As the merits
of the
review remains extant, it follows that this matter must be referred
back to the high court for finalisation. It is not necessary
to
consider the alternative ground of appeal namely, whether the
appellant could rely on the provisions of s 38 of the Constitution
in
asserting for judicial review under PAJA.
[27]
I accordingly make the following order:
‘
1.
The appeal is upheld with costs, including the costs consequent upon
the employment of two counsel, where employed.
2.
The order of the full court is set aside and substituted with the
following order:
‘
(a)
The appeal is upheld with costs.
(b)
The order of the court a quo is substituted with the following order
–
(i)
The applicant has the necessary
locus
standi in iudicio
to have instituted
the application.
(ii)
The point
in limine
is dismissed with costs.
(c)
The application is referred back to the court a quo for consideration
of its merits.’
________________
B
H Mbha
Judge
of Appeal
APPEARANCES:
For
Appellant:
S G Gouws (with him L W De Beer)
Instructed
by:
De Bruin Oberholzer Attorneys, Polokwane
c/o
Symington & De Kok, Bloemfontein
For
Respondents:
R Bedhesi (with him A Lapan)
Instructed
by:
Bhika Inc, Johannesburg
c/o
Webbers Attorneys, Bloemfontein
[1]
Ex-TRTC
United Workers Front & others v Premier, Eastern Cape
Province
2010 (2) SA
114
(ECB) para 25.
[2]
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC) para [9] – [11];
South
African Broadcasting Corporation SOC Ltd & others v Democratic
Alliance & others
2016 (2) SA 522
(SCA);
Legal
Aid South Africa v Magidiwana & others
2015 (6) SA 494
(CC);
Minister
of Local Government, Western Cape v Lagoonbay Lifestyle Estate Pty
(Ltd) & others
2014 (1) SA 521 (CC).
[3]
Ahmadiyya
Anjuman Ishaati-Islam Lahore (South Africa) & another (SA)
v Muslim Judicial Council (Cape) and others
1983 (4)
855 (C) at 863H-864A.
[4]
Section
38(
e
)
of the Constitution provides:
‘
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—
…
…
…
…
(e)
an association acting in the interest of its members.’
[5]
Ferreira
v Levin No & others; Vryenhoek & others v Powell NO &
others
1996
(1) SA 984
(CC).