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2021
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[2021] ZANCHC 65
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Refitlhile Taxi Association and Others v Vaalharts Taxi Association and Others (2227/2014) [2021] ZANCHC 65 (14 December 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO: 2227/2014
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
In
the matter between:
REFITLHILE
TAXI ASSOCIATION
1
st
Applicant
PAPA
MOSUNDA
2
nd
Applicant
OTTO
MAGAGANE
3
rd
Applicant
PETRUS
MONWAPELE
4
th
Applicant
BUTI
PUTE
5
th
Applicant
JOE
SETHINI
6
th
Applicant
PAPI
MOOKETSI
7
th
Applicant
FEZILE
MAYEKISO
8
th
Applicant
and
VAALHARTS
TAXI ASSOCIATION
1
st
Respondent
THE
NORTHERN CAPE PROVINCIAL
OPERATING
LICENCE BOARD
2
nd
Respondent
THE
MEC OF TRANSPORT, SAFETY AND LIAISON
NORTHERN
CAPE PROVINCE
3
rd
Respondent
JUDGMENT
O’BRIEN
AJ,
1.
There was a dispute
between the first applicant and the first respondent concerning
specified taxi routes. For unrelated reasons
the conflict culminated
in an order granted by Pakati J on 14 November 2014. The court order
relevantly determines that the first
respondent shall, within 20 days
of the granting of the order to constitute an action for a
declaratory order and a final interdict.
The order granted by the
learned Judge turns on the fact that the applicants shall not
interfere with the first respondent; shall
not prevent the first
respondent from loading or offloading passengers; the applicants are
interdicted and restrained from encroaching
in any manner whatsoever
on the operating routes of the applicants; the applicants are
interdicted and restrained from intimidating,
harassing, assaulting
or use any form of violence against the respondents’ members or
their passengers; interdicted and restrained
from calling,
instigating, promoting or encouraging any person to intimidate,
harass, assault or use any form of violence against
any of the
respondents’ members. This order was taken by agreement between
the parties.
2.
On 09 March 2018, AJ
Lever declared the interim order granted on 14 November 2014 as
lapsed due to non-compliance by the first respondent
(Vaalharts Taxi
Association).
3.
On 15 February 2019,
Coetzee AJ revived the interim order of 14 November 2014, and
rescinded the order of Lever AJ. The latter order
specifically stated
that pending the final determination of the action instituted, the
order of 14 November 2014 should remain
enforced against the first to
eighth Respondents.
4.
On 20 November 2019,
the applicants approached this court, declaring the summons in the
action proceedings instituted by the first
respondent under Case No:
2227/14 declared to have lapsed. I shall refer to this application as
the main application.
5.
The first respondent
opposed this application, and on 20 November 2020, Chwaro AJ granted
an order allowing the first respondent
to file its opposing affidavit
in the main application. The main application was postponed
sine
die
to enable the
parties to resolve their dispute. The cost of the main and the
condonation application was reserved for later determination.
6.
Realising that the
replying affidavit was out of time, the applicants’ current
attorney applied for condonation for the late
filing of the
applicants’ replying affidavit. The first respondent opposes
the application for condonation for the late filing
of the replying
affidavit.
7.
The second to eighth
applicants are members of the first applicant. The second and third
respondents did not take part in these
proceedings. Points were taken
that the applicants did not join certain parties, and did not have
the authority to institute the
present proceedings. These points have
no merit. The evidence point to both points.
8.
The issues to be
determined by this court are whether the first respondent’s
action has become stale and whether this court
should grant
condonation to the applicants for the late filing of their replying
affidavit.
9.
It is common ground
between the parties that the action instituted by the first
respondent was within the period envisaged by the
court order dated
14 November 2014.
The
summons
10.
In
Molala
v Minister of Law & Order & Another
1993 (1) SA 673
(W)
Flemming DJP
lamented that there are no fixed time limits to force a plaintiff to
prosecute a claim under our rules of court. Under
our rules, it is
left to the Judge’s discretion to determine whether there has
been an abuse of process. The learned Deputy
Judge President
undertook an exhaustive exercise on cases in which it was held that
the plaintiff’s claim had lapsed.
11.
In
Cassimjee
v Minister of Finance
2014 (3) SA 198
(SCA) at para 11
the
court states as follows:
“
[11]
There are no hard and fast rules as to the manner in which the
discretion to dismiss an action for want of prosecution
is to be
exercised. But the following requirements have been recognised.
First, there should be a delay in the prosecution of the
action;
Second, the delay must be inexcusable and, Third, the defendant must
be seriously prejudiced thereby. Ultimately, the enquiry
will involve
a close and careful examination of all the relevant circumstances,
including, the period of the delay, the reasons
therefore and the
prejudice, if any, caused to the defendant. There may be instances in
which the delay is relatively slight but
serious prejudice is caused
to the defendant, and in other cases the delay may be inordinate but
prejudice to the defendant is
slight. The court should also have
regard to the reasons, if any, for the defendant’s inactivity
and failure to avail itself
of remedies which it might reasonably
have been expected to do, in order to bring the action expeditiously
to trial.
”
12.
In its answering
affidavit, the first respondent avers that due to a lack of funds and
its involvement in another dispute before
the second respondent, it
was not in a position to proceed with the action. According to Mr
Olivier, who acted for the first respondent,
the lack of prosecution
is fully explained; consequently, the court should not exercise its
discretion in favour of the applicants.
13.
Mr Baloyi, who appears
for the applicants, contended that the applicants are seriously
prejudiced by the failure of the first respondent
to prosecute its
claim.
14.
I am not persuaded by
Mr Olivier’s argument that a detailed explanation is given why
the action was not brought to finality.
On the contrary, the
information is scant, and the lack of finance is referred to in broad
terms. No specifics are given; no financial
statements are attached
to the answering affidavit, and insufficient detail is given
regarding the matter before the second respondent.
15.
As stated earlier, it
is common ground that the first defendant issued a summons out of
this court within the period stipulated
in the order dated 14
November 2014. After that, the first respondent requested the
applicants to file their plea alerting them
that a failure to do so
would put them under bar. When the applicants did not reply, the
first respondent merely sat back and did
not compel the applicants to
take further steps. That is an abuse of process.
16.
After more than three
years, Lever AJ (as he then was) declared the interim order of 14
November 2014 has lapsed due to non-compliance.
It seems that this
stirred the first respondent into action, and on 15 February 2019,
Coetzee AJ rescinded that order. On 20 November
2019, the first
respondent had to be dragged again before the court with the present
application. The attitude displayed by the
first respondent is not
one of a serious litigant who wants to enforce their rights when it
had more than one opportunity to do
so. In my judgment, the first
respondent has displayed a
non-chalant
attitude regarding compliance with the rules of court. This will be
reflected in the cost order.
17.
In its founding
affidavit, the deponent states the following regarding prejudice:
“
18.
The applicants are prejudiced by the long pending action proceedings
which took over 4 years in that they cannot
plan their expansion in
their business and/or re-develop their business while the said action
is still pending.
”
18.
Self-evidently, the
fact that the applicants operate a taxi business and are not allowed
to travel certain distances or operating
routes creates prejudice.
19.
In the circumstances, I
am satisfied that there has been a delay in the prosecution of the
action; the delay is inexcusable and,
the applicants are seriously
prejudiced.
20.
The applicants apply
for condonation for the late filing of its replying affidavit. This
is senseless because the applicants have
already filed a replying
affidavit. The application for condonation was therefore superfluous.
21.
Before issuing the
order, I need to point out a worrying fact in this matter. Both the
applicants and the first respondent made
the task of this court
arduous for lack of particularity. Legal representatives acting for
the parties must ensure that when applications
for condonation are
made sufficient detail must be placed before the court to reach a
just decision. In this matter, both the applicants
and the first
respondent, because of this failure, made the task of this court
particularly cumbersome in coming to a conclusion.
As is apparent,
the matter before this court is simple and need not have occupied
this court. It could have been disposed of more
pragmatically if the
parties were transparent. In making the order as I envisaged, I shall
have regard to what I have said in this
paragraph.
22.
I make the following
order:
22.1
Action 2227/2014 is
dismissed with costs;
22.2
The first respondent to
pay the costs of this application;
22.3
The cost for the
attempt to file a second replying affidavit by the applicants is
dismissed with costs;
22.4
Each party shall pay
its own costs occasioned by any postponement of this matter, if any.
_________________
S
C O’BRIEN
ACTING
JUDGE
On
behalf of the First Applicants:
Adv. D Olivier
(Van De Wall
Incorporated)
On
behalf of the Respondents:
Mr K. Baloyi
(Mkhokheli Pino
Incorporated)