Brief Summary

Transport Law — Operating licences — Rights of taxi associations — Great North Taxi Association sought declarations regarding operating licences allowing members to load passengers on specific routes — Respondents contended applicant lacked standing and failed to exhaust internal remedies — Court held that the applicant had the right to represent its members and that the failure to exhaust internal remedies was valid, resulting in dismissal of the application.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a motion application in the Gauteng Division, Pretoria, in which the applicant sought primarily declaratory and mandatory relief concerning the scope and enforceability of minibus taxi operating licences on the route between Mokopane and Hammanskraal/Pretoria. The dispute arose within the context of inter-association conflict in the taxi industry and the regulatory oversight exercised by provincial transport authorities.

The applicant was Great North Taxi Association (GRENTA), a taxi association whose members operated between Hammanskraal/Pretoria and Mokopane. The principal respondents were the Limpopo Provincial Transport Regulatory Entity (as the provincial regulatory body), the MEC for Roads and Transport: Limpopo Province, and Great North Long Distance Taxi Association (GNLDTA) (another taxi association whose members were alleged to be operating on the same or overlapping routes). The Gauteng Provincial Regulatory Entity, the MEC for Roads and Transport: Gauteng Province, and the Registrar of Roads and Transport: Limpopo Province were later joined.

Procedurally, the matter began with relief sought against the first to third respondents. After a point in limine on non-joinder was raised, the applicant brought an interlocutory joinder application, which was granted on 03 November 2015, together with leave to supplement its papers. Following joinder, the additional respondents did not file notices to oppose. At the hearing, the applicant abandoned prayers relating to the production of documents and supplementation of affidavits (prayers 1.5 to 1.8 of the amended notice of motion).

The general subject-matter was whether the applicant’s members, holding operating licences for the route, were entitled to load passengers in Mokopane for Hammanskraal and Pretoria, and whether an earlier instruction by the Limpopo Registrar directing the applicant’s members to cease loading on the return leg was lawful and enforceable.

2. Material Facts

It was common cause that the applicant and the third respondent were registered taxi associations, and that their members operated services between Hammanskraal/Pretoria and Mokopane. The first and fourth respondents were the relevant provincial regulatory entities responsible, among other functions, for public transport oversight and operating-licence administration within their provinces. The second respondent was the Limpopo MEC responsible for roads and transport.

The immediate trigger for litigation was an instruction by the then Limpopo Registrar of Transport that, after offloading passengers in Hammanskraal or Pretoria, the applicant’s members should stop loading passengers from Mokopane to Hammanskraal/Pretoria. The applicant’s case was that this instruction effectively prevented its members from operating the return leg, despite the terms of their operating licences.

The court treated as materially established that the applicant’s members held operating licences authorising them to operate on the route Pretoria/Hammanskraal to Mokopane and back, and that this authorisation had not been withdrawn. The respondents did not dispute the validity of the applicant members’ operating licences as such.

The applicant alleged a troubled history between the associations, including violence and prior court orders restraining interference. The applicant further alleged that its members had operated the disputed route since 1985 and that the third respondent’s members only began operating the disputed route after changes to their authorisations around 2006. These background allegations were not treated by the court as the decisive basis for the outcome, although the court noted that the background described in the founding affidavit was not seriously disputed.

Two meetings featured in the chronology. First, at a meeting on 23 June 2006 convened by the sixth respondent, it was allegedly resolved that the third respondent’s members had no authorisation to operate from Mokopane to Hammanskraal and that the applicant’s operations should be restored; notwithstanding this, the third respondent’s members allegedly continued operating. Second, the papers referred to a further meeting on 5 May 2011 chaired by the sixth respondent where an agreement was allegedly reached that, in light of operating licences issued to members of the third respondent in 2010 for Mokopane to Pretoria, the associations would “work together” and the applicant’s members would operate Mokopane to Hammanskraal and not Pretoria. The court’s ultimate reasoning did not treat this as displacing the applicant’s members’ entitlements flowing from their licences.

A central factual contention advanced by the first and second respondents was that, despite the licences, the applicant’s members did not have an “automatic” right to load passengers at Mokopane, and could do so only if members of the third respondent did not wish to load. The court did not accept that this contention could negate the entitlement conferred by the operating licences.

3. Legal Issues

The court was required to determine, first, a set of preliminary (procedural and jurisdictional) issues raised in the answering affidavits. These included whether the applicant disclosed a cause of action given the initial attachment of only one operating licence, whether there was non-joinder of affected parties, whether the applicant had locus standi to litigate on behalf of its members, and whether the applicant had failed to exhaust internal remedies before approaching court.

Secondly, on the merits, the dispute concerned the application of law to largely common cause facts, namely the legal effect of valid operating licences and whether the regulatory respondents could lawfully prevent the applicant’s members from loading passengers on the return leg at Mokopane.

To the extent that the applicant attacked the registrar’s instruction as ultra vires and unlawful, the matter also implicated administrative-law questions, but the court treated the exhaustion of internal remedies and lapse of time as decisive against the applicant on that aspect.

4. Court’s Reasoning

On the preliminary issues, the court rejected the contention that no cause of action was disclosed due to the initial absence of members’ licences. The court relied on the fact that, pursuant to the interlocutory order of 03 November 2015, the applicant had been granted leave to supplement and had attached operating licences for 22 members.

The point on non-joinder involving the Limpopo Taxi Council was treated as moot because the Taxi Council no longer existed under the prevailing legislative framework, and the non-joinder objection was in any event noted as having been abandoned.

On locus standi, the court held that the applicant was entitled to represent its members. It emphasised that the founding affidavit alleged authorisation by a resolution of the applicant’s executive and that the outcome affected the members who operated on the disputed routes. The court further regarded the applicant’s representative role as “settled” by authority, citing the approach in Polokwane Local & Long Distance Taxi Association v Limpopo Permission Board and Other, which criticised a narrow standing enquiry where an association litigates in relation to decisions affecting its members, and highlighting that membership may be a prerequisite for permissions and licences under the applicable statutory scheme. The court also referred to Bongani Nkala and 15 Ors v Harmony Gold Mining Company and Others for the broader constitutional context recognising expanded standing, including class or group-based litigation, and considered there to be no reason in principle to exclude collective litigation in non-Bill of Rights contexts.

On the exhaustion of internal remedies, the court upheld the respondents’ preliminary point. It relied on section 92 (quoted in the judgment) providing for appeals to the Transport Appeal Tribunal by an aggrieved applicant, a licence holder affected by a decision, or any other person interested in or affected by the decision. The court found that the applicant’s members should have approached the Appeal Tribunal within the prescribed period regarding the registrar’s direction. The court held that even if the direction was ultra vires and unlawful, the failure to pursue the internal appeal meant the applicant could not, at this late stage, complain of it. The court also stated that the review challenge to the instruction had to fail because the applicant and/or its members had failed to seek reasons from the registrar for the direction stopping them from operating from Mokopane to Pretoria/Hammanskraal. The lapse of time and failure to proceed within the prescripts of internal remedies (and, as mentioned, an application under PAJA) were treated as fatal to that portion of the relief.

On the main operational dispute, the court accepted as determinative that the applicant’s members held operating licences authorising transport as per their terms between Pretoria/Hammanskraal and Mokopane, including return operation. It noted that this authorisation had not been withdrawn and that the applicant had shown sufficient cause to be allowed to operate in terms of the permission granted.

The court rejected the respondents’ position that the applicant’s members lacked an “automatic” right to load at Mokopane unless members of the third respondent permitted it. It reasoned that the existence of similar operating licences granted to members of the third respondent did not alter the applicant’s legal entitlement flowing from its members’ licences. Any practical consequences of “dual permission” on the route were viewed as a matter falling within the regulatory purview of the first and second respondents, rather than a basis to deny the applicant’s members their licensed operations.

In relation to costs, the court exercised its discretion in favour of the applicant, reasoning that the applicant had succeeded in the main dispute.

5. Outcome and Relief

The court granted substantive operational relief but did not grant all the declaratory relief initially sought. It issued an order directing the second respondent (the Limpopo MEC) to ensure that the applicant’s members operate in accordance with their operating licences from Mokopane to Hammanskraal and from Mokopane to Pretoria.

The court ordered that the respondents were liable for the costs of the application jointly and severally, the one paying the other to be absolved.

Cases Cited

Polokwane Local & Long Distance Taxi Association v Limpopo Permission Board and Other (490/2016) [2017] ZASCA 44 (30 March 2017).

Bongani Nkala and 15 Ors v Harmony Gold Mining Company and Others, Consolidated case number: 48226/12.

Legislation Cited

National Land Transport Act 5 of 2009, including section 24(1)(a) read with section 51, and section 92 (as quoted in the judgment).

Northern Province Interim Passenger Transport Act 4 of 1999.

National Land Transport Transitional Act 22 of 2000.

Promotion of Administrative Justice Act 3 of 2000.

Constitution of the Republic of South Africa, 1996, including section 2 and section 38(c).

Interim Constitution of the Republic of South Africa, 1993, including section 7(4)(b)(iv) (as discussed in the cited authority).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicant association had standing to litigate on behalf of its members in relation to regulatory decisions and operational entitlements affecting them, and that preliminary objections based on lack of cause of action and non-joinder (in the form presented) could not succeed on the papers.

The court further held that the applicant’s challenge to the registrar’s instruction could not succeed because the applicant and/or its members failed to pursue the available internal appeal remedy to the Transport Appeal Tribunal within the prescribed time, and the lapse of time and failure to follow the required processes were fatal to that aspect of the relief.

On the central operational question, the court held that the applicant’s members were entitled to operate in accordance with their valid operating licences on the disputed routes, and that the existence of operating licences held by members of another association did not legally diminish that entitlement. The court therefore directed the Limpopo MEC to ensure that the applicant’s members operate in accordance with their operating licences from Mokopane to Hammanskraal and from Mokopane to Pretoria, and granted costs in favour of the applicant.

LEGAL PRINCIPLES

A taxi association may have locus standi to litigate in its own name in matters affecting its members’ operating rights where the association is authorised to act and the outcome materially affects those members, particularly in a regulatory environment where licensing is connected to association membership and regulatory decisions impact collective operations.

Where legislation provides for internal remedies—including a statutory appeal to a specialist tribunal against an act, direction, or decision affecting operating licences—an aggrieved party is generally required to exhaust those remedies within the prescribed period before seeking judicial relief, and failure to do so may bar later attempts to challenge the decision, even where unlawfulness is alleged.

Valid operating licences confer legal entitlement to operate in accordance with their terms, and the grant of similar or overlapping operating licences to other operators does not, without withdrawal or lawful limitation, negate an existing licence-holder’s entitlement. Practical conflicts arising from dual permissions are matters for regulatory management rather than grounds to deny licensed operation.

Great North Taxi Association (GRENTA) v Limpopo Provincial Transport Regulatory Entity and Others (55626/12) [2019] ZAGPPHC 219 (14 June 2019)