About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2019
>>
[2019] ZAKZPHC 37
|
|
Klipriver Taxi Association and Others v MEC for Transport, KwaZulu Natal and Another (12682/2018P) [2019] ZAKZPHC 37; 2020 (3) SA 447 (KZP) (14 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: 12682/2018P
In
the matter between:
KLIPRIVER
TAXI ASSOCIATION FIRST
APPLICANT
ANDILE
HLATSHWAYO
SECOND
APPLICANT
EMMANUAL
SKHAKHANE
THIRD
APPLICANT
NTOKOZO
NXUMALO
FOURTH
APPLICANT
THOKO
MABASO
FIFTH APPLICANT
SANDILE
INNOCENT NDLELA
SIXTH APPLICANT
and
MEC
FOR TRANSPORT, KWAZULU-NATAL
FIRST
RESPONDENT
SIZWE
TRANSPORT ASSOCIATION
SECOND RESPONDENT
ORDER
1.
The
first respondent’s decision to suspend all taxi operations of
the first applicant in terms of section 91 of the National
Land
Transportation Act 5 of 2009 as published in the Provincial Gazette
of 10 October 2018, Provincial Notice 115 of 2018, is
reviewed and
set aside.
2.
The
first respondent is liable for the first applicant’s costs,
including that occasioned by the employment of two counsel,
such
costs to include the hearing on 12 December 2018.
3.
In
respect of case number 14210/17P, each party is to pay its own costs.
4.
In
respect of case number 10587/18P the first respondent is directed to
pay the first applicant’s costs.
JUDGMENT
Chetty J
[1]
A cursory search on the internet regarding the taxi industry in South
Africa reveals
that there are more than 200 000 minibus taxis on our
roads, employing more than 600 000 people, generating more than R90
billion
every year, with 69 per cent of households using taxis.
Minibus taxis are the most available and most affordable forms of
public transportation, conveying 15 million commuters per day. Its
existence is fundamental to our society.
[2]
Given this background, it is an unfortunate concomitance that with
the vast revenues
generated by taxi operators comes a struggle for
‘turf’ or lucrative routes. In the midst of this all is
the first
respondent, the Member of the Executive Council for
Transport, Safety and Community Liaison, KwaZulu-Natal (‘MEC’),
who is tasked with the implementation at a provincial level with the
provisions of the National Land Transport Act 5 of 2009 (‘NLTA’)
one of the objectives of which is to ensure transport safety and
security. This power is derived from s 91(1) of the NLTA, which
reads
as follows:
‘
If
in any area in the relevant province the MEC considers that because
of violence, unrest or instability in any sector of the public
transport industry in the area or between operators in the area the
safety of -
(a)
passengers using the relevant
services; or
(b)
residents; or
(c)
any other persons entering the area,
has
deteriorated to an unacceptable level, the MEC may, after consulting
relevant planning authorities by notice in the
Provincial Gazette
,
define the area and declare it to be an area in respect of which the
notification prescribing the extraordinary measures contemplated
in
subsection (2) may be made.’
Section
91(2) further states that the MEC may, by notice in the Provincial
Gazette, give notice that:
‘
(a)
one or more or all the routes or ranks in such a declared area are
closed for the operation of any type of public transport
service,
for the period stated in the notice;
(b)
any
operating licence or permit authorising any of the services referred
to in paragraph
(a)
on a closed route or routes or at a closed rank or ranks in the
declared area is suspended for the relevant period;
(c)
subject
to subsection (6), no person may undertake any of the services
referred to in paragraph
(a)
on a closed route or routes or at a closed rank or ranks in the
declared area or in terms of an operating licence or permit suspended
as contemplated in paragraph
(b)
for the relevant period.’
[3]
The manner in which the MEC has sought to achieve the objective of
commuter safety
in Ladysmith, KwaZulu-Natal, was to impose a
suspension of the long distance taxi routes operated by the members
of the first applicant
(Klipriver Taxi Association – ‘KTA’)
and the second respondent (Sizwe Transport Association –
‘Sizwe’).
The suspension of operations was
the catalyst for the application launched in November 2018 in which
KTA brought an urgent application
seeking interim relief that
suspension of taxi operations by the MEC, published in Provincial
Gazette, Extraordinary, 10 October
2018, be uplifted. Pending
the grant of interim relief, KTA sought to review and set aside the
MEC’s decision to impose
the suspension. On 12 December 2018
after hearing argument from both counsel for the KTA and the MEC I
granted an order lifting
the suspension, pending the review
application of the MEC’s decision of 10 October 2018. The
matter was adjourned to
21 February 2019 before me.
[4]
Prior to the present application being launched, a series of
applications were brought
by the KTA against the MEC and Sizwe in
relation to its taxi operations in Ladysmith. By way of background,
in June 2017 KTA under
case number 6035/2017 obtained an interim
order in this court interdicting members of Sizwe from intimidating
KTA members who were
seeking to utilize routes designated to the
applicant association. In addition, Sizwe was interdicted from
demanding payment from
KTA members in exchange for them using the
routes allocated to their own association. In addition, Sizwe
was directed to
produce any licences or permits issued to it, in
which certain designated routes are described. The MEC was
directed to enforce
the routes assigned to the members of KTA and to
take necessary steps to ensure that these routes were not used by
Sizwe and its
members. The MEC chose to abide the interim
order, which was set down for confirmation on 7 November 2018.
According
to the KTA, Sizwe failed to obey the order resulting in a
pattern of violence against it (KTA) continuing.
[5]
Although the MEC disputes the allegation, KTA contends that the MEC
failed to take
any measures to implement the order of 8 June 2017 and
instead resorted to suspend all operations of KTA and Sizwe
(Ladysmith),
as well as declaring “
emergency
measures in the areas of Ladysmith and areas surrounding the Alfred
Duma municipality
.”
This suspension was formally proclaimed in Provincial Gazette 123 of
2017, dated 21 November 2017 and issued in terms of
s 91 of the
NLTA. The notice indicates that the “
emergency
measures
”
taken by the MEC were intended to normalize transport services in the
areas affected by violence, unrest, conflict and instability.
It informed members of the public to make representations to the MEC
as to why his decision should be reconsidered. KTA contends
that the MEC adopted a sledge-hammer approach and instead of taking
measures to control the manner in which taxi operations were
being
conducted in Ladysmith, the MEC opted to extinguish the problem by
totally prohibiting their operations. KTA submitted
that this
facilitates an improper approach to the fulfilment of his obligations
under the NLTA.
[6]
According to KTA while the routes were suspended, members of Sizwe
continued to operate
on these routes in defiance of the order of June
2017 and without any action of the part of the MEC. At the same
time, KTA
proceeded to court with an application under case number
14210/2017P in which it challenged the validity of the 21 November
2017
proclamation on the basis that neither it nor Sizwe, the two
entities directly affected by the suspension, were afforded an
opportunity
of making representations prior to the MEC making his
final decision to impose the blanket suspension.
[7]
Despite the contention of KTA that there had been no or very little
taxi violence
in the first half of 2018, the MEC by way of
proclamation dated 11 June 2018, and acting in terms of s 91 of the
NLTA again suspended
taxi routes of KTA and Sizwe in Ladysmith and
surrounding areas of the Alfred Duma Municipality. The period
of suspension
was extended for a period of six months from the date
of the initial suspension. The notice also called upon affected
and
interested parties to make representations as to why the MEC’s
proclamation should be reconsidered.
[8]
The proclamation by the MEC was again challenged by the KTA under
case number 10587/2018P.
KTA contends that as a result of the
proclamation, life in the area of Ladysmith had grounded to a halt
with the cessation of taxi
operations, although the MEC takes the
view that the suspension only pertained to long distance routes which
is the subject matter
of a dispute between KTA and Sizwe. As such,
according to the MEC, there is no disruption to the lives of local
commuters in Ladysmith.
This dispute of fact, if there is one,
does not prevent the adjudication of this application on the papers.
[9]
On 18 September 2018 Lopes J granted interim relief calling upon the
MEC and Sizwe
to show cause why, pending a review of the proclamation
dated 11 June 2018, the suspension of taxi operations in Ladysmith
should
not be lifted. The court ordered that the suspension
only take effect from 12 October 2018 to enable the MEC to comply
with
the procedural framework envisaged in ss 91(3) to (9) which
reads as follows:
‘
(3)
Before making the notice in terms of
subsection
(2)
,
the MEC must cause a notice to be published in the prescribed manner,
stating -
(a)
in
summary form the nature and purpose of the proposed regulations;
(b)
the
route or routes and rank or ranks which are proposed to be closed, or
that it is proposed to close all routes and ranks in the
declared
area;
(c)
the
period for which the proposed regulations will be in force;
(d)
that
interested or affected parties may request reasons for the proposed
regulations;
(e)
that
any interested or affected persons are entitled to make
representations;
(f)
the
time within which representations may be made, which may not be less
than 24 hours;
(g)
the
address to which representations must be submitted, and
(h)
the
manner in which representations must be made.
(4)
The MEC must consider any representations received under
subsection
(3)
before
making a regulation under
subsection
(2)
.
(5)
The notification contemplated in terms of
subsection
(2)
may
provide that a contravention thereof or a failure to comply therewith
constitutes an offence, and may prescribe penalties in
respect
thereof which may be a fine, or imprisonment for a period not
exceeding six months.
(6)
The notification may provide for the issuing of temporary permits to
operators of
motor vehicles of specified types, to operate services
on a closed route or routes or at a closed rank or ranks for the
period
of their closure in substitution of the forbidden services.
(7)
After giving notice as contemplated in
subsection
(3)
,
the MEC may, by notice in the
Provincial
Gazette
,
temporarily suspend any operating licence or permit insofar as it
authorises public transport in a declared area on a route or
routes
or at a rank or ranks not closed in terms of the notice contemplated
in terms
subsection
(2)
,
for the period the MEC considers appropriate.
(8)
The MEC may in a like manner and at any time amend the notification
made in terms
of
subsection
(1)
.
(9)
The Minister may, after consulting the MEC and relevant planning
authorities, exercise
any of the powers of the MEC in this section.’
[10] As I understood his argument, Mr
Kemp
SC
who appeared with Mr
Veerasamy
for the
applicant, submitted that the proclamation of 11 June 2018 was
procedurally flawed, and described it a ‘rolled-up’
suspension. It is well established that when interpreting
legislation the “
words of the
section are the
starting point, but they are to be considered in the light of their
context, the apparent purpose of the provision
and any relevant
background material. A sensible meaning is to be preferred to one
that leads to impractical results”
. See
Moyo &
another v Minister of Justice and Constitutional Development &
others
2018 (2) SACR 313
(SCA) para [88] which endorsed the
approach in
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA). I agree with Mr
Kemp
that the legislative framework of s 91 of the NLTA envisages a
process of notice to the public, consideration of any responses
thereto by the MEC and the publication of the outcome.
[11]
It is trite that in executing his legislative and constitutional
obligations, a functionary such
as the MEC is obliged to uphold the
provisions of the Constitution and to ensure that administrative
decisions are procedurally
fair, reasonable, lawful and in accordance
with the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’).
Following
the order by Lopes J the MEC, in an attempt to comply
with the two-stage process for which he had been criticised in the
earlier
application, published a notice on 20 September 2018 that he
intended invoking the provisions of s 91 of the NLTA in light of the
following factors:
‘
1.
The need to preserve the safety of the community, operators and their
employees.
2.
The ongoing instability relating to long distance taxi routes between
the Klipriver Taxi Association and the Sizwe Transport
Taxi
Association (Ladysmith);
3.
The failure of the operators, particularly the leadership of both
associations, to find an amicable resolution and commitment
to
peaceful operations of the contested routes.
The
above named area has suffered violence and experienced a high
mortality rate due to minibus taxi related violence.’
[12]
The MEC further gave notice in terms of s 91(2) of his intention to
suspend the long distance
routes and operating licences registered to
KTA and operated by members
who hold dual membership
between
Klipriver and the Sizwe Transport taxi Association. The notice
further proposed that the suspension shall operate
for a period of
six months, commencing on the date of publication in the Gazette and
to remain in force “
until the abovenamed associations enter
into an agreement to operate the contested routes peacefully
”.
[13]
In reply KTA submitted a detailed response recognizing that there
have been incidents of violence,
such as the Chairman of the KTA
being attacked and shot at in February 2015, followed by attacks
against its office bearers and
members. The pointed stressed was that
these attacks have been directed only against members of KTA, whose
routes the MEC is proposing
to suspend. The MEC, in other
words, was seeking to punish the very same victims of the taxi
violence. To the extent
that the MEC referred in the notice to
the high mortality rate being attributable to the taxi violence, KTA
pointed out that to
their knowledge, there have been no reported
incidents of violence at taxi ranks, and that the violence appeared
to have occurred
outside of these areas.
[14]
Reference was also made to the MEC attributing the death of 11
passengers in a minibus taxi accident
to taxi violence. It was
clarified that in this particular instance, an official of KTA was
shot at and lost control of his vehicle,
which collided with another
vehicle conveying several schoolteachers and a male passenger. The
MEC, it was contended, was under
a misapprehension that these deaths
were attributable to taxi violence as opposed to an accident.
It also dispelled any suggestion
that the taxi violence was due to a
family feud or ‘faction fight’ between the Mabaso and
Gamded families belonging
to the rival taxi associations.
[15]
In so far as the contention of ongoing strife between members of the
KTA and Sizwe, it was pointed out that this
has nothing to do with
the conduct of members of the KTA but rather that members of Sizwe,
without being in possession of any permits
entitling them to do so,
were utilising routes allocated exclusively to KTA, in violation of
an order of court. In addition, the
previous suspensions imposed by
the MEC prohibited taxi operations on long-distance routes operated
by both KTA and Sizwe.
While KTA has respected the
extraordinary measures imposed, the members of Sizwe have continued
regardless. As such, the suspension
only operates adversely against
KTA, depriving its members from earning an income. The
representations to the MEC sketched the
wider impact that the ban has
for the community in Ladysmith, and the presence of wide spread
support in the local community for
lifting the ban. KTA also
proposed a number of recommendations in an attempt to assist the MEC
in achieving the objectives
of the NLTA, including motivating why
dual membership of taxi associations is not a cause for concern or a
contributing factor
to the violence.
[16]
Without reverting to KTA following their representations, the MEC
proceeded on 10 October 2018
to suspend the long-distance of routes
and taxi operations of both KTA and Sizwe on the basis that they had
found no amicable resolution
to the ongoing conflict. The notice made
reference to the death of a member of one of the disputing
associations, which it was
submitted justified the invocation of the
extraordinary measures under s 91 of the NLTA. As a consequence the
MEC resolved that
the suspension would operate for a period of six
months from the date of publication in the Provincial Gazette and
shall remain
in force “
until
the abovenamed taxi associations enter into an agreement to operate
the contested routes peacefully
”.
[17]
On 18 October 2018 attorneys representing KTA gave the MEC notice of
their intention to challenge
the suspension and suggested that all
three earlier applications pertaining to the suspensions should be
heard together with the
impending review.
[18]
The issue of dual membership between KTA and Sizwe is cited in the
notice of 20 September 2018
as a basis for the suspension. This is
also apparent from the answering affidavit of Herbert Ntuli on behalf
of the MEC in which
it is stated that KTA has 581 members with
operating licences and Sizwe has 52. Of the latter, 22 hold dual
membership with KTA.
It is pertinent to point out that in terms of s
53 of the KwaZulu-Natal Interim Minibus Taxi Act 4 of 1998 which
regulates the
manner in which permits are granted and issued, the
following is provided:
‘
(1)
All minibus taxi permits shall from the date of the commencement of
this Act be -
(a)
route-based; or
(b)
area-defined.
(2)
The period of validity of minibus taxi permits granted in terms of
the legitimisation process shall be prescribed by regulation.
(3)
After the commencement of this Act -
(
a
)
no minibus taxi permit describing the service to be rendered in terms
of a radius shall
be issued by the Board; and
(
b
)
no minibus taxi permit transfer shall be permissible except a permit
transfer -
(i)
from an operator's deceased estate; and
(ii)
between members of the same association: provided that the transfer
has been authorised
by the association and any challenge contemplated
in section 50 has been resolved.’
[19]
In light of 22 members of Sizwe holding dual membership, the MEC
considered that this has caused
animosity amongst KTA members
themselves describing the violence as “
an
internal dispute between siblings
”.
In light of the dual membership, the MEC says that it is not possible
to distinguish who is a member of which association
and therefor one
cannot exclude the possibility of violence directed by members of KTA
against their own.
[20]
KTA is adamant that the issue of dual membership is not a cause for
conflict and in any event
was an irrelevant consideration taken into
account by the MEC in imposing the suspension. Mr
Kemp
relies on the unreported judgment by Koen J in
Klip River Taxi
Association v Sizwe Taxi Association & others
(Case No.
6035/2017P, 7 November 2018). In that matter an interdict was
sought, inter alia, preventing Sizwe from demanding
payment from
KTA’s members to ultilise routes allocated exclusively to KTA
by the Department of Transport. The learned
judge said the
following on the issue of dual membership:
‘
The first
respondent has opposed the application on the basis that many of the
members of the applicant [are] also being members
of the first
respondent. The fact that that may be so does not in my view in
anyway stand in the way of the relief in paragraph
1.1.2 being
confirmed.
’
[21]
In so far as the relief that Sizwe be interdicted from demanding that
members of KTA utilise
passenger lists bearing the name of the Sizwe
Taxi Association, the latter took the view that this was not an issue
in dispute
as membership of both associations are the same. In
dealing with this aspect, Koen J stated that the issue dual
membership, whether
“
in totality or even partially
”,
was in his view irrelevant. The Court refused to interdict Sizwe in
other respects complained of, but these are not relevant
to this
application. While I accept that Koen J found the issue of dual
membership to be irrelevant, I do not elevate it
to the status
contended for by Mr
Kemp
, suggesting that this argument has
been finally “
banished
”.
[22]
I have carefully perused the Record of Decision filed by the MEC and
I am unable to locate any
authority for the prohibition of dual
membership by an individual taxi operator, save for clause 6.4 of the
South African National
Taxi Council (SANTACO) Constitution, which
provides that dual membership is proscribed, save with the written
consent of SANTACO.
The standard conditions to the granting of
operating licences oblige individual members to respect the
Constitution of the association
at all times. Clause 9 of the
conditions provides for a holder to operate on a “
common
route in terms of a reciprocity agreement in terms of section 88 of
Act 22 of 2000 with other Bus / Taxi Associations, the
permit shall
lapse should he or she breach such reciprocity agreement
”.
[23]
Section 65 of the NLTA which deals with the operating licences for
long-distance services, provides
that the transportation board shall
determine the routes, ranks, terminals and picking up and drop off
points for taxis, as well
as days of operation including the
requirement that passengers may not be picked up or dropped off
en-route unless the operator
has reached agreement with the relevant
transport authorities and municipality and with the taxi associations
operating locally
in the area.
[24]
There is nothing, either in statute or contract that appears to
prohibit dual membership.
To the extent that the MEC, for
reasons which are not quite apparent from the papers before me,
believes that the issue of dual
membership is something that he ought
to root out from the taxi industry, he is certainly not entitled to
use the provisions of
s 91 of the NLTA to achieve this objective.
The purpose of the extraordinary measures catered for in s 91 are
clearly intended
to address violence, unrest or instability in the
taxi industry. Dual membership of associations finds no
application.
The decision of the MEC, for these reasons,
renders it liable to being set aside in terms of s 6(2)(a)(i) of
PAJA.
[25]
Apart from there being no evidence of such dual membership being a
contributing factor to the
violence between the associations, I am in
agreement with Mr
Kemp
that this is an irrelevant factor which the MEC took into account in
imposing the suspension of the long distance taxi routes.
The
conclusion that dual membership may have given rise to “
internal
strife
”
within the KTA, on my reading of the documents forming the Record of
Decision, is based on speculation. Despite much being
made of the
issue of dual membership in the answering papers, the notice issued
on 10 October 2018 is silent on the issue of dual
membership.
[26]
An equally glaring omission from the notice of 10 October 2018 is
that the MEC states that the
“
long
distance routes and operating licences of the minibus taxi operators
listed hereunder are temporarily suspended
”.
The notice however is deficient and lends itself to be set aside on
the grounds of vagueness in as much as it does
not specify
which
of the routes of KTA or Sizwe are suspended from operation, or
whether all of their respective routes are hit by the proclamation.
[27]
The remaining ground of attack was directed at the MEC imposing a
suspension of operations for
a period of six months, but that it was
to remain in force “
until
the abovenamed taxi associations enter into an agreement to operate
the contested routes peacefully
”.
The notice does not specify which of these routes are those being
“
contested
”
by the two associations. It was further contended by KTA that the
imposition of a suspension designed to force a settlement
agreement
between the two associations was irrational and not authorised by the
NLTA. In
Minister
of Defence and Military Veterans v Motau & others
2014
(5) SA 69
(CC) it was held that a rationality review is “
about
testing whether there is a sufficient connection between the means
chosen and the objective sought to be achieved
”.
The point stressed by Mr
Kemp
is that KTA is the registered taxi association in respect of KTA
routes. Sizwe has been issued its operating licences, which authorise
and restrict its members to conveyance only on certain routes.
The imposition of a “
settlement
”,
according to KTA, can only occur if KTA is forced into giving up
certain taxi routes which have been lawfully allocated
to it. Counsel
for the KTA submitted that Sizwe has
had
“
imperialistic
designs
”
on the KTA associated routes and all that KTA asks is for the MEC to
implement the law to ensure that the respective associations
adhere
to the routes allocated to it. To the extent that the setting aside
of the MEC’s suspension would only benefit Sizwe
and its
members in the sense that they will continue to operate unlawfully on
routes allocated to KTA, the latter are resigned
to accept this
position.
[28]
The flaw in the MEC suspending KTA from making use of its long
distance routes is that these
have been lawfully allocated to it by
the Department of Transport. There is nothing before me to
suggest that KTA has violated
a condition of the licence issued to
it, or infringed the operation of the allocated routes. No basis
exists to interfere with
an entity acting lawfully. Further, to
the extent that the MEC believes that this measure can reduce the
levels of violence
in the industry, all the evidence points to the
members of KTA being killed or attacked. On the other hand, all signs
point to
Sizwe in seeking to lay claim to routes already allocated
lawfully to KTA. It is not the members of Sizwe who are under attack
in the violence that has taken place.
[29]
If the MEC wished, for whatever reason, to revoke or limit the
licences and operating routes
allocated to KTA, his relief must lay
in an application to court. In essence, his actions amount to
penalizing a party who
is behaving (on the face of it) lawfully, and
potentially rewarding a party who is behaving unlawfully. It
should be noted
that despite the weight of allegations against it,
there is no opposition to the application by Sizwe. The allegations
against
it are undisputed.
[30]
The task of regulating the industry to ensure that operators comply
with the conditions of the
licences is the domain of the MEC. The
failure of the MEC to discharge these functions cannot be a
justification to continue suspending
long distance routes. The issue
raised by KTA is whether the “
settlement
”
conditions imposed by the MEC are an illegal exercise of his powers
under s 91, and ultra vires
,
and
constitute a basis for review under ss 6(2)(e) and (f) of PAJA
.
In exchange for peace in the industry, KTA contends that it is being
obliged to surrender whole or part of its routes to
Sizwe, who have
no lawful right thereto. All of this is accorded a veneer of
legality by the MEC exercising powers under
s 91.
[31]
Mr
Mthembu
,
who appeared with Ms
Mazibuko
for the MEC, submitted that while the MEC acted in terms of ss 91(1)
and 92 of the NLTA in taking steps to quell the violence in
the taxi
industry in Ladysmith, his powers in so acting were not confined to s
91. This argument is premised on the grounds
that the MEC has
implied powers to take the steps which he has. In
Road
Accident Appeal Tribunal & others v Gouws & another
2018
(3) SA 413
(SCA) the Court stated the following in relation to a
party seeking to rely on an implied power where the express
provisions of
the statute provide no basis for the action taken:
‘
[27] As
stated above, the general rule is that express powers are needed for
the actions and decisions of administrators. As pointed
out by
Professor Hoexter, implied powers may, however, be ancillary to the
express powers or exist either as a necessary or reasonable
consequence of the express powers. Furthermore, the author goes on to
state that “a court will be more inclined to find an
implied
power where the express power is of a broad, discretionary nature –
and less inclined where it is a narrow, closely
circumscribed power”.
Where the administrative action or decision is likely to have
far-reaching effects, it is less likely
that a court will in the
absence of express provisions find implied authorisation for it.’
(Footnotes omitted).
[32]
Professor Hoexter in
Administrative Law in South Africa
2
ed (2012) at 44, captured the essence of the concept of implied
power somewhat differently in stating:
‘
Thus “what is reasonably
incidental to the proper carrying out of an authorised act must be
considered as impliedly authorized”.
Just as the power to
make omelettes must necessarily include the power to break eggs, so
the power to build a dam may include the
power to expropriate
property or to remove silt’.
Schreiner
JA in
Mustapha & another v Receiver of Revenue, Lichtenburg &
others
,
1958 (3) SA 343
(A) at 347D-G in the pre-constitutional
era said the following of the exercise of public power:
‘
Although
a permit granted under sec. 18 (4) of Act 18 of 1936 has a
contractual aspect, the powers under the sub-section must be
exercised within the framework of the Act and the regulations which
are themselves, of course, controlled by the Act. The powers
of
fixing the terms of the permit and of acting under those terms are
all statutory powers. In exercising the power to grant or
renew, or
to refuse to grant or renew, the permit, the Minister acts as a state
official and not as a private owner, who need listen
to no
representations and is entitled to act as arbitrarily as he pleases,
so long as he breaks no contract. For no reason or the
worst of
reasons the private owner can exclude whom he wills from his property
and eject anyone to whom he has given merely precarious
permission to
be there. But the Minister has no such free hand. He receives his
powers directly or indirectly from the Statute
alone and can only act
within its limitations, express or implied. If the exercise of his
powers under the sub-section is challenged
the Courts must interpret
the provision, including its implications and any lawfully made
regulations, in order to decide whether
the powers have been duly
exercised. . .’ (References omitted).
The
views of Schriener JA were
more
recently endorsed
by
the Supreme Court of Appeal in
South
African National Parks v MTO Forestry (Pty) Ltd & another
2018
(5) SA 177
(SCA).
[33]
The language in s 91 of the NLTA clearly delineates the circumstances
and purposes for
which the MEC make invoke a suspension of routes,
which the statute describes as “extraordinary measures”.
Section
91(1) expressly considers the grounds for invoking the
extraordinary measures and the outcome that these measures must
achieve.
Taking into account the language of the legislation;
the breadth of the express powers accorded to the MEC and the context
of the
provision, I am of the view that there is nothing in the
statute from which one may infer that the powers sought to be
exercised
by the MEC to impose a ban in perpetuity or until the two
associations reach an amicable settlement, is reasonably incidental
to
the express powers in s 91. Section 91(7) provides that the MEC
may ‘temporarily suspend any operating licence”.
What the MEC is seeking to achieve through s 91 by his “conditions”
cannot be considered as “incidental”
to his express
powers. If the parties for whatever reason, despite their best
efforts, fail to reach agreement, the ban takes on
a permanent
nature. That could never have been the intention of the
legislation nor contemplated as an implied power of the
MEC.
Hoexter
at 45 notes with reference to
Mokoena v Commissioner of Prisons &
another
1985 (1) SA 368
(W) that the power to regulate does not
include the power to prohibit.
[34]
If the legislature wished to have broadened the scope of the powers
of the MEC in s 91 it would
have said so. W
ords
cannot be read into a statute by implication unless the implication
is a necessary one, in the sense that without it, effect
cannot be
given to the statute as it stands (see Rennie NO v Gordon &
another NNO
1988
(1) SA 1
(A) at 22E-G; American Natural Soda Ash Corporation &
another v Competition Commission & others
2005 (6) SA 158
(SCA)
para 27).
In
Dempsey
1988 (3) SA 19
(A) at
38B-D the court held
‘
Any
statutory function can, after all, only be validly performed within
the limits prescribed by the statute itself, and, where
a fact or a
state of affairs is prescribed as a precondition to the performance
of the function (a so-called jurisdictional fact),
that fact or state
of affairs must obviously exist and be shown to have existed before
it can be said that the function was validly
performed. (Cf
Roberts
v Chairman, Local Road Transportation Board and Another
(1)
1980
(2) SA 472
(C) at 476 H-477A; S
v
Ramgobin and Others
1985
(3) SA 587
(N) at p 590I-591C.)’
See also
Masetlha
v President of the Republic of South Africa & another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) para
192 where it was held:
‘
This
court has adopted the view that “words cannot be read into a
statute by implication unless the implication is a necessary
one in
the sense that without it effect cannot be given to the statute as it
stands”. In addition, such implication must
be necessary in
order to “realise the ostensible legislative intention or to
make the [legislation] workable”.
Similarly,
where the surrounding circumstances point to the fact that words were
deliberately omitted or if the implication would
be inconsistent with
the provisions of the Constitution or the statute, words cannot be
implied. To this must of course be added
the settled principle of
constitutional construction which is this: where a statute is capable
of more than one reasonable construction,
with the one construction
leading to constitutional invalidity, while the other not, the latter
construction, being in conformity
with the Constitution, must be
preferred to the former, provided always that such construction is
reasonable and not strained’.
(Footnotes omitted)
[35]
I am accordingly not persuaded that the MEC has implied powers to act
in the manner in
which he did or for the purposes of brokering a
truce between the KTA and Sizwe, with this imposed as a pre-requisite
for the resumption
of normal taxi operations in Ladysmith.
[36]
The thrust of the MEC’s opposition is predicated on the number
of deaths resulting
from what he terms as a “dispute”
between KTA and Sizwe members. While it is common cause that
the killings and
attacks have been primarily of and against members
of the KTA, there is no acceptance by KTA that this is due to a
“dispute”
between the two associations. Earlier on
the MEC attributed this as a ‘faction fight’ between the
Mabaso and
Gamede families. The consistent complaint of KTA is
that Sizwe have unlawfully operated on routes accorded only to KTA.
[37]
The condition imposed by the MEC for the reinstatement of normal
business is that the two associations
must enter into an agreement to
operate the contested routes “peacefully”. In other
words, the MEC is compelling
KTA to surrender a part or all of its
routes which have been lawfully awarded to KTA. As set out
above, there is no foundation
for the MEC to exercise his powers
under s 91 with the outcome of a “settlement” as a
legitimate objective. Aside
from being
ultra vires
his
powers under s 91, the MEC’s use of the suspension as a tool to
compel an agreement offends against the principle of
legality.
[38]
Over and above the legal impediments to the actions of the MEC,
factually the KZN Department
of Transport’s Provincial
Regulatory Entity (‘PRE’) issued an advisory memorandum
dated 29 May 2018 to the MEC
which pointed out that after the lifting
of restrictions allowing for the operation of local taxi routes in
Ladysmith, and despite
KTA and Sizwe not having been able to resolve
their “dispute”, the “
killings have slowed down
to almost a halt
”. This undermines the MEC’s
assertions of a high death toll from the violence. Notwithstanding,
it recommended
to the MEC that the suspensions be extended for a
further six months. This essentially allows for a temporary
suspension
to take on a permanent character for as long as KTA resist
giving up lawfully allocated routes in favour of Sizwe, who have no
lawful entitlement to operate these long distance routes. Their
routes are solely from Ladysmith to Johannesburg. This same sentiment
finds expression in the report of the PRE in June 2018, with the
reasoning being that the only way to register an agreement between
KTA and Sizwe is to continue the suspension until the desired outcome
is achieved.
[39]
The high water mark of Mr
Mthembu’s
argument is a reliance on
Durbsinvest
(Pty) Ltd v Town and Regional Planning Commission, Kwazulu-Natal &
others
2001
(4) SA103 (D) at 107F-H where Majid J made the following observations
in relation to a review of administrative action:
‘
1. The review
of an administrative decision of an organ of the Executive gives rise
to a constitutional enquiry.
2. In any such
enquiry the first question to be asked is whether the decision
complained of is, objectively speaking,
rationally related to the
purpose for which the power was given.
3. If it was, and the
decision was arrived at
bona fide
and within the authority and
jurisdiction of the body whose decision is being enquired into, the
Court cannot interfere with the
decision merely because it disagrees
with it.’
[40]
The problem facing the MEC is that while his actions in imposing the
suspension may have been
well intentioned and bona fide, he does not
get past the first hurdle of justifying that his action in suspending
the taxi operations
are rationally related to the objectives
contained in s 91 of the NLTA. The MEC’s reliance on
Durbsinvest
does not assist his cause.
[41]
Moreover, a record of the consultation which the MEC had with
representatives in the taxi industry
and with the community, issued
by the PRE dated October 2018, does not advance his cause in opposing
the relief sought by KTA.
His measures only serve to adversely affect
the residents of Ladysmith, whose interests he has an obligation to
protect and promote.
The suspension adversely affects KTA and
its members whose livelihoods have been severely impacted by the
suspension. He
accepts in paragraph 4.6 of the advisory
statement that “
he
has never alleged that Klipriver is the source of the problem or its
cause in any way
”.
Elsewhere in the statement he acknowledges that his measures have
caused suffering to the “
very
people he is so keen to support
”.
If it were up to him, the statement continues, “
he
would lift this suspension in its entity
”.
[42]
What then informs the persistence by the MEC that KTA and Sizwe must
engage in negotiations to
resolve their impasse? As I have
already concluded, the imposition of such a condition is unlawful and
unjustifiable. The
MEC regards the outcry by KTA over the suspension
simply as a concern over financial loss. This is by no
means an irrelevant
consideration by KTA members who depend on their
taxis being operational, especially when the MEC in his statement
espouses the
virtues of the industry’s ‘resilience in the
face of hostilities’ and his drive to promote the policy of
‘Radical
Economic Transformation”. At the heart of such a
policy would, of necessity, be the right to a livelihood.
[43]
In defence of the contention that the MEC arrived at his decision to
impose the suspension of
taxi operations despite the representations
of KTA imploring him not to, counsel for the MEC relied on
Head,
Western Cape Education Department & others v Governing Body,
Point High School & others
2008
(5) SA 18
(SCA) para 10 where Hurt AJA stated”
‘…
The law is now clear
that, in exercising this discretion, the HoD is required to act
reasonably and, by taking into account all
of the relevant factors
and considering the competing interests involved, to arrive at
a decision which strikes a “reasonable
equilibrium”. The
court has no power to review this decision purely because there may
be another, perhaps better, “equilibrium”
which could
have resulted by attributing more weight to some factor or
factors and less to others. If that struck by the decision-maker
is reasonable, then it must stand.’ (Footnotes omitted)
[44]
I am not persuaded that this decision
finds
application to the facts of this matter. This is not a
situation where the MEC was faced with a variety of options at
his
disposal. The enquiry in s 91 is whether objective grounds
exist to invoke the extraordinary measures for which the legislation
provides. This is distinct from where a decision maker is
choosing one option from a variety available to him or her, acting
reasonably in so doing. This is also not a case in which the
court can be said to be usurping the role of the executive or
falling
foul of the separation of powers principle. In
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012
(4) SA 618
(CC) para 9 the following was stated:
‘
Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government,
courts may not
usurp that power or function by making a decision of their
preference. That would frustrate the balance of power
implied in the
principle of separation of powers. The primary responsibility of a
court is not to make decisions reserved for or
within the domain of
other branches of government, but rather to ensure that the
concerned branches of government exercise
their authority within
the bounds of the Constitution. This would especially be so where the
decision in issue is policy-laden
as well as polycentric.’
[45]
The role of the court in reviewing the decision of the MEC to
implement an indefinite suspension
of taxi operations in Ladysmith
until the disputing associations are able to come to an agreement,
and which can only result from
KTA having to unlawfully surrender
routes lawfully allocated to it, is not an exercise of the court
preferring a different decision
to that of the MEC. The power
exercised by the MEC is sourced in legislation, making his decision
administrative in nature
and subject to PAJA. The review by KTA
concerns the lawful exercise of public power and is rooted firmly on
the ground that the
MEC acted contrary to the behests of the statute,
acted ultra vires, irrationally and arrived at a decision which is at
odds with
the principle of legality.
[46] This is
a case of holding the decision maker accountable for his actions
which have far reaching implications for
the affected community, as
well as for the taxi operators whose livelihoods are affected from
what could ostensibly amount to an
indefinite suspension of their
routes. The argument of an infringement of the doctrine of separation
of powers is without foundation
and falls to be rejected.
Perhaps the most glaring reason to find in favour of KTA is that a
law abiding party is being forced,
purportedly under the guise of
legislation, to part with what has been lawfully allocated to it.
It is akin to putting the
proverbial gun to the head of the applicant
in exchange for allowing it to lawfully conduct its business.
Such a scenario
cannot be condoned by the courts.
[47]
In regard to costs, three applications in total were launched by KTA
against the measures taken
by the MEC and the invocation of
extraordinary measures under s 91 of the NLTA. In case number
6035/17P the MEC was cited
and relief was sought against him to
enforce the provisions of the operating licences issued to KTA and
Sizwe. That matter was
eventually finalised on 7 November 2018 where
Koen J granted certain interdictory relief and ordered Sizwe to pay
half of KTA’s
costs. In case number 14210/17P KTA brought
an urgent application challenging the suspension of taxi routes in
terms of the
decision taken by the MEC. The matter came before
court on 18 December 2017 when the matter was referred to the opposed
roll.
The matter did not proceed further in light of the
suspension imposed running its full course of six months. No
order has
been granted to date in respect of costs of that
application. KTA submits that it was obliged to launch that
application
in light of the unlawful steps invoked by the MEC.
That matter was not fully argued and has become of academic interest
at
this stage. I am in agreement with Mr
Mthembu
that in the exercise of my discretion, the proper order that should
follow is that each party should pay its own costs in case
number
14210/17P.
[48]
Under case number 10587/18P KTA again challenged the procedure
followed by the MEC in implementing
a suspension of taxi routes
pursuant to s 91. Lopes J granted interim relief, but deferred
the lifting of the suspension
to enable the MEC to comply with the
procedure envisaged in s 91. I am advised that the order was
taken after full argument
being presented on the issue of the
legality of the so-called ‘rolled up’ suspension notice.
In those circumstances,
I am satisfied that KTA had been
substantially successful and that it should be entitled to costs in
respect of the application.
In so far as the present
application, despite the MEC’s contention that the application
papers repeated much of what had
been stated in the previous
applications, KTA cannot be faulted for this approach as the history
of the matter traverses the various
proclamations issued by the MEC
in terms of s 91. I am not persuaded by the argument that KTA’s
intention was to ‘rake
up’ unnecessary costs against the
MEC. Where a functionary sets out to invoke measures in terms
of an empowering statute,
particularly extra ordinary measures such
as those in s 91 which have far reaching consequences, it is
incumbent on the functionary
to act in a manner that is procedurally
fair and lawful. I see no reason why costs should not follow
the result.
[49]
I the circumstances the order I grant is the following:
1.
The
first respondent’s decision to suspend all taxi operations of
the first applicant in terms of section 91 of the National
Land
Transportation Act 5 of 2009 as published in the Provincial Gazette
of 10 October 2018, Provincial Notice 115 of 2018, is
reviewed and
set aside.
2.
The
first respondent is liable for the first applicant’s costs,
including that occasioned by the employment of two counsel,
such
costs to include the hearing on 12 December 2018.
3.
In
respect of case number 14210/17P, each party is to pay its own costs.
4.
In
respect of case number 10587/18P the first respondent is directed to
pay the first applicant’s costs.
M R Chetty
Appearances
For
the applicant:
Mr Kemp SC & Mr
Veersamy
Instructed
by:
Pather & Pather Attorneys
c/o
Botha & Olivier Inc
293 Peter Kerchoff Street
Pietermaritzburg
Email:
legal@bando.co.za
Ref:
SWASTHIE HARIPERSAD
Tel:
031 304 4212
For
the defendant:
TSI Mthembu & M Mazibuko
Instructed
by:
Tenza-Zondi Attorneys In
24A First Floor Parklane
Centre
12 Chief Albert Luthuli
Road
Pietermaritzburg
Email:
admin@tenza-zondi.co.za
Tel:
033 940 1749
Date
of judgment reserved:
21 February 2019
Date
of judgment:
14 June
2019