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[2017] ZAGPPHC 214
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Autopax Passenger Services (SOC) Limited and Another v Africa People Mover (Pty) Ltd and Others (84973/2015) [2017] ZAGPPHC 214 (15 March 2017)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
15/3/2017
CASE
NUMBER: 84973 / 2015
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
AUTOPAX
PASSENGER SERVICES (SOC) LIMITED 1
st
APPLICANT
VENDA
JOHANNESBURG TAXI
ASSOCIATION 2
nd
APPLICANT
And
AFRICA
PEOPLE MOVER (PTY)
LTD 1
st
RESPONDENT
THULAMELA
LOCAL
MUNICIPALITY 2
nd
RESPONDENT
BUSBUCKRIDGE TAXI
ASSOCIATION
3
rd
RESPONDENT
BUSBUCKRIDGE
LOCAL MUNICIPALITY 5
th
RESPONDENT
LIMPOPO PROVINCIAL
REGULATORY ENTITY
6
th
RESPONDENT
GAUTENG
PROVINCIAL REGULATORY ENTITY 7
th
RESPONDENT
MPUMALANGA
REGISTRAR OF TRANSPORT 8
th
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
The applicants, being the first and second respondents respectively
in the main application, apply for leave to appeal to the
Full Bench,
alternately to the Supreme Court of Appeal against the whole of the
judgment and orders granted by this Court on 3
November 2015,and the
reasons thereof delivered on the 1July 2016 per order marked "A'
and amended order marked "X".
[2]
The order sought to be appealed against provides as follows:
"1 The first
respondent is interdicted and restrained from:-
1.1
inciting any person, in particular taxi operators and its employees
to disrupt the applicant's bus operations:
1.2
inciting any person, in particular taxi operators and its employees
to damage the applicant's buses and premises;
1.3
spreading false allegations about the applicant's bus operations and
applicant's officials;
1.4
intimidating and harassing the applicant's [personnel and customers
at any of type applicant's premises';
1.5
blocking access to and from the applicant's remises and designated
loading zones;
1.6
inciting any person, in particular taxi operators, its employees and
security personnel to assault the applicant's personnel
and customers
and to disrupt the applicant's bus operations;
1.7
preventing members of the public from conducting business with the
applicant, in particular, using the applicant's busses.
2. The first respondent
shall issue a public statement in which it denounces violence against
the applicant's seasonal and customers
and the disruption of the
applicant's business operations;
3. The second respondent,
acting through its members or any third party, is interdicted and
strained from-
3.1 preventing the
applicant from conveying commuters between Johannesburg and Sibasa;
3.2 preventing the
applicant from loading and off-loading commuters in Sibasa and at any
other place;
3.3 intimidating and
harassing the applicant's personnel;
3.4 intimidating and
harassing the applicant's passengers and preventing them from
boarding the applicant's buses in Sibasa and
at any other place;
3.5 removing the
applicant's passengers from the applicant's buses so as to prevent
them from using the applicant's buses to commute
between Sibasa and
Johannesburg;
3.6 damaging the
applicant's buses;
3.7 intimidating,
harassing, assaulting and threatening the applicant's employees whist
conveying commuters to and from Sibasa;
3.8 damaging and
vandalizing the applicant's properties, including buses;
3.9 barricading, blocking
or in any manner restricting or preventing access to and from the
applicant's commuters' loading zone
in Sibasa.
4...
5. The first respondent,
second respondent and fourth respondent shall pay the applicant's
costs of the application, jointly and
severally, the one paying the
other to be absolved."
[3]
The thrust of the applicants for seeking leave to appeal is,
inter
alia,
that the Court erred in granting a final interdictory
relief, contrary to the principles enunciated in the celebrated
Plascon Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at pages 634-E-635C in that there were disputes of facts in this
matter, and applicant in the main application attached unsigned
confirmatory affidavits, which constituted hearsay evidence.
[4]
In opposing the application, it was submitted on behalf of the first
respondent (the applicant in the main application), that
leave to
appeal should not be granted: because,
inter alia,
it would
merely be of academic exercise, assuming that this Court's
interdictory order were to be set aside, which is not conceded,
the
result would be academic, because by law, the applicants for leave to
appeal are obliged not to commit any criminal activity;
damage
property of the present first respondent, or incite members of the
public or taxi operators to intimidate members of the
public from
using the buses of the present first respondent. It is further
submitted that with regard to costs, this is a matter
of the
discretion of the court and appeals on costs are seldom countenanced.
[5]
Section 17 of the Supreme Court Act 10 of 2013 provides,
inter
alia,
that leave to appeal may only be granted where the Court is
of the opinion that the appeal would have a reasonable prospect of
success.
[6]
It is trite that in urgent applications the Court has discretion to
admit hearsay evidence, provided the source of such evidence
is
disclosed;
vide Lehani NO v Lagoon Beach Hotel (Pty) Ltd
2015
(4) SA 72
( WCC} at 79F-G;
Yorigami Maritime Construction v
Nissho-lwai
1977 (4) SA 682
(C) at 692B.
In casu
the
applicant in the main application attached unsigned confirmatory
affidavits of the would be deponents. The names were clearly
disclosed. This Court is of the view that there is no reasonable
prospect that the appeal would succeed on this ground.
[7]
It is equally trite that the grant of costs is a matter of the
discretion of the trial the Court. The Court of appeal is reluctant
to interfere with the exercise of the Court's discretion, unless it
is demonstratively clear that such discretion was not judicially
exercised or was capriciously exercised;
vide Naylor and Another v
Jansen
2007 (1) SA 16
(SCA) at 23 F-24A-D. This Court is not
persuaded that there are reasonable prospects of success on the award
of costs.
[8]
I am further persuaded by the submission of the first respondent,
inter alia,
that granting leave to appeal would be of no
practical effect. I further take note of the matter of
Beyers v
Eleven Judges of the Constitutional Court
[2002] ZACC 19
;
2002 (6) SA 630
(CC) at
635 H where it was held that giving of reasons by the court of final
instance for refusal of application for leave to appeal
was
unnecessary and undesirable. I therefore deem it not necessary to
traverse all the points canvassed by the applicants for leave
to
appeal. It suffices to state that in my opinion there are no
reasonable prospects that the appeal of the respective applicants
would succeed.
[9]
In the result the application for leave to appeal is refused with
cost.
__________________
N.M. MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGEMENT : 15
I
03
I
2017
APPLICANTS'
ADV : ADV. N. H. MAENETJE S C
WITH
ADV : ADV MAKGETHU
INSTRUCTED
BY : HOGEN LOVELLS (SOUTH AFRICA) INCORPORATED AS ROUTLEDGE MODISE
INC. & SAM SEKHU ATIORNEYS
1
st
RESPONDENT'S' ADV : ADV. KENNEDY TSATSAWANE
INSTRUCTED
BY : GILDENHUYS MALATJI INC