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[2017] ZAFSHC 11
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Majakathata Long Distance Taxi Association and Others v MEC for Police, Roads and Transport, Free State Province and Others (3919/2015) [2017] ZAFSHC 11 (16 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number: 3919/2015
In
the matter between:
MAJAKATHATA
LONG DISTANCE TAXI
ASSOCIATION
AND
OTHERS
1
st
Applicant – 12
th
Applicant
KGATELOPELE
TAXI ASSOCIATION
AND
OTHERS
13
th
Applicant – 33
rd
Applicant
MOHALAULA
TAXI ASSOCIATION
AND
OTHERS
34
th
Applicant – 51
st
Applicant
and
MEC
FOR POLICE, ROADS AND TRANSPORT,
FREE
STATE PROVINCE
1st
Respondent
FREE
STATE PROVINCIAL REGULATORY
ENTITY
2nd Respondent
FREE
STATE TRANSPORT REGISTRAR
3rd
Respondent
WELKOM
UNITED TAXI ASSOCIATION
4th
Respondent
JUDGMENT
BY:
DAFFUE,
J
HEARD
ON:
27 OCTOBER 2016
DELIVERED
ON:
16 FEBRUARY
2017
I
INTRODUCTION
[1]
Three taxi associations and their members are at loggerheads with the
Free State Provincial Regulatory Entity and the Transport
Registrar.
This application is the second between the parties under the same
case number, the first application having been
settled as will be
indicated
infra
.
The present proceedings are contempt of court proceedings.
II
THE
PARTIES
[2]
The 1
st
applicant is Majakathata Long Distance Taxi Association and eleven of
its members are cited as 2
nd
to 12
th
applicants respectively. Kgatelopele Taxi Association is cited
as the 13
th
applicant and its members as 14
th
to 33
rd
applicants respectively. The third taxi association in these
proceedings is Mohalaula Taxi Association cited as 34
th
applicant and its members as 35
th
to 51
st
applicants respectively. They were all represented by Blair
Attorneys although the attorneys withdrew as attorneys of record
for
12
th
,
13
th
,
30
th
,
42
nd
,
43
rd
and 48
th
applicants just before the hearing. Adv W van Aswegen argued
the matter before me.
[3]
Four respondents are cited as such, to wit the MEC for Police, Roads
and Transport, Free State Province, the Free State Provincial
Regulatory Entity, the Free State Transport Registrar and the Welkom
United Taxi Association. The first three respondents
were
represented by Rampai Attorneys and Adv A E Ayayee appeared for them.
I shall refer to them collectively as the respondents,
unless I wish
to deal with a specific respondent in which case I shall make it
clear. The matter is not opposed by the fourth
respondent, the
Welkom United Taxi Association.
III
THE
RELIEF CLAIMED
[4]
Applicants claim the following relief:
“
1.
That the
Second
and Third Respondents
be found guilty of contempt of this Honourable Court’s order
under the above
case
number
dated
6
February 2016
;
2.
That the
Second and Third Respondents
be sentenced in such a
manner as this Honourable Court deems meet;
3.
Directing the
Fourth Respondent
to intervene and take all
steps necessary to effect the implementation of the aforesaid order;
4.
That the
Second
and Third Respondents
be ordered to pay the cost of this application on a scale as between
attorney and client;”
(my
underlining)
IV
THE
ORDER DATED 26 FEBRUARY 2016 GRANTED BY AGREEMENT
[5]
By agreement between the parties the following order was made by
Ebrahim J on 26 February 2016 (and not on 6 February 2016 as
set out
in the notice of motion):
“
1.
1.1 The second respondent
(being
the Free State Provincial Regulatory Entity)
take
the necessary steps to have applicants’ applications (attached
as Annexures “OD12 – ODI64”) processed,
published
in the prescribed manner, if necessary, and prepared for
consideration;
1.2
The second respondent consider and finalise the prepared applications
and to furnish reasons
for each and every application, if any, not
granted after due consideration.
2.
The third respondent
(being
the Transport Registrar)
act
in accordance with the provisions of Section 25 of the Promotion of
Access to Information Act 2/2000 and furnish any particulars
and
information as requested in Annexure “X5” to annexure
“OD11.56” and/or to furnish particulars of information
as
to the identity of the relevant authority of the internal appeal as
envisaged in Section 74 of Act 2/2000.
3.
The first, second and third respondents are jointly and severally
liable for
the applicants opposed taxed costs, the one to pay the
other one to be absolved.”
V
THE
DISPUTE
[6]
It is applicants’ case that second and third respondents are in
contempt of court as they have failed to comply with the
order of 26
February 2016. In his heads of argument applicants’
counsel submitted that the MEC, cited as 1
st
respondent, is also guilty of contempt of court notwithstanding the
fact that no obligation of the kind relied upon by applicants
was
placed on the MEC in terms of the court order.
[7]
It is respondents’ version that they have indeed complied with
the court order to the extent that it was possible, but
that certain
legislative requirements for considering the applications have not
been met. According to them applicants seek
authority to
provide transport on routes that are not on their Registration
Administration System (“RAS”) and consequently,
the
second respondent has no competence to consider these applications.
The administrative secretariat of the second respondent
could also
not be compelled to incur huge costs in publishing the applications
and preparing them for consideration by second respondent.
The
fact that amended routes were applied for by applicants would lead to
increased tension between the applicants and the fourth
respondent
and its members as fourth respondent and its members are presently
authorised to operate on one specific route which
is apparently
regarded by all as an extremely lucrative route.
[8]
It is not in dispute that the individual applicants have operating
licences to transport members of the public for reward on
specified
routes in the Odendaalsrus area; also that in 2014 they filed
applications in terms whereof they seek to amend their
routes and/or
to expand upon their authority to operate on certain of their
routes. They paid the application fees as well.
However,
according to respondents the applications were either not properly
filled out, or wrong route descriptions were provided
and/or improper
route codes were utilised, to name some of the defects.
VI
LEGAL
PRINCIPLES PERTAINING TO CONTEMPT OF COURT
[9]
The leading authority is
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
SCA which was quoted with approval in
Pheko
v
Ekurhuleni
City
2015
(5) SA 600
(CC) at paras [28] – [37]. I quote from paras [9]
and [10] of Fakie
supra:
“
[9]
The test for when disobedience of a civil order constitutes contempt
has come to be stated as whether the breach was committed
‘deliberately and mala fide’. A deliberate
disregard is not enough, since the non-complier may genuinely, albeit
mistakenly, believe him or herself entitled to act in the way claimed
to constitute the contempt. In such a case, good faith avoids
the
infraction. Even a refusal to comply that is objectively
unreasonable may be bona fide (though unreasonableness could
evidence
lack of good faith).
[10].
These requirements – that the refusal to obey should be both
wilful and mala fide, and that
unreasonable non-compliance, provided
it is bona fide, does not constitute contempt – accord with the
broader definition
of the crime, of which non-compliance with civil
orders is a manifestation. They show that the offence is committed
not by mere
disregard of a court order, but by the deliberate and
intentional violation of the court’s dignity, repute or
authority that
this evinces. Honest belief that non-compliance
is justified or proper is incompatible with that intent.”
[10]
At para [23] of
Fakie
supra
Cameron JA made it clear that the common law had been developed and
that a change pertaining to the burden of proof had taken place.
I quote:
“
What
is changed is that the accused no longer bears a legal burden to
disprove wilfulness and mala fides on a balance of probabilities,
but
to avoid conviction need only lead evidence that establishes a
reasonable doubt.”
[11]
I am respectfully in agreement with Nkabinde J in
Pheko
supra
at para [25] where the learned judge referred to
“
the
difficulties inherent in compelling compliance from recalcitrant
state parties in a manner that displays the courts’ discontent
with disregard for the rule of law.”
Courts
are too often confronted with certain state parties displaying a
total disregard for court orders. In
Meadow
Glen Home Owners Association and Others v Tshwane City Metropolitan
Municipality
2015 (2) SA 413
(SCA) the Supreme Court of Appeal stated in para [22]
that:
“…
We
do not hesitate to endorse what Nugent JA said in this court in Kate,
that ‘there ought to be no doubt that a public official
who is
ordered by a court to do or to refrain from doing a particular act,
and fails to do so, is liable to be committed for contempt,
in
accordance with ordinary principles’. However, it must be clear
beyond reasonable doubt that the official in question
is the person
who has wilfully and with knowledge of the court order failed to
comply with its terms.”
VII
RELEVANT
LEGISLATION
[12]
Two Acts, one a provincial and the other a national Act, are
applicable. The parties hereto concentrated on the
provincial Act, but the two Acts, i.e. the Free State Public
Transport Act, 4 of 2005 (“the Free State Act”)
and
National Land Transport Act, 5 of 2009 (“the National Transport
Act”), must be read together. The Free
State Act
has not been repealed
in
toto
,
either expressly, or impliedly, but several provisions thereof have
become redundant, they having been replaced by various sections
of
the National Transport Act.
[13]
Respondents relied on s 47 of the Free State Act in support of their
opposition and s 47(2) in particular. This section
deals with
the establishment of transport operating licence administrative
bodies and s 47(2) reads as follows:
“
The
transport operating licence administrative body must –
(a)
receive
completed application forms for operating licences in respect of
services commencing in its area together with the application
fees;
(b)
check
whether the application forms had been properly completed;
(c)
check
that all the necessary accompanying documentation have been submitted
and is valid and acceptable; and
(d)
enter
details of the applications into the relevant data banks in the
manner prescribed.”
[14]
The transport operating licence administrative body must in terms of
s 47(6) collect all the representations and submit them
with the
application form and supporting documentation to the Board (which is
now known as the Provincial Regulatory Entity as
indicated
infra)
for
a decision.
“
Board”
is
defined in s 1 of the Free State Act as
“
the
Free State Transport Operating Licencing Board established for the
province in compliance with section 42 of this Act to exercise
the
powers mentioned in section 44 of this Act.”
[15]
In terms of the Free State Act the Board consists of a chairperson
and a number of other members determined by the MEC that
must be
persons who possess wide experience of, and have shown ability in,
public transport, industrial, commercial, financial
or legal matters
or in the conduct of public affairs. See s 42(2). The
Board has various powers as set out in s 44
and
inter alia
the
power in s 44(1)(b) to
“
consider
and give a decision on, or otherwise deal with, in accordance with
this Act, an application made to it thereunder -
“
i.
for the granting of an operating licence authorising public transport
within the Free State;
2.
….
3.
for the renewal, amendment or transfer of an operating licence
granted by it;”
[16]
Section 24(2) of the National Transport Act provided the framework
for the disestablishing of provincial operating licencing
boards and
the establishment of provincial regulatory entities as well as a
transfer of the boards’ functions to the provincial
regulatory
entities. Therefore second respondent is correctly cited as the
Free State Provincial Regulatory Entity.
In terms of s 23(2) of
the National Transport Act a provincial regulatory entity must
consist of dedicated officials of the provincial
department,
appointed either on a full time, or part time basis, by virtue of
their specialised knowledge, training or experience
of public
transport or related matters. Provincial regulatory entities
are accountable to the heads of their provincial governments.
[17]
The functions of provincial regulatory entities are set out in s
24(1) of the National Transport Act and I quote:
“
1.
Each Provincial Regulatory Entity must –
a.
monitor
and oversee public transport in the province;
b.
receive
and decide on applications relating to operating licences or
intra-provincial transport where no municipality exists to
which the
operating licence function has been assigned, but excluding
applications that must be made to the National Public Transport
Regulator in terms of section 21.”
[18]
Section 51 of the Free State Act stipulates that
“
(w)here
a transport plan shows a need for additional services on a route, the
planning authority may invite applications to the
Board for operating
licences to provide public transport services that are not subject to
a contract on that route.”
Section
55 of the National Transport Act deals in some detail with this issue
as well, but it is not necessary to discuss it in
further detail.
[19]
Section 51 of the National Transport Act reads as follows:
“
An
operating licence must only be issued on application made in terms of
this Act by the National Public Transport Regulator, a
Provincial
Regulatory Entity or a municipality to which the operating licence
function has been assigned, as the case may be, after
considering all
the factors mandated by this Act.”
VIII
THE
AMBIQUITY OF THE COURT ORDER DATED 26 FEBRUARY 2016
[19]
Applicants sought the relief eventually granted by the court by
agreement in the main application brought under case number
3919/2015. It is ironic, but the draft order proposed by
respondents which forms part of the papers before me, would be much
more favourable for applicants insofar as it specifically states that
second respondent will consider and decide the applications
of the
applicants and furnish reasons for its decision. If the draft
order was made an order of court, applicants would be
on much firmer
ground. In such case second respondent would have to consider
and decide the applications without further
ado and furnish reasons
for its decision.
[20]
Bearing in mind the provisions of s 47(2) of the Free State Act and
the framework of the National Transport Act, it is apparently
so that
the secretariat of second respondent, i.e. the administrative body or
personnel who assist second respondent are entitled
to act as
so-called gate-keepers by keeping all non-compliant applications away
from second respondent. It is certainly not
the duty of the
Regulatory Entity, consisting of several individuals who sit from
time to time to consider applications, to receive,
process, publish
and prepare applications.
[21]
An order of court binds all those to whom and all organs of State to
which it applies. See s 165(5) of the Constitution.
However, court orders must be clear and unambiguous. They must
comply with the same standard expected of statutes and must
be
written in a clear and accessible manner as impermissibly vague
provisions violate the rule of law which is a founding principle
of
our Constitution. See
Minister of Water and Environmental
Affairs v Kloof Conservancy
106/2015
[2015] ZASCA 177
(27
November 2015) at para [14]. It is also instructive to consider
the
dicta
in
Eke v Parsons
2016 (3) SA 37
(CC) at paras
[24] – [31].
In
Mazibuko
NO v Sisulu NO and Others
2013 (6) SA 249
(CC) the Constitutional Court stated the following at
para [24]:
“…
the
prayer in the applicant’s notice of motion that the Speaker
personally take whatever steps are necessary to vindicate
the
applicant’s constitutional right, is so open-ended and vague as
to render the relief incompetent.”
[21]
Prayer 1 of the court order relied upon by the applicant provides for
two processes, to wit (a) the taking of the necessary
steps by second
respondent (The Free State Provincial Regulatory Entity) to have
applicants’ applications processed, published
in the prescribed
manner, if necessary, and prepared for consideration; and (b) to
consider and finalise the prepared applications
and to furnish
reasons for each and every application, if any, not granted after due
consideration.
[22]
I indicated
supra
that the Free State Regulatory Entity consists of various individual
members. Although there is a measure of uncertainty
as to what
exactly respondents tried to convey to the court, it is at least
clear that none of applicants’ applications were
presented to
the Regulatory Entity for consideration. What transpired, on
respondents’ version, is that the administrative
body and/or
personnel, also referred to as second respondent’s secretariat,
processed the applications which have been received
by them, but
found them to be non-compliant. Bearing in mind the costs of
publication in the Provincial Gazette, it was regarded
as wastage of
money to advertise the applications and to prepare them for
consideration by the second respondent.
[23]
Paragraph 1.2 of the court order of 26 February 2016 did in fact
place an obligation on second respondent to consider and finalise
prepared applications and to furnish reasons, if any, for each
application not granted. This part of the order is clear and
unambiguous. However, it was wrong to place an obligation on
second respondent to process applications, to publish the
applications,
if necessary, and to prepare them for consideration as
this part of the order creates an unjustified disharmony with the
statutory
scheme of the Free State Act as well as the National
Transport Act.
[24]
The order was made by agreement between the parties and I have reason
to believe that the learned judge did not consider whether
or not the
order was clear and unambiguous and in harmony with the applicable
statutes. The general principle is that once
a settlement
agreement is made an order of court, the status of the rights and
obligations between the parties is changed.
The order is
supposed to bring finality to the lis between them, save for
litigation that may be consequent upon the nature of
the particular
order.
In
casu
respondents
have never conceded that the applications were compliant and it
cannot be argued that respondents were not entitled
to revisit the
merits of the defences relied upon in the main application.
IX
ADJUDICATION
OF FACTUAL DISPUTES
[25]
In the main application respondents conceded that the individual
applicants all paid the required fees for the applications
for
additional authority and/or amendment of routes and that these
applications were still dealt with by second and third respondents
at
the time. According to respondents the applications were put in
abeyance as there were discussions around the disputed
routes amongst
all interested parties, including those not before the court.
It was specifically placed on record that one
route relied upon by
applicants was not an officially registered route listed in
accordance with the RAS. Applicants’
counsel submitted to
me in the contempt of court application that respondents’
position in the present application is palpably
strained and that
they tried to revert back to the merits of the main application which
was not justified.
[26]
In
motion proceedings the affidavits not only serve as the pleadings,
but must also contain the essential evidence which would ordinarily
be led at the trial. See
Transnet
Ltd v Rubenstein
2006 (1) SA 591
(SCA) at para [28]. A party in motion
proceedings is obliged to state the facts as well as the conclusions
drawn from such
facts in his or her affidavits and is not allowed to
base an argument on passages and documents annexed to the papers,
unless the
conclusions sought to be drawn from such passages have
been canvassed in their affidavits. See
Minister
of Land Affairs and Agriculture and Other v D & F Wevell Trust
and Others
2008 (2) SA 184
(SCA) at 200B-E. An applicant must make out his
case in the founding affidavit and will not be allowed to do so
and/or to
rely upon new matter in the replying affidavit,
notwithstanding the fact that such matter has not been struck-out.
See
Van
Zyl and Others v Government of the Republic of South Africa
2008 (3) SA 294
(SCA) at 307E - 308A.
[27]
In line with
Plascon-Evans
final relief may only be granted in motion proceedings if the facts
averred by the applicant, which have been admitted by the respondent,
justify such an order, unless the allegations and denials by the
respondent are so far-fetched or untenable that the court is entitled
to reject the respondent’s version merely on the papers.
In general, decisions of fact cannot properly be made in motion
proceedings on a consideration of the probabilities, unless the court
is satisfied that there is no real and genuine dispute on
the papers
regarding the facts in question, or that one of the party’s
allegations are so far-fetched or untenable as to
warrant their
rejection on the papers, or that
viva
voce
evidence
would not disturb the probabilities appearing from the affidavits.
See
Administrator
of the Transvaal and Others v Theletsane & Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 197A-B.
The
principles mentioned in this and the previous paragraph are of
particular importance insofar as applicants seek respondents’
conviction for contempt of court.
[28]
Prior to the institution of the contempt of court application third
respondent forwarded a letter dated 29 April 2016 to applicants’
attorneys which I quote
verbatim
:
“
Pursuant
to the above High Court the Registrar comment follows:
1.1
Before
a permit can be issued to an applicant, the specific route which the
applicant applies for must be registered on the Registration
Administration System (RAS).
1.2
The
additional routes i.e. from Kutloanong, Du Plessis Taxi Rank to 140,
141 and 139, which applicant applied for do not exist on
RAS system.
1.3
Accordingly
his application cannot be entertained as he does not meet the basic
requirement of route existence.
1.4
Furthermore
where the route is already in existence, and there are operations
taking place on that route, then a new applicant must
first obtain
the permission from the association operating there at before his
application can be considered.”
This
letter referred to an application of Mr M B Mantsho, cited as the
second applicant in these proceedings. Thereafter similarly
worded letters were sent to applicants’ attorneys in respect of
the other individual applicants.
[29]
Mr Van Aswegen mistakenly referred in general to the first, second
and third respondents as the respondents in his heads of
arguments
under the heading “the first respondent’s contempt”.
The MEC is cited as first respondent, but
no order was granted
against the MEC in the main application as mentioned
supra,
and furthermore, no relief is sought against the MEC in the present
proceedings. The MEC was under no obligation to comply
with
either paragraph 1 or 2 of the court order of 26 February 2016.
When Mr Van Aswegen’s oral submissions are considered,
he meant
to submit that second (and not first) respondent should be held in
contempt of court.
[30]
The reference to respondents in general terms is indicative of
applicants’ misunderstanding of the statutory framework.
In paragraphs 50 and 51 of the founding affidavit applicants allege
that the MEC (first respondent) should be ordered to intervene
because of second and third respondents’ failure to comply with
the court order. However, in the notice of motion an
order is
sought in terms whereof fourth respondent, the Welkom United Taxi
Association, be ordered to intervene. Even if
a suitable
amendment was sought and granted, it would not entitle applicants to
any relief against the MEC based on my findings
herein.
[31]
The defences relied upon by first, second and third respondents
appear
inter
alia
from
the following direct and
verbatim
quotation,
which evidence could not be controverted by applicants:
“
15
…The fact is, in multiple instances in the present
applications, the
routes
applied for do not exist on the RAS,
the
applicants
have not obtained appropriate permissions from the taxi associations
operating on such routes
or the
routes
requested are
indiscernibly
described.
…
16.
The applications were incapable of being processed, and published in
the prescribed manner
as
the Secretariat
of the Licencing
Board
has determined
that the requirements as provided by the
Free State Public Transport Act No 4 of 2005 (“the Act”)
have not been met.
The practical hurdle is that the Department
utilises specialist software programs in handling licence
applications. These
programs allow the Department to utilise
certain internal databases that match up applicants with “entitled
routes”
and contains features that allow for placing such
applications in the provincial gazette. The applicants various
applications
cannot be processed by the system due to the many
defects, including the
improper route codes
the applicants
have sought to employ. There is a practical challenge created
by these “bad” applications.
…
.
18.
Accordingly the administrative Secretariat of the Licencing Board
could not be compelled
to incur huge costs in publishing and
processing the applicants’ applications which involves placing
notices in the provincial
gazette as the Licencing Board would not be
in a position to grant such licence. Further as indicated the
Operating Licence Administrative System (OLAS) is configured in a
manner that precludes the gazetting of non-registered routes
.
19.
Further the seeming insistence that the respondents should
nonetheless have gone through
the motions would have been an exercise
in futility. The
Board has no competence to consider routes
not on the RAS system
and such action would have led to a wastage
of departmental resources.
20.
Indeed, if the applicants were of the inclination to amend routes
assigned to their various
associations, same was to be achieved in
consultation
with the Registrar’s office and by the facilitation of
discussions with affected taxi associations
as
opposed to insisting on the pursuit of the current application….”
(emphasis
added)
[32]
It is apparent that one route in particular, i.e. the one commencing
at Kort Taxi Rank in Welkom with a destination point at
Du Plessis
Taxi Rank in Odendaalsrus is a lucrative route. It has been
assigned to fourth respondent. The taxi associations
and
individual taxi owners in Odendaalsrus, some of whom are the
applicants
in
casu
,
are dissatisfied with the fact that fourth respondent’s members
who operate from Welkom, are allowed to utilise the particular
route
whilst they may only do so from Van der Vyver Taxi Rank in
Odendaalsrus to Welkom which represents a shorter and in their
mind
less lucrative route.
[33]
According to respondents the Provincial Department, in consultation
with affected taxi associations and other stakeholders,
identify from
time to time viable routes which are then registered and assigned.
These routes are identified with reference
to the streets and
connecting streets utilised. Once it is determined that a route
is viable it is then registered on the
RAS, whereafter taxi
associations are invited to apply to operate on such route.
Ultimately the route is formally assigned
to a particular taxi
association. A taxi operator that wants to utilise that
particular route must first seek to join the
particular taxi
association to which the route was assigned whereupon the Registrar
would be approached to amend the details of
the taxi association on
its database to include such operator as a new member.
[34]
The OLAS system interfaces with the RAS system. In
casu
the individual applicants could not overcome the first hurdle insofar
as the OLAS and RAS systems did not recognise the applicants
as being
entitled to the routes applied for, predominantly because the routes
applied for are not registered and as such not on
the RAS. The
most popular route, being FS140 which is the subject of most of the
applications, has been changed deliberately
by applicants, as alleged
by respondents, by changing the origin point and furthermore, no
permission was obtained from fourth
respondent to whom the route was
assigned. Route FS140, as changed pertaining to its origin
point, is not registered on the
RAS system.
[35]
Section 51(6)(a) of the Free State Act provides that an application
form for an operating licence must make provision for:
“
recommendations
from the association operating on the route or the route network in
question of which the applicant is a member,
which must be completed
by the association before submission of the application.”
Even
an applicant who is a non-member of a particular taxi association
must comply with this proviso and I refer to s 51(6)(b) read
with s
83(1)(e) of the Free State Act.
[36]
Although respondents indicated in
inter
alia
paragraph 81 of their answering affidavit that the applicants’
applications have now been dealt with, it is clear that the
applications were “rejected” by the Secretariat and that
the second respondent as the Regulatory Entity did not consider
the
applications in a formal board meeting due to the reasons advanced.
These applications were rejected because they were
found by the
Secretariat to be non-compliant.
X
FURTHER
COMMENTS IN RESPECT OF CONTEMPT OF COURT APPLICATION
[37]
The MEC, cited as first respondent in these proceedings, was not
ordered to comply with either paragraph 1 or 2 of the court
order of
26 February 2016 and no relief is sought against the MEC in the
notice of motion. There is no case against the MEC.
[38]
I have indicated
supra
that the court order is ambiguous and creates an unjustified
disharmony with the aforesaid two statutes.
[39]
In my view applicants wrongly applied for and obtained an order in
terms whereof second respondent, i.e. a statutory body,
be ordered to
take steps to process, publish and prepare applicants’
applications. These functions are not the second respondent’s
functions. Second respondent consists of individual persons,
some may be appointed full time and others part-time, and they
sit
from time to time as a Regulatory Entity to consider and adjudicate
prepared applications. Neither the Regulatory Entity,
nor its
individual members are statutory obliged to process, publish or
prepare applications for consideration.
[40]
Applicants should have established who was responsible for carrying
out the obligations in paragraph 1.1 of the court order
and to
identify such person or persons in the court order. Only then
would it be possible, and on the basis that sufficient
evidence is
tendered, to consider convicting one or all such persons for contempt
of court.
[41]
Even if it was possible to find the second respondent guilty of
contempt of court for failing to adjudicate applications presented
to
it, no such finding can be made on the facts as the applications were
never put on the Regulatory Entity’s agenda for
consideration.
XI
RELIANCE
ON PROMOTION OF ACCESS TO INFORMATION ACT, 2 OF 2000 (PAIA)
[42]
Paragraph 2 of the order of 26 February 2016 obliged the Free State
Transport Registrar, cited as third respondent, to furnish
certain
particulars and information. It is alleged under oath that the
Department at a stage was under the wrong impression
that it required
the permission of certain third parties before it could release what
was in essence public information, but that
the information required
has been provided in the interim. In this regard a bold
statement was made without referring to
when, where, to whom and by
whom the documents and information have been provided. It
became evident during the hearing of
the application that the
information and documents had not been provided and Mr Ayayee,
counsel for respondents, informed me that
he had received
instructions from his clients to ensure that the court order would be
complied with before the end of the day.
[43]
The ultimate question is then whether third respondent should be
convicted of contempt of court and if so, the penalty to be
imposed.
There can be no doubt that third respondent knew at all relevant
times that he was duty bound to comply with paragraph
2 of the court
order and he even deposed to a confirmatory affidavit, confirming the
version of Mr Mosia who deposed to the answering
affidavit on behalf
of respondents, alleging compliance with the court order.
[44]
Bearing in mind the steadfast approach that the court order was
complied with and the eventual acceptance that there was indeed
no
compliance, all three requirements for committal have been
established.
Mala
fides
and wilfulness should therefore be presumed, unless sufficient
evidence is led to create reasonable doubt as to their existence,
failing which contempt will be established. See
Pheko
v
Ekurhuleni
Metropolitan
Municipality
supra
at para [25] and further,
inter
alia
with
reference to
Fakie
supra
at para [36] in particular.
[45]
I accept for purposes hereof that third respondent did not wilfully
and
mala
fide
disobey the court order. Although no reasons have been advanced
in this regard, it is apparent that once it became clear
during
argument that the information and documents required had in fact not
been provided to applicants’ attorneys, counsel
was immediately
instructed to inform the court that compliance would take place
before the end of the day. I am prepared
to accept that the
mistake was caused by an administrative error. I base my
judgment in this regard on the undertaking communicated
to me via
respondents’ counsel and consequently refrain from convicting
third respondent for contempt of court.
XII
FOURTH
RESPONDENT’S INTERVENTION
[46]
Applicants also seek an order directing fourth respondent to
intervene and take all steps necessary to effect the implementation
of the order of 26 February 2016. I am confused by the relief
sought, bearing in mind that fourth respondent is cited as
the Welkom
United Taxi Association. It surely cannot intervene and see to
the implementation of the court order by any of
the other
respondents. It might be a typing error, but I have never been
requested to amend the notice of motion. Probably
a similar
typing error occurred in applicants’ heads of argument where it
is submitted that the MEC, cited as first respondent,
should be
convicted of contempt of court. I am aware of the evidence
contained in paragraphs 46 to 51 of the founding affidavit
wherein
certain allegations pertaining to the MEC as first respondent have
been levelled, but the notice of motion in its present
form is in
conflict with these averments. However, bearing in mind the
conclusions to which I have arrived, it is unnecessary
to consider
this aspect any further.
XIII
STRUCTURAL
INTERDICT
[47]
Mr Van Aswegen submitted that this court may issue a structural
interdict in order to ensure finalisation of the dispute between
the
parties. The problem with such request is that no factual basis
has been provided to which respondents could reply.
The notice
of motion does not contain a prayer in this regard and Mr Van Aswegen
has not even attempted to suggest a suitable order
from the Bar.
Mr Ayayee conceded that it is conceivable that the court may make a
suitable order, but pointed out that no
statutory obligations can be
flouted in the process. I am not prepared to grant any kind of
structural interdict in the absence
of the issues being properly
canvassed. I am also mindful of the fact that a court is
required to decide the issues
formulated by the parties and those
disputes only should be adjudicated. See
City
of Cape Town v SANRAL
2015
(5) BCLR 560
(SCA) at para [10].
XIV
COSTS
[48]
Applicants have obtained some relief insofar as respondents accepted
at the hearing of the application that third respondent
had not
complied with paragraph 2 of the court order of 26 February 2016 and
undertook to comply with the order by the end of the
day.
[49]
Applicants have not made out a case for the substantive relief
claimed in the notice of motion. The basic rule pertaining
to
costs is that the award of costs is in the discretion of the
presiding judge. The general rule to be considered with the
basic rule is that the successful party is entitled to his/her costs,
save in exceptional circumstances. By far the majority
of the
time spent in drafting the papers and presentation of argument
concerned paragraph 1 of the court order whilst very little
time and
effort was spent on paragraph 2. I am therefore not satisfied
that the partial success achieved by applicants entitle
them to
costs.
[50]
On the other hand, it appears to me that respondents should never
have consented to the order of 26 February 2016 whilst knowing
that
applicants’ applications were not compliant and not in line
with the statutory provisions. If they allowed that
matter to
be argued and properly adjudicated by the court, this contempt of
court application would probably never be issued.
Furthermore I
have reason to believe that the Department has been dragging its feet
pertaining to the processes to be followed
for the awarding of routes
to the particular taxi associations. Uncertainty, lack of
co-operation and indecisiveness are
the breeding ground for unrest, a
feature not uncommon in the taxi industry in this country.
Consequently I am satisfied
that both parties should accept some of
the blame and therefore each party shall be obliged to accept
responsibility for payment
of their own costs.
XV
THE
ORDER
[51]
Consequently the application is dismissed, the parties to be
responsible for the payment of their own legal costs.
_____________
J.P.
DAFFUE, J
On
behalf of the applicant: Adv. W. A. van Aswegen
Instructed
by:
Blair
Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
, 2
nd
and
3
rd
respondents: Adv. A. E. Ayayee
Instructed
by:
Rampai
Attorneys
BLOEMFONTEIN
/eb