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[2017] ZAFSHC 175
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Kopane and Others v Greater Bloemfontein Taxi Association and Others (5335/2016) [2017] ZAFSHC 175 (12 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 5335/2016
In
the matter between:
MOKHELE
HERENG
KOPANE
First Applicant
&
90 OTHERS
Second to Ninetieth
(AS
PER ANNEXURE
X)
Applicants
and
THE
GREATER BLOEMFONTEIN TAXI
ASSOCIATION
1
st
Respondent
MEC:
DEPARTMENT OF POLICE, ROADS &
TRANSPORT
2
nd
Respondent
THE
PROVINCIAL REGISTRAR, TRANSPORT,
FREE
STATE
PROVINCE
3
rd
Respondent
L
SELOANE
4
th
Respondent
MA
MPOTANE
5
th
Respondent
HEARD
ON:
24 AUGUST 2017
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
12
OCTOBER 2017
[1]
These are motion proceedings. The matter was launched as an
urgent application. The applicants seek the relief which
is in
the nature of an interdict. The majority of the respondents
oppose the application. The second and the third
resp
ondents
abide.
[2]
The application was first placed on the roll of urgent applications
on 11 November 2016. By agreement between the parties
my
brother Mhlambi J granted an interim order. Among others he
also fixed formal deadlines for the filing of the answering
affidavit, the replying affidavit, and the return day of the
rule
nisi
for the final adjudication of the application.
[3]
The application is opposed by the first, fourth and fifth
respondents. The Greater Bloemfontein Taxi Association, is the
1
st
respondent. It is an umbrella body of two local taxi
associations in the city. The fourth and the fifth respondents
are members of the executive committee of the first respondent.
From now on I shall refer to the three collectively as the
respondents. Therefore, whenever I use that pronoun in the
plural form it must be understood to exclude the 2
nd
and the 3
rd
respondents.
[4]
There is one grouping of taxi service providers in the city called
Highway Taxi Line on the one hand. On the other hand
there is
another grouping of taxi service providers in the city called
Heidedal Taxi Association. The former was previously
known as
Turflaagte Taxi Association.
Brevitas
causa
I
shall henceforth refer to the former as the Highway Group and to the
latter as the Heidedal Group. Both groups are affiliates
of the
1
st
respondent, the Greater Bloemfontein Taxi Association (BTA).
[5]
Above the 1
st
respondent, there is an entity called Motheo District Taxi Council
(Motheo DTC). Its primary function is to resolve disputes
emanating from its affiliated taxi umbrella structures in
Bloemfontein, Botshabelo and Thaba Nchu. For instance, if any
member of the Bloemfontein Taxi Association is aggrieved by any of
its decision, such an affiliated member may lodge its grievance
with
Motheo DTC.
[6]
Above Motheo, there is an entity called the Free State Provincial
Taxi (PTC). The primary function of this structure is
to deal
with appeals Council against the decision of Motheo DTC and other
similar regional taxi structures in the province.
In brief,
that is the hierarchial or organizational structure of the grievance
procedure.
[7]
On 2 February 2017 the application was postponed to 30 March 2016.
The
rule
nisi
was accordingly extended by my sister, Van Zyl J. All this was
done in order to afford the applicants an opportunity to file
their
replying affidavit. They were called upon to do so before or on
24 February 2017.
[8]
On 30 March 2017 my brother, Motimele AJ, was seized with the
matter. By virtue of his guidance, the parties mutually
agreed
to have the dispute dealt with in accordance with the domestic
grievance procedure as laid down in the 1
st
respondent’s constitution. - See par 1.1 of the
court order by Motimele AJ.
[9]
The applicants subsequently referred the dispute to Motheo
District
Taxi Council
.
The idea behind the order by Motimele AJ was to have the internal
remedies and processes exhausted. The domestic grievance
procedure is set out in clause 4 “anx c” to the 1
st
respondent’s constitution read with clause 5 thereof. The
parties were also granted leave to supplement their papers
and to
revert to this court should the dispute still remain unresolved on
the domestic front. The application was then postponed
and the
rule
nisi
was further extended. The condonation application was also put
on hold.
[10]
By 25 May 2017 the parties had still not found an internal resolution
of the dispute. By agreement between the parties,
I postponed
the matter to 22 June 2017 and accordingly extended the
rule
nisi.
[11]
On 22 June 2017 my sister Gela AJ postponed the matter once again.
The agreed date of the postponement was 17 August
2017. The
rule
nisi
was implicitly extended.
[12]
On 30 June 2017 the applicants filed a further supplementary
affidavit. The respondents opted to file no supplementary
affidavit in reply. According to the supplementary affidavit
filed by the applicants, the Provincial Taxi Association adjudicated
the dispute on 19 May 2017. The applicants lost out on the
domestic front. The applicants still remained aggrieved
–
hence the matter was taken back to court.
[13]
On 17 August 2017 the matter was yet again postponed to 24 August
2017. The
rule nisi
was further extended one more time.
[14]
The matter was finally argued before me on 24 August 2017. On
behalf of the applicants, Mr Heymans submitted that a proper
case had
been made out for the final confirmation of the
rule
nisi
.
Therefore, he urged me to finally confirm the
rule
nisi.
On behalf of the respondents, Mr Snyman submitted that the applicants
did not make out a proper case for the grant of
a final interdict.
Therefore, he implored me to discharge the
rule
nisi
.
[15]
Before I dealt with the interdict, I was called upon to consider a
condonation application brought by the respondents.
They were
supposed to have filed their answering affidavit before or on 2
December 2016 at the very latest. They failed to
comply with
the interim order. They only did so eight weeks later, on 1
February 2017 to be precise. They simultaneously
filed the
condonation application for the late filing of the answering
affidavit.
I
condoned their lateness.
[16]
The material averments of the version of the applicants need to be
condensed. The historical background ventilates their
version.
Before 1 January 2007 the applicants enjoyed free and undisturbed use
of the Meadows Road. The road was previously
known as Sannaspos
Road. It connects Dewetsdorp Road, on the outskirts of
Heidedal, to the National Road N8, on the outskirts
of Mandela View.
As one drives from Heidedal to Mandel View, Meadows Road is flanked
by Bloemside on the left and Peter Swarts
on the right. The
Heidedal Group was not using the road as on 31 December 2006.
[17]
The road was reconstructed and broadened during the course of the
year 2007. There are a few large neighbourhoods to
the south of
Meadows Roads. Among them, one may mention residential
neighbourhoods such as Phase 6, 7, 9, 10 and Peter Swarts.
The
streets in all those residential areas are not tarred. They are
in extremely poor conditions. There is only one
exception, the
street called Meadows Road. The overheads of service providers
who render taxi services to those poor and
forsaken communities are,
for obvious reasons, very high. Some of those communities are
readily accessible by taxis travelling
to and from them through
Meadows Road.
[18]
On 30 March 2008 the Highway Group applied to the 3
rd
respondent via the 1
st
respondent for the amendment of their taxi permits - vide “anx
mk5 (i)”. The underlying idea was to extend
the routes of
their taxi operations so as to include Meadows Road. Heidedal
Group also made similar group application to
the 3
rd
respondent via the 1
st
respondent. However, the 1
st
respondent withheld the group application of the Highway Group but
submitted the group application of the Heidedal Group only to
the 3
rd
respondent. The operating licences, in other words the taxi
permits, of Heidedal Group were subsequently amended. By
virtue
of their amended taxi permits, they were authorized to pick up and to
drop off commuters in Meadows Road.
[19]
The Highway Group was aggrieved. It felt betrayed by the lack
of impartially on the part of the local mother body, the
Greater
Bloemfontein Taxi Association. On account of the unequal
treatment displayed by the 1
st
respondent, the Highway Group once again applied for the extension of
their routes of operations. The purpose of their second
application was really not to compete with the Heidedal Group by
picking up and dropping off commuters on Meadows Road but rather
to
use Meadows Road as a drive-through avenue in order to have a quicker
and shorter access to the communities of Phases 7, 9 and
10 –
vide “anx mk5(m)”. On that occasion the 1
st
respondent did not shelve their group application. Nonetheless
the 3
rd
respondent declined their group application as would more fully
appear from “anx mk5(t)”. The applicants were
sceptical about the annexure because it was written on the official
letterheads of the 2
nd
respondent instead of those of the 3
rd
respondent. They became more frustrated.
[20]
The Highway Group and the Heidedal Group engaged each other in an
attempt to solve the Meadows Road dilemmas. The volatile
situation was averted on 19 September 2008. On that particular
day a memorandum of understanding, (M.O.U) was signed by the
two
rival groups. The salient feature of the M.O.U was that
Heidedal Group softened its originally rigid position for the
exclusive use of the contested street, Meadows Road. The
Highway Group was, on the strength of the M.O.U, also became entitled
to use the same street – vide “anx mk5(h)”.
However, Heidedal Group did not honour the terms and conditions
of
the M.O.U. Similarly the 1
st
respondent also rejected it.
[21]
The dispute over the use of Meadows Road was investigated. A
comprehensive investigation report dated 10 April 2015 was
released –
vide “anx mk5(u)”. The investigator found:
·
that
the Highway Group rendered taxi services on the routes aligned to
Bloemside, Phase 3, Phase 4, Phase 5, Phase 6, Phase 9, Phase
10,
Turflaagte and Chris Hani;
·
that
originally neither Heidedal Group nor Highway Group was lawfully and
expressly authorised to provide taxi services on Meadows
Road;
·
that
both groups later on decided to apply to the 3
rd
respondent to have their taxi permits amended so as to include
Meadows Road as an extension of their routes of operations;
·
that
the Highway Group did not receive a fair deal but instead a raw deal
from the route committee of the 1
st
respondent because the chairperson thereof was resident at Heidedal
and was biased towards Heidedal Group;
·
that
the Highway Group was entitled to use Meadows Road in order to
provide taxi service to and from Turflaagte, Bloemside, Phase
4,
Phase 9 and Phase 10 – vide 4.1 “anx mk5(u)”;
[22]
The investigator then recommended, among others, that the Heidedal
Group and the Highway Group should share the use of Meadows
Road from
its intersection with Dewetsdorp Road at Bloemside to Eleventh Avenue
at Phase 9 for the benefit of the commuters and
both taxi groups.
[23]
The applicants commented to record that all the recommendations made
by the investigator were repudiated by the 1
st
respondent who improperly chose sides in the dispute between its two
constituent members, namely Heidedal Group on the one hand
and
Highway Group on the other hand. The 1
st
respondent’s wrongful and partisan conduct fuelled a violent
clash between the two groups.
[24]
Aggrieved by the conduct of the 1
st
respondent who displayed an inclination to advance the interests of
the Heidedal Group at the expense of the interests of the Highway
Group, the latter lodged a formal complaint with Motheo
DTC
against Heidedal Group as well as the 1
st
respondent. The hearing of the grievance took place on 22
September 2016. An extract from the minutes may be conveniently
paraphrased as follows:
·
that
the routes used by the two groups must be redemarcated;
·
that
taxi services or operations in the city should be rendered in
accordance with the taxi permits;
·
that
taxi services or operations be carried out as they were before 1
January 2007 – vide “anx mk8”.
[25]
The Highway Group heavily relied on the third of the aforesaid
resolutions by Motheo
DTC
.
The group asserted that the resolution was binding on Motheo
DTC
.
I
pause to remark that whereas the third resolution appeared to favour
the Highway Group, the same could not be said about the second.
Unlike the third, the second obviously favoured and supported the
case of the Heidedal Group. It will be recalled that at
the
time the grievance was heard, the taxi permits of Heidedal Group
officially and expressly authorized its members to use Meadows
Road
but the taxi permits of the Highway Group did not. Consequently
it must be readily appreciated that the decision of
Motheo
DTC
actually did nothing meaningful to solve the dilemma concerning
Meadows Road. Instead, Motheo
DTC
complicated
and confused the issues and made the already bad and volatile
situation worse. The last two resolutions were inconsistent
and
irreconcilable.
[26]
Almost a month later, on 20 October 2016, Motheo
DTC
purportedly revisited the grievance of the Highway Group. It
mero
motu
purported to reconsider its previous decision of 22 September 2016 as
evidenced by “anx mk8”. It then purported
to
reverse such earlier decision – vide “anx gbta19”.
The essence of the alleged subsequent decision was
that the earlier
resolution, which required that taxis services be rendered as they
were before the year 2007, be cancelled and
regarded as
pro
non scripto.
All that retraction was done behind the back of the Highway Group.
[27]
It was the contention of Highway Group that the earlier decision of
Motheo, DTC as per “anx mk5”, was final;
that
Motheo
DTC
was
functus
officio
;
that Motheo
DTC
was legally precluded from reconsidering and, reviewing its own
decision; that it could not properly reverse its own decision
as it did since there was no more any grievance between the two
groups and that what Motheo
DTC
did on 20 October 2016 was a nullity in law.
[28]
The Highway Group also attached to its replying affidavit a
transcript of the mechanical recording of the proceedings before
Motheo
DTC
on 20 October 2016. The version of the Heidedal Group as
contained in “anx gbta19” as compiled and signed by
a
certain SS Qiba on 20 October 2016 and “anx gbta19(a)” as
compiled and signed by a certain K.P Mathosa, ME Banyani,
SS Qiba and
LJ Lebatta on 20 November 2016 could not be reconciled with the tape
recording or its transcript. One of the
alleged signatories of
“anx gbta19(a)”, namely: LJ Lebatta was not
present at the meeting of Motheo
DTC
which was held on 20 October 2016. The conduct of that forum
was highly suspect and irregular. It raised serious questions
about the integrity of certain individuals and factions in the taxi
forums.
[29]
Still dissatisfied with the irregular conduct of the 1
st
respondent on 20 October 2016 (vide “anx gbta19”) as well
as that of 20 November 2016 (vide “anx gbta19(a)”)
the
Highway Group took the matter up with the 3
rd
respondent, the Free State Provincial Taxi Council on appeal.
The aforesaid “anx gbta19” and “anx gbta19(a)”
were attached to the appeal papers, labelled “referral 1”
and marked as “anx b” and “anx c”.
[30]
On appeal the Free State PTC, instead of upholding the appeal of
Highway Group by reversing the decision of Motheo
DTC
which was under attack or dismissing the appeal of Highway Group by
confirming the retraction decision of Motheo
DTC
,
decided that Highway Group and Heidedal Group should operate together
and share the route in dispute as the registrar, the 3
rd
respondent, had decided – vide 2.5 “referral 2”
being the written decision of the Free State PTC.
[31]
According to the Highway Group, the appellate forum, in other words
the Free State Provincial Taxi Council mischaracterised
the nature of
the issue. The Highway Group did not seek to share Meadows Road
with the Heidedal Group by competing for the
pickups and drop-offs in
that particular street.
What
they sought was official endorsement on their taxi permits
authorizing their use of Meadows Road as a kind of a steppingstone
or
thoroughfare to access, certain communities or residential
neighbourhoods specifically designated to them in order to render
an
efficient, speedy and costs effective service to those communities.
[32]
The decision of the Free State PTC was exploited by the 1
st
respondent and 4
th
respondent. They maintained that the Highway Group can only
share Meadows Road with Heidedal Group provided their taxi permits
are officially amended to include the street in question. The
effect of the stance of Heidedal Group was and still is that
until
the taxi of the Highway Group have been so amended, they must be
implicitly deemed to be lawfully prohibited, at all costs
from using
the street in question.
[33]
Based on those factual allegations, the applicants moved and sought a
multifold relief. Among others, the following three
were the
main pillars of the relief they sought
·
Firstly,
they sought an order that the decision of Motheo
DTC
taken on 22 September 2016 be adhered to; that the two rival
groups be directed to participate in the fresh demarcation process
of
the disputed routes and that the demarcation be done so as to restore
the taxi operations on the disputed routes to the same
position as it
was prior to 1 January 2007 – vide 2.1 notice of motion
·
Secondly,
they sought an order whereby the 1
st
respondent was directed to call upon its members, Heidedal Group,
within 24 hours after the grant of the
rule
nisi
,
to refrain from using violence against the other members of the 1
st
respondent, supposedly the Highway Group. - vide 2.2
notice of motion.
·
Thirdly,
they sought an order whereby the 1
st
respondent was called upon to issue taxi permits to the members of
the Highway Group only and to indicate which roads they must
use in
order to provide taxi services to the residential areas designated to
them – vide 2.6 notice of motion. This
completes the
summary of the material features of the version of the applicants.
[34]
The relief sought by the applicants is final in nature. It has,
as its essence, all the hallmarks of a final interdict.
In
motion proceedings when an applicant moves for a final interdictory
order, as in the applicants do in these proceedings, and
there is a
dispute of fact, as this instance, it has been held that a final
order may be granted if, and only if, those facts averred
in the
applicant’s founding affidavit which have been admitted in the
respondent’s answering affidavit taken together
with the facts
alleged by the respondent justify such a final order –
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634H.
[35]
The final relief sought by the applicants is opposed by the 1
st
respondent, among others. The essence of the defence is that
there is a clear factual dispute as regards the alleged previous
and
exclusive use of the road in question by the applicants. The
1
st
respondent disputes the claim or allegation that through peaceful,
undisturbed and exclusive open usage of the road over an alleged
long
period of time prior to 1 January 2007, the Highway Group had by
custom acquired a vested right which deserves to be recognised
and
protected by law.
[36]
In their answering affidavit the respondents alleged that the
applicants have always unlawfully used the road in question;
that in so doing they infringed on the rights of other taxi service
providers especially the Heidedal Group; that the procedural
process so far followed by the applicants was flawed; that such
process completely disregarded the correct procedure to have
taxi
permits amended; that the applicants did not divulge their true
intention in launching the current application;
that Motheo
DTC
had subsequently retracted its earlier resolution on which the
applicants heavily relied in support of their current application;
that the applicants, in other words the Highway Group, and not the
Heidedal Group, were behind the blockage(s) of the road(s) which
fermented violence, led to damage of vehicles and caused disruption
of taxi service delivery to the detriment of the community
at large.
[37]
In the light of the respondents’ version, it can be readily
appreciated that there is a clear dispute between the parties.
The dispute concerns a wide range of material aspects. I am
persuaded that this clear factual dispute was foreseeable.
Adopting the approach as formulated in
Plascon-Evans
Paints v Van Riebeeck Paints
,
supra
in the instant matter, dooms the applicants but aids the
respondents.
[38]
The requisites for the grant of a final interdict are well-known.
In order to succeed an applicant is required to prove
a clear right,
an injury actually committed or reasonable apprehension thereof and
the absence of any other satisfactory remedy
–
Erasmus:
Superior Court Practice
. Second Edition by De Van
Loggerenberg. Volume 2 page D6-12 to D6-16.
[39]
As regards the first requisite, it is an undisputed fact the
applicants possess valid taxi permits; that the name of
the
road which is the bone of contention in the current application forms
no part of their official route according to their taxi
permits;
that they are, therefore, not officially authorized to use such road
in the ordinary course of their taxi operations;
and that their
previous use of that particular road was never officially
authorized. The high watermark of their case was
that they
previously had exclusive use of the road, an allegation disputed by
the respondent. The respondents’ denial
must prevail
Plascon-Evans,
supra
.
Given those facts and the law, it cannot be seriously submitted that
the applicants have established a clear right which
deserves
permanent recognition and protection by way of final interdict.
[40]
It is trite that the requisites of a final interdict are
conjunctive. The law makes it incumbent upon an applicant to
prove all of them and not some of them. Where, as in this
instance, one requisite is not proven, an interdict cannot be
granted. Consequently it becomes unnecessary to determine the
requisite of harm. It follows that where there is no proven
right, there can be no abstract harm or apprehension thereof.
That which does not really exist cannot be injured.
[41]
As regards the third requisite, it must be borne in mind that
initially the applicants had rushed to court on an urgent
basis.
They had other satisfactory remedies available to them. The
constitution of the 1
st
respondent made provision for a
three level grievance procedure, namely: the local forum, the
regional forum and the provincial
forum. However, the
applicants disregarded the internal dispute resolution mechanism.
It has been authoritatively held
that private systems designed to
resolve domestic disputes are binding and have to be respected –
See
Lufumo Mphaphuli & Associates (Pty) Ltd v Andrews &
Another
2009 (6) BCLR 527
(CC). Although that decision
concerned a voluntary choice to arbitrate contained in a contract –
there is no reason
why the principle should not also apply to a
voluntary choice to resolve grievances according to a particular
procedure contained
in a constitution of a voluntary association.
[42]
Motimele AJ stopped the train, put the court process on hold and
diverted the parties to their domestic forums. The disputes
was
entertained first by the regional forum, Motheo
DTC
,
and later by the provincial forum, Free State PTC. Both
domestic grievance structures ruled against the applicants.
[43]
The applicants then returned and rescucitated the court process.
There was no attempt made to take the decision of the
Free State PTC
on review. They were bound to do so. Yet they did not.
They neglected to do so at their own peril.
In my view taking
the decision of the provincial forum on judicial review, before
returning to court as they did, was another satisfactory
remedy
available to the applicants. This is a material consideration.
[44]
The failure of the applicants post the order by Motimele AJ to have
the decision of the provincial forum judicially reviewed
has created
an awkward situation. They are challenging the decision of
statutory entity which they did not join as a co-respondent.
This is an anomalous situation. Even if the substantive merits
had strongly favoured the applicants, their application would,
nonetheless, have fallen to be struck off on procedural grounds and
not dismissed on substantive ground. That is the harvest
of
neglect.
[45]
The procedural irregularities are simply overwhelming in this
application. On their own version, it was obvious that
the
Heidedal Group had a substantial interest in the outcome of the
application launched by the Highway Group. Notwithstanding
such
knowledge and appreciation, the applicants did not cite the Heidedal
Group as a co-respondent in its own right. Their
omission or
neglect clearly constituted misjoinder. Consequently, even if I
am wrong as regards the merits, the relief sought
cannot be granted
on this point in
limine
alone. The misjoinder is also a material consideration.
[46]
Subsequent to their unsuccessful mission on the provincial grievance
forum, the applicants filed a supplementary affidavit
to revive the
court process. Now their new contention is that the taxi
permits of their rival taxi operators, the Heidedal
Group, were
amended in accordance with the provisions of the
National Land
Transport Transition Act 22 of 2000
– see paragraphs 8 –
10 applicants’ supplementary affidavit.
[47]
They then went on to point out that the aforesaid transitional
statute, Act No 22 of 2000, was in fact repealed and replaced
by the
National Land Transport Act 5 of 2009
. The latter, a permanent
legislation, came into effect on 8 December 2009, and before the taxi
permits of the Heidedal Group
were amended and well before the
present application for a final interdict was launched. In view
of those facts, the applicants
contend now that the amendment of such
taxi permits was irregular and therefore invalid; that the
Heidedal Group was supposed
to have applied in terms of the current
legislation, Act No 5/2009 and not the repealed legislation Act No
22/2000; that
taxi service providers can now apply directly to
the 3
rd
respondent for the amendment of their taxi permits and that they are
no layer required to do so through the aid of the 1
st
respondent.
[48]
I hasten to point out that the very ticket on which the applicants
travelled on a bus to this court was the repealed legislation,
Act No
22/2000. When they initiated these motion proceedings the
current legislation was already operative. However,
they did
not invoke its provisions, instead they also opted in 2016 to move
their application for relief in terms of the repealed
legislation of
2000. It follows, therefore, that if the application of the
Heidedal Group via the 1
st
respondent for the amendment of the taxi permits of its member was
procedurally invalid so too was the application of the Highway
Group
for the final interdict ordering the 1
st
respondent or the 3
rd
respondent in terms of the same repealed legislation to perform
certain act such as to issue amended taxi permits to the applicants
only. The refusal or reluctance of the 1
st
respondent to act as an impartial intermediary between the applicants
and the 3
rd
respondent as the transitional legislation required him to do was
precisely the very reason which precipitated the launch of these
proceedings.
[49]
Consequently the
rule
nisi
cannot be finally confirmed on this procedural ground alone.
This is yet another material consideration. All of these
procedural defects strongly militate against the grant of the
application. The substantive merits aside, I have reached the
conclusion that on procedural grounds, the applicants cannot succeed.
[50]
There remains one more aspect. It concerns the question of
costs. The applicants reckoned that the respondents,
in
particular the 3
rd
respondent and 4
th
respondent, were fully aware that the transitional legislation had
already been repealed and that the current legislation has been
governing the taxi operations or industry since 8 December 2009.
They further alleged that, notwithstanding such knowledge,
the
respondents deliberately chose to keep them uninformed. The
complaint was fallacious. A litigant cannot blame his
adversary
for his ignorance of the law. In these circumstances, one would
have expected the applicants to have withdrawn
their ill-fated
application as soon as they became aware that their application was
based on an obsolete legal framework.
They did not.
Instead they pointed fingers at their opponents. They accused
the respondents of misleading them.
It seemed to me that it
never occurred to them that the respondents, just like the applicants
themselves, might also have been
innocently ignorant of the new legal
position which governs the land transportation of passengers for
reward.
[51]
Having considered all the relevant factors in particular the
procedural defects and the peculiar circumstances of this particular
matter, it is my considered opinion that the applicants must jointly
pay the costs of the main application. I was given to
understand that there were no reserved costs for me to adjudicate.
The previous costs orders concerning postponements will,
therefore,
apply. As regards the condonation application, I am not
inclined to make an order one way or the other.
[52]
Accordingly I make the following order:
52.1
The application is struck off with costs.
52.2
The applicants are ordered to pay the cost jointly and severally, the
one paying the others to be absolved.
_____________
MH
RAMPAI, J
On
behalf of applicants: Adv
PJ Heymans
Instructed
by:
EG Cooper Majiedt Inc.
Bloemfontein
On
behalf of respondents: Adv C Snyman
Instructed
by:
Lovius Block
Bloemfontein