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[2017] ZAKZPHC 62
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MEC for Transport, Community Safety and Liason for the Province of KwaZulu-Natal and Others v The Zamokuhle Long Distance Taxi Association and Others (3374/16 P) [2017] ZAKZPHC 62 (29 March 2017)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 3374/16 P
In the
matter between:
MEC
FOR TRANSPORT, COMMUNITY SAFETY AND 1
st
APPLICANT
LIAISON
FOR THE PROVINCE OF KWAZULU-NATAL
THE
DEPARTMENT OF TRANSPORT, KWAZULU 2
ND
APPLICANT
NATAL
THE
PROVINCIAL REGULATORY ENTITY FOR THE 3
RD
APPLICANT
PROVINCE
OF KWAZULU-NATAL
and
THE
ZAMOKUHLE LONG DISTANCE TAXI 1
ST
RESPONDENT
ASSOCIATION
THE
CHAIRPERSON: ZAMOKUHLE LONG DISTANCE 2
ND
RESPONDENT
TAXI
ASSOCIATION
MR.
VELA MAPHUMULO
3
RD
RESPONDENT
JUDGMENT
DELIVERED ON: 29 MARCH 2017
MNGADI AJ:
[1] The
applicants are the MEC for Transport, Community Safety and
Liaison
for the Province of KwaZulu-Natal ('the MEC') the second applicant is
the Department of Transport for the Province of KwaZulu-Natal
('the
KZN Department of Transport') and the third applicant is the
Provincial Regulatory Entity for the Province of KwaZulu-Natal
('the
PRE') which is a statutory body with its function to monitor and
oversee public transport within the province of KwaZulu-Natal.
The
applicants are obligated to ensure the safety of the members of the
public using public transport.
[2] The
first respondent is Zamokuhie Long Distance Taxi Association
('Zamokuhle Taxi Association') which is a registered voluntary
association of minibus taxi owners in Port Shepstone. The second
respondent is Mr Bekwa Amos Madlala ('Madlala') the chairperson of
the first respondent and a large scale taxi operator, and the
third
respondent is Mr Vela Maphumulo, a member of the first respondent
('Maphumulo ').
[3] The
applicants obtained an interim interdict by means of an urgent
application against the respondents in terms of which the respondents
were
(a) interdicted and restrained from
invading, occupying, accessing or blockading Bazley Street at
Port
Shepstone ;
(b) interdicting and restraining the
respondents from threatening, attacking, harming, harassing or
in any
manner whatsoever assaulting, attempting to kill or killing any of
the security guards of the KSS Security Company employed
by the first
applicant to guard the Port Shepstone Taxi Rank;
(c) that the respondents are interdicted
and restrained from perpetuating or causing or inciting any
public
violence at Port Shepstone Taxi rank or its locality;
(d) that the respondents are interdicted
and restrained from operating their minibus taxis from non-designated
and/or non-approved taxi ranks in the Port Shepstone area, including
use of and access to the public area on Bazley Street, Ryder
Street
and Nelson Mandela streets in Port Shepstone;
(e) that the respondents and its members
are interdicted and restrained from threatening, intimidating,
physically or verbally assaulting, harassing, insulting or otherwise
abusing or provoking members of other taxi association operating
out
of the Port Shepstone Taxi rank or members of the public or motorists
and law enforcement agencies and their members and the
employees of
KSS Security company;
(f) that the respondents and its
members are interdicted and restrained from physically or verbally
attacking, abusing or threatening to attack mini bus taxi owners
and/or minibus taxi occupants of taxis belonging to or owned by
any
of the members of Bambanani or Nyandezulu Taxi Associations.
[4]
The applicants now seek confirmation of the rule
nisi
as a
final interdict with costs on a punitive scale against the
respondents, jointly and severally, such costs to include the costs
consequent upon the employment of two counsel. The applicants in
support of the application relied on the affidavits of Sifundiswa
Justice Lunga ('Lunga'), the acting general manager of PRE; the
affidavit of Sibusiso Herbet Ntuli ('Ntuli'), an acting senior
manager of PRE; the affidavit of Vusumuzi Zondi ('Zondi'), employed
as a facilitator of the community structure of the first applicant's
Ministry; the affidavit of Mduduzi Remington Shabalala ('Shabalala'),
a captain in the South African Police Service ('SAPS') based
at the
Public Order Police Unit in Port Shepstone under the command of
Major-General Ndlovu, the cluster commander; and the affidavit
of
Lucky Sibonelo Mbambo ('Mbambo'), an employee of KSS Security
Company.
[5] Lunga
states that any disruption through violent conduct or any
other
criminal conduct which may lead to violence invades the authority of
the applicants which is to ensure that the public using
public
transport is safe and the public transport operates in a smooth, safe
and undisturbed manner.
[6] Langa
states that from during or about mid-2015 there has been
a severe
dispute which has erupted between the first respondent and its
membership and Sanke Long Distance Taxi Association ('Sanke
Taxi
Association') relating to the invasion of the routes and ranking
facilities operated by the first respondent and its membership
both
in Durban and Port Shepstone. He states that the dispute between the
first respondent and Sanke Taxi Association is currently
being used
as a smoke- screen for the respondents to create and perpetrate
anarchy and a state of lawlessness at Port Shepstone.
Prior to the
Zamokuhle/Sonke dispute arising Zamokuhle Taxi Association members
were already involved in a dispute which three
other Port Shepstone
based taxi associations , namely; Bambanani Taxi Association,
Gamalakhe Taxi Association and Nyandezulu Taxi
Association. The
upshot of this rivalry within Port Shepstone based associations
created violence at Port Shepstone taxi rank situated
on Ryder
Street. In order to quell this violence and in an attempt to resolve
the disputes, the first applicant and second applicant
intervened.
The results of the intervention was the signing by all four rival
associations of an operational agreement undertaking
to honour the
prescripts of their operating licence/permit limitations in order not
to encroach on each other's territory. The
first applicant as a step
to quell violence permanently to ensure safety and in order to ensure
that operators operating from Port
Shepstone Taxi Rank ('the Rank')
did so lawfully and within the limits/bounds of their operating
licences he would appoint a security
company to ensure the safety of
commuters and users of the rank.
[7] Lunga
states that on 24 March 2016 in the roll out of his transport
plans
to ensure safety of road users and commuters within the province, the
first applicant addressed all the local and long distance
taxi
associations of the Lower South Coast when he repeated his decision
to employ the services of a security company from Empangeni
to
maintain safety and security and lawful operations at Port Shepstone
Taxi Rank.
[8] It is
to be noted that Lunga's affidavit does not claim that there
were any
incidents of violence at Port Shepstone Taxi Rank immediately prior
to the deployment of KSS Security on 30 March 2016.
There are no
affidavits by the members of Bambanani Taxi Association, Gamalakhe
Taxi Association and Nyandezulu Taxi Association
supporting the need
to deploy a security company to ensure safety and lawfulness at Port
Shepstone Taxi Rank. Shabalala and Ndlovu
the members of SAPS have
not indicated that immediately prior to the deployment of KSS
Security on 30 March 2016 the situation
on the ground was such that
it was necessary to provide security. Madlala, the second respondent
and the chairperson of the first
respondent states that the dispute
between the associations was resolved in August 2015 and an agreement
was signed, there has
been no trouble between the associations and
the rank has been functioning peacefully. Therefore, he states it was
a surprise to
all the associations when they observed KSS Security
personnel surrounding the entire rank carrying automatic rifles. He
states
that as a result all the taxi associations were very upset and
in protest they decided to park their taxis outside the Port
Shepstone
Taxi Rank and stop their operations as a protest against
the deployment of KSS Security.
[9]
Shabalala states that there was a commotion at the Port Shepstone
Taxi Rank on 30 March 2016 as a result of the protest against the
presence of KSS Security. The police, in the interest of peace,
requested the security guards to leave and the situation calmed down.
On 31 March 2016 the taxi drivers and the owners gathered
in their
numbers and walked to the rank. The police, together with traffic
officers and the municipality security, PRE and KSS
Security guards
stood their ground. The protesters had by Zamokuh!e Taxi Association,
all agreed to stop operating in the rank
whilst the security guards
were still deployed at the rank. He states that there was some
violence on 31 March 2016 despite their
presence. He states that on 1
April 2016 the operators divided themselves into two groups, one
group occupied Bazley Road and the
other group occupied the spot near
the Total Service Station at the intersection of the Ryder Street and
the Nelson Mandela Street.
The purpose of the groups was to prevent
every vehicle from picking up people in the central business district
or from transporting
people out of the central business district.
[10]
The affidavits of Lunga, Ntuli and Mbambo indicate that there were
pockets of violence around
the protest action. It entailed threats of
violence, hurling objects at vehicles , blocking access to public
roads. As a result
32 persons were arrested. However, these pockets
of violence are not necessary attributed to the respondents. Madlala
states that
at no point did the respondents attempt to assault or
kill KSS security guards. It would have been foolhardy to do so since
the
guards were armed with automatic rifles.
[11] In motion proceedings
if the facts averred in the applicants' affidavit that have
been
admitted by the respondent or not denied by the respondent together
with the facts alleged by the respondent justify such
an order, a
final order whether it may be a final interdict, may be granted. See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H-I.
[12]
A final interdict
unlike an interim interdict, involves a final determination of rights
of the parties. It is granted in order to secure a permanent
cessation of an unlawful course of conduct. There are three
requisites
all of which must be present and be established on the
preponderance of probabilities. Firstly, there must be a clear right
that
is sought to be protected. It must be an acknowledged right and
it must clearly be established. Secondly, there must be an
interference
with the right, which constitutes an invasion of the
right. The injury must be actually committed or reasonable
apprehended. The
injury must be a continuing one and the interdict be
aimed at stopping such injury. Lastly, it must be shown that there is
no other
satisfactory remedy. A final interdict is a drastic remedy;
see
Setlogelo v Setlogelo
1914 AD 221.
[13]
The injury must be caused by the respondent or the respondent
authorised such injury to be performed
by his agent, unauthorised
action by an agent or servant will not justify an interdict against
the principal
(Goldsmid v The South African Amalgamated Jewish
Press Ltd
1929 AD 441).
[14] The Applicants have
established that the respondents were primarily the main drivers
of
the protest. In fact the respondents admit participating in the
peaceful protest. The right to protest is a constitutionally
entrenched right and it is an essential feature of a constitutional
democracy.
[15] The municipality,
which is the local authority, has not complained of the blocking
of
streets in the area of its jurisdiction. The applicants have not
shown that the respondents or persons acting as their agents
carried
out the violent incidents which accompanied the protest. There is no
evidence that the respondents planned a protest the
essential feature
of which was violence or that during the protest they, or their
agents, carried out the violent acts.
[16] The applicants
according to their counsel and the documents before me continue to
submit that
the respondents have carried out the acts of violence.
The respondents have not denied that the criminal acts took place but
they
have distanced themselves from such acts. The purpose of the
interdict is not necessarily directed at the respondents but the aim
is to stop the violence and criminal acts from continuing.
[17] I am of the view that
a case has been made for a final interdict. Further, at the
commencement of the hearing for the confirmation or discharge of the
rule nisi
the court was advised that the respondents do not
oppose the granting of the final interdict but were asking that each
party pay
their own costs. The rule
nisi
issued on 21 January
2016, subject to the below mentioned relating to costs, is confirmed.
[18] The applicants rejects
the respondents proposal that each party bear his/her own
costs. They
insiststs that the respondents be ordered to pay costs. The counsel
for the applicants addressed me at length on the
question of costs.
The core of his argument as I understood it was that the costs should
follow the results. He stated that the
applicants established the
requirements of the granting of a final interdict. He referred me to
the averments in the affidavits
and he argued that the respondents
perpetrated the acts of violence. He criticised the respondents in
failing to deal pertinently
with the allegations that they or their
members/agents had not committed the acts of violence. In my view
despite a close examination
of the averments in the various
affidavits there were no specific averments linking the respondents
directly with the acts of violence.
The persons who were alleged to
have committed the acts of violence were not named and it was not
pointed out how they were associated
with the respondents.
[19] The nature of the
allegations against the respondents, in my view is not of such
a
nature that the failure to counter them pertinently renders them
established. Neither of the respondents is shown to have incited
violence or shown to have participated in the actual acts of
violence. The affidavits, formulated in vague terms, refer to persons
who are members of the first respondent without naming the particular
individuals as having carried out the acts of violence.
[20] Furthermore the court
will not easily deprive a successful party of his costs. The
granting
of a final interdict does not necessarily mean persons cited as the
respondents must bear liability for costs, in particular,
where there
was no active opposition to the granting of the interdict.
[21] The court must be
careful not to use costs as an element of intimidation. The
interested
parties must accept that the matter shall be carefully
considered before costs are ordered against them. In
Herbstain
&
Van Winsen Civil Practice
477;
Standard Bank of SA Ltd v
Oneanate Investments (Pty) Ltd
1995 (4) SA 510
(C) at 5820
referred to in the
Law
&
Practice of Interdicts
by
CB Prest (1996) page 364 it is stated:
'The award of costs is a matter wholly within the
discretion of the court. This is a judicial discretion and must be
exercised upon
grounds on which a reasonable man could have come to
the conclusion arrived at. In leaving the magistrate or judge a
discretion,
the law contemplates that he should take into
consideration the circumstances of each case, carefully weighing the
various issues
of the case, the conduct of the parties and any other
circumstance which may have bearing upon the question of costs as
would be
fair and just between the parties. ...
The court's discretion should be exercised within the
limits of certain general rules which the courts have laid down for
guidance,
namely; (i) the successful party is entitled to his costs;
(ii) in determining who is the successful party the court should look
at the substance of the judgment and not merely its forum; (iii) the
court can, for good reason order a successful party to pay
the whole
or portion of the costs of the other party; (iv) the court can, for
good reason, deprive a successful party of his costs,
in whole or in
part; (v) the court can, in special circumstances, make an order that
the unsuccessful party shall pay the costs
of the successful party on
an attorney and client basis'.
[22] In my view, the nature
of the case against the respondents is of such a nature that
it is
fair and just that the rule
nisi
be confirmed with no order
made as to the costs.
[23] Accordingly it is
ordered that:
'The rule
nisi
issued on 14 April 2016 is
confirmed, with no order as to costs.'
MNGANDI
AJ
APPEARANCES
Case
Number
: 3374/16
Applicant
: The MEC for
Transport, Community Safety
& Liaison for the province of KZN & ors
Represented
by
: R
Padayachee SC
Applicant's
Attorneys
:
Nzimande S.G Attorneys 033 342 0754
Respondent
: The
Zamokuhle Long Distance Taxi
Association and ors
Represented
: by none
present in court
Date of
Hearing
: 9 March 2017
Date of
Judgment
:
29
March 2017