About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2017
>>
[2017] ZAKZPHC 46
|
|
Intuthuko Taxi Association v KwaZulu-Natal Provincial Regulatory Entity and Others (1985/13) [2017] ZAKZPHC 46 (17 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
NOT
REPORTABLE
CASE
NO: 1985/13
In
the matter between:
INTUTHUKO
TAXI
ASSOCIATION Applicant
and
KWAZULU-NATAL
PROVINCIAL REGULATORY
ENTITY First
Respondent
ARCHBISHOP
S N NZUMALO Second
Respondent
P
F
FAKUDE Third
Respondent
L
DUBE Fourth
Respondent
T
TENZA Fifth
Respondent
MEC
FOR TRANSPORT, KZN Sixth
Respondent
MASIHAMBISANE
BARA BUFFALO TAXI
ASSOCIATION Seventh
Respondent
ORDER
(a)
The application is dismissed with costs, such
costs to include the costs of two counsel.
(b)
The applicant is further directed to pay all
costs previously reserved as well as the wasted costs occasioned by
the removal of
the opposed application on 24 March 2017, such costs
to include the costs of two counsel.
JUDGMENT
SEEGOBIN
J
[1]
This is a review application brought in terms of the provisions of
Rule 53 of the Uniform Rules. The applicant, a taxi association,
seeks to review and set aside a decision taken by the first to sixth
respondents (the respondents) on 8 October 2012 in terms of
which a
taxi route from Anneville to Newcastle, registered in the name of the
applicant, was withdrawn by the respondents. The
application was
opposed by the respondents who put up extensive answering affidavits
in which they,
inter alia
,
challenged the competence of the relief sought. While the seventh
respondent, a competing taxi association, did not initially
oppose
the application, it nonetheless took steps to instruct counsel to
appear at the opposed hearing on 14 November 2017 to merely
record
its attitude to the application.
[2]
At the outset I point out this is not the first review application
that has been brought by the applicant for substantially
the same, if
not similar relief against the first respondent. The previous
applications brought under case numbers 1003/11, 7737/12
and 6844/13
were either withdrawn by the applicant and/or proved to be
unsuccessful. The judgment by my colleague Nkosi J in the
previous
application under case number 6844/13 is particularly instructive as
it highlights the extreme abuse on the part of the
applicant relating
to the process of this court. The history of the litigation embarked
upon by the applicant has been dealt with
sufficiently in that
judgment and I see no need to repeat same herein. Needless to say,
the application under case number 6844/13
was dismissed by Nkosi J
with a punitive order as to costs.
[3]
Turning to the present application it is common cause that the
decision taken by the respondents on 8 October 2012 is an
administrative
one which falls within the ambit of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). It is also common cause
that
pursuant to the decision taken by the respondents on 8 October
2012 the applicant lodged an appeal with the Transport Appeal
Tribunal
(the Appeal Tribunal) established in terms of the Transport
Appeal Tribunal Act 39 of 1998 (The Tribunal Act). The appeal in
question
was lodged pursuant to the provisions of section 92 of the
National Land Transport Act 5 of 2009 (the NLTA) which came into
effect
on the 8
th
December 2009. It is further common cause that the applicant withdrew
its appeal before the Appeal Tribunal before it could be
finalised.
[4]
The main challenge to the present application is that the applicant
has failed to exhaust its internal remedies which it was
statutorily
obliged to do before seeking any redress in the High Court. Mr
Padayachee
SC
,
who appeared on behalf of the respondents together with Ms
Nursoo
,
contended strongly that the applicant was simply barred from pursuing
any relief in this court by virtue of its failure to exhaust
its
internal appeal remedy before the Appeal Tribunal. Mr
Mashava
,
who appeared on behalf of the applicant, argued that the applicant
was not hit by the provisions of section 92(1) of the NLTA
as it was
neither the holder of any operating licence or permit nor was it
affected by the decision. As I shall show hereunder,
this argument is
without any merit.
[5]
Chapter 8 of the NLTA deals with appeals. Section 92(1) provides as
follows:
’
92. Appeals to Transport Appeal
Tribunal –
(1) The following persons may appeal
to the Transport Appeal Tribunal against an act, direction or
decision of an entity that has
granted or refused an application
relating to an operating licence, in the manner and within the time
prescribed:
(a)
The aggrieved applicant
;
(b) the holder of any operating
licence or permit affected by the decision; or
(c)
any other person interested in
or affected by the decision
.’
(my emphasis)
[6]
Section 7(2) of PAJA provides as follows:
(a)
Subject to paragraph (c), no court or tribunal
shall review an administrative action in terms of this Act unless any
internal remedy
provided for in any other law has first been
exhausted.
(b)
Subject to paragraph (c), a court or tribunal
must, if it is not satisfied that any internal remedy referred to in
paragraph (a)
has been exhausted, direct that the person concerned
must first exhaust such remedy before instituting proceedings in a
court or
tribunal for judicial review in terms of this Act.
(c)
A court or tribunal may, in exceptional
circumstances and on application by the person concerned, exempt such
person from the obligation
to exhaust any internal remedy if the
court or tribunal deems it in the interest of justice.
[7]
In
Nichol
& Another v Registrar of Pension Funds & Others
[1]
,
Van Heerden JA said the following with regard to the provisions of
s7(2) of PAJA:
‘
[15] Under the common law, the
mere existence of an internal remedy was not, by itself, sufficient
to defer access to judicial review
until the remedy had been
exhausted. Judicial review would in general only be deferred where
the relevant statutory or contractual
provisions, properly construed,
required that the internal remedies first be exhausted. However, as
is pointed out by Iain Currie
and Jonathan Klaaren, ‘by
imposing a strict duty to exhaust domestic remedies, [PAJA] has
considerably reformed the common
law’.
It is now compulsory
for the aggrieved party in all cases to exhaust the relevant internal
remedies unless exempted from doing so
by way of a successful
application under s7(2)(c)
. Moreover, the person seeking
exemption must satisfy the court of two matters: first, that there
are exceptional circumstances,
and second, that it is the interest of
justice that the exemption be given.’
(my emphasis)
[8]
It follows from the above that the applicant, while not being an
entity which is the holder of any operating licence or permit
affected by the decision (ss92(1)(b)), can certainly be categorised
as being an aggrieved party (ss92(1)(a)) or a party ‘interested
in or affected by the decision’ (ss92(1)(c)). In my view, if
the applicant, which is a voluntary association whose membership
is
made up of a number of taxi operators and whose existence is
dependent on such membership, cannot be construed as being a party
falling within the provisions of either ss92(1)(a) or 92(1)(c) above,
then it begs the question as to why the applicant is challenging
the
decision taken on 8 October 2012 in the first place.
[9]
I accordingly conclude that there is merit in the preliminary point
raised by the respondents and on which this application
falls to be
decided. Unlike
Nichols, supra
,
this is not a case in which the applicant, by virtue of exceptional
circumstances or in the interests of justice, seeks an order
exempting it from its obligations to exhaust its internal remedies
before instituting review proceedings in terms of PAJA. It follows,
in my view that this application was doomed to fail from the outset
and must be dismissed.
[10]
As far as the issue of cots is concerned, I see no reason why the
respondents should be deprived of their costs. I consider
that the
employment of two counsel was justified given the nature and
complexity of the issues that arose and their importance
to the
parties concerned. I also see no reason why the respondents should
not be entitled to claim all their reserved costs as
well as the
costs of the previous opposed hearing which could not proceed due to
a failure on the part of the applicant to comply
fully with its
obligations in terms of the uniform rules and the practice directive
of this division.
Order
[11]
The order I make is the following:
(a)
The application is dismissed with costs, such
costs to include the costs of two counsel.
(b)
The applicant is further directed to pay all
reserved costs as well as the wasted costs occasioned by the removal
of the opposed
application on 24 March 2017, such costs to include
the costs of two counsel.
___________________
SEEGOBIN
J
COUNSEL
FOR THE APPLICANTS: Mr Mashava (Instructed by Mashamba Attorneys)
COUNSEL
FOR THE 1
st
to 6
th
RESPONDENTS:
Mr Padayachee SC with Ms Nursoo (Instructed by Diedricks Attorneys)
DATE
OF HEARING: 14 November 2017
DATE
OF JUDGMENT: 17 November 2017
[1]
2008(1) SA
383 (SCA) at para [15]