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[2016] ZAKZDHC 9
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Jacobs and Others v Minister of Transport and Others (7087/2014) [2016] ZAKZDHC 9 (11 February 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
KWAZULU-NATAL LOCAL DIVISION,
DURBAN
CASE NO. 7087/2014
DATE: 11 FEBRUARY 2016
In the matter between:
PIETER DANIEL
JACOBS
..................................................................................
FIRST
APPLICANT
CLAREMONT AND KWADABEKA TAXI
OWNERS
ASSOCIATION
...............................................................................
SECOND
APPLICANT
SOUTHGATE TAXI OWNERS
ASSOCIATION
..............................................
THIRD
APPLICANT
STANGER TAXI OWNERS
ASSOCIATION
................................................
FOURTH
APPLICANT
NGWELEZANE TAXI OWNERS
ASSOCIATION
..........................................
FIFTH
APPLICANT
NGLABANE TAXI OWNERS
ASSOCIATION
.................................................
SIXTH
APPLICANT
And
MINISTER OF
TRANSPORT
..........................................................................
FIRST
RESPONDENT
THE MEMBER OF THE EXECUTIVE COUNCIL:
TRANSPORT:
KWAZULU-NATAL
...........................................................
SECOND
RESPONDENT
DEPARTMENT OF TRANSPORT:
PROVINCE OF
KWAZULU-NATAL
............................................................
THIRD
RESPONDENT
THE PROVINCIAL REGULATORY ENTITY
ESTABLISHED BY THE OFFICE OF THE
SECOND
RESPONDENT
............................................................................
FOURTH
RESPONDENT
CHAIRPERSON OF THE PROVINCIAL
REGULATORY ENTITY ESTABLISHED BY
THE OFFICE OF THE SECOND
RESPONDENT
.......................................
FIFTH
RESPONDENT
J U D G M E N T
STEYN J
[1]
In order to fully understand the three applications before court, it
is necessary
to look at the proceedings that preceded the opposed
application. The matter has its genesis in an urgent
application that
was launched on 26 June 2014. On 17 July 2014
Lopes J issued a rule
nisi
that
was extended by Sishi J. The rule provided for the respondents
to show cause by 1 August 2014 why an order should not
be granted in
the following terms:
‘
1.1 it is declared
that the current procedure utilised by the Respondents to deal with
applications for operation licences
does not comply with the
National
Land Transport Act no 5 of 2009
.
1.2
the 4
th
Respondent is directed to comply with the Act in
respect of all Applications made to it [in] terms of
section 54(3)
,
57
(3) and
58
(1) of the
National Land Transport Act, No. 5 of 2009
,
read with
sections 59(1)
of the said Act, by publishing such
applications as provided for in
section 59(1)
, read with
regulation
17(1).
1.3
the 4
th
Respondent is interdicted from dealing with
applications in terms of
section 54
,
57
and
58
[of] the
National Land
Transport Act, 2009
, otherwise than as set out above.
1.4
the Respondents, jointly and severally, are directed to pay the costs
of this application.’
[2]
The applications were opposed and were argued on 5 February 2016.
The applicants
sought confirmation of the rule so that the Regulatory
Authority (fourth respondent) would give notice of applications made
to
it for operating licences as prescribed in reg 17(1) of the
National Land Transport Act 5 of 2009 (hereinafter referred to as
‘the
NLTA’) read with the provisions stipulated under 1.2
of the rule
nisi
.
The applicants sought compliance with s 54 of the NLTA read with s
57(1), 58 and 59 of the Act. In addition to the
confirmation of
the rule, the applicants sought an order to strike out certain
allegations made in paragraphs 28, 48(6), 51 and
58(b) of the fourth
respondent’s answering affidavit. The respondents in a
counter-application sought the setting aside of
its own decision to
grant operating licences to the second to sixth applicants which were
granted between 2 January 2014 and 18
January 2014.
[3]
At the onset Mr Choudree, appearing on behalf of the respondents,
conceded that the
first applicant’s
locus
standi
and authority was no longer in
issue. What remained in issue was whether the respondents have
complied with the requirements
of the NLTA; whether the applications
lodged were in nature ‘new’ or whether they were
‘renewals’ of existing
operating licences; whether the
respondents were entitled to review their own decision without
complying with s 79 of the NLTA
and lastly, whether the allegations
in the paragraphs listed above should be struck out.
[4] It is common
cause that the respondents have failed to publish the applications
that were made in terms of the NLTA. It
is also common cause
that the NLTA only distinguishes between ‘renewal’ of
licences and ‘new’ licences.
Mr Choudree in his
written heads of argument submitted that reg 17(2)(c) leaves the
Regulatory Entity with a discretion which is
qualified in terms of
reg 17(1) by reference to the words ‘… if it so decides,
in such other manner as it deems fit
to comply with PAJA, Act 3 of
2000’. It was submitted that none of the applicants’
applications were for ‘new’
operating licences. I
disagree. A clear reading of the NLTA as alluded to earlier
leaves only two categories of licences,
‘new’ and
‘renewal’. There is no room for the argument that
the applications could constitute ‘late
renewals’.
[1]
Reg 25 deals with the renewal of an operating licence, and provides
as follows:
‘
25. Application for renewal
of operating licence
(1)
Where an operating licence was issued
for more than 30 days and the holder wishes to renew it, the holder
must apply not later than
30 days before expiry of the licence for
its renewal.
(2)
Where application for renewal was properly
made under sub-regulation (1) and the regulatory entity has not
issued the licence by
the expiry date, the operating licence will
remain valid until the entity either issues the renewed licence or
notifies the applicant
that the application has been refused, and the
operator must keep in the vehicle the receipt issued by the
regulatory entity as
proof that such an application has been made.
(3)
Subject to the Act, the regulatory entity
may not refuse to renew an operating licence unless –
(a)
the applicant, as decided by the entity, is
no longer a fit and proper person to provide public transport
services for a reason
contemplated in section 79(2) of the Act;
(b)
the applicant has failed to provide proof
of registration, licensing or roadworthiness of the vehicle as
required by the Act;
(c)
the services authorised by the licence have
not been provided for the previous 180 days, unless the holder has
provided acceptable
reasons for not providing the services;
(d)
a planning authority has directed the
entity to refuse the application in terms of section 55(3) of the
Act; or
(e)
there is another reason to do so
contemplated by the Act.
(4)
No permit may be renewed unless it is first
converted to an operating licence in terms of the Act and these
Regulations, but the
holder may apply simultaneously for such
conversion and renewal.
(5)
Regulatory entities must send a notice of
renewal to operators not less than 60 days before their operating
licences or permits
will expire, advising them to apply for renewal,
but failure to do so will not affect the expiry of the licence or
permit.’
[5]
If an operator fails to comply with regs 23 and 25, then such failure
impacts on the
validity of the licence. Simply put, the
licences were no longer valid and accordingly the applications were
to be dealt
with as new licences. Once it is determined that
they were not valid ‘renewals’
[2]
it could only be classified as ‘new’ applications.
[6] In the
event of a new application there is no discretion left to the
Regulatory Entity,
it must publish the application as per reg 17(1),
which reads:
‘
(1)
A regulatory entity
must give notice of
applications received by it in connection with operating licences, at
least in the
Gazette
,
and, if it so decides, in such other manner as it deems fit to comply
with the Promotion of Administrative Justice Act, 2000 (Act
3 of
2000), stating at least the following:
(a)
the name and address of the applicant;
(b)
the nature of the application (granting,
renewal, amendment, transfer or conversion);
(c)
the type and passenger capacity of the
vehicle or vehicles involved; and
(d)
the
route or routes or area or areas of operation.’
(My emphasis.)
[7]
This interpretation of s 59 of the Act read with reg 17(1) is in line
with the ordinary
rules of grammar and in the context of the
provision as it stands in the Act. The purpose and intention of
this provision
is that notice be given to all interested parties that
an application in respect of a taxi licence was made and to grant
affected
persons an opportunity to object or respond, should such
person so wish. This interpretation is in line with the
approach
adopted by the SCA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
.
[3]
If an application is a ‘new’ application then
notice must be given by publishing the application in the Government
Gazette.
[8]
The counter-application of the respondents must fail. I am
satisfied that it
cannot be regarded as a review in terms of Rule 53
of the Uniform Rules of Court since it does not comply with the
requirements
of the Rule. Mr Choudree conceded, wisely in my
view, that the counter-application fails since s 79 of the NLTA was
not adhered
to. S 79 is aimed at a fair process when the
Regulatory Entity withdraws, suspends or amends a permit or a
licence.
Accordingly the counter-application has to be
dismissed.
[9]
Finally what remains are the paragraphs in the fourth respondent’s
answering
affidavit that needed to be considered for striking out.
An application to strike out remains discretionary in nature.
It is trite that averments which are scandalous, vexatious or
irrelevant would be struck out.
[4]
Paragraph 28 of the fourth respondent’s answering affidavit
reads as follows:
‘
I
respectfully submit that the true reasons for the application being
moved at the behest of the first applicant is not altruistic
but
rather to enable him to garner as much business as he can from
whichever applicant he can advise
’.
[5]
(My emphasis.)
[10] This
averment is not only irrelevant to the pleadings but an averment
worded in a manner to annoy
the first applicant. I am satisfied
that the paragraph ought to be struck out. The first applicant
in his founding
affidavit certainly showed his standing and what was
expected of the respondents was to answer to the specific averments.
I do not consider the first applicant’s business interest as
being relevant to the pleadings.
[11]
The offending sentence in paragraph 48(b) of the papers is ‘Mr
Jacobs is well aware of
the proceedings and has
deliberately
withheld
material facts which are known
to him and which are designed to malign the fourth respondent in an
unfair manner’.
[6]
(My emphasis.)
[12] Paragraph 34.2 of
the first applicant’s founding affidavit needs to be quoted to
understand
and decide upon the allegedly offending response:
‘
The
only way that applicants/objectors and representatives are aware of
the date of the hearing is at the whim of the department
who
generally advise of the date of hearing a mere day or two days before
the hearing. This they do by emailing an agenda
of what is to
be heard to the legal representatives.’
[7]
[13] It cannot be
overlooked that the first applicant is an officer of the court and to
allege that
he deliberately withheld information material to the
dispute from court is a serious allegation and certainly prejudicial
to the
first applicant. As a practicing attorney he ought to
ascribe to the ethical rules of practice. To suggest that he
intentionally mislead the court, given the facts, is vexatious.
This allegation is irrelevant and vexatious in nature and
I order
that it be struck from the record.
[14]
Paragraph 51 reads:
‘
The
allegations contained in this paragraph are denied. I will cite
one example in which the Fifth Applicant has appeared
before the
Fourth Respondent with notifications having been dispatched to all
the parties concerned. The First Applicant
seems to be unhappy
that his practice does not include representation for all and every
Applicant especially in view of the procedure
adopted by the Fourth
Respondent as described above, which includes even the legal
representatives and this is evidenced in Annexure
‘C’
which is dated 9 April 2014 which clearly disproves the allegations
by the First Applicant.
The fact
that any Applicant with an interest in renewals does not instruct the
First Applicant, is not due to any fault on the part
of the Fourth
Respondent.
’
[8]
(My emphasis.)
[15] I have carefully
considered the averment and the content of the paragraph and as much
as it is
superfluous and not directly linked to the matter, I am not
persuaded that it ought to be struck out.
[16]
Paragraph 58(b) reads:
‘
the
First Applicant has taken the unusual
steps
of making himself a litigant not in order to protect the interests of
any other Applicant save for his own
.
He has no entitlement by law to claim any relief where he has made
himself a party as he is not an Applicant within the
meaning of that
term as set out in the Act.’
[9]
(My emphasis.)
[17] I find this
averment to be unsubstantiated and irrelevant. The first
applicant most certainly
had an interest and there is nothing unusual
in his conduct. This paragraph has to be struck from the
record. The first
applicant in the main succeeded in his
application to strike out the listed paragraphs, so costs should
follow the result.
[18] The
following order is issued:
1. The
rule
nisi
issued on 17 July 2014 is hereby confirmed.
2. The
application to strike out succeeds.
3. The
counter-application is dismissed.
4. The
respondents are ordered to pay the costs of the applications, jointly
and severally.
STEYN
J
Application
heard on : 5 February 2016
Counsel
for the applicants : Mr R Pillemer
Instructed
by : Jacobs and Partners
Counsel
for the respondents : Mr ABG Choudree
Instructed
by : The State Attorney (KwaZulu-Natal)
Judgment
handed down on : 11 February 2016
[1]
See Annexure
‘C’ attached to the applicants’ founding affidavit
which shows that the secretariat of the Regulatory
Entity labels
applications as ‘late renewals’.
[2]
Renewal is
defined in the Merriam Webster dictionary as ‘the act of
extending the period of time when something is effective
or valid.’
[3]
2012 (4) SA
593
(SCA) at para 17.
[4]
See
generally Erasmus
Superior
Court Practice
2
nd
ed (2015) at D1-307.
[5]
See page 63
of the papers
.
[6]
See page 72
of the papers.
[7]
See page 20
of the papers.
[8]
See page 75
of the papers.
[9]
See page 79
of the papers.