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[2016] ZAGPPHC 42
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Polokwane Local and Long Distance Taxi Association (POLLDTA) v Limpopo Permission Board and Others (A1021/2013) [2016] ZAGPPHC 42 (29 January 2016)
IN
THE NORTH GAUTENG HIGH COURT,PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: A1021/ 2013
29/1/16
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
POLOKWANE
LOCAL AND LONG
DISTANCE APPELLANT
TAXI
ASSOCIATION (POLLDTA)
And
LIMPOPO
PERMISSION
BOARD FIRST
RESPONDENT
THE
PROVINCIAL TAXI
REGISTRAR SECOND
RESPONDENT
LIMPOPO
PROVINCE
MEC:
DEPARTMENT OF ROADS
AND THIRD
RESPONDENT
RSA
TAXI
ASSOCIATION FOURTH
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
The applicant brought an application seeking an interim interdict
pending the finalisation of the relief in part B of the application,
authorising the applicant and its members whose names appear on
annexure "B1", be allowed to travel the route from
Polokwane
to Johannesburg and return, in addition to the routes
allocated to it and as set out in annexure "B2", without
having
to join the fourth respondent as members. Needless to state
that the application was opposed.
[2]
The Court
a quo,
per Louw J, did not deal with the merits of
the application, but on the 3 June 2013
mero motu,
after
having invited the respective parties to address him on this issue,
found that the appellant was a
unversitas,
and does not have
locus standi
to bring the application.
[3]
The issue to be determined in this appeal,brought with the leave of
the Court
a quo,
is a narrow point whether the applicant, as a
universitas,
has
locus standi
to litigate on behalf of
its members in these proceedings, where the individual members have
not in their own individual capacity
instituted the action nor having
filed verifying affidavits.
[4]
Although not much turns around the fact that the Court
a
quo mero motu,
correctly
so, raised the issue of
locus
standi,
it
needs mentioning,
ex
obudanti cautela,
that
Ngcobo J (as he then was), in the matter of
CUSA
v Tao Ying Metal Industries and Others
[1]
held
that:
"Where a point of
law is apparent on the papers, but the common approach of the parties
proceeds on a wrong perception of what
the law is, a court is not
only entitled, but is in fact also obliged,
mere motu,
to
raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised on an incorrect
application of the law. That would infringe the principle of
legality."
[5]
The grounds upon which the appeal is mustered, are that the Court
a
qua
erred in finding that the appellant does not have
locus
standi
to institute the application, regard being had to the fact
that the appellant, so it was contended, relied on s38 (e) of the
Constitution
in bringing the application on behalf of its members to
assert their rights.
[6]
It is apposite to give background facts to this matter and who the
parties are. In this regard I quote extensively from the
judgment of
the Court
a quo.
"1. During 1997
various taxi associations joined together to form a single
association known as the Pietersburg United Local
and Long Distance
Taxi Association (PULLDATA).PULLDATA disbanded in 2007.
2. A disputed fact is
whether the applicant existed prior to the formation of PULLDATA
although the applicant contends that it did
and was at that stage
utilising the route Polokwane to Johannesburg and return. The
applicant of course is (POLLDATA) the Polokwane
Local and Long
Distance Taxi Association.
3. PULLDTA unbundled in
2007.
4. During the existence
of PULLDTA its members were entitled to travel on the route from
Polokwane to Johannesburg and return..
5. POLLDTA also utilised
the Johannesburg route by virtue of the agreements entered into
between POLLDTA and the fourth respondent
that is the RSA Taxi
Association.
6. After the unbundling
of PULLDTA a portion of the erstwhile PULLDTA members who held valid
operating licences to travel the route
between Polokwane Johannesburg
and return persisted to operate on the route as POLLDTA. These
members are listed in Annexure B
to the founding affidavit where we
find some 30 alleged members of the applicant. The applicant then
further contends that although
the first to third respondents dispute
that all of those individuals on the list were so authorised. The
dispute is irrelevant
seeing as the relief sought by the applicant
will only relate to these individuals who are able to illustrate with
operating licences
that they were so entitled. It is further
submitted that I therefore need not determine which members were so
authorised. I shall
come back later this contention.
7. The first respondent,
Limpopo Permissions Board, took a decision on the 15 December 2011 to
the effect that the applicant's members
are no longer entitled to
make use of the route between Polokwane and Johannesburg.
8. That decision was set
aside during January 2012 by agreement between the firs respondent
and the applicant.
9. On or about 2 April
2012 the first respondent informed the applicant of a ruling to the
effect that the applicant's members are
not entitled to make use of
the route between Polokwane and Johannesburg. The decision
furthermore entails that should any member
of the applicant choose to
utilise the said route they must join the fourth respondent."
[7]
It is this ruling of the first respondent, conveyed to the appellant
on the 2 April 2012; the latter seeks to have reviewed
under part B
of its application. It needs mentioning that the ruling by the first
respondent is an administrative action which
is reviewable in terms
of PAJA. However, as pointed out herein above, this Court need not
engage on the merits and demerits of
part B. The applicant does not
seek a determination of the merits of the matter and asserts for an
alternative relief that the
application be referred back to the Court
a quo
for reconsideration. This is subject, obviously, on this
Court upholding the appeal and setting aside the decision of the
Court
a quo
that the appellant does not have
locus standi
to bring these proceedings.
[8]
Section 38 of the Constitution provides,
inter alia,
that:
"Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights
has been
infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights.
The person who may
approach a court are-
(c) anyone acting as a
member of, or in the interest of, a group or class of persons;
(e) an association acting
in the interest of its members."
[9]
The Court
a
quo
found
that the appellant is a universitas. This means that the appellant is
a legal entity capable of suing and sued in its own
name. It
possesses rights independent from its members. I n order for the
appellant to bring the action on behalf of its members,
it must show
that it has a direct and substantial interest in the outcome of these
proceedings. By direct and substantial interest
is meant a legal
interest in the subject-matter of the action which would be
prejudicially affected by the judgment. In this regard
vide
AA/
(SA) v Muslim Judicial Council
[2]
[10]
I find it apposite to cite the matter of
Ex-TRTC
United Workers Front v Premier, E. Cape
[3]
where
the Court held that: "The second consideration, as expressed in
the
Burger
v Rand Water Board and Another 61
case,
is whether there exists a sufficient nexus between the individual
members in their capacities as members of the association,
and the
right that forms the subject-matter of the litigation. Applied to the
present matter, the first plaintiff did not, in my
view, institute
these proceedings to protect or enforce an interest which it had as a
body or organisation. Stated otherwise, it
does not propose to
enforce the rights of its members which they possess by reason of
their membership of the association."
[11]
The applicant in this matter, similarly, as in the matter Ex-TRTC
United Workers Front does not assert any right it has in
these
proceedings. The right to a particular route arises from the
allocation of a licence to operate a taxi. The granting of a
licence
to an individual is not dependant on his membership to the appellant.
The right is not predicated on membership to the
appellant. Neither
does the appellant allege that it has any right in respect of the
licences of its members. The appellant, in
my view, cannot assert any
right to any particular route, in its specific individual capacity,
let alone on behalf of its members.
[12]
Our Courts have held in various judgments that they would not accord
a person a right to sue where none exists. In my view,
a party
seeking to rely on s38 (e) of the Constitution, bears the
onus
of
persuading the Court that it does have such right. He must
specifically make that averment and buttress it with facts, that he
has a right which is threatened and needs to be protected. That right
cannot exist in vacuum.
[13]
In casu,
I am of the view that the appellant did not acquit
himself, on its papers, of the
onus
resting on it to show
that, the rights of its members are intertwined with its right, and
as such has a legal interest to bring
these proceeding and a standing
to do so. I am satisfied that the finding by the Court
a quo
that
the appellant does not have
locus standi
cannot be faulted,
therefore the appeal stands to be dismissed.
[14]
It is trite that the costs follow the event. Not all the respondents
filed opposing papers, save the first, second and third
respondent
who did and were duly represented during the hearing of the matter.
Where senior counsel was engaged, I am of the view
that it was
justifiable to do so, having regard to the fine point in law in this
matter. Consequently the appellant must bear all
the costs occasioned
by the opposition to the matter, including those of senior and junior
counsel where applicable, which costs
are to be taxed or agreed upon.
[15]
In the result the appeal is dismissed with costs including the costs
of the employment of two counsel and or senior counsel
where
applicable.
N.
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree
_____________________
C.
PRETORIUS
JUDGE
OF THE HIGH COURT
I
AGREE
_____________________
A.
M. L. PHATUDI
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 19/08/2015
DATE
OF JUDGMENT: 29/01/2016
APPLICANTS'
ADV: ADV S. G. GOUWS
INSTRUCTED
BY: DE BRUIN OBERHOLZER INCORPORATED.
1ST
AND 3RD RESPONDENTS' ADV: ADV M.SM PHASWANE
INSTRUCTED
BY: SHAPIRO & LEDWABA INC
4TH
RESPONDENT' S ADV: ADV R BHEDESI S.C.
INSTRUCTED
BY: STATE ATTORNEY PRETORIA
[1]
[2008] ZACC 15
;
2009 (2) SA 204
(CC)at 225A-B
[2008] ZACC 15
;
(2009 (1) BCLR 1
; [2009] 1BLLR
1;(2008) 29 IU 2461) para 68
[2]
1983 (4) SA 855
(CPD) at 863C-D.
[3]
2010 (2) SA 114
(ECB), at 131C-D.