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[2016] ZAGPPHC 81
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Masemola Taxi Association and Others v MEC of Roads and Transport (Limpopo Province) and Another (7708/2016) [2016] ZAGPPHC 81 (12 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
12 February 2016
CASE
NO: 7708/2016
In
the matter between:
MASEMOLA
TAXI
ASSOCIATION
First Applicant
DITEDI
NCHABELENG Second
Applicant
KAU
KGALEME
VINCENT
Third
Applicant
NCHABELENG
MAKATE
JOSHUA
Fourth
Appl
i
cant
MATSIMELA
JAN NKABANE
F
i
fth
Appl
i
cant
RANAPE
MAREKA
GEORGE Sixth
Applicant
RAPOLAI
JOHN RAMARU
Seventh
Applicant
and
MEC
OF ROADS AND
TRANSPORT First
Respondent
(LIMPOPO
PROVINCE)
THE
GENERAL MANAGER OF
TRAFFIC
Second
Respondent
(LIMPOPO
PROVINCE)
JUDGMENT
DAVIS
AJ
[1]
This is an urgent application in which the Applicants seek to have
certain
"impoundment documents"
set aside
pending the finalisation of criminal proceedings pending against some
of the Applicants.
[2]
The First Applicant is a taxi association and the other six
applicants are either owners or the drivers of the five taxi vehicles
which were impounded, or both. They are also all memebers of the
First Applicant. The First Respondent is the MEC of Roads and
Transport of the Limpopo Province and the Second Respondent is the
General Manager of Transport, Limpopo Province.
[3]
On 26 January 2016, traffic officers under the control of the Second
Respondent, acting in the course and scope of their duties,
impounded
the five taxi vehicles in question and issued impoundment notices.
The notices state the following as the reasons
for impoundment:
"operating contrary
to terms
and
conditions of an operating licence,"
An
"impoundment
fee"
of R5000.00 was also levied. Written notices to appear
in court were also issued to the respective applicants to answer to
charges
of contravening relevant portions of section 50 of the
National Land Transportation Act, No 5 of 2009 read with section 90
of the
said act. The particulars of the alleged offences were
similarly described in the said notices as
"mini-bus
operating
contrary
to
the
condition
of
the
operating
licence".
The notices were ostersibly issued in terms of
section 87 of the said act.
[4]
Apart from the paucity of particularitty of the nature and extent of
the alleged contraventions of the operating licences in
question,
there is also a dispute as to whether the
"Big Boy
Filling
Station",
being where
the impoundments had taken place, fell within the area of operation
or routes authorised by the various applicants'
operating licences.
[5]
There is a further side-issue regarding the difficulties experienced
by the police and traffic officials in maintaining law
and order due
to an alleged
"twf war"
between the First Applicant
and a rival taxi association which had recently escalated in
intensity and violence and may or may not
have have caused the death
of a member of the rival taxi association.
[6]
Before considering any of the issues pertaining to the above and the
relief claimed by the Applicants, this court's jurisdiction
to do so
must first be established. The issue of jurisdiction was pertinently
raised on behalf of the Respondents and it appeared
that counsel in
the matter (and indeed in some of the other matters on this week's
urgent motion court roll) were not fully conversant
with the
statutory provisions pertaining to the jurisdiction of the Limpopo
Division of the High Court. This ignorance appears
to extend to other
practitioners as well in varying degrees.
[7]
The jurisdi
ction of the Limpopo D
i
vision
of the High Court of South A
frica.
7.1
In terms of section 166 of the Constitution of the Republic of South
Africa,
Act 108 of 1996
("the
Constitution'),
the judicial system comprises of the Constitutional Court, the
Supreme Court of Appeal, the High Court of South Africa, the
Magistrates'
Courts and
"any court established or recognised
in terms of any Act of Parliament".
7.2
In terms of section 169(2) of the Constitution the High Court of
South
Africa consists of the Divisions determined by an Act of
Parliament which must provide for the establishment of Divisions,
with
one or more seats in a Division and the assignment of
jurisdiction to a Division or a seat within a Division.
7.3
The relevant Act contemplated in the abovementioned section of the
Constitution
is the
Superior Courts Act, No 10 of 2013
which
commenced on 23 August 2013
("the
Superior Courts
Act'
>).
7.4
In terms of
section 6
of the
Superior Courts Act, the
High Court of
South Africa consists of (inter alia) the Gauteng Division with its
main seat in Pretoria
(section 6(1)(c))
, the Limpopo Division with
its main seat in Polokwane
(section 6(1)(e))
and the Mpumalanga
Division with its main seat in Nelspruit/Mbombela
(section 6(1)(f).
0.4
9in; line-height: 200%">
7.5
Section 6(3)(a)
read with
section 1
prescribes that the Minister
responsible for the administration of justice must, after
consultation with the Judicial Service Commission,
by notice in the
Gazette, determine the area under the jurisdiction of a Division.
7.6
The area under the jurisdiction of a Division may comprise any part
of one or
more provinces
(section 6(3)(b))
and the Minister may
similarly establish one or more local seats for a Division and
determine the area under the jurisdiction of
a local seat.
7.7
The publication of any of the aforementioned notices (which include
amendments
or withdrawals) does not affect any proceedings which are
pending at the time of such publication.
7.8
Transitional provisions are catered for in Chapter 9 of the
Superior
Courts Act. In
terms hereof,
section 50(1)
prescribed that the
Limpopo High Court, Thohoyandou bacame a local seat of the Limpopo
Division and that South Gauteng High Court,
Johannesburg became the
local seat of the Gauteng Division.
7.9
In addition,
section 50(2)
prescribe as follows:
"Notwithstanding
section
6(1)
, the
Gauteng Division
should
also function
as
the
Limpopo and Mpumalanga
Divisions
respectively
until
a
notice
published
in terms
of
section
6(3)
in
respect
of
those
Divisions
comes
into
o
peration."
(my
emphasis)
7.10
For present purposes, it is not necessary to refer to various
amendments of the areas
of jurisdiction of Divisions preceeding the
commencement of the
Superior Courts Act promulgated
from time to time
in terms of
section 6(1)
of the (now repealed) Supreme Court Act 59
of 1959 or section 4 of the Interim Rationalisation of the
Jurisdiction of the
High Courts Act 41 of 2001 or to the fact that
since the second half of 2015, the Limpopo Division had been staffed
with a Judge
President and a complement of judges.
7.11
The determining fact regarding the issue of jurisdiction raised
above, is the fact that
on 15 January 2016 the Minister of Justice
and Correctional Services and by GN30 published in Government Gazette
No 39601 determined
the areas of jurisdiction of the Limpopo Division
and its local seats. In addition to the already aforementioned
established local
seat at Thoyandou, the Lephalale Magistrates' Court
was also established as a local seat. The magisterial districts and
sub-districts
constituting the areas of jurisdiction of the Main Seat
of the Limpopo Division, Polokwane and the Local Seats were
determined
in a Schedule to the aforesaid notice.
7.12
The abovementioned determination and establishment came into effect
on 25 January 2016.
7.13
The publication of the aforementioned notice therefore terminated the
Gauteng Division's functioning
as the Limpopo
Division as contemplated in the
transitional provisions mentioned
above.
7.14
For sake of completeness, I mention that on the same date, of
publication of the abovementioned
notice and also with effect from 25
January 2016, the Minister has created, established, appointed,
detached and defined magisterial
districts and portions thereof in
terms of
section 2(1)(a)
and (f) of the
Magistrates Courts Act, No 32
of 1944
read with
section 16(6)
of Schedule 6 of the Constitution in
respect of Magisterial districts and district courts in the Limpopo
Province. (GN 33 also
in Government Gazette No 39601)
[8]
The present d
ispute:
8.1
Section 31(1)
of the
Superior Courts Act determines
that a Division
has jurisdiction over all persons residing or being in, and in
relation to all causes arising and all offences
triable within its
area of jurisdiction.
8.2
In the present matter:
8.2.1
All the applicants are residing in the area of jurisdiction of the
Limpopo Division.
8.2.2
The Respondents and their offices are in the area of jurisdiction of
the Limpopo Division. That is
also where the applicants caused the
notice of motion to be served.
8.2.3
The
"impoundments"
complained of by the applicants
all took place in the area of jurisdiction of the Limpopo Division.
8.2.4
The criminal offences which the various applicants are alleged to
have committed all took place within
the area of jurisdiction of the
Limpopo Division.
8.2.5
The application was launched in the Gauteng Division on 1 February
2016.
8.3
In short there is no jurisdictional connecting factor in the
application which
is situated or which occured within the area of
jurisdiction of the Gauteng Division.
8.4
The Applicant argued that the route of the Applicants pass through
the area
of jurisdiction of the Gauteng Division (the relevant route
runs from Ga-Masemola/Moshate to Johannesburg South and back). This
may be so, but that is not where the alleged offences occurred nor
where the alleged delicts were committed.
8.5
The Applicants further argued that the Gauteng Division has
concurrent jurisdiction
with the Limpopo Division but since the
publication of the notice
envisioned
in
sections 6(3)
and
50
(2) of the
Superior Courts Act this
is no
longer the position, as explained above.
[9]
In the premises Ifind that the point in limine is good in law.
[10]
In considering the issue of costs, I intend taking into account the
financial positions and hardship of the second to seventh
applicants.
In fact the emotive allegations of their being deprived of the means
of income necessary to provide for their wives
and children formed
part of the grounds of urgency on which they relied. They were
furthermore clearly ignorant of the full extent
of the issue of
jurisdiction and so apparently were those who advised them. This
ignorance is probably due to the relevant novelty
of the
situation as set out above but is, to an extent shared even by the
Respondents who, upon my invitation to deliver
supplementary heads of
argument, in particular in respect of their point in limine regarding
jurisdiction, still argue that this
Court should not exercise
concurrent jurisdiction as this would
"open the floodgates"
for litigants to flock from the Limpopo Division to the Gauteng
Division rendering the Limpopo Court a
"white elephant"
(so the argument goes). As explained above, the legal position
will prevent any such fears from becoming a reality.
[11]
What counsel for the Respondents did do in her supplementary heads of
argument, was to draw my attention to a notice issued
by the
Honourable Judge President of the Limpopo Division on 19 January
2016. Although this notice was addressed to all registrars,
court
officials, legal practitioners and directors of public prosecutions,
it appears as if it may not have come to the notice
of all those
addressees, be they in the area of jurisdiction of the Limpopo
Division or the area of jurisdiction of the Gauteng
Division, let
alone practitioners in other divisions of the High Court. The notice
is in conformity with the formal notices referred
to in the
Superior
Courts Act and
the
Magistrates Courts Act 40 to
which I have referred
and due to the relevance thereof, I quote the contents:
"With
effect
from the 25th January
2016 our two
Courts should
be named
as
follows
on all court processes:
1.
IN THE HIGH COURT OF SOUTH AFRICA LIMPOPO DIVISION, POLOKWANE
2.
IN THE HIGH COURT OF SOUTH AFRICA LIMPOPO LOCAL DIVISION,
THOYANDOU.
The
following Municipal districts will fall within the area of
jurisdiction of the Local Division at Thoyandou: Giyani, Malamalele,
Makhado, Musina, Mutale, Thulamela and Vuwani.
The
Provincial Division at Polokwane shall have jurisdiction over the
whole of the Limpopo Province and concurrent jurisdiction
over the
areas falling under thejurisdiction of the Local Division.
I
TRUST THAT YOU WILL FIND ALL IN ORDER AND TAKE PRIDE IN OUR NEWLY
PROCLAIMED COURTS."
The
reference to "the whole of the Limpopo Province" should be
read to refer to those districts contained in the schedule
to the
Ministerial notice issued in terms of
section 6(3)
of the
Superior
Courts Act to
which I have referred.
[12]
I therefore make the following order:
12.1
The point in limine is upheld.
12.2
The application is refused due to this court's lack of jurisdiction
to entertain the merits thereof.
12.3
No order is made as to costs.
________________________
N
DAVIS
ACTING
JUDGE OF THE HIGH COURT
Heard
On:9 February 2016
For
the Applicants: Adv KK Kekana
Instructed
By: JM Rampora Attorneys
For
the Respondents: Adv EK Tsatsi
Instructed
By: State Attorney, Pretoria
Date
of Judgment: 12 February 2016