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[2016] ZAGPPHC 233
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Johannesburg Bara Qwaqwa Transport Services Taxi Association v Gauteng Provincial Transport and Others (72861/12) [2016] ZAGPPHC 233 (24 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 72861/12
DATE:
24 FEBRUARY 2016
In
the matter between:
JOHANNESBURG
BARA QWAQWA TRANSPORT SERVICES TAXI
ASSOCIATION
(PTY) LTD
(JBQQTA)
..........................................................................
APPLICANT
And
THE
GAUTENG PROVINCIAL TRANSPORT
REGULATOR
ENTITY
............................................................................................
1
st
RESPONDENT
THE
MEC FOR THE DEPARTMENT OF ROADS AND TRANSPORT
OF
GAUTENG
.........................................................................................................
2
nd
RESPONDENT
THE
MEC FOR COMMUNITY SAFETY,
GAUTENG
......................................
3
rd
RESPONDENT
CITY
OF
JOHANNESBURG
.................................................................................
4™
RESPONDENT
JOHANNESBURG
MINIBUS TAXI ASSOCIATION
........................................
5™
RESPONDENT
FORMER
REGISTRAR OF TRANSPORT FOR GAUTENG PROVINCE,
PETER
DLAMINI
...................................................................................................
6™
RESPONDENT
FORMER
CHAIRPERSON OF THE GAUTENG PUBLIC PASSENGER
APPEAL
BOARD
.....................................................................................................
7
th
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The applicant is applying for leave to
appeal to a full court of this Division, alternatively the Supreme
Court of Appeal, against
the whole of the judgment and order I handed
down on 4 November 2015.
[2]
When the parties appeared before me to
argue the application, there was no appearance or representation on
behalf of the 5
th
respondent. On the day I was to deliver the judgment in respect of
the application for leave to appeal, the 5
th
respondent's counsel made his appearance. Per agreement between the
parties the 5
th
respondent was allowed to file heads of argument which I would
consider before I deliver judgment. The 5
th
respondent’s counsel has since provided me with the heads of
argument and I have considered the heads for purposes of this
judgment.
[3]
In the notice of application the
applicant raised comprehensive grounds of appeal. However, before me,
the applicant's counsel argued
only what he referred to as pertinent
grounds.
[4]
The crux of the issue in this
application for leave to appeal is, in my view, whether at the time
the main application served before
me it was opposed or not. I found
in that regard as follows:
“My conclusion therefore is that the applicant’s
opposing papers were filed and served out of time. The applicant
should
have applied for condonation. Having not done so it means the
matter is unopposed and should be heard in the unopposed motion
court.”
[5]
The applicant’s submission is that
at the time of considering the matter the application was opposed
because at that time
the counter application was already launched.
Once the counter application was filed the matter became opposed and
should have
been directed to the opposed court, so it was argued.
[6]
Leave to appeal may only be given where
the judge or judges concerned are of the opinion that the appeal
would have a reasonable
prospect of success (section 17 of the
Superior Courts Act).
[7]
I am, thus, of the opinion that on the
ground, as stated in paragraph [5] of this judgment, another court
might come to a different
conclusion as such the appeal has a
reasonable prospect of success. Leave to appeal ought to be granted.
[8]
In the circumstances, I make the
following order:
1.
The applicant is granted leave to appeal
to the Full Court of the Gauteng Division of the High Court,
Pretoria, against the whole
of the judgment and order granted on 4
November 2015.
2.
Costs are cost in the appeal.
E.M. KUBUSRI
JUDGE OF THE HIGH COURT
APPEARANCES
HEARD ON THE
: 07 DECEMBER 2015
DATE OF JUDGMENT
: 24 FEBRUARY 2016
APPLICANTS COUNSEL
; ADV J G RAUTENBACH, SC
APPLICANT’S
ATTORNEY
: H.J GROENEWALD ATTORNEYS
1.2.3,
6 & 7* RESPONDENTS' COUNSEL
: MR D MTSHWENI
1.2.3,
6&7
01
RESPONDENTS* ATTORNEY
:STATE ATTORNEYS 4
m
RESPOND ENT’S COUNSEL : ADV M.C.
MAKGATHO
4™ RESPONDENTS
ATTORNEY
: PRINCE
MUDAU ATTORNEYS
5™ RESPONDENT’S
ATTORNEYS
: F.Z NZAMA
ATTORNEYS
5™ RESPONDENT’S
COUNSEL
:
ADV M J MASHAVHA
IN THE HIGH COURT OF SOUTH
AFRICA (GAUTENG DIVISION, PRETORIA)
CASE
NO: 72861/12
In
the matter between:
JOHANNESBURG BARA QWAQWA TRANSPORT
SERVICES
TAXI ASSOCIATION (PTY) LTD
(“JBQQTA)
Applicant
AND
THE GAUTENG PROVINCIAL TRANSPORT
REGULATORY
ENTITY
First respondent
THE MEC FOR THE DEPARTMENT OF ROADS AND
TRANSPORT
GAUTENG
Second respondent
THE MEC FOR COMMUNITY SAFETY GAUTENG
PROVINCE
Third respondent
THE CITY OF
JOHANNESBURG
Fourth respondent
JOHANNESBURG MINIBUS TAXI
ASSOCIATION
Fifth respondent
FORMER REGISTRAR OF TRANSPORT FOR
GAUTENG PROVINCE: PETER
DLAMINI
Sixth respondent
FORMER CHAIRPERSON OF THE GAUTENG
PUBLIC
PASSENGER APPEAL
BOARD
Seventh respondent
FILING
SHEET DOCUMENTS FILED: FIFTH RESPONDENT’S HEADS OF ARGUMENT
Signed
at Johannesburg on this the day of February 2016.
ATTORNEYS Fifth Respondent’s
Attorneys
c/o
M.L. KEKANA Inc. 303 Helen Joseph Street
Sammy
Marks Square PRETORIA
Tel:
(011)331-2256 Fax: (Oil) 331-2257
Ref:
Ms Nzama
TO: THE REGISTRAR OF GAUTENG HIGH
COURT DIVISION (PRETORIA)
AND TO:
H.J GROENEWALD ATTORNEYS APPLICANT’S
ATTORNEYS
656
Alouette Street Elardus Park PRETORIA
P.O.BOX
8334, PRETORIA 0001
Tel:
(012) 345-3966
Fax:
(012) 345-4591
Email:
hettie@Potaroup.co.2a
Ref:
AND TO:
ATTORNEYS FOR THE
1*t,
2nd
6
th
AND 7™ RESPONDENTS STATE ATTORNEY
Salu
Building
316
Thabo Sehume Street
Cnr
Thabo Sehume and Francis Baard Streets
Private
Bag X 91
PRETORIA
0001
Ref:
10313/2012/Z79
Tel:
(012) 309 1630
Fax:(012)
309 1649/50 /086 1
Enq:
PA MANAGA
AND TO:
CITY OF JOHANNESBURG, GAUTENG
ATTORNEY FOR THE FOURTH RESPONDENT
Prince
Madau & Associates (PM Attorneys)
c/o
Matshego Ramagaga Attorneys
2
nd
Floor, Nedbank Building
200
Pretorius Street
PRETORIA
Tel:
(012) 079 6442
Fax:
(086) 695 0882