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[2016] ZAKZPHC 90
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MEC for Transport, Community Safety and Liaison and Another v Transport Appeal Tribunal and Another (2101/15) [2016] ZAKZPHC 90 (11 October 2016)
REPORTABLE
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 2101/15
In the
matter between:
THE
MEC FOR TRANSPORT, COMMUNITY SAFETY
AND
LIAISON FOR THE PROVINCE OF
KWAZULU-NATAL
in his capacity as the POLITICAL
HEAD
of the Department of Transport,
KZN 1
ST
APPLICANT
PROVINCIAL
REGULATORY
ENTITY 2
ND
APPLICANT
and
THE TRANSPORT APPEAL
TRIBUNAL 1
ST
RESPONDENT
SAGAREN
GOVENDER 2
ND
RESPONDENT
J U D
G M E N T
Delivered on :
TUESDAY, 11 OCTOBER 2016
OLSEN
J
[1] On
14 July 2014 the first respondent in this review application, the
Transport Appeal Tribunal, made an order authorising and
directing
the transfer to the second respondent, Mr Govender, of an operating
licence which had previously been granted in favour
of Springfield
Safari Tours CC (“Springfield”) for the purpose of using
a bus to run a road transport service. In
February 2015 the MEC
for Transport, KwaZulu-Natal (as first applicant) and the Provincial
Regulatory Entity, KwaZulu-Natal (as
second applicant) launched this
application to review and set aside that decision of the Appeal
Tribunal.
[2] Judging
from the contents of the founding affidavit delivered by the Appeal
Tribunal in support of an application for condonation
(which I will
mention shortly), the parties became aware that a decision of the
Supreme Court of Appeal which would have a material
bearing on the
role of the Provincial Entity in these proceedings would be handed
down in due course, and, apparently for that
reason, no further
papers were delivered in the review application for some time. The
judgment was handed down by the Supreme
Court of Appeal in December
2015, and it is common cause that it put paid to the proposition that
the Provincial Entity has
locus
standi
in the present proceedings.
It appears that thereafter what might loosely be called
inter-governmental negotiations took place
to resolve the present
application. Notwithstanding these discussions the applicants
decided to set the review down for hearing.
As the date
allocated for the hearing (20 September 2016) drew near, the Appeal
Tribunal, realising that whatever discussions
were taking place were
not going to yield a result by the appointed date, delivered an
answering affidavit in the review application
together with an
application for the condonation of its late delivery.
[3] When
the case was called Mr Padayachee SC, who appeared for the
applicants, advised the court that the Provincial Entity was
withdrawing its review application, but that the MEC was persisting.
The MEC’s attitude was that the application for condonation
could be granted, but that the matter should be adjourned to allow
time for delivery of a reply. The response of Mr Maleka
SC (who
appeared for the Appeal Tribunal with Ms N Mayet-Beukes) was that the
merits of the matter had to be argued and that he
accordingly
withdrew the application for condonation, being satisfied that he
could argue on the applicants’ papers.
[4]
Because
Mr Govender has taken no part in these proceedings I have no idea as
to what has happened to the 1983 model bus which he
had bought in
order to use under the authority of the operating licence which he
had applied to have transferred to him. These
proceedings exist
only because there is a spat between the two applicants (on the one
side) and the Appeal Tribunal over the proper
construction of the
legislation governing the transfer of such operating licences. Mr
Govender could contribute nothing to
that debate. He is the
unfortunate victim of the decision of the applicants to place this
dispute before the courts. Indeed,
I was informed from the Bar
during the course of argument that there are another five or so of
these applications launched by the
applicants, which suggests that
there may very well be another five victims of this most
unsatisfactory state of affairs.
THE
STATUTORY AND FACTUAL BACKGROUND
[5] In
its relevant part, s50 of the National Land Transport Act No. 5 of
2009 (the “Land Transport Act”) provides that
no person
may operate a road-based public transport service unless he or she
holds an operating licence issued in respect of the
vehicle
concerned. Section 51 of the Land Transport Act is to the
effect that such an operating licence may be issued on
application
made either to the National Public Transport Regulator, a Provincial
Regulatory Entity or a municipality to which the
operating licence
function has been assigned. It is not disputed that the
operating licence in question in this case was
one which fell to be
issued by the second applicant.
[6] Springfield
held such an operating licence, issued by the Provincial Entity, in
respect of a 1983 Mercedes Benz bus. In
February 2013, and in
terms of a written agreement, Springfield sold that bus, together
with the operating licence attached to
it, to Mr Govender. The
crux of the applicants’ case is their contention that the sale
was unlawful because the operating
licence was part of the
merx
.
[7] Section
58 of the Land Transport Act provides that the holder of an operating
licence may apply to the entity which issued it
for its transfer.
An application was accordingly made to the Provincial
Entity for transfer of the licence to Mr Govender.
The
Provincial Entity refused to sanction the transfer.
[8] Section
92 of the Land Transport Act allows for an appeal to the Transport
Appeal Tribunal (i.e. the first respondent) against
the refusal of an
application relating to an operating licence. The Appeal
Tribunal is established in terms of the Transport
Appeal Tribunal
Act, No. 39 of 1998 (the “Appeal Tribunal Act”).
Section 12(1)(b) of the Appeal Tribunal
Act permits the
tribunal to uphold an appeal brought before it and substitute its
decision for that of the entity from which the
appeal emanates; in
which event, in terms of sub-section 12(3), the decision of the
Tribunal will be deemed to be that of the entity
from which the
appeal came. The Appeal Tribunal upheld the appeal made against
the refusal by the Provincial Entity to sanction
the transfer of the
operating licence to Mr Govender. In the result the Provincial
Entity became obliged to effect the transfer.
[9] The
founding affidavit in this case makes expansive allegations about the
extent to which, and manners in which, the conduct
and decision of
the Appeal Tribunal fell foul of its obligation to render just and
lawful administrative action. However
all (or nearly all) of
them rest upon the proposition that the Appeal Tribunal misconstrued
the provisions of s77 of the Road Transport
Act, and that it
misunderstood the relationship between s77 and s58 of that Act. What
is postulated by the applicants is
that if the Appeal Tribunal had
understood those provisions correctly, as does the Provincial Entity,
the Appeal Tribunal could
never have upheld Mr Govender’s
appeal. Against that background Mr Maleka, for the Appeal
Tribunal, proposed that there
were only two issues which need to be
decided in order to dispose of this case. The one is the
question as to whether the
MEC has
locus
standi
in these proceedings; and
the other is the correctness or otherwise of the central thesis of
the MEC’s case, namely that the
Appeal Tribunal failed properly
to interpret sections 58 and 77 of the Road Transport Act. Mr
Padayachee accepted that
analysis of the case, and that is the
footing upon which it was argued.
[10] Logically
the issue of the MEC’s
locus
standi
comes first. But a
decision on that issue requires an understanding of the case sought
to be made by the MEC. I accordingly
find it more convenient
first to deal with the merits of the case and then with the issue of
standing.
THE
MERITS OF THE REVIEW APPLICATION
[11] Section
77 of the Land Transport Act reads as follows.
“
77.
No
cession, alienation or hiring out of operating licence or permit
–
(1) The
authority conferred by an operating licence or permit may not –
(a) be
ceded or otherwise alienated by the holder, except in terms of a
transfer under s58, and no person may be a party to
such a cession or
alienation; or
(b) be
hired out by the holder or be hired by any other person.
(2) A
transaction concluded in contravention of sub-section (1) is invalid
and has no legal force.”
[12] I
experience difficulty in understanding the construction given by the
applicants to s77 of the Land Transport Act. I
propose to
attempt an account, paraphrasing where possible, of the manner in
which it was set out in the founding affidavit. Before
doing so
I should reproduce the provisions of sub-sections 58 (1) and (4),
which feature prominently in the account of s77 of the
Land Transport
Act given in the founding affidavit.
“
58 Renewal,
amendment or transfer of operating licence or permit.
-
(1) The
holder of an operating licence issued by a regulatory entity, may
apply to whichever of those entities that issued
the licence for
renewal, amendment or transfer of the operating licence.
…
(4) A
person applying to take transfer of an operating licence or permit
must have the written consent of the current holder
of the operating
licence or permit, or of that holder’s executor.”
(These
two sub-sections are a little confusing, sub-section (1) allowing the
holder of an operating licence to apply for its transfer,
but
sub-section (4) contemplating that the applicant is the proposed
transferee who must have the holder’s consent. Nothing
turns on that in this case. Both Springfield and Mr Govender
appeared before the Provincial Entity, and subsequently before
the
Appeal Tribunal.)
[13] In
the founding affidavit the deponent, who is the chairperson of the
Provincial Entity’s adjudication committee, described
how Mr
Govender had appeared before the Provincial Entity with a
representative of Springfield, a Mr Ramdas, and had disclosed
that he
had purchased the bus and the permit attached to the bus, and that he
now wanted it to be transferred. It was clear,
said the
deponent, that Mr Govender was not a relative of Mr Ramdas and that
the original permit holder had not passed away. From
there the
deponent proceeded as follows.
(a) In
the circumstances, s58 (4) of the Land Transport Act “did not
apply, nor did the other exceptions to a ban on
transfer of permits
or operating licences postulated in other portions of s58 apply”.
(b) The
alienation (from Springfield to Mr Govender) therefore “fell
fully within the embargo and limitation” contained
in s77.
(c) Section
77 “debars in general” any cession, alienation or hiring
out of an operating licence.
(d) On
its plain meaning s77 can only be interpreted to convey that the
legislature intended to “stamp out and thus outlaw
with legal
invalidity” any violation of the restriction it imposed,
“unless it fell within the purview of one of the
recognised
exceptions contemplated in s58(4)”.
(e) Whilst
s58(1) makes provision for an entity such as the Provincial Entity to
entertain an application for transfer, that
section by no means opens
the flood gates “and consequently s58(1) is subservient
to s58(4)”.
(f) Section
58(4) allows for consensual transfers of an operating licence between
living parties, or where the existing holder
has died. But it
does not authorise the “sale/alienation of permits”, as
if it did, there would be a conflict
between s58(4) and s77.
(g) Consequently,
“transfers are allowed in very confined circumstances but they
are certainly disallowed where the raison
d’etre for the
transfer is alienation.”
[14] That
summarises, certainly as best I can, the case that the respondents
were called upon to meet. Counsel for the MEC
was asked to
explain what that all meant in argument. He argued that unless
one regards the provisions of s77 as placing
a complete embargo on
any form of alienation of operating licences, s77 has no
purpose. He argued that if there was
such an alienation (by
cession or otherwise) there could not be any transfer under s58(1) of
the operating licence despite the
fact that s58(1) does not postulate
any such exception to the power of the regulatory entity to authorise
a transfer. This,
as I understood the argument, is the result
of reading sections 58 and 77 of the Land Transport Act together.
[15] Counsel
for the MEC argued that if, in the course of an application for a
transfer of a licence in terms of s58 of the Land
Transport Act, the
holder disclosed that it had accepted money in exchange for consent
to the transfer, it would be confessing
to a breach of the provisions
of s77, and the application for the transfer of the licence would
accordingly have to be refused.
He argued that the touchstone
by which any breach of s77 could be identified is the passing of
money in exchange for the
agreement of the holder of a licence to
consent to its transfer. According to the applicants, counsel
argued, given that
a bus and the operating licence attached to it is
in the nature of a small discreet business enterprise, the sale of a
bus and
the goodwill represented in that enterprise would be quite
lawful as long as the operating licence was not sold; or as long as
no price was paid for the consent to the transfer of the operating
licence. (Counsel was unable to explain how any goodwill
could
reside in such a bus without the operating licence.) Counsel
for the MEC argued that the grant of any application for
the transfer
of an operating licence in terms of s58 of the Land Transport Act
when circumstances such as those discussed above
were known to the
licensing authority (be it the Provincial Entity or the Appeal
Tribunal) was an act of subversion of national
legislation.
[16] Finally,
counsel for the MEC argued that there is no question of the licensing
authority having a discretion to punish parties
who have conducted
themselves in breach of the MEC’s understanding of the
provisions of s77 of the Land Transport Act, by
refusing to allow a
transfer designed to regularise matters. The applicants say
that there is a complete legislative prohibition
against the grant of
any such transfer in the circumstances discussed above.
[17] The
argument for the MEC then proceeds along the lines that all avenues
of attack laid down in sections 6(2)(e) and (f) of
the Promotion of
Administrative Justice Act, No 3 of 2000 (and others besides) are
available to the MEC who is entitled to an order
reviewing and
setting aside the decision of the Appeal Tribunal to approve the
transfer to Mr Govender of the operating licence
in question.
Ultimately, according to the MEC, what was done by the Appeal
Tribunal was unlawful.
[18] In
my view there is no merit in the grounds of review advanced
originally on behalf of both applicants, and now only by the
MEC.
[19] Section
58(1) of the Land Transport Act provides in clear and certain terms
that the holder of an operating licence may apply
to transfer it to
another person. The application is to be made to the regulatory
entity which granted the licence. Section
58(4) provides the
qualification that the proposed transferor must consent to the
proposed transfer. Section 58 of the Land
Transport Act imposes
no qualification that a transfer is impermissible if the consent of
the transferor is secured by the payment
of money or any other
consideration at all.
[20] Turning
to s77, one sees immediately that it also draws no distinction
between transfers generated by the payment of a price
or any other
consideration, and transfers which are unsweetened by the passing of
any consideration. Its purpose is plainly
to outlaw underhand
transfers of authorities conferred by operating licences, whether
permanently (that being prohibited under
sub-section 77(1)(a)) or
temporarily (that being prohibited under sub-section 77(1)(b)).
[21] Insofar
as s77(1)(a) is concerned (i.e. the sub-section which the MEC says
was breached when Springfield sold the bus with
its permit to Mr
Govender), it does not forbid the cession or alienation of the
authority granted by an operating licence; what
it forbids is such a
cession or alienation otherwise than through the mechanism provided
by s58 of the Land Transport Act. A
cession or alienation
otherwise than through a transfer sanctioned under s58 of the Act is
forbidden whether or not money or any
other consideration changes
hands.
[22] Sub-section
77(2) deals with a transaction concluded in contravention of
sub-section (1). To be in contravention of sub-section
(1), the
transaction must be one by which the holder purports to effect a
transfer of the authority conferred by the holder’s
operating
licence to another without the sanction of the issuing authority
granted in terms of s58 of the Act. The purpose
of sub-section
(2) is to make it perfectly clear that such a transfer can never take
place simply because the transaction will
be invalid and without
legal force. The result will be that the holder remains the
holder and retains its status as the only
person authorised by the
licence to run the transport service, and the intended transferee
gets nothing.
[23] The
effect of s77 is that operating licences can never become bearer
instruments, and the authorities they confer can never
be transferred
from one person to another without that transfer being sanctioned and
effected in the manner provided for in s58
of the Act. It is
impossible in law for any underhand transfer to take place. One
of the purposes and effects of s77
of the Land Transport Act is that,
as long as they are properly maintained to reflect the decisions of a
licensing authority, the
records of the authority will constitute
irrefutable proof of the identity of the person who may lawfully
operate a road based
public transport service under any particular
operating licence or permit. The advantage of this for
prosecutions for breaches
of s50 of the Act is self-evident. The
contention of the applicants that s77 is meaningless unless
interpreted as they would
have it done is accordingly wrong.
[24] In
the circumstances I conclude that it is the Provincial Entity, and
not the Appeal Tribunal, which has misdirected itself
concerning the
legislation under which it functions.
[25] Although
on the MEC’s case it is irrelevant, it should be mentioned that
the sale agreement between Springfield and Mr
Govender provided that
the application for the transfer of the permit or operating licence
was to be made within 7 days of signature
of the agreement. That,
and their subsequent conduct in proceeding under s58 of the Land
Transport Act, suggests that Springfield
and Mr Govender knew what
was required. The sale agreement did not in its terms purport to be
an instrument of cession or alienation
of the authority evidenced by
the operating licence in question. If it had, the authority
would not have passed to Mr Govender,
who would have been liable to
prosecution for breach of s50 of the Land Transport Act if he had run
the service.
[26] The
founding affidavit contains one or two allegations of other defaults
on the part of the Appeal Tribunal which arguably
might subsist
independently of the complaint at the centre of this case, that the
Appeal Tribunal misconstrued sections 77 and
58 of the Land Transport
Act. Mr Padayachee did not raise them in argument. In my
view he was correct to approach the
matter on the basis that the
success or failure of the review on the merits turns solely on the
issues already discussed concerning
s77 and s58 of the Land Transport
Act. Having said that, I have considered those complaints and
see no merit in them.
THE
CHALLENGE TO THE MEC’S
LOCUS
STANDI
[27] The
Appeal Tribunal’s challenge to the standing of the MEC has to
be assessed with respect to the case which the MEC
places before the
court. The merits of that case are not relevant. The
question is whether the MEC has standing to
ask the court to rule
upon the case. (
Giant Concerts CC
v Rinaldo Investments (Pty) Ltd & Others
2013
(3) BCLR 251
(CC), para 32.)
[28] These
being review proceedings brought under the
Promotion of
Administrative Justice Act, the
MEC seeks to vindicate rights given
in s33 of the Constitution. The MEC’s standing to do so
must accordingly be assessed
in the light of the provisions of s38 of
the Constitution.
[29] Before
considering the MEC’s claim to standing it would be convenient
to give a brief account of the circumstances in
which the Provincial
Entity came to withdraw from this litigation. Counsel for the
applicants advised the court that the
Provincial Entity was
withdrawing from the proceedings because the judgment in
Registrar
of Pension Funds v Howie NO
[2016]
1 All SA 694
(SCA) put it beyond doubt that the Provincial Entity
lacks standing. In my view that judgment has implications also
for the
enquiry into the standing of the MEC in the present matter.
[30]
Howie
concerned
an assertion by the Registrar of Pension Funds of a right to
challenge a decision made by the Appeal Board which overturned
a
decision made by the Registrar. The Registrar claimed standing
to do so quite independently of any decision by the affected
parties
to challenge the decision of the Appeal Board. As it was put in
paragraph 8 of the judgment
“
[t]he
dispute is not between the Registrar and an outside party aggrieved
by the decisions. It is an internal quarrel between
the
Registrar and the Appeal Board over the correctness of the
Registrar’s decision.”
Accordingly
the Registrar asserted a right to launch review proceedings in which
it would adopt an adversarial position in relation
to the Appeal
Board.
[31] The
allegations made by the Registrar in support of her challenge to the
decision of the Appeal Board included a charge that
the Appeal Board
had made a decision that was so unreasonable that no reasonable
person could have so exercised the powers of the
Board. The
court pertinently raised the issue that the effect of this was to
undermine public confidence in the Appeal Board.
[32] Concerning
the Registrar’s claim to have standing because she should be
regarded as acting in the public interest, the
following was said in
paragraph 16 of the judgment in
Howie
.
“
Counsel
urged upon us that the Registrar performs important functions and has
an interest, shared by the public, in the correctness
of her
decisions. My difficulty with this is that the existence of the
Appeal Board pre-supposes that the legislature was
of the view that
some of the decisions by the Registrar might be incorrect, and that
there needed to be a mechanism to challenge
and correct those
decisions. The view of the legislature was that when an appeal
against the decision of the Registrar succeeds,
the Registrar is
wrong and the Appeal Board right, or expressed more charitably, as
between the Appeal Board and the Registrar
the Appeal Board’s
decision is taken to be correct.”
In
paragraph 24 of the judgment the court observed that allowing the
Registrar to challenge decisions of the Appeal Board on review
would
“upset the statutory relationship between the two”. The
judgment proceeded as follows.
“
[Recognising
that the Registrar has
locus standi
]
would be inconsistent with the purpose of creating the Appeal Board
and has the potential to undermine it in performing its functions.
If one of the parties affected by it is unhappy with a decision
by the Appeal Board they are free to review it. Recognising
an
independent right in the Registrar would permit of challenges to a
decision accepted by the parties affected thereby. The
Registrar does not point to any aspect of her regulatory functions
that would be detrimentally affected if she cannot challenge
decisions by the Appeal Board.”
[33] Reverting
to the present case, the principal argument advanced by counsel for
the MEC is that the MEC approaches this court
in the public interest,
and therefore has standing in terms of s38(d) of the Constitution.
[34] Standing
in terms of s38(d) of the Constitution does not exist merely because
the person claiming it declares that he or she
is acting in the
public interest. A person claiming such standing must show that
he or she is genuinely acting in the public
interest. (
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC), para [234];
approved in
Lawyers for Human Rights and
Another v Minister of Home Affairs and Another
[2004] ZACC 12
;
2004
(4) SA 125
(CC), paras [16] and [17].) In
Ferreira
v Levin
O’Reagan J listed
the following factors as relevant to determining whether a person is
genuinely acting in the public interest,
without advocating any
closed list.
(a) Whether
there is another reasonable and effective manner in which the
challenge can be brought.
(b) The
nature of the relief sought.
(c) The
extent of its general or prospective application.
(d) The
range of persons or groups affected by any order the court might
make, and the opportunity such persons may have to
address the issue.
[35] In
paragraph 18 of the judgment in
Lawyers
for Human Rights
Yacoob J went on
to say the following.
“
The
issue is always whether a person or organisation acts genuinely in
the public interest. A distinction must however be
made between
the subjective position of the person or organisation claiming to act
in the public interest on the one hand, and
whether it is,
objectively speaking, in the public interest for the particular
proceedings to be brought.”
In my
view this observation resonates with the concerns expressed in
Howie
as
to whether it is in fact in the public interest to allow the
Registrar to challenge the decisions of the Appeal Board, bearing
in
mind the tendency of such proceedings to undermine public confidence
in the body designated by the legislature to have the final
and
authoritative say in decisions of the kind made in the first instance
by the Registrar.
[36] The
Provincial Entity is an entity established by the MEC as required by
s23 of the Land Transport Act. It is a body
which consists of
“dedicated officials of the provincial department”
appointed by virtue of their specialised knowledge,
training or
experience of public transport or related matters. It is
accountable to the head of the provincial government.
The
officials appointed to the entity must have no financial or business
interest in any sector of the public transport industry.
They
are nevertheless civil servants answerable in effect to the
provincial executive structure.
[37] The
Appeal Tribunal, also created and appointed in terms of national
legislation, is a very different body. It consists
of between
five and nine members appointed by the National Minister of Transport
after consultation with every member of the Executive
Council in
every province responsible for road transport matters. (See
sub-section 4(1) of the Appeal Tribunal Act.) The
persons
appointed must be fit and proper persons on the grounds of their
knowledge of or experience in “financial, economic,
commercial,
legal or other matters relating to the functions of the Tribunal”,
and the Minister is obliged to invite members
of the public to
nominate persons who meet those criteria (sub-section 4(2) of
the Appeal Tribunal Act). Sub-section
3(2) of the Act is to the
effect that the Tribunal “must be impartial and must perform
its functions without fear, favour
or prejudice”. The
Tribunal is obliged, in terms of sub-section12(4)(b), and upon
request by any person whose rights
have been adversely affected by a
decision made by the Tribunal, to provide written reasons for its
decision.
[38] In
terms of sub-section 12(2) of the Tribunal Act no decision taken by
the Tribunal “may be inconsistent with National
Land Transport
Legislation or the
Cross-Border Road Transport Act, 1998
, as the case
may be”. Given the ambit of appeal jurisdiction furnished
to the Tribunal, and that express constraint
upon the exercise of
that jurisdiction, the conclusion is inescapable that the legislature
intended the Tribunal itself to interpret
the legislation where any
doubt might be said to arise, in order to ensure that what it does is
not inconsistent with the legislation.
(The legislation in
question includes the Land Transport Act.)
[39] The
Appeal Tribunal is accordingly entrusted with final decision making
powers in connection with matters which might be brought
before it on
appeal, including applications such as the present one, where Mr
Govender sought to have an operating licence for
a bus transferred to
him. It is clear that the legislative intent behind each of the
Land Transport Act and the Appeal Tribunal
Act is that the one
decision upon the strength of which persons participating in the
industry may safely arrange their affairs
is a decision made by the
Appeal Tribunal.
[40] It
goes without saying that a party to an appeal, concerned that the
Appeal Tribunal has breached his or her rights to administrative
justice, would have the right and standing to challenge that
particular decision on review. But that is not what has
happened
here. The persons directly affected by the decision
(Springfield and Mr Govender) are satisfied with the decision.
Unconcerned
with the rights of those affected parties, the MEC
for Transport in this province seeks to trample upon them in order
merely to
resolve a quarrel between the provincial department
(including the members of the department’s Provincial Entity)
and the
Appeal Tribunal over the interpretation of two sections of
the Land Transport Act. In my view it is not in the public
interest
that the MEC should be permitted to do that. If the
MEC is permitted to intervene in that fashion,
(a)
the ultimate security that the appeal process is intended to achieve
for industry participants is undermined;
(b)
public confidence in the Appeal Tribunal is at risk;
(c)
no advantage the public or industry participants enjoy by reason of
the operation of s58 of the Land Transport Act would be
advanced.
Furthermore,
it would undermine the legislative intent behind the establishment of
the Appeal Tribunal that it should act impartially
and free of
executive direction, if its members have to look over their shoulders
when performing their independent duties, lest
any decision not
favoured by the executive should result in review proceedings. It
is not objectively speaking in the public
interest to allow the MEC
standing in this matter.
[41] If
the MEC has a genuine concern that the intention behind s77 of the
Land Transport Act is undermined by misinterpretation,
the political
avenue is available to correct the perceived malfunctioning
legislative provision. The legislation is
the
responsibility of the National Minister, and it is to the office of
that Minister, and not the courts, that the MEC should
turn to seek
an outcome which the Provincial Executive would regard as
satisfactory; that being achievable, it seems to me, only
by an
amendment to the Act. That process would allow for public
participation, and especially for input from industry participants
who would undoubtedly have something to say concerning the relative
merits of the conflicting views as to what should be the proper
scope
of operation of s77 of the Land Transport Act, and the relationship
it should have with s58.
[42] The
MEC also claims standing under s 38(a) of the Constitution, which
allows it to anyone acting in their own interest. To
some
extent the basis of that claim to standing overlaps the claim to
public interest standing, and is connected to the role of
the MEC as
overseer of the implementation of the Land Transport Act in this
province. The basis of the claim is that
the MEC is
charged with the issuing of licences, and finds himself in the
position of issuing licences which have been granted
unlawfully
because of the mis-application of the provisions of s77 of the Land
Transport Act.
[43] Claims
to standing (personal or public interest) on the basis of oversight
responsibilities may be glibly made in any number
of administrative
contexts, and the acceptance of them without more will lead in many
cases to unwarranted interference with the
rights, legitimate
expectations or interests of the directly affected parties by an
overseer whose legitimate interests are actually
unaffected by the
decision he or she seeks to impugn. (See the query raised in para
[20] of the judgment in
Howie
concerning
Rajah & Rajah (Pty) Ltd v
Ventersdorp Municipality and Others
1961
(4) SA 402
(A).)
[44] The
following considerations seem to me to determine that the claim to
standing on the grounds discussed immediately above
cannot be
sustained.
(a) The
party allegedly responsible for the performance of reviewable
administrative action is the Appeal Tribunal. To
the extent
that being the “responsible minister” is relevant, that
person is the national Minister of Transport, not
the MEC.
(b) The
result of the decision of the Appeal Tribunal is that Mr Govender
will operate his transport service under an operating
licence. That
cannot prejudice the MEC. On the contrary, it is to his
administrative advantage that the operator and the
bus are brought
within the ambit of regulatory control.
(c) The
issue as to whether it is permissible or not for a proposed
transferee to pay a price to a proposed transferor for the latter’s
consent to a proposed transfer has no discernable bearing or effect
on any duty or function of the MEC under the Land Transport
Act.
Certainly, none has been described in the founding papers.
(e) In
fact, in terms of s62 of the Land Transport Act the party responsible
for issuing the licence is the party which has
withdrawn from this
application, the Provincial Entity.
(f) That
aside, what subsection 62(2) reveals is that once the requirements of
subsection 62(1) have been satisfied (matters
such as the
production of a tax clearance certificate and a current roadworthy
certificate), the issue of the operating licence
is mandatory. It
is a mechanical function, not implying that the issuing authority by
that act carries any responsibility
for the fact that the grant,
renewal, amendment or transfer of the licence was authorised, whether
by the Provincial Entity or
the Appeal Tribunal. The
authorisation of an operating licence (or the transfer of one)
renders its issue lawful.
[45] I
conclude that the MEC does not have standing in these proceedings.
The
presentation of the case and costs
[46] Mr
Maleka asked that an order as to costs should be made against the MEC
in this case. The Appeal Tribunal is obviously
funded by the
National Minister. An order for costs in a case like this has
the effect of shuffling State resources from
one budget to another.
It is regrettable that any State resources had to be allocated
to legal costs in this matter. (I was
informed from the Bar that the
impact of s41 of the Constitution on this case could not be argued as
it involved a dispute or disputes
of fact. Nevertheless, in my
view these proceedings ought never to have been instituted.)
[47] There
is another most unfortunate feature of this litigation which
justifies Mr Maleka’s contention that I should make
a costs
order placing the burden thereof on the budget of the MEC. In
paragraph 13 of the judgment in
Howie
Wallis
JA made the observation that permitting the Registrar standing in
proceedings in which it is said that the Appeal Board made
a decision
so unreasonable that no reasonable person could have made it, has the
tendency to undermine public faith in the Appeal
Board, something
obviously not in the public interest. What was said by
the Registrar in
Howie
pales
into insignificance when compared with the allegations and statements
made in the founding affidavit in this case.
[48] In
an early paragraph of the founding affidavit the deponent stated that
the application was brought “with due deference
to the powers
and authority of the first respondent as an appeal tribunal”.
Within three lines of that statement the
deponent accused the
Appeal Tribunal of flagrantly disregarding the relevant legislation.
Things got progressively worse
from there. (My
highlighting of the worst features is employed below.)
(a) It
was alleged that the Appeal Tribunal “had fundamentally
misconstrued or perhaps
deliberately
misinterpreted
the provisions of
s77”.
(b) The
Appeal Tribunal was accused of “
legal
incompetence
in the exercise of power
(
indeed an abuse of power is a more
precise adjective in this instance
)”.
(c) Then
the following appears. “
Such
thinking as was employed
by the
[Appeal Tribunal] was completely unjustified and demonstrates a
closed-mind and infantile approach
”
.
(d) It
is suggested that the Appeal Tribunal indulged in “word-play”
to avoid striking down the sale agreement
for non-compliance with s77
of the Land Transport Act, and that doing so was “demonstrative
of interest in the cause; bias;
malice
or corruption
”
on the part of the
Appeal Tribunal.
(e) Finally,
one sees this. “This displayed
despotic
behaviour reminiscent of an abuse of power
where
the [Appeal Tribunal’s]
bias was
so extensive
that it would do
anything to allow appeals
, …”
[49] The
arrogance and the sense of impunity which characterises these
statements are breathtaking.
[50] The
deponent to the founding affidavit, those who signed affidavits
supporting what was said in the founding affidavit, and
the lawyers
responsible for the presentation of the founding affidavit, are
deserving of censure for what they have done.
[51] Insofar
as the MEC is concerned, he was cited as the political head of the
transport department. That involves at the
least political
responsibility for an unjust and vicious assault on a public body and
the persons appointed to it. Of course,
if the MEC was aware of
the contents of the affidavit, there is also personal responsibility.
[52] Concerning
the role of the lawyers who represented the applicants in these
proceedings, they drafted or allowed the presentation
on affidavit of
statements of that kind without any factual basis to support them.
(Where the language is merely insulting,
its use is forbidden
and can never be justified.) A re-reading of the judgment in
Findlay v Knight
1935
AD 58
illustrates that, to all intents and purposes, since time
immemorial it has been so that the privilege granted to lawyers in
the
presentation of the cases of their clients may not be misused.
Findlay v Knight
was
a case about defamation; the context there was different, but the
rules are the same. The following appears at page 71
of the
judgment.
“
The
other principle of public policy which underlies qualified privilege
is that the process of the court shall not be wantonly
used for the
purpose of defaming either litigants or third parties. The
courts cannot allow advocates or attorneys to use
the process of the
courts for an illegitimate purpose; for manifestly the law cannot
countenance an abuse of the privilege.”
If
anything the advent of the Constitution made these matters even
clearer. The founding affidavit constitutes an assault
on the
dignity of the members of the Appeal Tribunal.
I make
the following order.
The
Rule Nisi granted on 26 March 2015 is discharged with costs,
including the costs of two counsel, and including any costs that
may
have been reserved.
__________________________
OLSEN J
Date of
Hearing:
TUESDAY, 20 SEPTEMBER 2016
Date of
Judgment:
TUESDAY, 11 OCTOBER 2016
For the
Applicants’ :
MR R PADAYACHEE SC
Instructed
by:
NGCOBO POYO & DIEDRICKS INC
APPLICANTS’ ATTORNEYS
190 HOOSEN HAFEJEE STREET
PIETERMARITZBURG
(Ref.: 12/D031/029/JK)
(Tel No.: 033 – 341 9240)
For the
First Respondent :
MR V MALEKA
SC with Ms N MAYET-BEUKES
Instructed
by:
THE STATE ATTORNEY
FIRST RESPONDENT’S ATTORNEY
c/o J LESLIE SMITH & COMPANY INC
332 JABU NDLOVU STREET
PIETERMARITZBURG
(Ref.: Sipho Mthethwa/ah/15NL1031)
(Tel.: 033 – 845 9700)