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[2016] ZAGPPHC 598
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Africa People Mover (Pty) Ltd v Autopax Passenger Services (SOC) Limited and Others (2015/84973) [2016] ZAGPPHC 598 (1 July 2016)
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA)
01/7/2016
CASE NUMBER: 2015 /
84973
Reportable: No
Of interest to other
judges: No
Revised.
In the matter between:
AFRICA PEOPLE MOVER
(PTY)
LTD APPLICANT
And
AUTOPAX PASSENGER
SERVICES (SOC) LIMITED 1
st
RESPONDENT
VENDA JOHANNESBURG
TAXI ASSOCIATION 2
nd
RESPONDENT
THULAMELA LOCAL
MUNICIPALITY 3
rd
RESPONDENT
BUSBUCKRIDGE TAXI
ASSOCIATION 4
th
RESPONDENT
BUSBUCKRIDGE LOCAL
MUNICIPALITY
5
th
RESPONDENT
LIMPOPO PROVINCIAL
REGULATORY ENTITY 6
th
RESPONDENT
GAUTENG PROVINCIAL
REGULATORY ENTITY 7
th
RESPONDENT
MPUMALANGA REGISTRAR
OF TRANSPORT 8
th
RESPONDENT
JUDGMENT
MAVUNDLA J;
[1] On the 3 November
2015 this Court granted the following order, which was marked "X":
"1.1 That the first
respondent is interdicted and restrained from-
1.1.
inciting any person, in particular taxi operators and
its employees to disrupt the applicant's bus operations;
1.2.
Inciting any person, in particular taxi operators
and its employees to damage the applicant's buses and premises;
1.3.
spreading false allegations about the applicant's bus
operations and the applicant's officials;
1.4.
intimidating and harassing the applicant's personnel and
customers at any of the applicant's premises;
1.5.
blockading access to and from the applicant's premise
and designated loading zones;
1.6.
inciting any person, in particular taxi operators, its
employees and security personnel to assault the applicant's personnel
and
customers and to disrupt the applicant's bus operations;
1.7.
preventing members of the public from conducting
business with the applicant, in particular using the applicant's
busses.
2. The first respondent
shall issue a public statement in which it denounces violence against
the applicant's personnel and customers
and disruption of the
applicant's business operations.
3. That the second
respondent, acting through its members or any third party, is
interdicted and restrained from-
3.1.
preventing the applicant from conveying commuters
between Johannesburg and Sibasa;
3.2.
preventing the applicant from loading and off-loading
commuters in Sibasa and at any other place;
3.3.
intimidating and harassing the applicant's personnel;
3.4.
intimidating and harassing the applicant's passengers
and preventing them from boarding the applicant's buses in Sibasa and
at any
other place;
3.5.
removing the applicant's passengers from the applicant's
buses so as to prevent them from using the applicant's buses to
commute
between Sibasa and Johannesburg.
3.6.
damaging the applicant's buses;
3.7.
intimidating, harassing, assaulting and threatening
the applicant's employees whilst conveying commuters to and from
Sibasa;
3.8.
damaging and vandalising the applicant's properties,
including buses;
3.9.
barricading, blocking or in any manner restricting or
preventing access to and from the applicant's commuters' loading zone
in Sibasa;
and
3.10.
preventing any person and the applicant's buses from
entering and exiting the applicant's loading zone in Sibasa.
4. The fourth respondent
is interdicted and restrained from –
4.1.
preventing the applicant from conveying commuters
between Johannesburg and Mpumalanga;
4.2.
preventing the applicant from loading and off-loading
commuters in Mpumalanga;
4.3.
intimidating and harassing the applicant's personnel;
4.4.
intimidating and harassing the applicant's passengers
and preventing them from boarding the applicant's buses in Mpumalanga
and
at any other place;
4.5.
removing the applicant's passengers from the applicant's
buses so as to prevent them from using the applicant's buses to
commute
between Mpumalanga and Johannesburg;
4.6.
damaging the applicant's operating premises in
Mpumalanga;
4.7.
intimidating, harassing, assaulting and threatening the
applicant's employees whilst conveying commuters between Johannesburg
and
from Mpumalanga;
4.8.
damaging and vandalising the applicant's properties,
including buses;
4.9.
barricading, blocking or in any manner restricting or
preventing access to and from the applicant's commuters' loading zone
in Mpumalanga.
5. The first respondent,
second respondent and third respondent shall pay the applicant's
costs of the application, jointly and
severally, the one paying the
other to be absolved"
[2] At the grant of the
order, the Court did not give reasons and indicated that these would
be furnished in due course. The Court
profusely apologise for the
delay in furnishing the reasons. Before dealing with the reasons, it
came to the Court's attention
that there was a patent error in the
order "5" which deals with costs, in that the costs were
also granted not only against
the first, second respondents but also
the third respondent.
[3] The only parties
against whom the interdict was granted were the first, second and
fourth respondents. These last mentioned
three parties on the
principle of the costs follow the event, must be mulcted with the
costs of the applicant on party and party
scale. There was no
interdict restraint order granted against the third respondent, nor
was any order sought against it. Therefore
the order of costs in so
far as it was also granted against the third respondent was a patent
error and should therefore be
mero motu
corrected, by deleting
reference to the third respondent and in its place substituting it
with "fourth respondent".
[4]. It needs mentioning
that, the Court may correct a patent error once it is brought to its
attention. In my view, the principle
of
functus officio
does
not apply
in casu,
because the reasons were still outstanding
and the patent error sought to be corrected, only came to this
Court's attention as the
reasons were being prepared.
[5] For purposes of
avoiding any confusion, the entire order marked "X" granted
on the 3 November, is withdrawn and substituted
with the following
order which will be marked: "AMENDED ORDER MARKED X". This
amends order contains all but the incorrect
order "5" which
is deleted and substituted with the following:
[6] I now proceed to set
out the reason for the order granted on the 3 November 2015, as
amended.
[7] The first respondent
is a State owned company responsible for, amongst others, the
provision of affordable commuter transport
services through, amongst
others, busses which convey commuters between different cities in the
Republic and has its principal
offices of business at
Nzazm
Building,
546 Paul Kruger Street, Pretoria.
[8] The second respondent
is Venda Johannesburg Taxi Association., which is an association of
taxi or minibus operators who convey
passengers from Venda to
Johannesburg and
visa versa.
As far as conveying passengers
from Venda is concerned, their main loading zone is situated in
Sibasa, a few meters from the applicant's
loading zone.
[9] No relief was sought
against the third, fifth, sixth, seventh, and eighth respondents.
[10] The applicant
approached this Court on way of urgency for the relief culminating in
the order granted herein above. The applicant's
case was that it
conducts the business of conveying passengers from one city to
another. According to the applicant it was granted
licence to conduct
its business in Gauteng, Limpopo, Mpumalanga and Kwa Zulu-Natal.
The applicant's licence entitles it to
convey passengers between
Johannesburg and Sibasa; and Johannesburg and Mpumalanga. The
applicant commenced its business in October
2015.
[11] The applicant in
Sibasa entered into a lease agreement with East and West Investments
(Pty) Ltd in terms of which it has been
granted permission to use
premises to sell its bus tickets to its customers and to load and
off- load passengers travelling between
Johannesburg and Sibasa. The
applicant has similar arrangements in other areas.
[12] Without chronicling
all the allegations contained in the applicant's founding affidavit,
some of these are that: The applicant
alleged that on the 3 and 4
October 2015 the first and second respondent's members and employees
violently disrupted the applicant's
operations. Prior to its
commencement in October 2015 between Johannesburg and Sibasa and
between Johannesburg and Acornhoek in
Mpumalanga, the first
respondent's employees, acting in the course and scope of their
employment with the first respondent, informed
the applicant's
personnel based in Pretoria that such operations would be disrupted
by the second and fourth respondents. The first
respondent had prior
knowledge of this disruption and must therefore have been in
collusion with the second and fourth respondents
alternatively
instigated such disruptions. The applicant attached a confirmatory
affidavit of one of its employees by the name
of Lettie Ntuli as
annexure "FA3" in which she confirmed the first
respondent's drivers communicating about the disruption
by the second
respondent.
[13] The applicant
further averred that when its operations started at Kaalfontein
Station, the first respondent's security personnel
intimidated and
harassed the applicant's employees on the basis that the applicant
was not entitled to operate from the station.
Further the first
respondent's drivers Chauke Caiphus and Edmond Tshwane told the
applicant's customers not to use the applicant's
busses because the
applicant's busses were not safe and arrive late at their
destination. This resulted in some of the applicant's
passengers
opting to use the first respondent's busses. In this regard
confirmatory affidavits of Constance Sithole and Nonkululeko
Madiba
were attached as annexure "FA4" and "FA5"
receptively. At Pretoria station the first respondent's employees
usually park their busses in front of the applicant's offices and
loading zone, thus effectively preventing the applicant from
loading
passengers and making access to its offices difficult.
[14] Some of the alleged
disruption of the applicant's business of plying for and conveying
passengers,
inter alia,
occurred on the 3 October 2015, when
Rudzani in charge of the applicant's offices in Sibasa, was
intimidated and harassed by the
second respondent's members; and
Robert Maluleke one of the applicant's drivers, was physically forced
to drive his bus away from
the loading zone preventing him from
loading passengers from Sibasa to Johannesburg. The confirmatory
affidavits of both mentioned
applicant's personnel are attached as
annexure "FA9" and "FA7" respectively. On the 14
October 2015 second
respondent's members in Sibasa disrupted,
interfered with and prevented the applicant's passengers from
purchasing tickets and
physically removed them from applicant's
busses; damaged safety glass door on applicant's premises; damaged
windows of applicant's
bus resulting at a loss of R55, 000. 00 for
repairs;
inter alia.
The applicant as the result of the events
of the 3 and 14 October 2015 had to engage the services of Stalion
Security to prevent
more harm and or damage.
[15] According to the
applicant, the fourth respondent and its members operate taxis to
convey passengers between Johannesburg and
Mpumalanga, and have its
offices at Bushbuckridge. The applicant commenced its operations
between Johannesburg and Mpumalanga in
May 2015, with its loading and
off-loading zone in Acornhoek. Since its operations the fourth
respondent continued to intimidate
applicant's customers, blockading
the applicant's busses from loading passengers in Acornhoek,
Bushbuckridge and Hazyview, threatened
to blockade the busses even
going through the aforesaid towns; on the 19 June 2015 fourth
respondent disrupted applicant's operations
by preventing passengers
from boarding applicant's busses, demanded payment of a fee of R 100
from applicant's passengers, told
applicant's passengers that
applicant does not have a valid permit. The applicant attached
annexure "FA11A" which
is a confirmatory affidavit of Oupa
Mkansi who witnessed the events of 19 June 2015. On the 9 August 2015
the fourth respondent's
members forced passengers out of applicant's
busses conveying them from Arconhoek to Bushbuckridge. In this regard
is attached
a confirmatory affidavit of Masindi Muvhulawa who
witnessed these incidents.
[16] The applicant
contended that the matter is urgent and it has no alternative relief.
[17] It needs mentioning
that both the first and second respondents filed opposing affidavits,
in which they denied the applicant's
allegations, in so far as they
relate to each one of them. The second respondent also contended in
its opposing papers that it
is not aware of any licences having been
granted to the applicant and therefore applicant is operating its
business illegally.
This contention must be out rightly be rejected
because neither the first, second and fourth respondents are the
repositories of
licences nor the authority that issues these. Second
respondent further took issue with the applicant's lease of premises
with
East and West, and further alleged that the applicant is not
authorised to load,
inter alia,
at Checkers Shopping premises.
The second respondent further raised its concern that its members'
business of plying for passengers
transportation trade on the routes
allocated to them would be adversely affected by the applicant's
alleged illegal operations
in those routes. Second respondent further
contended that the matter was not urgent and that the applicant has
alternative remedies
and that the Court to dismiss the application
with costs. Needless to state that, the first respondent also sought
dismissal of
the application. There was no opposition by the fourth
respondent.
[18] In my view, it is
not in dispute that the applicant's passenger transporting business
is in direct competition with that of
the first, second and fourth
respondents.
[19] In my view, it is a
notorious fact that the transport industry in the Country is plagued
by violence, as the stake holders
vie for the turf. It is a notorious
fact that taxi operators in the Country would sometimes violently
oppose any new comer, be
it a taxi operator or bus operator. Some of
the violence in the transport industry would result in fatalities.
[20]
In casu,
the
applicant made allegations of intimidation and disruption. The Court
need not wait until there is blood on the wall before granting
the
relief sought. The allegation that the applicant is illegally plying
its business is in my view, irrelevant and no ground to
refuse
granting the order. The respondents, who allege that the applicant is
operating illegally, are at large to approach the
Court to interdict
the applicant from so operating. They certainly cannot take the law
unto themselves. Besides, their denial of
the allegations is most
probably not true. The second respondent contended in papers that
"the bus operations of the applicant
harm the business of the
second respondent." It is therefore not surprising that there
have been disruptions directed towards
the applicant's buss
operations.
[21] In my view, the
applicant has placed enough material before this Court to justify the
granting of the relief sought, as contained
in order "X" of
the 3 November 2015, now substituted with the order marked: "AMENDED
ORDER MARKED X".
[22] In the premises for
the above reasons the following order
"AMENDED ORDER
MARKED X" is made an order of this Court.
__________________
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
DATE OF
JUDGEMENT
: 01/07/2016
APPLICANT'S
ADV
: ADV. M E MANALA
INSTRUCTED
BY
: GILDENHUYS MALATJI INC
1
st
RESPONDENT'S' ADV
: T MOKHATLA
INSTRUCTED
BY
: HOGEN LOVELLS (SOUTH AFRICA) INCORPORATED AS ROUTLEDGE MODISE INC
2
nd
RESPONDENT'S' ADV
: ADV. P M MAAKE
INSTRUCTED
BY
: SAM SEKHU ATIORNEYS