About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 709
|
|
Pretoria Long Distance Taxi Association v Marothong Taxi Association and Others (77388/2014) [2016] ZAGPPHC 709 (16 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 77388/2014
DATE:
16 AUGUST 2016
In
the matter between:
PRETORIA
LONG DISTANCE TAXI
ASSOCIATION
.......................................................
Applicant
And
MAROTHONG
TAXI
ASSOCIATION
.....................................................................
First
Respondent
MEC:
SAFETY SECURITY AND
LIAISON
........................................................
Second
Respondent
LIMPOPO
OPERATING LICENSE
BOARD
........................................................
Third
Respondent
GAUTENG
OPERATING LICENSE
BOARD
.....................................................
Fourth
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
Date
Heard: 28 January 2016
Date
delivered: 16 August 2016
[1]
The applicant claims,
inter
alia,
the following relief:
“
1.
Interdicting and restraining the first respondent's members from, in
any manner whatsoever, acting either personally or through
any
appointed agents, threatening, insulting, intimidating or harassing
the members of the applicant.
2.
Interdicting
and restraining the first respondent's members from interfering with
the lawful taxi operations of the applicants members
through either:
2.1
preventing
the applicant’s members access to the Pick ‘n Pay taxi
rank, 87 Paul Kruger Street, Polokwane; or
2.2
preventing
the applicants’ members from off-loading and loading passengers
at the Pick ‘n Pay taxi rank, Polokwane;
or
2.3
Any
other conduct that interferes with the lawful operations of the
applicants members.
3.
Alternatively
to prayers 1 and 2 above, that the relief set out in prayers 1 and 2
do issue, pending finatisation of an action for
final relief to be
instituted by the applicant within 30 days from date of order. ”
[2]
Only the first respondent opposes the
relief claimed by the applicant and will
hereafter,
for the sake of convenience, be referred to as “the
respondent”.
POINTS
IN
LIMINE
[3]
The respondent raised two points
in
limine
, to wit
i.
the applicant’s lack of
focus
standi
and entitlement to the relief
sought,
and
ii.
non-joinder of the City of Polokwane.
[4]
During his address, Mr Mahoto, counsel
for the respondent indicated that the respondent does not persist
with its second point
in
limine.
Consequently it is only the
applicant’s
focus
standi
that needs to be considered
in
limine.
Applicant’s
locus
standi
[5]
It is common cause that the applicant is
a voluntary association and that it launched the application in its
capacity as such. The
respondent avers that the applicant does not
have
locus standi
to launch the present proceedings, because:
i.
the applicant does not allege in its
founding affidavit that the application is launched on behalf of its
members;
ii.
the applicant is not the holder of an
operating license pertaining to the route that forms the subject
matter of the relief claimed
herein; and
iii.
in the result, it is not the applicant,
but its members who are in possession of operating licenses for the
route, that have a direct
and substantial interest in the relief
claimed.
[6]
Mr Gouws, counsel for the applicant,
pointed out that the applicant, in its founding affidavit, stated the
following:
I.
it is a voluntary association with full legal standing
ii.
it is capable to sue and to be sued in
its own name; and
iii.
it is duly registered in accordance with
the provincial and / or national legislation applicable to mini-bus
taxi associations and
members.
[7]
The applicant did, however, not attach
its constitution to its founding papers. In view of the attack on its
focus standi
;
the applicant attached its constitution to the replying affidavit. I
will refer to the contents of the constitution
infra.
Legal
principles
[8]
The
focus
standi
of a voluntary association has
been considered in a number of reported decisions, in
interim
Ward S 19 Council v Premier, Western Cape Province
1998 (3) SA 1056
C, King J held as follows at 1060 F to 1061 B:
‘
Molotlegi
and Another v President of Bophuthatswana and Others
1989
(3) SA 119
(B) is to similar effect and it is dear form these
decisions and earlier decisions referred to therein that the relevant
principles
are:
(a)
For a
voluntary association of persons to have
locus
standi in judico
it
must be a corporate of the nature of a
universitas
personarum.
(b)
That
the two chief characteristics of a
universitas
upon
which its
locus standi
depends
are:-
(i)
perpetual
succession
'
in
the sense that the organisation has a continued existence or identity
despite changes in its membership (see Tllbrook v Higgins
1932 WLD
147
at 153 and cases there cited),
(ii)
The
capacity of acquiring rights and incurring obligations independently
of its members, most importantly the capacity to own property
(ie
landed property
-
see
Levin v Transvaal Miners Association
1912
WLD 144
AT 147).
With
these qualities it will be an entity distinct from the individuals
forming it
- Webb and
Co Ltd v Northern rifles (supra
at
464-5). The requisites of a
universitas
personarum
have
recently been restated by Corbett CJ in
African
National Congress and Another v Lombo
[1997] ZASCA 1
;
1997
(3) SA 187
(A) at 195-6 ([1997] 1B AH SA 697(A) at 700g).
(c)
That in
order to determine whether a voluntary association is a
universitas
it
is necessary to look in the first instance at its constitution.
(d)
If it
is not possible so to determine by reference to the constitution,
either from its express terms or by way of implication,
regard must
be had to the nature of and objects of the association. See as to (c)
and (d), the
Ahmadiyya
Anjuman case supra tfoc cit).
These
are the primary aids in the determination of the
locus
standi
of
an association such as applicant ”
[9]
In considering whether the applicant
meets the criteria referred to
supra
,
the following clauses in the applicant’s constitution are
significant:
“
4.
AIMS AND OBJECTIVES
g)
To
raise funds for the Association by legal manner;
h)
To
apply all funds for the purpose of giving effect to the objectives of
the addition, to acquire by purchase, lease, exchange or
gift,
immovable, or movable property/’
and
"5.
MEMBERSHIP OF THEASSOCIA TION
5.1
A full
member of the Association shall be referred to as a registered,
permit holder, bound and adhered to the constitution, grievance
procedure and code of conduct
5.2
A new
member shall be recognised in the case of the following, but pending
on provision of space/vacancy.
Written
application
Testimonial
from previous association (if any)”
[10]
Having
regard to the aforesaid, ! am satisfied that the applicant satisfies
the requirements necessary to confer upon it the necessary
locus
standi in judico
to launch the
application.
[11]
In
the result, the point
in
limine
is
dismissed with costs.
FACTS
[12]
The
applicant claims for a final
alternatively\n\efm
interdict.
[13]
Prior
to considering the legal principles pertaining to interdicts, a short
summary of the facts underpinning the relief is necessary.
[14]
The
applicant is a Gauteng based inter-provincial taxi association with
its point of departure situated at Pretoria Station, Gauteng.
The
members of the applicant possess operating licenses that allow them
to transport passengers from Pretoria to Polokwane. These
facts are
not in dispute.
[15]
The
exact location of the taxi rank in Polokwane where the members of the
applicant may load and off-load passengers forms the point
of dispute
in the matter.
[16]The
applicant relies on an Operating Licence issued by the Department of
Transport to its members, in support of its contention
that the taxi
rank they are entitled to utilise is situated at 87 Kruger Street,
Polokwane. The relevant route description reads
as follows:
PROCEED
STRAIGHT AND ENTER GROBLER STREET, TURN LEFT AND TURN LEFT INTO
ELXESIOR STREET, TURN LEFT INTO PRES. KRUGER STREET, AND
PROCEED AND
TURN RIGHT INTO PICK N PAY TAXI RANK, OFF LOAD AND LOAD. RETURN BACK
THE SAME WAY
[17]
The
applicant alleges that members of the respondent prevents its members
from utilising the Pick ’n Pay taxi rank, which
conduct results
in intimidation, threats of violence and more often than not actual
violence. It is clear from the papers that
the situation is untenable
and definitely not in the interests of innocent commuters.
[18]
The
respondent steadfastly denies these allegations.
[19]
The
respondent avers that the taxi rank situated at 87 Paul Kruger Street
is a private taxi rank utilised by its members. In support
hereof a
photo is attached to the answering affidavit, which clearly depicts a
private house with street number 87.
[20]
The
respondent alleges that the Pick ’n Pay taxi rank referred to
in the operating licence relied upon by the applicant is
situated at
the corner of Devenish- and Church Streets. Once again a photo is
attached which depicts a taxi rank in a public space
in Devenish
Street.
[21]
In
the premises, the respondent avers that its members do not utilise
the Pick n Pay taxi rank and are consequently not involved
in any
altercations with members of the applicant. The applicant has, quite
correctly, pointed out that the respondent does not
deny any
incidents at the 87 Paul Kruger Street taxi rank.
[22]
The
applicant admits that a community taxi rank exists at the corner of
Devenish* and Church Streets, but denies that it is the
Pick n Pay
taxi rank referred to in its operating licence. The applicant states
that three distinct taxi ranks exist, to wit:
i.
the Pick n Pay community taxi rank which
is situated at the corners of Church and Devenish Streets and which
is used by local taxi
associations in Polokwane;
ii.
the Pick n Pay taxi rank located at 87
Paul Kruger Street which Is exclusively used by inter-provincial
associations; and
iii.
the Indian Centre rank which is situated
at the comers of Excelsior and Paul Kruger Streets.
[23]
In
support of the aforesaid, the applicant attached a hand drawn map to
its replying affidavit, which map is attached hereto as
"X”.
[24]
It
is clear from the map, that the route description on the operating
licence of the applicants’ members do not refer to the
Pick ‘n
Pay community taxi rank, which taxi rank is on the left when turning
into Paul Kruger Street from Excelsior Street.
The only taxi rank on
the right is the taxi rank at 87 Paul Kruger Street.
[25]
None
of the parties alleged that there is another taxi rank further down
Paul Kruger Street.
[26]
Two
problems, however, emerge, to wit:
i.
there is clearly not a Pick ‘n Pay
at 87 Paul Kruger Street; and
ii.
the operating licence simply refers to
Pick n Pay without mentioning the exact street number in Paul Kruger
Street.
[27]
In
endeavour to resolve these apparent anomalies and mainly due to the
fact that the safety of innocent commuters are at stake,
I issued an
order on 24 February 2016, directing the Fourth Respondent to file an
affidavit explaining the exact location of the
Pick 'n Pay taxi rank
referred to in the operating licence of the applicant.
[28]
The
chairperson of the fourth respondent or its successor in title was
ordered to file the affidavit on or before 11 March 2016.
[29]The
court order was duly served on the fourth respondent on 3 March 2016
at its offices at 11 Diagonal Street, Johannesburg.
In response to
the order, a letter dated 14 March 2016 was received from Mr Edward
Ngqola, chairperson of the Gauteng Provincial
Regulatory Entity. The
letter reads as follows:
“
The
above matter as well as the court order dated the 24 February 2016
and served at our Registration and Monitoring Directorate
on the 03
March 2016 refers.
Kindly
be advised that the said court order
was
not
served to me personally by the sheriff and I only had knowledge of it
on the 08 February 2016 through our officials at Registration
and
Monitoring Directorate. Kindly note that the Gauteng Operating
Licensing Board (“GOLB”) was disbanded on the 30
November
2011 when the regulation establishing the Gauteng Provincial
Regulatory Entity (“GPRE”) was promulgated and
I became
the Chairperson of the GPRE on the 30 April 2012
.
Annexure
tt
PTA3”
to the founding papers in this appiication is a copy of an Operating
Licence which was issued by the erstwhile GOLB
on the 31 March 2011
and I
was
not
a member of the board and/or was never a member of the board.
I
have requested the officials from Registration and Monitoring
Directorate, which is an office of records and the custodian of
all
the records pertaining to the registration of taxi association
,
their
routes, permits or operating licences and individuals operator's
records to retrieve the files of this association and the
individual
operator who's operating licence is annexed to the founding papers
and referred to as annexure “PTA3”. Upon
receipt of these
archived files, I will be in a position to depose an affidavit
confimiing the contents of the files.
Based
on the abovementioned, I therefore request an extension of time until
the 30 of March 2016 to file the affidavit in compliance
with the
court order of the 24 Febniary 2016
[30]
Notwithstanding
the undertaking in the aforesaid letter, the fourth respondent has to
date failed to file an affidavit. This aspect
will be referred to
infra
when an appropriate cost order is
considered.
FINAL
INTERDICT
[31]The
requirements for a final interdict is well established. An applicant
must proof:
i.
a clear right to the relief claimed;
ii.
an injury actually committed or
reasonably apprehended; and
iii.
the absence of similar protection by any
other remedy.
Clear
right
[32]The
respondent purports to raise a factual dispute in respect of the
exact location of the taxi rank referred to in the applicants’
members operating licence. Once a factual dispute arises, the court
must determine whether it is possible to adjudicate the matter
on the
facts contained in the affidavits. The test to be applied was
formulated by Harms DP in
National
Director of Public Prosecutions vZuma
[2009] ZASCA 1
;
2009 (2) SA 277
SCA at para [26] as follows:
Motion
proceedings
,
unless
concerned with interim relief, are ail about the resolution of legal
issues based on common cause facts. Unless the circumstances
are
special they cannot be used to resolve factual disputes because they
are not designed to determine probabilities. It is well
established
under the Plascon-Evans rule that where in motion proceedings
disputes of fact arise in the affidavits, a final order
can be
granted only if the facts averred in the applicant’s (..)
affidavits, which have been admitted by the respondent (...),
together with the facts aiieged by the latter, justify such order. It
may be different if the respondents version consists of bald
or
uncreditworthy denials, raises fictitious disputes of facts, is
palpably implausible, far-fetched or so clearly untenable that
the
court is justified in rejecting them merely on papers.
[33]In
Fakie NO v CCU Systems (Pty)
/.ft/2006 (4) SA 326 SCA, the court sounded the following warning at
347 G:
“
Yet
motion proceedings are quicker and cheaper than trial proceedings
and, in the interests of justice, courts have been at pains
not to
permit unvirtuous respondents to shelter behind patently implausible
versions or bald denials. ”
and
further at 348 B:
“
Practice
in this regard has become considerably more robust, and rightly so.
If it were otherwise, most of the busy motion courts
in the country
might cease functioning. But the limits remains, and however robust a
court may be inclined to be, a respondent’s
version can be
rejected in motion proceedings only if it is * fictitious
1
or so far-fetched and clearly untenable that it can confidently be
said, on the papers alone, that it is demonstrably unworthy
of
credence. ”
[34]
It
Is common cause between the parties that the members of the applicant
are holders of operating licences similar to the one attached
to the
founding papers. If one have regard to the physical outlay of the
streets referred to in the licence, it is clear that the
route
description does not entitle the applicants’ members to utilise
the Pick n Pay community taxi rank situated in Paul
Kruger Street.
[35]
It
is clear from the papers that the only taxi rank that accords with
the route description is situated at 87 Paul Kruger Street.
The
respondent’s denial in this regard is untenable. The
respondent, in an effort to create a fictitious factual dispute,
latched on to the reference to ‘Pick-n-Pay’ in the route
description. To my mind the name given to the taxi rank does
not
distract from the physical location of the rank as it appears from
the route description.
[36]
The
fourth respondent was ordered to clear up the apparent confusion that
the name of the taxi rank may create, but as alluded to
earlier,
failed to comply with the court order.
[37]
Be
that as it may, I am satisfied that the applicant established a clear
right in respect of the relief it claims.
An
injury actually committed or reasonably apprehended
[38]
The
respondent did not deny that they prevent members of the applicant to
utilise the taxi rank situated at 87 Paul Kruger Street.
To the
contrary, these allegations were cleverly avoided by constant
reference to the Pick n Pay community taxi rank.
[39]
In
this regard, I accept the version of the applicant and am satisfied
that the applicant has succeeded in proving the second requirement
for an interdict.
The
absence of similar protection by any other remedy
[40]
No
other legal remedy exists to enforce and protect the right of the
applicant’s members to utilise the taxi rank.
[41]
In
the premises, the applicant has succeeded in meeting all the
requirements for a final interdict.
COSTS
[42]
A
cost order remains in the discretion of the court. I have considered
the various legal options consequent upon the failure of
the fourth
respondent to comply with the order of this court.
[43]
The
matter has been dragged out unnecessarily due to the fourth
respondent’s inaction. As a token of my displeasure with the
fourth respondent’s absolute disregard for orders of this
court, the fourth respondent will be ordered to pay the costs of
the
application.
ORDER
In
the premises, I grant the following order:
1.
The First Respondents’ members are
Interdicted from, in any manner whatsoever, acting either personally
or through any appointed
agents, to threaten, assault, intimidate or
harass the members of the applicant.
2.
The First Respondent’s members are
interdicted from interfering with the lawful taxi operations of the
applicant’s members
through either:
2.1
preventing the applicant’s members
access to the Pick ’n Pay taxi rank, 87 Paul Kruger Street,
Polokwane; or
2.2
preventing the applicant’s members
form off-loading and loading passengers as the Pick Yi Pay taxi rank,
Polokwane; or
2.3
any other conduct that interferes with
the iawful operations of the applicant’s members.
3.
The Fourth Respondent’s successor
in title to wit, the
Gauteng
Provincial Regulatory Entity
, is ordered
to pay the costs of the application.
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
QAUTTENG
DIVISION, PRETORIA
Appearances
:
Counsel
for the Applicant: Advocate Gouws
Instructed
by: DE BRUIN OBERHOLZER INC
Counsel
for the first Respondent: Advocate Mashaba
Instructed
by: MAPULANA MAPONYANA INC