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[2015] ZAGPPHC 157
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Kempton Park Taxi Association and Others v Mdaka and Others (18064/2012) [2015] ZAGPPHC 157 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 18064/2012
IN
THE M
ATTER BETWEEN
KEMPTON
PARK TAXI
ASSOCIATION
............................................................................
1
st
Applicant
E
M
MASINGA
....................................................................................................................
2
nd
Applicant
P
P
LOLIWE
..........................................................................................................................
3
rd
Applicant
M
N
THOOBE
.......................................................................................................................
4
th
Applicant
M
T E
MKHONTO
................................................................................................................
5
th
Applicant
T
A
MAJOSI
..........................................................................................................................
6
th
Applicant
M
J
NDAWONDE
.................................................................................................................
7
th
Applicant
T
V
THWALA
........................................................................................................................
8
th
Applicant
and
F
J
MDAKA
.......................................................................................................................
1
st
Respondent
M
J
MODUPO
..................................................................................................................
2
nd
Respondent
M
MALATSI
.....................................................................................................................
3
rd
Respondent
B
NGEMA
.........................................................................................................................
4
th
Respondent
D
VILAKAZI
.....................................................................................................................
5
th
Respondent
JUDGMENT
LEGODI,
J
[1]
On 3 March 2015, I reserved judgment in this matter. I also
impressed upon the parties to seek to resolve the dispute
amicably.
This was after I was told that the fourth respondent has been killed
some few weeks ago. They were to revert to this
court before the
handing down of the judgment. The dispute remains unresolved. I
therefore proceed to deal with the issues
argued before me. On
the 6 September 2012, an interdict was granted against the
respondents in the following terms:
“
1.
Interdicting and restraining the respondents or any other
person/persons employed or controlled by the respondents,
alternatively
affiliated with the respondents from
1.1
Directly or indirectly interfering with and/or hindering
and/or undermining the duties, responsibilities and work of the
second
to eighth applicants;
1.2
Conducting an illegal office under the name and style of the
first applicant;
1.3
Directly or indirectly intimidating any of the members of the
first applicant;
1.4
Acting as the executive committee member of the first
applicant;
1.5
Conducting general meetings on behalf of the first applicant;
1.6
Collecting monies from the members of the first applicant;
1.7
Writing letters which bears the letter-head, logo and name of
the first applicant;
1.8
Interfering with the operational system of the first
applicant;
1.9
Using the name of the first applicant to collect joining fees
from the members of the public;
1.10
Conducting patrol vehicles with printed name and logos of the
first applicant;
2.
Interdicting and restraining the first respondent from:
2.1
Acting as a chairperson of the first applicant;
2.2
Signing recommendation letters on behalf of the first applicant;
3.
Costs of suit”.
[2]
On the 13 November 2013 the applicants instituted the present
proceedings in terms of which a relief is sought in the following
terms:
“
1.
That the respondents be declared to be in contempt of the order
granted by the above Honourable Court on the 6
th
of September 2012 under case no. 18064/12.
2.
The Respondents be committed to prison to prison for a period of one
(1) year and six (6) months, alternatively any other period
as the
Honourable Court may deem fit,
3.
The Respondents be ordered to pay the costs of this application;
4.
Further and/or alternative relief”.
[3]
The manner in which the respondents are alleged to have contravened
the order is set out in the paragraph 14 of the founding
affidavit.
It reads:
“
14.
The Respondents deliberately and intentionally, continue to collect
monies from the members of the applicant on a daily basis
and the
First Respondent deliberately and intentionally continue to act as a
chairperson of the Applicant even though they are
fully aware that
they have been interdicted from doing so by the above Honourable
Court”
[4]
Just as a brief background to the dispute, the first applicant is a
taxi association called Kempton Park Taxi Association.
The
second to the eighth applicants are the Executive Committee members
of the first applicant. The respondents were members
of the
first applicant until round about 2009 or 2010 when a dispute amongst
its members arose. The dispute was about rotation
system where
the Taxi drivers were to rotate between the township and Kempton
Park-Taxi ranks. The dispute arose because
some of the taxi
drivers did not wish to take local trips as it is not financially
lucrative. The voluntary taxi association,
(the first
applicant) then split into two groups. The other group which split
from the first applicant referred to themselves as
Concerned Group of
Kempton Park Taxi Association. The group created its logo, but
bearing the names of Kempton Park Taxi
Association.
[5]
The Concerned Group established its own offices and rank. It
also elected its Executive Committee Members. The office
of the
Registrar in terms of Gauteng Public Passenger Road Transport Act no.
7 of 2001 allegedly gave full recognition of the Concerned
Group. Its
Executive opened a banking account separate from that of the first
applicant. An old and dilapidated building at the
taxi rank which
belonged to the municipality was renovated and turned into a fully
furnished office where the Concerned Group conducts
its business.
Members of the Concerned Group stopped paying subscription fee to the
first applicant. They paid their
subscription fee to the
Concerned Group. These members contribute voluntarily to the
Concerned Group banking account.
The Concerned Group are now
independent from the first applicant. The taxi rank that has
been established by the Concerned
Group is not been shared with the
members of the first applicant or any of the applicants.
[6]
In paragraphs 12, 13 and 14 of the answering affidavit the first
respondent states as follows:
“
12.
The
KETA group also has its own taxi rank and officers. There is no
encroachment from each other save for the taxis that commute
passengers to and from the township. Despite the fact that the
concerned group members have the valid operating licences
that allows
them to operate as per operating licences, they are now confined to
commute passengers from Kempton Park to the township
and back.
13.
Despite
the fact that the members of the concerned group can only commute
passengers from Kempton Park to the township and back
and their
licences allows them to take passengers from Kempton Park to
Johannesburg, they cannot do so as they are prevented by
KETA
members.
14.
Myself
and the other Respondents, were the (sic) elected by the concerned
group to run their affairs as the executive committee
of the
concerned group. It is within this context that the members
contribute to the funds which is set up to facilitate
the running of
the office, for example the payment of the staff that works at the
office and so forth.
[7]
Now coming back to paragraph 14 of the founding affidavit, two
questions arise. That is, whether the applicants have continued
or continue to collect monies from the members of the first
applicant. Secondly, whether the applicants managed to establish that
the first respondent continued and is still continuing to act as a
chairperson of the first applicant.
CONTINUING
TO COLLECT MONIES FROM MEMBERS OF THE FIRST APPLICANT
[8]
For this allegation, the applicants rely on paragraph 14 of the
founding affidavit quoted earlier in this judgment. They
also
rely on the affidavits introduced in the replying affidavit marked
annexure EMM1 and a receipt marked annexure EM2.
Annexure EM2
is a receipt issued on 12 February 2013 to NJ Mphago in the amount of
R21 000. The purpose of payment is indicated
as “Joining
Fee (driver)’. Under ‘authorized by’; there
is a space for the treasurer, chairperson
and secretary to sign.
Based on the signatures thereon, it was argued that, the first
respondent signed the receipt as the
chairperson of the first
applicant and that he thus contravened paragraph 2.1 of the order.
[9]
Before I deal with the receipt, annexure EM2 and the affidavit
attested to by NJ Mphago in relation thereto, I want to reiterate
this: The applicant case must be made in the founding
affidavit. A party will not without leave of the court be allowed to
introduce new facts and seek to make out his or her case in the
replying affidavit. Annexure EM2 and the affidavit in relation
thereto should have been introduced and averred in the founding
affidavit especially when dealing with the averments made in
paragraph
14 of the founding affidavit. To allow such evidence
introduced for the first time in the replying affidavit, in my view,
would be prejudicial to the respondents.
[10]
The respondents attempted to introduce the fourth affidavit to deal
with the new facts introduced in the replying affidavit.
Before
I deal with the attempt, is worth doing to quote how the respondents
in their answering affidavit dealt with paragraph 14
of the
applicants’ founding affidavit. In the answering
affidavit is stated as follows:
“
34.
AD
PARAGRAPH 14 THEREOF
I
deny the contents herein. None of the Respondents mentioned in this
affidavit, collects money from the Applicant’s members.
As I have mentioned, that the Applicant and the concerned group have
virtually become two different or splinters groups therefore
there is
no working relationship of the concerned group has decided not to pay
any contribution or subscriptions to the Applicant.
Instead
they have established their own executive to run their affairs as
such their members contribute to the financial standing
of the
concerned group.
35.
I
deny that I have acted as a chairperson of the First Applicant.
I have been elected a chairperson of the concerned group
to run its
own affairs. Both members of the concerned group as well as the
members of the First Applicant are aware of the
fact that there is an
executive established by the concerned group and that executive is
running its own affairs.
36.
Furthermore,
the authorities in the Department of Roads and Transport in Gauteng,
are aware of the fact that the concerned group
runs its own affairs
and even in the meeting that are being convened by the authorities,
they required their representation from
the concerned group by its
elected executive.
[11]
It is clear that the scanty averments made in paragraph 14 of the
founding affidavit are in the first place, lacking in
particularities.
Secondly, it would not survive the answer
thereto as quoted above. The applicants had no excuse and did
not ask this court
indulgence to allow such new information in the
replying affidavit. But most importantly, it is the information
which should
have been included in paragraph 14 of founding
affidavit. The information was not prompted by the answer as
set out in paragraphs
34, 35 and 36 of the answering affidavit.
[12]
Now, dealing with the fourth affidavit, the respondents sought to
introduce three applications. The first application
is said to
be in terms of Rule 6(15). That is, to strike out the
respondents’ replying affidavit in its entirety. The
so called
‘Application1’ is mentioned in paragraph 3 of the fourth
affidavit. “APPLICATION 2’ is
also set to be in
terms of subrule (15). It is an application to strike out the
applicants’ seven supporting affidavits
annexed to the
applicants’ replying affidavit. “APPLICATION 3’
is said to be in terms of Rule 6(5)(e),
that is, for leave to file a
further affidavit in response to the applicants’ answering
affidavit.
[13]
The difficulty with all these application is that they have not been
brought in accordance with sub-rules (1) and (11).
Sub-rule (1)
provides that save where proceedings by way of petition are
prescribed by law,
every application shall be brought on notice of
motion
supported by an affidavit as to the facts upon which the
applicant relies for relief. On the other hand, subrule (11)
provides
that, notwithstanding the aforegoing subrules, interlocutory
and other applications incidental to pending proceedings
may be
brought on notice
supported by such affidavits as the case may
require and set down at a time assigned by the registrar or as
directed by a Judge.
[14]
The underlining is my own emphasis. The form of the written
‘notice of motion’ is prescribed in the First
Schedule.
Such a form is also applicable to interlocutory applications under
subrule (11). Secondly, insofar as applications
under subrule
(11) are concerned, the application must be set down at a time
assigned by the registrar or as directed by the judge.
None of
these had happened with regard the three applications cited by the
respondents in their answering affidavit. Effectively,
the
applications were not properly before the court. Leave to file
further affidavit under subrule (5) (e), should also have
been
brought by way of an application on notice. It was on the basis of
all of these that I refused to hear argument on the three
applications.
ANNEXURE
EM2 AND AFFIDAVIT THERETO
[15]
Coming back to the alleged contravention of the court order, as I
said, the applicants argued that annexure EM2 is a clear
proof of
contravention of the court order and in particular paragraph 1.6 of
the order. In terms of paragraph 1.6 of the order,
the respondents
are interdicted from collecting money from the members of the first
applicant. Annexure EM2 and the supporting
affidavit
introducing it were pleaded for the first time the replying
affidavit. The respondents were therefore not given
the
opportunity to answer thereto. One would be careful to attach
any value to the information, if to do so, will prejudice
the
respondents. But, most importantly, there are worrying factors
with regards to annexure EM2. The receipt EM2 bears
12 February
2013 as the date on which it was issued. But, in paragraphs 2,
3 and 4 of the affidavit introducing annexure
EM2 is stated:
“
2.
On (Date:16-05-14), I went to no. 28 Pretoria Road KETA house in
Kempton Park, which at all material times I believed this is
the
registered office of Kempton Park Taxi Association.
3.
On my arrival, I discussed my intention to be a member of Kempton
Park Taxi Association. I was assisted by Mr FAMANDA JOHNSON
MDAKA who presented as the chairperson of Kempton Park Taxi
Association.
4.
I paid the amount of R21 000 in cash and handed to Mr Mdaka FJ
for joining fee and he presented me with the receipt/recommendation
letter annexed as “A”.
[16]
Then in paragraphs 6, 7 and 8 of the affidavit is recorded:
“
6.
On the 20 February 2014, I went to the General Meeting of Kempton
Park Taxi Association. I was shocked that Mr Mdaka FJ
was not
seated at table of executive committee and Mr Mdaka FJ confirmed that
he is not the chairperson, one Mr EM Mosima and his
executive are in
charge of the Association. Mr Mdaka FJ further indicated that
he and his group will go back to the legitimate
office as members.
7.
On 12-02-13 I went to No. 03 West Street Standard Bank Building
Kempton Park, which is the legitimate office of Kempton Park
Taxi
Association.
8.
I consulted with the legitimate executive committee of the
Association, and was advised that application for membership were
closed in 2006 and Mr Mdaka FJ should return me my money”.
[17]
The sequence of events as described in the affidavit can be summed as
follows:
17.1
That on 16 May 2014 Mr Mphago paid R21 000 joining fee to the
first respondent and a receipt was issued. That cannot
be
correct. The receipt as per annexure EM2 was only issued on the
12 February 2013. That is more than a year before
he allegedly
met with the first respondent on the 16 May 2014.
17.2
That on the 20 February 2014 Mr Mphago attended the general meeting
convened by the first applicant and that it became clear
in that
meeting that the first respondent was not an executive committee
member. The statement too cannot be correct inasmuch
as Mr
Mphago gives the impression that he attended the meeting after he had
met with the first respondent and caused to pay R21 000.
The receipt was issued on the 12 February 2013 and the alleged
meeting was on 20 February 2014. These two events, according
to
the affidavit would have occurred on the 16 May 2014 and thereafter.
For example, if the receipt was a genuine one, it would
have been
issued on the 16 May 2014 and not the 12 February 2013.
17.3
That on the 12 February 2013 he consulted with executive members of
the first respondent, when he was advised that he had been
crooked of
his R21 000 by the first respondent. As I said, it cannot
be true because by that time, he had not as yet
met with the first
respondent as suggested in paragraphs 2, 3 and 4 of Mr Mphago’s
affidavit quoted in paragraph 15 of this
judgment. But what is
even most striking is that, the receipt annexure EM2, was issued on
the same date Mr Mphago had allegedly
consulted with the executive
committee members of the first applicant and told that he had been
crooked into paying the R21 000.
This raises the questions: Did
Mr Mphago perjure himself? Or is annexure EM2 a product of
fraud? Things as they are,
point to that direction.. No
reliance can be placed on annexure EM2 to prove contravention of
paragraph 1.6 of the order
quoted in paragraph 1 or this judgment.
Therefore, it would have made no point to give the respondents an
opportunity to bring
proper application on notice for relief as
envisaged in subrules (5) (e) and (15) of Rule 6. I now turn to
deal with the
other alleged contravention of the order of the 6
September 2012.
ACTING
AS A CHAIRPERSON OF THE FIRST APPLICANT
[18]
In terms of paragraph 2.1 of the order, the first respondent Mr Mdaka
is interdicted and restrained from acting as a chairperson
of the
first applicant. The averment to the alleged contravention are
made in paragraph 14 of the founding affidavit quoted
in paragraph 3
of this judgment. Counsel for the applicants submitted that
averments in paragraph 14 of the founding affidavit
should be seen in
the context of paragraph 1 of the answering affidavit and also in the
context of annexure EM2. I have already
dealt with annexure
EM2. No value could be attached for reasons already.
[19]
As regard paragraph 1 of the answering affidavit, the contention was
that, the first respondent on his own version had admitted
to have
acted contrary to the prohibition in terms of paragraph 2.1 of the
order. In paragraph 1 of the answering affidavit, the
first
respondent stated:
“
I
am an adult male businessman, a chairperson of the concerned group of
Kempton
Park Taxi Association with its office at Corner PRETORIA ROAD TAXI
RANK
OFFICE, KEMPTON PARK’.
[20]
The alleged admission of contravention of the order should be seen in
the context of what is stated in paragraph 34 to 36 of
the answering
affidavit. The paragraphs are quoted in paragraph 10 of this
judgment. Clearly, the admission is not
unequivocal.
Secondly, it must be seen in the context of the history of the
dispute between the parties as outlined in paragraphs
4 to 6 of this
judgment. I am therefore not satisfied that the necessary
prerequisites for contempt of court and committal,
have been
established.
[21]
Consequently the application is hereby dismissed with costs.
M
F LEGODI
JUDGE
OF THE HIGH COURT
FOR
THE APPLICANTS:
ADV. M J MASHAVHA
INSTRUCTED
BY:
F Z NZAMA ATTORNEYS
C/O
THANDI DU PLESSI ATTORNEYS
Suite
404, Standard Bank Chambers
Paul
Kruger Street,
PRETORIA
Ref:
A701/KETA/F.NZAMA
TEL:
011 331 2256
FOR
THE RESPONDENTS:
ADV. W LUSENGA
INSTRUCTED
BY:
M A KGOELE ATTORNEYS
Suite
609, 6
th
Floor,
Protea
Towers Building
246
Paul Kruger Street
PRETORIA
REF:
MR Kgoele/KETA
TEL: 012 323
4424