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[2015] ZAGPPHC 507
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Letaba Taxi Association and Another v Registra of the Department of Transport Limpopo (64250/2012) [2015] ZAGPPHC 507 (16 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
[GAUTENG DIVISION,
PRETORIA]
CASE NUMBER: 64250/2012
DATE: 16 JULY 2015
In the application of:
LETABA TAXI
ASSOCIATION
...........................................................................
FIRST
APPLICANT
NAPHUNO LONG DISTANCE TAXI
ASSOCIATION
.................................................................................................
SECOND
APPLICANT
And
THE REGISTRA OF THE DEPARTMENT
OF TRANSPORT
LIMPOPO
...........................................................................
FIRST
RESPONDENT
LIMPOPO PROVINCIAL TAXI
COUNCIL
.............................................
SECOND
RESPONDENT
THE HEAD OF THE DEPARTMENT OF
ROADS AND
TRANSPORT
............................................................................
THIRD
RESPONDENT
MEMBER OF THE EXECUTIVE THE
DEPARTMENT OF TRANSPORT
LIMPOPO
.....................................................................................................
FOURTH
RESPONDENT
THE OFFICE OF THE PUBLIC
PROTECTOR
....................................................................................................
FIFTH
RESPONDENT
MOPANI DISTRICT TAXI
COUNCIL
..........................................................
SIXTH
RESPONDENT
OPERATING LICENSING BOARD:
DEPARTMENT OF ROADS AND
TRANSPORT
LIMPOPO
..........................................................................
SEVENTH
RESPONDENT
THE OAKS TAXI
ASSOCIATION
.............................................................
EIGHTH
RESPONDENT
JUDGMENT
A.J. LOUW AJ
[1] This application started off as an
urgent application that was enrolled for hearing on the 13th November
2012. On that date
it was struck off the roll with costs. In due
course the Applicants filed a notice of intention to amend and the
final relief sought
by the Applicants are set forth the amended
Notice of Motion at page 106 of the paginated papers and in terms
whereof the following
relief is sought:
“1.1 That the Respondents be
interdicted from continuing in the deregistration of The Applicants
and The Eighth Respondent
as Taxi Associations and streamlining of
their routes.
1.2 That the Respondents be interdicted
from merging the Applicants and The Eight Respondent as one
Association.
1.3 That the Respondents be interdicted
from taking and/or withdrawing the permits or operating licences of
The Applicants members.
1.4 That the Respondents be ordered to
Honour and enforce the settlement agreement entered into and by and
between the Applicants
and The Eighth Respondent on the 15th August
2006 and which was made an order of Court by Honourable Justice
SHONGWE on the 15th
August 2006.
2. That the Costs of this Application
be paid jointly and severally by the opposing party or parties.
3. Further and/or alternative relief. ”
[2] The matter was enrolled on the
unopposed roll for hearing on the 20th November 2013 at which time
Kollapen J postponed the matter
sine die and reserved the costs
because of the fact that the Eighth Respondent appeared to oppose
despite it never having filed
a formal notice of intention to defend.
Since then no opposing affidavit was filed by the Eighth Respondent.
[3] In fact none of the Respondents
appeared at the hearing of the matter, despite the notice of
enrolment being delivered to them.
Specifically the Eighth Respondent
received the notice of set down at the offices of its attorneys of
record on the 17th February
2015. The First, Third, Fourth and
Seventh Respondents filed a notice to abide on the 3rd December 2012.
[4] Of importance is a memorandum of
the Seventh Respondent dated the 23rd November 2012. In paragraph 3
of the memorandum the Seventh
Respondent points out that the Seventh
Respondent only became aware of the order of Shongwe, DJP dated 15
August 2006 on 8 November
2012. This is also the order of court
referred to in prayer 1.4 of the amended notice of motion.
[5] In terms of the court order of the
15th August 2006 (as evidenced by the settlement agreement that was
made an order of court)
the following order was issued:
“2.
The members of both the Letaba Taxi
Association as well as The Oaks Taxi Association are allowed to use
the routes as described
in their respective public transport permits.
The members of both Taxi Associations
are allowed to use the respective routes, assigned to them, in the
schedules to the Provincial
Gazette Extraordinary, Notice 35 of 2004,
Limpopo Provincial Government, Department of Transport, No. 980 dated
8 April 2004 as
amended from time to time.
Members of both Taxi Associations are
allowed to load and offload passengers in Masokisi Village but may
not use it as their starting
Point (A).
Each party will pays (sic) its (sic)
own costs.”
[6] In view of the order of Shongwe DJP
of the 15th August 2006 (hereinfurther referred to as “the
August 2006 order”)
the Seventh Respondent decided to abide by
the August 2006 order and also decided to suspend a recommendation of
the First Respondent
dated the 24th October 2012.
[7] The application arose from the fact
that, despite the August 2006 order, the First Respondent purported
to give notice of the
deregistration of the
First Applicant as well as the Eighth
Respondent in terms of a letter dated the 5th November 2012, the
terms whereof reads as follows:
“1. Notice is hereby given of the
deregistration of Letaba and The Oaks Taxi Association as a sequel to
the notice issued
to you dated 03 October 2012.
2. Valid permits/operating licences
holder affected by this deregistration will continue to be entitled
to the right contained in
their licences but ceased to belong to the
deregistered associations.
3. The Operating Licensing Board (OLB)
will call the affected valid permits/operating licence holders to a
hearing relating to the
authority contained in their
permits/operating licences. ”
[8] In terms of a letter also dated the
5th November 2012 the Third Respondent appears to say that there was
no decision that the
two associations are deregistered but only a
notice of intention to do so. I quote paragraph 3 of the said letter:
“3. The meeting never referred to
any decision and as a matter of fact as at the time of the meeting
reference was made to
a notice served to your clients indicating the
Registra intention to deregister Letaba and The Oaks taxi
associations and register
valid operating licence holders in one taxi
associations under new conditions. ”
In my view the First and Third
Respondents’ letters are somewhat confusing and at the very
least an impression was created
that the First Applicant is
deregistered. The Third Respondent recommended temporary operating
licences to operators of the First
Applicant and the Eighth
Respondent in line with amended routes.
[9] As can be expected, the Applicants
then approached the court firstly for urgent relief and in view of
the striking from the
roll order, in the ordinary course of
litigation for the relief quoted herein earlier.
[10] The founding affidavit on behalf
of the Applicants says that the First Applicant has been in existence
since approximately
1976 and thereafter the Second Applicant was also
formed to cater for long distance taxis whereas the First Applicant
only caters
for local taxi operations. After 1995 some members of the
First Applicant broke away and formed the Eighth Respondent. The
First
Applicant were given their own routes. The members of the
Eighth Respondent were allocated different routes. By 2000 conflicts
arose between the Applicants on the one hand and the Eighth
Respondent on the other hand. This resulted in the issue of a summons
by the Applicants resulting in the August 2006 order. The Applicants
complied with the August 2006 order whereas the Eighth Respondent
did
not comply with the August 2006 order as the Eighth Respondent
started to operate taxis on the routes that had been allocated
to the
Applicants. The complaint is then made that the other Respondents
failed to ensure compliance by the Eighth Respondent with
the August
2006 order resulting in various approaches to this court by the
Applicants.
[11] It appears that the governmental
Respondents listed in this matter failed to address the matter
appropriately and decisively.
Allegations of corrupt activities are
made by the Applicants. ! do not find it necessary to make a finding
in this regard. What
is clear is that the First, Second, Third,
Fourth and Seventh Respondents failed to execute their obligations
properly and in compliance
with the August 2006 order.
[12] As a result of the threatened
deregistration of the Applicants and the proposed change of routes to
the detriment of the Applicants,
the Applicants approached this court
for the relief sought.
[13] It is clear that the relief is not
opposed and I find no reason not to grant the First and Second
Applicants the relief that
they seek in the amended
Notice of Motion.
[14] Although the memorandum of the
23rd November 2012 purports to say that the Applicants’
application is premature I cannot
agree with that view. A further
complaint is stated in paragraph 13 of the 23 November
2012 report, namely that there are
operators in both the First and the Eighth Respondents who operate on
the routes without valid
operating licences. That is a matter to be
dealt with in terms of the applicable legislation. It would not
constitute a basis for
the deregistration of any of the First and
Second Applicants on the one hand or the Eighth Respondent on the
other hand. Appropriate
civil or criminal steps must be taken so as
to ensure a continued lawful operation by the Applicants on the one
hand and the Eighth
Respondent on the other hand.
[15] In the circumstances I am of the
view that a proper case for the relief in the Amended Notice of
Motion is made out. There
is no basis to merge the First and the
Eighth Respondents, a step which is contrary to the August 2008
order.
[16] In one respect I am of the view
that the Applicants are not entitled to relief and as I understood Mr
Motloba also did not
ask for the particular relief, and that is the
relief in prayer 1.3 of the amended Notice of Motion as quoted above.
That prayer
applies for an interdict preventing the
Respondents from taking and withdrawing
the permits or operating licences of the Applicants’ members.
On the facts of the
matter the
Applicants might have been entitled to
a more limited order of the nature applied for. As prayer 1.3 is
formulated, it is much too
wide and would forever prevent the
withdrawal of operating licences of the members of the Applicant,
even in circumstances where
it lawfully ought to be done. I am
accordingly of the view that Mr Motloba correctly did not apply for
the relief in prayer 1.3
[17] I will accordingly make an order
in terms of prayers 1.1, 1.2 and 1.4 of the amended Notice of Motion.
[18] As regards costs Mr Motloba
requested a costs order for the enrolment of the 20th November 2013
when the Eighth Respondent
appeared and that resulted in a sine die
postponement of the Applicants’ application. In addition Mr
Motloba requested me
to make a costs order against the Eighth
Respondent as the Eighth Respondent is the cause of the enrolment of
the matter on the
opposed roll for the 4th May 2015.
[19] In view of the fact that the
Eighth Respondent (although not having filed a formal notice of
intention to defend) appeared
on the 20th November 2013, a costs
order for the 20th November 2013 must be made in favour of the
Applicants against the Eighth
Respondent.
[20] As regards the opposed costs of
the application as such, I cannot accede to Mr Motloba’s
request as none of the Respondents,
including the Eighth
Respondent, indeed opposed the
application. None of the Respondents filed notices of intention to
defend. Some of the Respondents
as referred to above filed a notice
to abide with a decision of the court. The Eighth Respondent,
appeared on the 20th November
2013 which appearance resulted in a
sine die postponement of the application, but thereafter neither
filed a notice of intention
to defend nor thereafter ever appeared in
the matter again. In the circumstances prayer 2 of the amended Notice
of Motion does
not allow for any costs order against the Eighth
Respondent, excluding for the appearances of the 20th November 2013.
[21] In the result the following order
is made:
1. The First to the Eighth Respondents
are interdicted from deregistering the First and Second Applicants
and the Eighth Respondent
as taxi associations and are interdicted
from streamlining the respective routes of the First and Second
Applicants and the Eighth
Respondent.
2. The First to the Eighth Respondents
are interdicted from merging the First and Second Applicants and the
Eighth Respondent as
one taxi association.
3. The First to the Eighth Respondents
are ordered to honour and enforce the settlement agreement that was
entered into by and between
the Applicants and the Eighth Respondents
on the 15th August 2006 and which settlement agreement was made an
order of court by
the Honourable Shongwe, DJP on the 15th August
2006.
4. The Eighth Respondent is ordered to
pay the opposed costs of the 20th November 2013.
5. Subject to the order in prayer 4 no
costs order is made.
SIGNED AT PRETORIA ON THIS DAY OF 16
JULY 2015.
AJ LOUW AJ