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[2015] ZANCHC 53
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MEC for Transport Northern Cape Province and Others v Greenpoint Taxi Association (2002/2013) [2015] ZANCHC 53 (13 November 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
Case No:
2002/2013
Date heard:
19/10/2015
Date delivered:
13/11/2015
In
the matter between:
THE
MEC FOR TRANSPORT
NORTHERN
CAPE
PROVINCE
1st Appellant
THE
HEAD OF DEPARTMENT: DEPARTMENT OF
TRANSPORT
SAFETY AND LIAISON
NORTHERN
CAPE
PROVINCE
2nd Appellant
THE
CHAIRPERSON OF THE OPERATING LICENCING
BOARD
FOR THE NORTHERN CAPE
PROVINCE
3rd Appellant
and
GREENPOINT
TAXI
ASSOCIATION
Respondent
Coram
:
Kgomo JP
et
Olivier J
et
Phatshoane J
JUDGMENT
Olivier
J:
[1].
On
19
September
2012
the
Operating
Licence
Board
(“
the
Board
”)
for
the
Northern
Cape
Province
[1]
considered
a
number
of
applications
for operating licences
[2]
. This
triggered  court
applications
by the respondent, the Greenpoint Taxi Association, to
compel
the
provision
of
certain
information
and
to
interdict
the
third
appellant,
in
his
capacity
as
chairperson
of
the
Board,
from
actually
issuing licences that had been granted
[3]
.
The first appellant,
the Member
of the Executive Council for Transport in the Northern
Cape
Province, and the second appellant, the Head of the
Department
of
Transport,
Safety
and
Liaison
in
the
Northern
Cape
Province,
were also respondents in those applications.
[2].
On 29 October 2012 the parties concluded a settlement agreement which
was made an order of court and of which the material
terms were:
2.1
that the appellants would within 7 days furnish the respondent with
certain information;
2.2
that
the
respondent
would
within
7
days
of
receipt
of
the
information
request reasons for those decisions in respect of
which the
respondent intended lodging appeals
[4]
;
that
the
appellants
would
supply
such
reasons
within
14
days of the
request; and
2.3
that the respondent would lodge its appeal/s within 21 days of
receipt of the reasons, failing
which the appellants would be
entitled to issue the licences that had been granted.
[3].
The information was not furnished timeously, but this is not really
relevant to the present appeal.
[4].
On 27 November 2012 the respondent requested reasons in respect of a
number of the applications for operating licences which
had been the
subject of the Board’s meeting of 19 September 2012.
[5].
On 30 January 2013 Mr O F Lategan of  the  Office  of
the  State Attorney in Kimberley, acting on
behalf of the
appellants, faxed to the respondent’s attorney a document which
in his covering letter was described as “
the requested
reasons
”.
[6].
It is common cause that the respondent did not lodge any appeal
within 21 days of receipt of this letter and document, or in
fact at
all.
[7].
On 19 June 2013 Mr Lategan addressed a further letter to the
respondent’s attorney. The relevant part of this letter
reads
as follows:
“
According
to our client you did not timeously
pursue
the
appeals
in
terms
of
.
.
.
the
Court
Order
dated
29
October
2012
and
consequently we regard the appeal process as
finalised.
Should
we not hear from you within 14 days from date hereof we will proceed
with the issuing of the licences in question.
We
look forward to your reply as we [can not]
afford any
misunderstanding on this issue.
”
[8].
When
nothing was heard from the respondent’s attorney the Board
proceeded
to issue operating licences
[5]
.
[9].
On 3 and 6 September 2013 the respondent’s attorney addressed
letters to the appellants’ attorney, requesting the
reasons
envisaged in the order of 29 October 2012. This was followed by a
meeting between the legal representatives of the parties
on 10
September 2013. Subsequent to this meeting further correspondence
between the attorneys followed, from which it is clear
that they were
not in agreement as to what had transpired and what had been agreed
at the meeting.
[10].
The respondent then returned to court and obtained an order
holding all
three appellants in contempt of the order of 29 October 2012. All
three    appellants

were    sentenced     to
30    days
imprisonment,
which
was
suspended
on
condition,
inter
alia
,
that
they
provide
the
respondent
with
“
proper
”
reasons
[6]
and
revoke
all
licences
that
had
been
issued
in
respect
of
operating
licence
applications
that had been
the
subject of
the agreement and order
of
29
October
2012.
These
findings
and
orders
are
the
subject
of
the present
appeal, leave to appeal having at first only been granted
by  the
court
a
quo
in
respect  of  the  conditions  of
suspension
pertaining
to
the
revocation
and
issuing
of
licences,
but
then
subsequently
by
the
Supreme
Court
of
Appeal
“
against
the
whole
judgment
and
order
of
the
court
a
quo,
save
insofar
as
that
order
relates
to licence application nr 231804
”
[7]
.
[11].
In view of the exclusion of licence application nr 231804 from the
leave granted by the Supreme Court of Appeal, what follows
will
initially be confined to the appeal insofar as it relates to the
other applications for operating licences. I will revert
to the issue
of licence application nr 231804 in due course.
[12].
The main issues in this appeal are whether the document that had been
furnished on 30 January 2013 had constituted reasons
and, if not,
whether the failure to furnish proper reasons had been wilful and
mala fide
.
[13].
Adv
Van
Niekerk
SC,
counsel
for
the
respondent,
argued
that
the
particular
document
in
any
event
made
no
reference
at
all
to
certain  of
the  applications  (for  operating  licences)
in  respect  of
which
reasons
had
been
requested
and
that,
even
if
the
document
could
be
regarded
as
constituting
reasons
in
respect
of
the
applications
referred
to
therein,
there
would
not
have
been
compliance
in  respect  of
the
other
applications.
Whether  this
constituted
non-compliance with the court
order
had,
however, on
the
papers
been
in
dispute.
In
the
answering
affidavit
it
had
been
stated
that
certain
of
the
application
numbers
referred
to
in
the
request for
reasons had been duplicated
[8]
and that one had applied
to
a
different
person
and
had
in
any
event
not
been
granted.
It
is
trite that
in applications where final relief is sought factual disputes
will
be
approached
on
the
basis
that
the
respondent’s
version
will
be
accepted
[9]
,
unless
it
is
“
far-fetched
and
clearly
untenable
”
[10]
,
which
cannot  in  my  view  be  said  of
these  explanations  in  the
answering
affidavit.
Even
if it could, there would in the light of the
explanations,
in
my
view,
have
been
at
the
very
least
a
reasonable
doubt
about
whether
any
failure
to
provide
reasons
in
respect
of
those
applications had been deliberate and
mala
fide
.
The question
whether
non-compliance  with  the  court  order
had  been  shown
beyond
a
reasonable
doubt
and,
if
so,
whether
it
had
been
deliberate
and
mala
fide,
should
therefore
in
my
view
be
confined
to  those
applications  (for  operating  licences)
referred  to  in  the
document of
30 January 2013
[11]
.
[14].
In my view there is no basis for interfering with the finding of the
court
a
quo
that the communication of 30
January 2013 did not constitute reasons and that the order of 29
October 2012 had accordingly in this
respect not been properly
complied with.
[15].
Objectively the document of 30 January 2013 reflects the decisions
taken, and in respect of those applications that were granted
it
reflects the information that had been placed before the Board in
motivation of those applications, the fact that no objections
had
been received and the support that there had been for those
applications.
[16].
It does not, however, contain any explanation
[12]
for the
decisions to
grant
particular
applications,
or
of
the
role
that
the
motivation,
or
any
part
thereof,
or
the
absence
of
objections
or
the
support
may
have played
in making those decisions.
[17].
For example, what role (if any) did the fact that one of the
applicants had been refused membership of the respondent
organisation,
unless he paid a membership fee of R30 000.00, play?
How can a remark that the particular applicant had submitted to the
Board
a copy of correspondence (with the respondent) be regarded as
an explanation, or even part of an explanation, for granting that

applicant an operating licence?
[18].
In terms of the order of 29 October 2012 the period within which the
respondent would have been entitled to lodge appeals
against the
granting of operating licences would not have commenced to run
before  reasons  were  furnished,
which
meant  that  licences which had been granted could
not be issued until such time as the reasons for
the granting of
those licences had been furnished and a further  period  of
21  days  had  then
expired  without
any  appeal having been lodged by the respondent.  This
means that, insofar as any
such licences may in this case have been
issued notwithstanding the fact that reasons had not been furnished
and that the right
to lodge appeals had accordingly  not
lapsed, such issuing would in effect also have been in non-compliance
of the order
of 29 October 2013.
[19].
Before considering
whether
the  non-compliance  had  been  wilful
and
mala
fide
[13]
it had to
be determined whether all three appellants
had
been
shown,
beyond
a
reasonable
doubt,
to
have
made
themselves
guilty of such non-compliance.
[20].
The settlement agreement of 29 October 2013 was signed on behalf of
all three appellants and all three of them were parties
to the
initial two court applications which were then settled. They must
therefore be assumed to have been aware of the order of
29 October
2013.
[21].
The question, however,
would then
still
be which of
the
appellants
had
actually been guilty of having failed to comply with the order, in
the sense
of being responsible for such failure, because it would be
only
that
appellant/s
who
would
have
borne
“
an
evidential
burden
in
relation
to
wilfulness
and
mala
fides
”
and
who
would
have
had
“
to
advance
evidence
that
establishe(d)
a
reasonable
doubt
as
to
whether
non-compliance was wilful and mala fides
”
[14]
.
[22].
To the extent that this issue may not be included in the grounds of
appeal
I
am
of
the
view
that
it
was
crucial
to
the
resolution
of
the
disputes in
the contempt application and that it should therefore be
considered
on appeal
[15]
.
[23].
The answering affidavit in the contempt application was deposed to by
the Deputy Director of the Department concerned, Mrs
C E Olivier. The
affidavit is styled as “
First, Second and Third
Respondents’
Opposing
Affidavit
”,
and in paragraph 1 thereof Mrs Olivier claimed to have been duly
authorised to depose to that affidavit. It was not made
clear by whom
or in respect of which of the appellants she had been authorised and
there were no supporting or confirmatory affidavits
by or on behalf
of, in particular, the first and third appellants.
[24].
Mrs Olivier’s attitude was that the third appellant had been
obliged to furnish the reasons and that the document of
30 January
2013 constituted reasons in respect of those applications that it
dealt with, as it had been received from the third
appellant. Her
affidavit would therefore naturally not contain an explanation for an
alleged failure to furnish reasons in respect
of those decisions.
[25].
In my view Mrs Olivier was quite correct in adopting the attitude
that, if that document was what the third appellant had
tendered as
reasons, the other appellants would have been “
unable
to
give any
other
and/or
better
reasons
”. The decisions in respect of which reasons
had to be furnished had been taken by the members of the Board, and
it is common
cause on the papers that the Board makes autonomous
decisions  and  does  not  in  doing
so
fall  under  the control  of  the
second  appellant,  or  for  that  matter

of  the  first appellant.
[26].
This is in fact also the import of the provisions of  the  Act.
It
provides
the
Board
with
the
authority
to
decide
applications
for
operating
licenses, and with the concomitant duty of furnishing
reasons for
those decisions
[16]
.
[27].
The first and second appellants would in any event for  obvious
reasons not have been able to provide reasons for decisions
taken by
the members of the Board, and to the extent that the agreement and
order of 29 October 2012 purported to place such a
duty on either of
them it would in my view not have been enforceable.
[28].
In
the
same
vein
it
would
not
have
been
proper,
in
my
view,
to
attribute
the third appellant’s failure (to provide proper reasons) to
the
first
and
second
appellants.
The
third
appellant,
as
the
chairperson
of the Board, was the party who would have been in a
position to
provide reasons and from whom an explanation for such
default
could be expected. In this regard the following extract from
Meadow
Glen
Home
Owners
Association
and
Others
v
Tshwane
City
Metropolitan
Municipality
and
Another
[17]
(para
[22])
is
instructive
–
“
We
do not
hesitate to endorse what Nugent JA said
in
this
court
in
Kate
[18]
,
that
‘there
ought
to
be
no
doubt
that the public official who is ordered by  a
court
to
do
or
to
refrain
from
doing
a
particular
act,
and
fails
to
do
so,
is
liable
to
be
committed
for
contempt,
in
accordance
with
ordinary
principles’.
However,
it
must
be
clear
beyond
reasonable
doubt
that
the
official
in
question
is
the
person
who
has
wilfully
and with knowledge of
the
court order
failed
to
comply
with
its
terms.
Contempt
of
court
is
too
serious
a
matter
for
it
to
be
visited
on
officials,
particularly
lesser
officials,
for
breaches
of
court
orders
by
public
bodies
for
which
they
are
not
personally
responsible.”
[29].
In
my
view
therefore
the
first
and
second
appellants
had not
beyond
reasonable
doubt
been
shown
to
have
made
themselves
guilty
of
non-compliance
with
the
order to
furnish
reasons
[19]
.
Even
though the
first and second appellants may technically have agreed
to
furnish
reasons
[20]
they
were
in
effect
and
in
actual
fact
always
unable to
do so.
[30].
The
same
applies
to
their
undertaking
not
to
issue
the
licences
concerned
before
the
expiry
of
the
period
for
the
lodging
of
appeals.
Licences are
issued
by
an
official
designated
by
the
Board
[21]
.
The
first and second appellants would not have been able
to
do
so
or
to
refrain
from
doing
so.
It was
never
the
respondent’s
case
that
the
first
and/or
second
appellants
would
have
been
able
to
exercise
any
measure
of
control
over
the
issuing
of
licences
and
no
case
had
therefore
been
made
out
that
they
could
have
prevented
it
[22]
.
[31].
The first and second appellants would not have been able  to
provide the respondent with the date/s on which the granted
licences
were going to be (”
will
be
”) issued. They
were not responsible for or in control of the issuing of licences.
That was the statutory function and duty
of the autonomous Board, and
in any event the orders of 29 October 2012 did not enjoin any of them
to exercise control over this
process.
[32].
In any event, Mrs Olivier explained that the licences were issued
whenever the applicants came to uplift them, and that it
would
therefore not have been possible to give prior notice of such dates.
[33].
I am therefore of the view  that the first and second appellants
should not have been held in contempt, because it had
not been shown
beyond reasonable doubt that they had made themselves guilty of
deliberate non-compliance with the orders of 29
October 2012.
[34].
The same would apply to application number 231804, but  as
already mentioned it was excluded from the leave granted by
the
Supreme Court of Appeal.
[35].
The position is different when it comes to  the  third
appellant. Insofar as the document of 30 January 2013
is to be
regarded as not containing reasons as envisaged in the order, it
would be the third appellant, as representative of the
body that
would have been able to furnish reasons, that would in this capacity
have been guilty of non-compliance with the order
and who would in
this capacity have had to rebut any inference of wilfulness and
mala
fides
.
[36].
The  fact  that  Mrs  Olivier  may
have  believed  the  document  of
30
January 2013 to have been the Board’s reasons did not assist
the third appellant. The third appellant did not take the
trouble to
state that he had regarded the document as the reasons and, if so,
why he had held this opinion.
[37].
The fact that Mr Lategan in his covering letter referred to the
document as the reasons, is not evidence that he had advised
the
third appellant to this effect. The letter would have been drafted
after the third appellant had presumably provided the document
to Mrs
Olivier, and there is no indication that the third appellant had at
that stage seen the letter. There was no evidence on
record to the
effect that Mr Lategan or anybody else had advised the third
appellant at the relevant time, in other words when
the document was
made  available  by  the  third  appellant,
that  the  document
constituted
proper     reasons,   as
envisaged
in    the
order    of 29 October 2012.
[38].
Mrs Olivier stated that Mr Lategan had advised the appellants that,
save
for
application
number
231804
[23]
,
“
all
the
reasons
were
furnished
…… wherefore the time within which the appeals had to
be
instituted
have
lapsed
”.
In
his
confirmatory
affidavit
Mr
Lategan
claimed to
have read Mrs Olivier’s affidavit and confirmed its “
truth
and
correctness
…..
in
so
far
as
it
relates
to
(him)”.
It
is
however
clear
from
the
context
of
Mrs
Olivier’s
affidavit
that
she
was
referring
to
advice
given
by
Mr
Lategan
at
some
stage
after
the
document
had
been
sent
to
the
respondent’s
attorney
on
30
January
2013,
and
probably
just
before
the
licences
were
issued.
Such
advice
would
have
been
given
after
the
fact
and
would
in
my
view be
irrelevant in establishing the third appellant’s state of mind
at the
stage when he submitted the document.
[39].
This,
however,
is
not
where
it
ends.
On
Mrs
Olivier’s
uncontested
evidence
the third appellant had tendered the document of 30
January
2013 as the Board’s reasons.
This is
also obviously how Mr
Lategan
must
have
understood
the
third
appellant’s
attitude
when
he
in
his
covering
letter
referred
to
the
document
as
being  the
Board’s
reasons.
The
document
was
furnished
by
the
third
appellant
in response to a request for reasons. It also dealt with the
applications
referred to in that request for reasons
[24]
.
[40].
It would have been easy to presume or infer a wilful and
mala
fide
failure
[25]
on the part
of the third appellant had he furnished nothing
at all, or
if there had been an immediate objection to the document,
to
which
the
third
appellant
had
not
responded.
In
this
case
the
third
appellant
did,
however,
respond
to
the
request
for
reasons
and
it
would
actually
have
been
more
accurate
to
find
that
he
had
failed
to
furnish
proper
reasons,
rather
than
finding
that
he
had
completely
disregarded  the
order
that,
when
requested  by  the
respondent,
reasons should be furnished.
[41].
Although
evidence
by
an
applicant
that
an
order
had
been
made,
that
it
had
come
to
the
knowledge
of
a
particular
respondent
and
that
it
had
not
been
complied
with
would
“
normally
”
[26]
lead
to
an
inference
or presumption of wilfulness and
mala
fides
on
the part of
that
respondent,
this
does
not
mean
that,
even
in
the
absence
of
evidence
by
that
respondent
personally,
the
rest
of
the
evidence
would
not
in
suitable
circumstances
be
taken
into
account
in
deciding
whether
in
a
particular
case
the
presumption
had
indeed
arisen or
the inference could be drawn, alternatively whether there
is a
reasonable doubt about such presumption or inference
[27]
.
[42].
The question here was not whether it was likely or probable that the
third appellant had regarded the document of 30 January
2013 as
constituting reasons, sufficient to enable the respondent to lodge
appeals.    The  question  was
merely
whether  it  was reasonably possible that this had
been the third appellant’s belief when the
document  was
made  available  in  response  to  the
request  for reasons.
[43].
Had this been the case, the third appellant’s belief would
certainly have been fortified by the fact that the respondent,
for at
least 7 months thereafter, never took the position that the contents
of the document did not constitute reasons and never
indicated that
the contents of the document were insufficient for the purposes of
lodging appeals.
[44].
The contents of the letter of 19 June 2013 are also significant.  It
had been drafted by the attorney who represented
inter
alia
the third appellant. The contents of the letter must be assumed
to have been in accordance with the instructions of the third
appellant,
in his capacity as the chairperson of the Board that
clearly wanted to issue the licences that had been granted. The
statement
in that letter that the appeals had not been pursued in
terms of the order of 29 October 2012 would fit in perfectly with a
belief
that reasons had been furnished, because the order was that
appeals had to be lodged “
within 21 days after receipt of
the reasons
”.
[45].
Even in the absence of an affidavit by the third appellant himself
these two letters should in my view have created a  reasonable

doubt as to whether the third appellant had realised, at the time
when reasons had to be given and when the document was made available

as such reasons, that its contents did in fact not constitute
reasons. To put it differently, in my view there existed a reasonable

possibility that the third appellant (and in fact also the other two
appellants) may honestly have believed that the respondent
had been
provided  with  sufficient  reasons  in
respect  of  all  those applications
(referred
to in the document of 30 January 2013) in which it may have wished to
lodge appeals.
[46].
Furthermore the June 2013 letter, which was in fact attached to the
respondent’s founding affidavit, in my view made
it clear that
the subsequent issuing of licences would not have taken place in a
wilful and
mala fide
disregard of the orders of 29 October
2012. It invited the respondent to indicate whether it agreed that
the period for lodging
appeals had expired and that licences could
therefore be issued. It was made clear that the purpose of the letter
was to avoid
any “
misunderstanding
” in this
regard.
[47].
There was no response to this letter by the respondent until
September 2013, by which time the Board had on all indications

already proceeded to issue the licences. It may be that the failure
to respond had been due to a communication problem within the
offices
of the respondent’s attorney, but viewed from the third
appellant’s perspective the absence of a response would
have
fortified his belief that he had in fact furnished reasons and, more
importantly, that the Board could proceed with issuing
the licences.
[48].
Against this background more than a reasonable doubt should have
existed as to whether the issuing of the licences had constituted
a
wilful and
mala fide
disregard of the order of 29 October
2012.
[49].
In my view the third appellant should therefore  also not have
been held in contempt on the basis of having wilfully
and
mala
fide
failed to provide reasons and issued licences.
[50].
This would make it unnecessary to deal with the conditions of
suspension, and in particular the condition that licences be
revoked.
[51].
Suffice it to say that the orders made in the contempt application
did not, as was the case in the agreement and orders of
29 October
2012, provide that the persons to whom licences had been issued
should be informed of these developments, let alone
inform them that
they were entitled to be heard on the issue of the revocation of
their licences. It appears that at least one
of those licences had
been issued more than 7 months before the orders were made in the
contempt application and that the holders
of those licences had been
operating and earning an income on the basis of those licences.
[52].
Mr
Van
Niekerk
was
constrained
to
concede
that
none
of
the
appellants
would
have
had
the
statutory
power
to
revoke
licences
under
these
particular
circumstances
[28]
and
it
would
in
my
view
in
any event
have constituted a violation of the constitutional rights of
the
holders
of
those
operating
licences
to
have
their
licences
revoked
without affording them an opportunity to comment
[29]
.
[53].
I
return
now
to
licence
application
nr
231804.
As
already
mentioned
[30]
the
concession
had
apparently
at
the
hearing
of
the
contempt
application
been
made
on
behalf
of
the
appellants
that
no reasons
had been furnished in respect of this application.
It
had
not
been one of the applications referred to in the document of 30
January
2013.
The
only “
explanation
”
advanced for this failure was
that
the
third
appellant
had
not
yet
provided
reasons
in
respect
of
this
application.
[54].
When the Supreme Court of Appeal was approached Mr Lategan, in
his
founding
affidavit
on
behalf
of
the
appellants,
made
the
concession
that, in view
of
the failure
to
furnish
reasons
in
respect
of
this
application,
the
appellants
had
no
grounds
upon
which
to
appeal
against
the
finding
that
they
had
acted
in
contempt
of
the
court order
as far as this particular application was concerned.
Furthermore
paragraph 2 of the notice
[31]
stated that
“
No
leave
(was)
sought
against the order as far as it relates to licence application nr
231804
”.
[55].
At the instance of Adv Nkosi-Thomas SC, counsel for the appellants,
the opportunity was granted to both sides to file supplementary
heads
of argument on the question whether this court could and should
consider the correctness of the finding of contempt in respect
of
application number 231804.
[56].
The supplementary submissions on behalf of the appellants are that Mr
Lategan’s concession was “
an incorrect statement of
law
” as he “(failed)
to appreciate absence of
wilfulness and mala fides on the
part of the
appellants
” and that this court can in the circumstances
entertain “
a ground of appeal not covered by the terms of
the leave
to
appeal
”. The new
ground of appeal was not set out in clear terms,  but  appears
to  be  that  the
failure  to
provide  reasons  in respect of this application had
not been wilful or
mala fide
.
[57].
On behalf of the respondent, on the other hand, it is submitted that
there simply is no leave to appeal against this particular
finding
(or this particular part of the judgment of the court
a quo
),
that such a new ground of appeal cannot be entertained where it is
not covered by the grounds of appeal to which the Supreme
Court of
Appeal has restricted its leave to appeal and that, even if it could,
the appellants’ explanation for the non-compliance
did not
rebut the inference of wilfulness and
mala fides
.
[58].
It is indeed trite that a court of appeal can in certain
circumstances
entertain
a
new
ground
of
appeal,
and
even
raise
it
mero
motu
[32]
.
The
cases
referred
to
my
Miss
Nkosi-Thomas
in
this
regard
[33]
are,
however,
distinguishable
on
their
facts.
In none of
those cases
did
the Supreme
Court of Appeal or the court
a
quo
, in
granting a party
leave to
appeal to the full bench of a provincial division, restrict the
grounds
of
appeal
that
could
be
argued
in
that
court.
Where
that
happens,
as in the present case, the full bench will not be entitled to
entertain
any ground of appeal that is not covered, or that is indeed
excluded,
by the terms of the leave to appeal.
The reasons
for this
are
that
the
full
bench
would
not
in
such
circumstances
itself
have the
power
to
grant
leave
to
appeal
on
such
an
additional
ground
of  appeal
and  that  leave  to  appeal  would
in  effect  have  been
refused in
respect of such an excluded ground of appeal
[34]
.
[59].
This would in itself dispose of the belated attempt to challenge the
finding
of
contempt
insofar
as
application
number
231804
is
concerned.
Another
approach,
which
would
however
lead
to
the
same
result,
would
be
to
regard
this
challenge
as
not
really
being
based
on a new
ground
of
appeal,
but
rather as
an
attempt
to
appeal
against
a
finding,
or
a
part
of
the
judgment,
in
respect
of
which
no
leave
to
appeal
was
sought
or
granted.
The
appellants
themselves
chose
to
exclude
this
part
of
the
judgment
when
applying
for
leave
to
appeal
[35]
.
Leave
to
appeal
is
a
jurisdictional
requirement
for an appeal against a judgment (or any part thereof)
of a High
Court
[36]
and in the
absence of such leave this court would
not be
entitled to entertain an appeal against a judgment, or against
a finding
or part of a judgment, in respect of which there is no leave
to
appeal
[37]
.
[60].
Even if this court could entertain argument on application number
231804, there would not in my view be any basis upon which
to
interfere with the court
a quo
’s inference and finding
of
mala fides
as regards the failure to furnish reasons
in respect of this particular application, at least not as far as the
third appellant
is concerned.
There
simply is no explanation for his failure.  The letter of 19 June
2013
could
not,
in
this
case,
be
said
to
have
created
a
reasonable
doubt as
regards
mala
fides
on
the part of the third appellant. When
it
was
written
the
appellants
must
subjectively
have
been
aware
that no
reasons at all had been provided in respect of this particular
application,
as it had not been one of the applications referred to in
the
document
of
30
January
2013,
and
that
the
respondent’s
right
of  appeal
against  its  granting  had  accordingly
not  lapsed. That
would fit
in with the fact that the appellants had, at the time of the
hearing
of
this
appeal
[38]
(and
unlike
in
the
case
of
the
applications
that  had
been  granted  and  which  had  been
referred  to  in  the
document
of
30
January
2013),
not
yet
issued
an
operating
licence
in
application number 231804.
[61].
As regards the costs of the contempt application the conclusions to
which I have come would mean that the respondent would
in that
application have been successful in respect of  only the one
application for an operating licence. There is no appeal
against the
fact that not only the third appellant, but also the first and second
appellants, were held in contempt of the order
of 29 October 2012 in
respect of,
inter
alia
, this particular
application for an operating licence. In the circumstances this court
also cannot interfere with the finding of
contempt against the first
and second appellants as far as this particular application for an
operating licence is concerned.
[62].
The position is different as far as the sanction of imprisonment, and
more specifically the period of such imprisonment, is
concerned.  It
was obviously on the basis of the finding that there had been a
deliberate and
mala fide
disregard in respect of the total
number of applications for which reasons had been requested that the
court
a
quo
decided  that  a
period  of  30  days  imprisonment  would
be appropriate.  If
the findings of the court
a quo
are
interfered with to the extent that there remains only one application
in respect of which there had been contempt, it would
limit the
extent of the contempt  and  there  should  then
in  my  view  be  a  concomitant

adjustment to the sanction.
[63].
As far as application number 231804 is concerned the position with
regards to the suspensive condition pertaining to revocation
would
have been complicated by the fact that the order of the Supreme Court
of Appeal did not, when this application was excluded
from the order
granting leave to appeal, distinguish between the finding of contempt
in respect of it, on the one hand, and the
orders regarding the
suspension of imprisonment, on the other. As already mentioned,
however, no licence has been issued in respect
of this application
and Mr Van Niekerk abandoned the suspensive condition pertaining to
revocation as far as this application was
concerned.
[64].
According
to
documentation
annexed
to
Miss
Nkosi-Thomas’s
supplementary
heads
of
argument
Mr
Lategan
on
12
May
2014
[39]
provided
the respondent’s attorney with a document which he
described
as
“
reasons
for
the
chairperson’s
decision
”
in
application
number
231804. The document contains information similar to that
contained
in the document of 30 January 2013.
It
accordingly, and in
view
of
what
has
been
said
above,
objectively
does
not
constitute
reasons
and
the
suspensive
conditions
pertaining
to
the
provision
of
reasons
and
the
issuing
of
licences
would
therefore
have
to
remain
part
of
the
sanction
in
respect
of
application
number
231804. It
is
significant,
however,
that
the
appellants
at
that
stage
chose
to
persist
in
their
attitude
that
such
information
constituted
reasons.
That
was
long
after
the
contempt
application
had  been
brought,  and  even  after  the  replying
affidavit  in  that
application
had
been
filed.
The
appellants
would
therefore
at
that
stage
have
been
aware
of
the
respondent’s
attitude
that
such
information
would
not
constitute
reasons
and
would
not
enable
it
to
consider
an
appeal,
and
yet
no
attempt
was
made
to
furnish
anything
more  than  had  been  furnished  in
the  document  of  30
January
2013.
[65].
In any event, as also pointed out in the judgment of the court
a
quo
there had until then been no attempt at all to purge
the default in respect of application number 231804. In my view the
respondent
would in the circumstances still have been entitled to its
costs in the contempt application, and there is no reason to
interfere
with the order that such costs should be taxed on the scale
as between attorney and client. None of the grounds of appeal are in

any event directed at specifically the costs order.
[66].
As already pointed out, the first and second appellants do not have
leave to appeal against the finding that they too had
been in
contempt as far as application number 231804 is concerned. It may
arguably, in the light of what has been said above, seem
unjust to
hold them liable for costs in circumstances where they could not in
law have been guilty of any non-compliance in respect
of that
application. However, as long as the finding remains undisturbed that
they had, together with the third appellant, been
in contempt in
respect of that application, there would be no basis for excluding
them from the costs order made by the court
a quo
.
[67].
As regards the costs of the appeal there is no reason why they should
not follow the result, and such costs would include
the costs of the
applications for leave to appeal in both the court
a
quo
and the Supreme Court of Appeal.
[68].
In my view the following orders should therefore me made:
1.
The appeal succeeds in part. The orders set out in paragraphs 1 and 2
of the court
a quo’s
judgment delivered on 17 April
2014, finding the appellants to have been in contempt and committing
them to 30 (Thirty) days imprisonment,
conditionally suspended, are
set aside and substituted with the following orders:
“
(a)
The respondents are held in contempt of this Court’s
order
of
29
October
2012
(in
case number
1737/12
and
case
number
1832/12) as far as application number 231804 (for an
operating
licence) is concerned.
(b)
The third respondent is committed to imprisonment for a period of 10
(Ten) days, which imprisonment is suspended on the following

conditions:
(i)
That the order of 29 October 2012 be complied with
within a
period
of
30
(Thirty
days)
from
13
November
2015
,
in
particular
by
within
the
said
period
furnishing
proper
reasons
for
the
decision
taken
by
the
Operating
Licence
Board
for
the
Northern Cape Province on 19 September 2012 in respect
of the
said application number 231804.
(ii)
That
no
licence
be
issued
in
respect
of
the
said
application
number
231804
until
a
period
of
21
(Twenty
one)
days
after
proper
reasons
have
been
furnished,
has
expired
without
any
appeal
having
been
lodged,
alternatively
until
the
finalisation
of such appeal.
”
2.
The
costs
order
in
paragraph
3
of
the
judgment
of
the
court
a
quo
is confirmed.
3.
The
respondent
is
ordered
to
pay
the
appellants’
costs
in
the
appeal,
such
costs
to
include
the
costs
of
the
applications
for
leave to appeal
in both the court
a quo
and the Supreme Court
of Appeal.
________________________
C
J OLIVIER JUDGE
NORTHERN
CAPE DIVISION
I
agree and it is so ordered.
________________________
F
DIALE KGOMO JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
I
agree.
________________________
V
M PHATSHOANE JUDGE
NORTHERN
CAPE DIVISION
[1]
A board as envisaged in section 1 and section 16 of the
Northern
Cape Land Transport Act
,
3 of 2003
(“
the
Act
”).
[2]
As envisaged in section 1 of the Act, read with section 33 of the
National
Land Transport Transition
Act
,
22 of 2000.
[3]
Cases number 1737/2012 and number 1832/2012.
[4]
Presumably in terms of section 51 of the Act.
[5]
In terms of section 17(4)(c) of the Act.
[6]
The order erroneously referred to “
2nd
respondent
”
as the “
Chairperson
”
of the Board and as the person
who had
taken the decisions in respect of which the reasons were to be
furnished. The chairperson of the
Board was
actually the third respondent in that application and the decisions
had obviously been taken by
the Board,
and not by its chairperson alone.
[7]
It had been conceded in the court a quo that reasons had not been
furnished in respect of licence application number 231804 and
no
leave had been sought to appeal against the findings and orders
insofar as they pertained to that application.
[8]
In the sense that they had applied to the same applicant.
[9]
Compare
Staatsdiensliga
van Suid-Afrika en Andere v Minister van Waterwese
1990
(2) SA 440
(NC) at
443G
[10]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 635C
[11]
Subject to what I have already said about application number 231804.
[12]
Compare
Kiva
v Minister of Correctional Services and another
[2007]
1 BLLR 86
(E) para [38];
Appollis
v The Correctional Supervision and Parole Review Board
2010
JDR 0045 (ECG) para [15]
and fn 3
[13]
Compare
Pheko
and others v Ekurhuleni Metropolitan Municipality (Socio-Economic
Rights
Institute
of South Africa as
amicus
curiae
)
2015
(6) BCLR 711 (CC)
[14]
Fakie
NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para [42]
[15]
Compare
Quatermark
Investments (Pty) Ltd v Mkhwanazi and Another
2014
(3) SA 96
(SCA) paras
[20] and
[21];
Sarrahwitz
v Maritz NO and Another
2015
(4) SA 491
(CC) paras [30] and [31]
[16]
See section 27(2) of the Act.
[17]
2015 (2) SA 413 (SCA)
[18]
MEC,
Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
; ,
2006 (4) SA 478
(SCA) ([2006]
2 All SA 455)
para
[30]
[19]
Fakie
NO v
CCII Systems (Pty) Ltd
,
supra
,
para [42](c)
[20]
Due
to
the
failure
to
distinguish
and
particularise
in
the
agreement
of
29
October
2012
which
of
the
appellants
would in practice be obliged to furnish the reasons.
[21]
Section 36(2) of the Act.
[22]
This was in any event also not the effect of the agreement or of the
order of 29 October 2012.
[23]
Erroneously referred to by her as application number 23180.
[24]
Except for application number 231804, and other applications which
Mrs Olivier explained were either also covered by the contents
of
the document or had not been granted.
[25]
Compare
Pheko
and others v Ekurhuleni Metropolitan Municipality (Socio-Economic
Rights
Institute
of South Africa as
amicus
curiae
),
supra
,
para [36]
[26]
Consolidated
Fish Distributors (Pty) Ltd v Zive
1968
(2) SA 517
(C) at 522H; Also see
JC
v DC
2014
(2) SA 138
(WCC) para [37]
[27]
Compare
S
v Khumalo en Andere
[1991] ZASCA 70
;
1991
(4) SA 310
(A) at 328G;
S
v Dweba
2004
JDR 0382 (SCA)
para [10]
[28]
The initial reliance (In the respondent’s heads of argument)
upon sections 35 and 46 of the Act was
abandoned.
Although the provisions of section 46 empower the Board to revoke
licences, they apply in
circumstances
that would not have been applicable here and those provisions would
in any event have
required
proper notice to the recipients of the licences, as well as an
opportunity to be heard.
[29]
Compare Stopforth Swanepoel & Brewis Inc v Royal Anthem (Pty)
Ltd and Others
2015 (2) SA 539
(CC) para [19]
[30]
Footnote 7 above.
[31]
Of the application for leave to appeal.
[32]
See footnote 15 above.
[33]
Douglas
v Douglas
[1996]
2 All SA 1
(SCA) and
Legal
Aid Board v The State and Others
2011
(1)
SACR
166 (SCA)
[34]
Compare
Harlech-Jones
Treasure Architects CC and Others v University of Fort Hare
2002
(5) SA
32
(SCA) paras [47] – [56];
Newlands
Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd
2015
(4)
SA 34
(SCA) para [14]
[35]
Compare
Supreme
Court of Appeal Rule
7(3).
[36]
Compare
Pharmaceutical
Society of South Africa and Others v Tshabalala-Msimang and Another
NNO;
New Clicks South Africa (Pty) Ltd Minister of Health and Another
2005
(3) SA 238
(SCA) para
[22]
[37]
Compare Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic
(Pty) Ltd, supra (footnote 32), paras [11] – [14]
[38]
And as conveyed to us by Mr Van Niekerk from the Bar.
[39]
In other words only after the court a qou’s judgment had been
delivered on 17 April 2014.