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[2014] ZAGPPHC 20
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Makama v Ivory Park Taxi Association and Others (24487/12) [2014] ZAGPPHC 20 (18 February 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 24487/12
DATE:
18/2/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MAKAMA,
MODUNGWANE
PETRUS
.............................................
Applicant
v
IVORY
PARK TAXI ASSOCIATION
........................................
1
st
Respondent
BUTI
JOHANNES MKHONZA
(in his capacity as
The
Chairperson of the 1
st
Respondent)
.............................
2
nd
Respondent
REGISTRAR
OF TRANSPORT, GAUTENG
........................
3
rd
Respondent
JUDGMENT
MALINDI
AJ
INTRODUCTION
[1.]
The Applicant seeks an order in the following terms:
1.1.
That the decision of the 1
st
and 2
nd
respondents to deregister, remove and expel the applicant from being
a member of the 1
st
Respondent be declared to be unlawful,
invalid and
void ab initio
;
1.2.
That the 1
st
and 2
nd
respondents be ordered and
directed to re-register, retain and maintain the status quo
ante
the deregistration and expulsion of the Applicant, and allow the
latter to operate his taxi business as a member of the 1
st
Respondent;
1.3.
That the 3
rd
respondent be called upon and/or directed to
intervene in the operations of the 1
st
respondent in
respect of its functions and conduct, and also to participate in the
latter’s electoral process and provision
of its constitution to
the members;
1.4.
That the 1
st
and 2
nd
respondents as well as
members of the executive committee of the 1
st
respondent
be interdicted from either directly or indirectly threatening the
applicant’s life;
1.5.
That the 1
st
and 2
nd
respondents be ordered to
pay the costs of this application on an attorney and own client
scale.
[2.]
In his founding affidavit the applicant alleges that he has been a
member of the first respondent, the Taxi Association, since
its
inception in 1990. He has been on the list of members, participated
in every meeting and paid all applicable fees to the Taxi
Association. His status as such lasted until on or about February
2010 when the second respondent, Mr Mkhonza, stopped his taxi
from
operating on the taxi route that the third respondent has registered
him and his vehicle to operate.
[3.]
According to the applicant the actions of the Taxi Association and
Mkhonza were not done in terms of the Taxi Association constitution.
Furthermore, his attempts to have his complaint heard by the
Association have been frustrated by the two respondents.
[4.]
In their Answering Affidavit the two respondents state that the
applicant has not been expelled as a member and attach a register
of
members that is kept by the third respondent that reflects the
applicant’s name as having one vehicle registered under
his
name but without an operating licence.
[5.]
They aver further that the applicant’s vehicle was stopped from
operating in February 2009, not 2010, and that this was
because of
his failure to pay his annual subscription and other fees due to the
Association. They rely on the summary suspension
in clause 4.6 of the
Association’s constitution which state that:
“
4.6
Membership of the Association may be terminated in the event of a
member’s:
4.6.1
voluntary resignation given in writing;
4.6.2
failure to pay the fees due as laid down by
IPTA
.
In the event of any member failing to pay the fees due within 30
(thirty) days of due date thereof, such member shall be suspended
from
IPTA
until the fee is paid and shall not be
entitled to participate in the proceedings of any meeting of
IPTA
or to operate his/her taxi at from, to or on any taxi rank or route,
network or area operated by
IPTA
.”
[6.]
They also allege that the applicant had provided false information to
the Association regarding a vehicle that may be authorized
to operate
on the route and further that without an operating licence it is
impossible to regularise his position.
[7.]
When the applicant was called to a meeting of the disciplinary
committee he refused to sign the attendance register and the
hearing
could not proceed. It is implied that the suspension applied because
of his failure to attend a properly called and constituted
hearing.
[8.]
In his replying affidavit the applicant states that he still has
permits and certificates to operate the routes that he operated
prior
to being stopped from operating. This affidavit was deposed to on 14
March 2013.
[9.]
There are many other allegations hurled at each other by the parties.
Most are not relevant or not supported by admissible
evidence for the
court to deal with them in any meaningful manner. I might just point
out that were all such allegations to be
assessed in terms of the
rules applying to application proceedings the applicant would come
out second best.
[10.]
In respect of the fundamental issue in this matter I do not agree
with the respondents that the Association’s constitution
permits an expulsion or suspension or the meting out of any sanction
without following due process. In this regard it was stated
in
National Horse Racing Authority v Naidoo
2010 (3) SA 182
(D) at
[4]
that “
the weight of legal authority in South Africa
favours the view that the quartet of Jockey Club cases is still
applicable.
” The court continued to quote with approval the
well-known extract from the 1974 Jockey Club case as follows:
“
[8]
In Turner v Jockey Club of South Africa
1974
(3) SA 633
at
646 D-H Botha JA dealt in detail with the concept of the fundamental
principles of justice which are applicable and which arise
from the
express and implied terms of the agreement between the Jockey Club
and those that are bound by that agreement. The learned
judge of
appeal observed:
“
What
the fundamental principles of justice are which underlie our system
of law, and which are to be read as tacitly included in
the
respondent's rules, have never been exhaustively defined and are not
altogether clear. In Russell v Duke of Norfolk and Others
,
(1949)
1 All ER 109
,
Lord TUCKER said at p. 118 that -
"The
requirements of natural justice must depend on the circumstances of
the case, the nature of the enquiry, the rules under
which the
tribunal is acting, the subject matter that is being dealt with, and
so forth. Accordingly, I do not derive much assistance
from the
definitions of natural justice which have been from time to time
used, but, whatever standard is adopted, one essential
is that the
person concerned should have a reasonable opportunity of presenting
his case."
The
principles of natural justice do not require a domestic tribunal to
follow the procedure and to apply the technical rules of
evidence
observed in a court of law, but they do require such a tribunal to
adopt a procedure which would afford the person charged
a proper
hearing by the tribunal, and an opportunity of producing his evidence
and of correcting or contradicting any prejudicial
statement or
allegation made against him (Marlin's case, supra at p. 126; Bekker v
Western Province Sports Club (Inc),
1972
(3) SA 803
(C) at p. 811). The tribunal is required to listen fairly to both
sides and to observe "the principles of fair play"
(Marlin's case, supra at pp. 126 and 128). In addition to what may be
described as the procedural requirements, the fundamental
principles
of justice require a domestic tribunal to discharge its duties
honestly and impartially (Dabner v SA Railways and Harbours,
1920
AD 583
at
p. 589). They require also that the tribunal's finding of the facts
on which its decision is to be based shall be "fair
and bona
fide" (Jockey Club of S.A. v Transvaal Racing Club, supra at p.
450). It is, in other words, "under an obligation
to act
honestly and in good faith (Maclean v Workers' Union, supra at p.
623). (My emphasis).”
[11.]
I have come to the conclusion therefore that the suspension of the
applicant from operating his taxi was procedurally flawed
as no
formal hearing heard the first respondent’s complaints against
him after he was given due notice of the charges against
him, and
therefore unlawful. In regard to the hearing that the applicant
failed to remain in attendance at, the respondents have
provided no
evidence that he had been notified in writing to attend and that the
charges were specified. Nor is there evidence
that he was afforded
the right to be represented by another member of the Association or
independent representative.
[12.]
I take into consideration also that he has been a loyal member of the
Association since its inception. The appropriate remedy
to the
applicant and the appropriate solution to the Association will be the
following:
1.
That the applicant produce information to the satisfaction of the
first respondent in the form of prescribed permits and certificates
in order that full authority to operate his taxi is obtained;
2.
Alternatively, in the event that the applicant is unable to comply
with para 1, the first and second respondents do everything
in their
power to facilitate the registration and operating licence, which
empowers the applicant to conduct a minibus taxi service
in the
relevant route.
3.
That the first respondent verifies all amounts in subscription and
all other applicable fees that the applicant still owes to
the first
respondent, and that the applicant pays all the fees that are due and
payable before the first respondent assists him
with the compliance
with either para 1 or 2 of this order.
4.
That each party pays its costs.
SIGNED
AT PRETORIA ON THIS DAY OF FEBRUARY 2014.
MALINDI
AJ
Acting
Judge of the High Court