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
>>
2014
>>
[2014] ZAGPPHC 328
|
|
Great North Long Distance Taxi Association v Ngwenya and Another (4465/12) [2014] ZAGPPHC 328 (30 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 4465/12
DATE:
30 MAY 2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between
GREAT
NORTH LONG DISTANCE TAXI ASSOCIATION
………………………...
APPLICANT
And
MALESELA
HANS NGWENYA
………………………………………..…
FIRST
RESPONDENT
MATLAKALA
SYDNEY KHAMBANE
…………………………………
SECOND
RESPONDENT
JUDGMENT
MALI AJ
:
[1]
This is an application for the final interdict against the
First and Second Respondents. The interim interdict was granted by
this
honourable court on 7 August 2012 ,the order reads as follows:
1.1.
This order is made with the consent of the Respondents and
without any finding that they did anything mentioned in paragraphs 2
to 5 below. It is made pending the final outcome of this application.
1.2.
That the First and Second Respondents are ordered to refrain
from interfering with the taxi operations of the Applicant in
Mokopane,
Limpopo Province or anywhere else where the Applicant may
be operating or operating from.
1.3.
That the First and Second Respondents are ordered to refrain
from threatening the members and employees of the Applicant with
violence
and/or damages to their and /or its property.
1.4.
That the First and Second Respondents are ordered to refrain
from entering the Shoprite taxi rank in Pretorious Street, Mokopane,
Limpopo Province.
1.5.
That the First and Second Respondents are ordered not to enter
the Premise of the Applicant situated at 3A Kappie De Villiers
Street,
Mokopane, Limpopo Province.
1.6.
The costs are reserved.
BACKGROUND
[2]
On 30 July 2012 both Respondents shouted and threatened to
assault the taxi drivers of the Applicant. As a result of this
incident
the drivers vacated the taxi rank and the passengers who
already boarded the taxis alighted from the taxis due to the violent
behaviour
of the Respondents.
[3]
The Applicant is the Taxi Association. The First and Second
Respondents were members of the Applicant until 31 July 2012 when
their
membership was terminated by the Applicant. Furthermore on 30
July 2012 the date of the incident the First Respondent who was a
rank master was under suspension due to unrelated conduct in this
matter.
APPLICATION
FOR CONDONATION
[4]
The First and Second Respondent applied for condonation. The
first Respondent applied for the late filing of the Heads of Argument
and the second Respondent applied for condonation for failure to file
his opposing affidavit.
[5]
As indicated above the interim interdict was granted on 7
August 2012. On 30 October 2013, due to the Respondents’
failure
to file the opposing affidavits the Applicant enrolled the
matter on the unopposed roll. Subsequently only the first Respondent
filed his answering affidavit. Once he had filed his affidavit the
matter was removed from the unopposed roll to be heard on the
opposed
roll. When the matter was ready for hearing the first Respondent
failed to file his heads of arguments. The Applicant the
set the
matter down for 7 March 2014.
[6]
On 26 February 2014 the first Respondent through its Attorney
Mr Sello Isaac Makhafola filed an application for condonation. Mr
Makhafola’s affidavit averred that an Advocate who was briefed
on 24 January 2014 to draft the Heads of Argument was involved
in a
car accident. Mr Makhafola made numerous inquiries with the Counsel
about the progress regarding the drafting of the heads
from the
Counsel without any response. On 20 February 2014 Mr Makhafola
briefed the current counsel in the matter, Advocate Badenhorst
to
draft the Heads of Argument and beg leave for condonation for late
filing.
[7]
I am satisfied that the First Respondent’s failure to
file the Heads of Argument on time was not due to his negligence.
Adv.
Badenhorst who appeared for both Respondents applied for
condonation on behalf of the Second Respondent’s failure to
file
opposing affidavit. She stated that she was only briefed a week
before the hearing of the application by the first Respondent;
however she could not advance any reason for the second Respondent’s
failure to file its opposing affidavit on time.
[8]
Having regard to the above the second Respondent’s
failure to file its opposing affidavit and that no further
explanation
is offered by the counsel, except that the counsel
expects the court to hear the second Respondent is a serious flouting
of rules.
I do not see any merit on the explanation by the Counsel. I
therefore refuse condonation for the second Respondent’s
failure
to file his opposing affidavit.
APPLICANT’S
CASE
[9]
The Applicant’s counsel submitted that on 30 July 2012
the two Respondent disrupted the taxi operations of the Applicant’s
members. Both Respondents uttered verbal abuse and threatened
violence to the drivers and or members. They refused the drivers
the
opportunity to load the passengers. This incident lasted for about
three (3) hours.
[10]
The Applicant’s counsel further submitted that the
Respondents also threatened the employees of the Applicant, namely
queue
marshals and the rank master with assault. Thereafter the
Applicant approached the local polices station for assistance, the
Applicant
stated that the police refused to assist citing that there
was no crime committed and neither blood was flowing. The Applicant
then approached this honourable court for the urgent interim
interdict.
[11]
The Applicant further argued that the 1
st
Respondent by its own admission in the affidavit stated that he
instructed the drivers employed by the applicant to return the
vehicles to the Applicant’s office. The Respondent did this to
force (my emphasis) the members of the executive to call a
mass
meeting, as demanded by the mass.
[12]
The Applicant argued that the first Respondent clearly admits
that he interfered with the taxi operations of the Applicant and that
the Respondents had no permission or authority to prevent the
Applicant’s drivers from doing their work. On Respondent’s
own version he was already suspended as a Rank Master and had no
authority over the Applicant’s drivers.
[13]
The Applicant submitted that it had a clear right to operate
its business without any unlawful interference. Furthermore the
Applicant
has the right to ensure the safety of its members, its
employees and its passengers.
[14]
The Applicant further submitted that the violent actions and
threats by the Respondents amounted to injury actually committed and
reasonably apprehended. Furthermore that the Applicant has no further
remedy, as indicated above the police refused to assist the
Applicant
and that it is common cause that the parties are not able to resolve
the disputes between them amicably.
RESPONDENTS’
CASE
[15]
The Respondent’ counsel further argued that the fact
that the Police refused to attend to the matter the police did not
regard
the Respondents as threat or obstructing the operations of the
Applicant.
[16]
The Respondent’s counsel argued that the right must be a
legal right and not a financial or commercial interest alone and that
the injury must be of a continuing nature and that there must be a
reasonable apprehension that it will be repeated. The Respondent
further submitted that in this case there is no continuing violation
of the Applicant’s rights and that according to the
Applicant
it was a once off incident which took place more than one and a half
year ago , which lasted about 3 (three) hours. The
Applicant in this
regard argued that the time lapse was occasioned by the Respondent’s
failure to file papers on time an
issue which was not disputed by the
Respondent.
[17]
With regards to the requirement of other remedies available to
the Applicant, the Respondent’s counsel submitted that the
Applicant should have followed disciplinary procedures and that the
Applicant could have claimed damages since commercial interests
were
at stake.
[18]
I disagree with the Respondent’s argument namely, that
the Applicant has no legal right. It is my considered view that the
Applicant’s right to occupy a certain place, in this case a
taxi rank is the legal and absolute right. I also differ with
alternative remedy argument advanced by the Respondent. The
Respondent on his own version admitted using force against the
members
of the Applicant. The Respondent did not dispute that the
public and/or passengers were affected by its acts of violence. It is
common cause that the police’s refusal to act against the
Respondents was based on the lack of criminal offence committed
by
the Respondents. It is clear that the police viewed their mandate as
being limited to criminal activities. The police did not
pronounce on
the civil liberties of the Applicant and the affected parties.
Furthermore the Respondent failure to appreciate that
the Applicant’s
case is not only based on commercial interests and there are human
lives involved and people’s lives
could have been lost in
circumstances of this nature is misleading.
[19]
The
Respondent further referred to Payen Components SA Ltd v Bovic
[1]
it
was held that past conduct does not justify an interdict. The
respondent’s counsel further argued that the granting of
the
final interdict will restrict the movement of the Respondent.
[20]
Having regard to the fact there are various disputes between
the Applicant and the Respondents, there is reasonable apprehension
that the Respondents could continue with the undesired manner of
solving the issues. It is my considered view that the Respondents
would have pursued other avenues including court action to cause the
executive of the Applicant to meet with them and the alleged
masses
without breaching the peace.
[21]
It is trite law that in order to succeed in obtaining a final
interdict , whether it be prohibitory or mandatory an applicant must
establish ; (a) clear right, (b) an injury actually committed or
reasonably apprehended, ( c ) and the absence of similar or adequate
protection , by any other ordinary remedy.
[22]
In casu the Applicant has successfully proven that it had a
clear right to operate as a taxi association without any
interference.
Furthermore the Applicant’s operating license is
not just an economic right it is a legal right. The law of interdict
enjoins
this court to consider the prejudice that the Applicant
stands to suffer and whether it outweighs the prejudice that the
Respondent
stands to suffer. In this matter the prejudice to be
suffered by the Applicant if the interdict is not granted far
outweighs the
prejudice to be suffered by the Respondent if the
interdict is granted.
[23]
As stated above there are still unresolved issues between the
parties and the Respondents might employ their violent tactics. The
first Respondent was not even supposed to be at the taxi rank as per
the terms of his suspension. In the event that the final interdict
is
not granted nothing prohibits the Respondents to repeat his actions,
having regard to the fact that he could not even comply
with the
terms of his suspension.
[24]
Furthermore the first Respondent’s lack of appreciation
of the difference between the criminal conduct and acts of civil
interference
based on the fact that the police did not find “anything
wrong” with his behavior may influence his manner of approach
towards the Applicant. However if the interdict is granted in favour
of the Applicants, the respondents will not suffer any prejudice,
because it is common cause that he is no longer a member of the
Applicant. The only business the Respondents might have at the
taxi
rank is that of being passengers, an issue which I will address in
the order below. I also find that there is no suitable
remedy
available to the Applicant; this is notwithstanding the respondent’s
argument that the respondent may be sued for
damages and or called
for disciplinary enquiry.
[25]
It
is not in the interests of justice to deny the final interdict;
having regard that the cited remedies by the Respondent’s
counsel could be a long drawn process. Furthermore it is common
knowledge that the taxi industry is fraught with violence which
inevitable results to loss of lives. Some community members rely on
taxis for travelling and they always get caught in cross-fire
in the
event of taxi violence. In this case even though the dispute was
between the parties, however the passengers suffered the
final brunt.
In
Mphahlele
Taxi Association v Lebowakgomo Taxi Owners Association and its
Members
[2]
Patel AJ as he then was held:
“
Taxi wars are
notorious. They often result in full scale violence causing untold
injuries to members of taxi associations and members
of the public as
well as damage to property. In some instances, taxi violence has
resulted in the loss of lives not only of taxi
owners and drivers but
also
commuters
.............................................................
”
In
Moruleng
and District Taxi Association v North West Provincial Department of
Transport & 27 Others
[3]
the
honourable Bosielo JA held:
"For some time
the taxi industry across country has been plagued by the so-called
taxi wars. These wars, which in many instances
resulted in
unnecessary loss of lives of innocent people who were caught in the
cross- fire
,
revolve
primarily around disputes involving routes...”
[26]
I am satisfied that the Applicant has succeeded in obtaining a
final interdict because all the requirements have been met. There
is
a clear right, there is injury and there are no other remedies
available to the Applicant.
[27]
The Applicant had requested that the Respondents be ordered to
refrain from entering the Shoprite Taxi Rank in Pretorius Street,
Mokopane, Limpopo Province. I find this request unreasonable because
the taxi rank is a public place and the Respondents are members
of
the public. If I grant this request, it will be against the law as it
will result to the restriction of the Respondents’
movements.
[28]
In the result I make the following order;
1. That the First
and Second Respondents are ordered to refrain from interfering with
the taxi operations of the Applicant in Mokopane,
Limpopo Province or
anywhere else where the Applicant may be operating or operating from.
2. That the First
and Second Respondents are ordered to refrain from threatening the
members and employees of the Applicant with
violence and/or damages
to their and /or its property.
3. That the First
and Second Respondents are ordered not to enter the Premise of the
Applicant situated at 3A Kappie De Villiers
Street, Mokopane, Limpopo
Province.
4. That the First
and Second Respondents pay costs of the application including costs
in the urgent court of 7 August 2012.
NP MALI
ACTING JUDGE OF
THE HIGH COURT
APPEARANCES
For
the Applicant: ADV P.W. Springveldt
Instructed
by: Y.Springveldt Attorneys
FOR
THE RESPONDENTS: ADV L Badenhorst
Instructed
by: Makhafola & Verster Incorporated
Date
of hearing: 7 March 2014
[1]
2010(6) SA 182
[2]
2002 JDR 0158 p1
[3]
2011 JDR 1160
(SCÁ)
p3