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[2014] ZAFSHC 51
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Qibing Transport Association and Others v MEC for Police, Roads, Transport, Free State Province and Others (1339/2014) [2014] ZAFSHC 51 (17 April 2014)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1339/2014
In
the matter between:
QIBING
TRANSPORT ASSOCIATION
…..............................................................
1
st
Applicant
A.T.
MPITI
…...............................................................................................................
2
nd
Applicant
T.G.
LELALA
…...........................................................................................................
3
rd
Applicant
M.L.
MOKOENA
….....................................................................................................
4
th
Applicant
T.W.
LIPHOLO
…........................................................................................................
6
th
Applicant
M.E.
LETELE
…...........................................................................................................
7
th
Applicant
N.E.
RAKHOSI
…........................................................................................................
8
th
Applicant
P.A.
SHALE
…...............................................................................................................
9
th
Applicant
L.J.
MPHATSE
….........................................................................................................
9
th
Applicant
B.M.
KHAMALI
…......................................................................................................
10
th
Applicant
T.P.
PHOMANE
….......................................................................................................
11
th
Applicant
M.E.
MOKUBELO
…..................................................................................................
12
th
Applicant
M.C.
LELALA
….........................................................................................................
13
th
Applicant
O.P.
PHALATSE
….....................................................................................................
14
th
Applicant
and
MEC
FOR POLICE, ROADS AND TRANSPORT
FREE
STATE PROVINCE)
..........................................................................................
1
st
Respondent
CAPTAIN
T. MOKHETHI
….....................................................................................
2
nd
Respondent
T.J.
PHAHLO
…...........................................................................................................
3
rd
Respondent
FREE
STATE PROVINCIAL REGULATORY
ENTITY
…
....................................................................................................................
4
th
Respondent
MAHANAPUSO
TAXI COMPANY LIMITED
…
.....................................................
5
th
Respondent
G.
GUAI
….....................................................................................................................
6
th
Respondent
M.K.
TEELE
….............................................................................................................
7
th
Respondent
M.G.
KHUTO
…...........................................................................................................
8
th
Respondent
G.P.
LENCOE
................................................................................................................
9
th
Respondent
B.P.
KORIBE
...............................................................................................................
10
th
Respondent
D.E.
RASEBOKE
…....................................................................................................
11
th
Respondent
M.T.
MOTSIE
….........................................................................................................
12
th
Respondent
M.E.
TSEKELO
…......................................................................................................
13
th
Respondent
M.M.
MALEFANE
…..................................................................................................
14
th
Respondent
M.A.
MPAPA
…...........................................................................................................
15
th
Respondent
M.I.
MAMONE
..........................................................................................................
16
th
Respondent
M.
MOTSETSE
…......................................................................................................
17
th
Respondent
S.S.
MOLELEKOA
…...............................................................................................
18
th
Respondent
F.J.
MATOWANE
…..................................................................................................
19
th
Respondent
K.K.
MOLETE
…......................................................................................................
20
th
Respondent
T.H.
LEPOJA
….........................................................................................................
21
st
Respondent
M.K.
MORAKE
…....................................................................................................
22
nd
Respondent
M.E.
SILO
…...............................................................................................................
23
rd
Respondent
T.J.
SETENE
…...........................................................................................................
24
th
Respondent
M.J.
MOKONE
….......................................................................................................
25
th
Respondent
M.J.
MATLOTLO
…..................................................................................................
26
th
Respondent
K.N.
MOAHLODI
….................................................................................................
27
th
Respondent
H.E.
MANGESI
…......................................................................................................
28
th
Respondent
I.
NDLOVU
….............................................................................................................
29
th
Respondent
M.D.
LETEANE
….....................................................................................................
30
th
Respondent
CORAM:
LEKALE, J
HEARD
ON:
27 MARCH 2014
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
17 APRIL 2014
INTRODUCTION
AND BACKGROUND
[1]
This is an opposed urgent motion for an order in the following terms:
“
1.
Condoning the Applicants non-compliance with the rules relating to
service, time period and permitting this application to be
heard as
one of urgency in terms of Rule 6 (12) of the uniform rules of the
above Honourable Court.
2.
Interdicting and restraining the Sixth to Thirtieth Respondents from
operating the route from:-
2.1
Naledi Transport Center which is situated in Wepener, Bloemfontein,
Welkom, Johannesburg, Klerksdorp, Carltonville, Westonaria
and
Rustenburg;
2.2
Loading commuters at Naledi Transport Center;
2.3
Interfering and disrupting the members of the first Applicants
minibus taxi type operation at Naledi Transport Center.
3.
Ordering the First and Second Respondent to release the following
minibus taxis to the Second to Fourteenth Applicants.
3.1
Nissan E20 with registration letters and numbers D[...]
3.2
Toyota Quantum with registration letters and numbers M[...]
3.3
Nissan E20 with registration letters and numbers C[...]
3.4
Nissan E20 with registration letters and numbers D [...]
3.5
Amandla with registration letters and numbers D [...]
3.6
Amandla with registration letters and numbers D[...]
3.7
Inyathi with registration letters and numbers F[...]
3.8
Toyota Quantum with registration letters and numbers D[...]
3.9
Toyota Quantum with registration letters and numbers F[...]
3.10
Toyota Quantum with registration letters and numbers F[...]
3.11
Toyota Quantum with registration letters and numbers D[...]
3.12
Jim Bei with registration letters and numbers D[...]
3.13
Toyota Siyaya with registration letters and numbers D[...]
3.14
Toyota Siyaya with registration letters and numbers D[...]
4.
That the service of the order be effected through:
4.1
Attaching a copy thereof onto a fixed structure at Naledi Transport
Center;
4.2
Service of the South African Police Service, Wepener Police Station.
5.
The South African Police Service, Wepener Police branch is herewith
requested to maintain police presence at Naledi Transport
Center to
ensure proper enforcement of the order.
6.
The First, Second, Third, Fifth to Thirtieth Respondents be ordered
to pay costs of this application jointly and severally, the
one
paying the other to be absolved.
”
[2]
The applicants are the Qibing Transport Association, a voluntary
association of taxi operators together with its 13 members.
The
first respondent, on his part, is the Member of the Executive Council
of the Free State Provincial Government responsible for
police, roads
and transport while the third and fourth respondents are officials
attached to his department in various capacities.
The second
respondent is a member of the South African Police Services (SAPS)
holding the rank of a captain and placed as an operational
commander
for border police in the Free State. Fifth to and including
thirtieth respondents are Mahanapuso Taxi Company,
a voluntary
association of long distance taxi operators together with 25 of its
members.
[3]
Initially members of the fifth respondent were involved in operating
long distance minibus taxi type transport in Wepener until
they were
joined in that activity by members of the first applicant. In
order to obviate conflicts in that sector of public
transport
industry temporary permits or ad hoc authorisations lasting for three
months at any given time were regularly issued
by the fourth
respondent to members of the first applicant and those of the fifth
respondent.
[4]
Feeling aggrieved by the participation of members of the fifth
respondent in the relevant sector, on 28 February 2014 the first
applicant eventually secured a ruling from the Transport Appeal
Tribunal (the TAT) which effectively set aside temporary operating
licences issued to sixth to and including sixteenth respondents.
[5]
Armed with the decision of the TAT on 7 March 2014 the executive
committee of the first applicant approached the drivers of
sixth to
and including sixteenth respondents’ taxis at the Naledi
Transport Centre (the taxi rank) at Wepener and advised
them
accordingly. After a number of interactions between the
applicants, members of the SAPS and sixth to and including sixteenth
respondents a meeting was held in vain at the offices of the first
respondent between the executive committee of the first applicant
and
the executive committee of the fifth respondent, among others under
the chairmanship of the third respondent on 10 March 2014.
[6]
On 13 and 14 March 2014 disturbances flared up at the taxi rank which
culminated in 14 minibus type taxis, belonging to the
members of the
first applicant, being taken by the police. The applicants,
eventually, launched the present proceedings on
the basis that the
taxis in question were unlawfully impounded by the police patrol
squad under the supervision of the second respondent
and that members
of fifth respondent are engaged in operating along the route from
Naledi Transport Centre in Wepener to Welkom,
Bloemfontein,
Johannesburg, Carletonville, Rustenburg and back illegally and, thus,
effectively load commuters from Naledi Transport
Centre illegally.
[7]
First to and including fourth respondents (the law enforcing
respondents) oppose the motion on effectively the grounds that
the
same is afflicted by non-joinder in that the applicants have failed
to join the Minister of Safety and Security as the political
head of
SAPS and that the taxis involved were, in fact, not impounded but
seized by the police in terms of the provisions of section
20 of the
Criminal Procedure Act No 51 of 1977 (the CPA). The fifth to
and including thirtieth respondents (the taxi operating
respondents)
oppose the application firstly on the ground that it is not urgent
and lastly on the basis that they are entitled
to operate the routes
along which they are operating.
DISPUTE
[8]
Ante omnia
the
applicants and the taxi operating respondents are at
variance on whether or not the matter is as urgent as to warrant
the
attention of the court out of turn with Mr Burger, for the respondent
taxi operators and their association, maintaining that
all the
grounds advanced by the applicants to show urgency fall short of the
threshold.
[9]
On the part of the law enforcing respondents Mr Wessels, effectively,
raises non-joinder of the Minister of Safety and Security
in
limine
on the basis that in as far as
the second respondent is a member of the SAPS and is effectively
cited in his capacity as such, the
former has direct and substantial
interest in the matter and, in law, should and must have been joined
as the respondent.
[10]
The parties are, further, in dispute over whether or not the 14
minibus type taxis belonging to second to and including 14
applicants
were impounded unlawfully by the police patrol squad under the
supervision of the second respondent with Mr Wessels
emphasising that
such vehicles were, in fact, seized by the SAPS in terms of the CPA.
[11]
On the merits the dispute between the applicants and the respondent
taxi operators is effectively limited to the question as
to whether
or not the applicants have a clear and exclusive right to the route
in question regard being had to the relief they
seek as well as the
authorisations issued to all the parties involved.
CONTENTIONS
FOR THE PARTIES
[12]
Mr Mashavha for the applicants submits that it is clear from the
papers filed for and on behalf of the applicants that the
matter is
urgent as the thirteen applicants are unable to earn a living due to
the unlawful impoundment of their vehicles as well
as the unlawful
interference with their right to trade along the relevant route by
the respondents. It is further contended
for the applicants
that the application is not afflicted by non-joinder because the
first respondent has been cited and it is clear
from his title that
he is responsible for,
inter alia
,
police in the Free State. The applicants’ case is further
that seizure can only take place if there are criminal proceedings
pending and in the present matter no such proceedings have been
instituted. According to Mr Mashavha the licences of
respondents
seven to and including fourteen have been set aside by
the TAT and, as such, they do not have any right to operate the route
in
question. The fifteenth, seventeenth, eighteenth, twentieth,
twenty-first, twenty-second, twenty-third, twenty-fifth,
twenty-sixth,
twenty-eighth and thirtieth respondents simply do not
have valid permits and/or licences to operate on the relevant route.
[13]
Mr Wessels is at pains to explain,
inter
alia
, that the second respondent does
not fall under the first respondent and that, if he allegedly acted
in his capacity as a policeman,
he represented or acted for and on
behalf of the Minister of Safety and Security who should have been
joined. The first respondent
is not implicated by the
applicants in their papers as far as the vehicles are concerned
insofar as no allegation whatsoever is
made that the alleged
impoundment was carried out on his instructions or with his approval
or consent. In Mr Wessels’
view the second respondent is
not in the position to comply with any order directing him to release
the relevant vehicles because
on his deposition he disputes that he
is in control or possession of the same. The applicants have an
alternative remedy
in the form of section 31 of CPA to obtain the
release of their respective vehicles. A special costs order is
warranted insofar
as the application against the law enforcing
respondents is concerned regard being had to the fact that public
funds are involved
in opposing the matter.
[14]
Mr Burger points out,
inter alia
,
that the prohibitory interdict sought against the respondent taxi
operators is vaguely couched and cannot be granted as the route
referred to does not exist. Not even the applicants are
authorised to operate such a route. All his clients are clearly
in possession of authorisations to operate from Wepener
to various destinations and back and not from the Naledi Transport
Centre. The same applies to the applicants according to Mr Burger.
The application against his clients is not urgent when
the grounds
advanced in support of urgency are carefully scrutinised.
APPLICABLE
PRINCIPLES
[15]
It is correct, as Mr Burger effectively submits, that in order for an
urgent applicant to forge its own rules with regard to
form and
service subject to the court’s control, it has to set out
sufficient grounds which, in its view, render the matter
urgent.
Such grounds constitute a ticket which entitles such an applicant to
board the bus ahead of other litigants so as
to engage the court out
of turn and thus jump the queue.
(See:
Commissioner, South African
Revenue Service v Hawker Air Services (Pty) Ltd; Commissioner, South
African Revenue Service v Hawker
Aviation Partnership and Others
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA).)
[16]
Mr Wessels correctly submits that a party which has direct and
substantial interest in the result of litigation must,
in law, be
joined in the proceedings.
(See:
Standard
Bank of South Africa (Pty) Ltd v Swartland Municipality
2011
(5) SA 257
(SCA) at par [10].)
[17]
It is, further, correct as pointed out by Mr Mashavha that the
operation of route- based public transport without an operating
licence or permit is prohibited by the National Land Transport Act No
5 of 2009 (the NLTA).
(See:
Section 50 of Act No 5 of 2009.)
[18]
The parties are correctly in agreement that in order for the
applicants to succeed in their claim for a final interdict they
need
to establish,
inter alia
,
a clear right to the route in question as well as absence of
alternative suitable remedy.
(See:
Setlogelo v Setlogelo
1914 AD 221.)
[19]
As Mr Wessels correctly reiterates, the political responsibility for
policing resides with the Minister of Safety and Security
as member
of cabinet and not with the first respondent as member of executive
council responsible for, inter alia, police in the
Free State
Province.
(See: Section 206(1)
of the Constitution of the Republic of South Africa 1996.)
[20]
It is further correct, as Mr Wessels reminds the court, that
according to the respondent friendly test which applies in the
event
of the existence of genuine dispute of fact on papers, a final order
sought may be granted only if common cause facts and
those facts
alleged by the respondent justify such a relief or if the
respondent’s version is so farfetched or palpably implausible
that the court is justified in rejecting it merely on papers.
(See:
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA 623
(A) at 634H – 635C.)
[21]
It is further true, as submitted for the law enforcing respondents,
that the State may, through the police and under certain
circumstances, seize any article concerned in or reasonably believed
to be concerned in the commission or suspected commission
of an
offence without a search warrant.
(See:
Sections 20 and 22(b) of the CPA.)
[22]
It is, furthermore, correct that the State is obliged to return a
seized article to a person from whom it was seized if such
a person
may lawfully possess the same and such article is not required at the
trial or no criminal proceedings are instituted
in connection
therewith.
(See:
Section 31 of the CPA.)
[23]
The courts do not award attorney and client costs lightly and do so
as an exception rather than a rule. The conduct of
a party in
proceeding with litigation may give cause to such
punitive costs order.
(See:
Herold v Sinclair and Others
1954 (2) SA 531
(A).)
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
[24]
It is clear from common cause facts that the 13 members of the first
applicant are currently without their minibus type taxis.
It
is, further, apparent from depositions on behalf of the applicant
that the respondent taxi operators are allegedly operating
taxi
businesses in contravention of the provisions of section 50 of the
NLTA. In my view the aforegoing facts and allegations constitute
the
necessary basis for entertaining the motion as a matter of urgency.
[25]
The applicants did not gainsay the respondents’ respective
versions insofar as they did not file any replies thereto.
It
is, as such, not in dispute that the second respondent is employed by
the South African Police Service and that he has, as his
political
head, the Minister of Safety and Security. The said Minister
has direct and substantial interest in the matter
and should, as
such, have been joined as a respondent.
[26]
It is further correct, as submitted for the law enforcement
respondents, that the police are, in law, entitled to seize articles
engaged in the commission of crime. It is apparent
ex
facie
the deposition of the second
respondent that the minibus type taxis were left in the road and, as
such, obstructed traffic.
It is further probable, from the
opposing papers, that the applicants have a suitable alternative to
the present proceedings in
the form of the relief which section 31 of
the CPA provides.
[27]
The applicants identified the route in respect of which they seek a
restraining order against the taxi operating respondents
as being
from “
Naledi Transport Center
which is situated in Wepener, Bloemfontein, Welkom, Johannesburg,
Klerksdorp, Carletonville, Westonaria
and Rustenburg
”
.
In order to secure such an order they need to establish a clear right
to such a route. As the respondents correctly
and effectively
contend, such a route, if it exists, would commence at “Naledi
Transport Center” in Wepener, as a starting
point, and end at
Rustenburg with Bloemfontein, Welkom, Johannesburg, Klerksdorp,
Carletonville and Westonaria as detours or loading
and off-loading
stops along the route.
[28]
It is clear
ex facie
authorisations presented by the applicants as
exhibits that they have the right to convey passengers on trips from
the taxi rank
at the corner of Church and De Beer Streets, Wepener as
a point of departure to specific taxi ranks in Welkom via specific
taxi
ranks in, inter alia, Bloemfontein and back to Wepener where
their vehicles are to be stationed as well as from Wepener to
Johannesburg
and back. From Wepener to Klerksdorp and back.
From Wepener to Carletonville and back and from Wepener to Westonaria
and
back as well as from Wepener to Rustenburg and back all via
various taxi ranks along the route on each trip. The same applies to
the taxi operating respondents with valid temporary authorisations.
They all do not have the right to operate along the route
identified
in the notice of motion by the applicants as the one sought to be
protected.
[29]
The applicants, thus, fail to cross the first hurdle in order to
secure the relief they seek.
COSTS
[30]
The general practice with regard to costs is that the successful
party is entitled to its costs. Mr Wessels for the law
enforcing respondents effectively notified the applicants of his
clients’ intention to seek punitive costs against them insofar
as he submitted abbreviated heads of argument to,
inter
alia
, that effect. He submits
that the application against the relevant respondents is so devoid of
merits that it warrants a
special costs order regard being had to the
fact that they are forced to employ public funds to oppose the
motion.
[31]
I am persuaded that the motion against first to and including fourth
respondents is without merit and that, had the applicants
not been
litigation happy, they would have established the correct facts and
not dragged them to court. Indeed public funds
are involved.
ORDER
[32]
In the result the application is dismissed with costs subject to what
is set out
infra
.
[33]
The applicants shall pay the costs of the first, second, third and
fourth respondents on the scale as between attorney and
client.
L. J. LEKALE, J
On
behalf of applicants:
Adv M J Mashavha
Instructed
by:
Hill, McHardy & Herbst Inc
BLOEMFONTEIN
On
behalf of 1
st
to 4
th
respondents:
Adv
M H Wessels SC
Instructed
by:
State Attorney
BLOEMFONTEIN
On
behalf of 5
th
to 30
th
respondents:
Adv
A H Burger SC
Instructed
by:
Phatshoane Henney
BLOEMFONTEIN