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[2014] ZANCHC 24
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Greenpoint Taxi Association v MEC for Transport Northern Cape Province and Others (2002/13) [2014] ZANCHC 24 (17 April 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No: 2002/13
DATE: 17 APRIL 2014
In the matter between
GREENPOINT TAXI
ASSOCIATION
............................................................................
APPLICANT
And
THE MEC FOR
TRANSPORT
...............................................................................
1st
RESPONDENT
NORTHERN CAPE PROVINCE
THE HEAD OF DEPARTMENT:
DEPARTMENT
.............................................
2nd
RESPONDENT
OF TRANSPORT, SAFETY AND LIASON:
NORTHERN CAPE PROVINCE
THE CHAIRPERSON OF THE
OPERATING
....................................................
3rd
RESPONDENT
LICENSING BOARD FOR THE
NORTHERN CAPE PROVINCE
JUDGMENT
Date heard: 21/02/2014
Date Delivered: 17/04/2014
PAKATI J
1. The applicant, Greenpoint Taxi
Association, approached this Court seeking an order for the committal
for contempt of an order
of this Court dated 29 October 2012 of the
respondents, the Member of the Executive Council for Transport,
Northern Cape Province
(“the MEC”), the Head of
Department, Department of Transport, Safety and Liaison Northern Cape
(“the Dept”),
and the Chairperson of the Operating
Licensing Board for the Northern Cape Province (“the
Chairperson of the Licensing Board”),
the 1st to 3rd
respondents respectively.
BACKGROUND
2. On 10 October 2012 the applicant
under Case No1737/12 sought an order against the respondents
compelling them to provide information
in respect of a number of
applications for taxi operating licenses on certain routes which
affect the applicant and its members
directly. Subsequent to the
application of 10 October 2012 the applicant brought another
application on 24 October 2012 under Case
No 1832/12 wherein it
sought an interdict against the Dept and the Chairperson of the
Licensing Board to issue new licenses and
also amending the terms of
the operating licenses of the operators listed in Annexure “Y”,
alternatively to suspend
all the operating licenses already issued
for the said applications.
3. On 29 October 2012 the parties
signed a settlement agreement which was made an order of court
(Annexure “X”) and
disposed of both Case Numbers 1737/12
and 1832/12. The order reads as follows:
“1. That the RESPONDENTS are
authorised and instructed to supply to the APPLICANT the information
requested per points 1,
2, 4, 5 and 6 of page 2 of Annexure “X”
annexed hereto, pertaining to the applications for operating licenses
set out
per Annexure “Y” annexed hereto, within 7 days
from date of this order;
2. That the APPLICANT will, within 7
days from date of receipt of the abovementioned information, file a
request for reasons for
the decisions made by the RESPONDENTS on the
abovementioned applications that the APPLICANT intends appealing, in
the prescribed
manner;
3. That the RESPONDENTS will supply the
APPLICANT with the reasons requested per paragraph 2 herein above,
within 14 days after
receipt of such request;
4. That the APPLICANT will lodge its
appeal, if any, against the decisions made by the RESPONDENTS in the
prescribed manner within
21 days after receipt of the reasons
mentioned per paragraph 3 above;
5. That the RESPONDENTS be interdicted
from proceeding with the issuing of new as well as amending operating
licences as set out
per Annexure “Y” until finalisation
of any appeal process against any of the aforementioned operating
licences set
out per Annexure “Y”;
6. That the RESPONDENTS be ordered to
formally inform all holders of operating licences already issued as
mentioned in paragraph
2 above, of the possibility of the pending
appeals;
7. That the RESPONDENTS shall be
allowed to issue such operating licences as per Annexure “Y”
against which no appeal
process is pending, after the 21 days set out
above has expired, as per paragraph 4 hereof;
8. That the APPLICANT withdraws its
application under Case Number 1832/12, apart from the issue of costs;
[and]
9. The issue of costs of both
applications, under Case Numbers 1737/12 and 1832/12 is postponed for
argument until 08 February 2013.”
4. Points 1, 2, 4, 5 and 6 (in the
previous para) are the points referred to in clause 1 of the court
order dated 29 October 2012
attached to the settlement agreement
(Annexure “X”). The following appears at page 2 of
Annexure “X”:
“In addition to the above we
hereby demand that the board provide us with the following
information:-
1. The outcome of the hearing held on
19 September 2012;
2. Which applications [were]
granted/declined;
3. Reasons for the refusal or
acceptance of [the] applications;
4. Minutes of the meeting held by the
board on 19 September 2012;
5. Date on when the applications
granted will be issued to the relevant Taxi Associations; [and]
6. Proof that CBDTA [Central Business
District Taxi Association] is a registered taxi association.”
5. The applicant submitted that the
respondents have failed to provide the reasons for their decision(s)
within fourteen days of
receipt of the request in compliance with
clause 3 of the order. (See Clause 3 of para 3 above). Subsequent to
the respondents’
failure the applicant’s attorney of
record, Ms Vanessa Herbst, addressed two letters to the State
Attorney; on 12 November
2012 and 16 November 2012. The latter
demanded that the respondents comply with the court order failing
which an application for
contempt of court would be lodged. The State
Attorney did not provide the required information in terms of Clause
1 of the court
order. It was only on 19 November 2012, 15 days after
the order was granted, that the minutes of the meeting held on 19
September
2012 were provided.
6. On 27 November 2012 the applicant
requested the respondents to furnish reasons for the decision of the
Licencing Board taken
on 19 September 2012 in respect of the
applications set out in Annexure “F” as directed in the
court order. Within
21 days of receipt of the reasons the applicant
had to lodge its appeals, if any, in the prescribed manner against
the decision
made by the respondents.
7. What seems peculiar about the
minutes of the meeting provided by the Chairman of the Licensing
Board is that page 1 shows that
the board meeting took place on 19
September 2012 at the Community Hall in Kimberley at 09h00. Present
were Mr Mokwena, Mrs Afrikaner
and Ms Tjiposa. The rest of the pages
contain the dates on which each of the application was received, the
details of the applicant,
the date on which the application was
advertised in the Government Gazette, the application number and
type, the decision of the
board (whether granted or refused), the
routes applied for and whether or not there were objections received.
The last page records:
‘No Service Conditions’ and
whether the applicant was present or not. No reasons for decisions
taken by the board are
reflected. There is also no indication when
the operating licences were to be issued to the relevant taxi
association as provided
for in Clause 5 of the court order (See para
4 above).
8. On 30 January 2013, about 41 days
after the applicant’s request for reasons from the Licensing
Board, the respondents forwarded
a letter to which was attached
Annexure “H” which purported to be the reasons requested.
9. The applicant submitted that the
respondents have also failed to supply proof of registration of the
CBDTA. The document submitted
by the respondents as proof of
registration is blank, with no indication that it was issued by the
Registrar. No signature or date
stamp appears on it either; nor have
the respondents supplied the applicant with the reasons in compliance
with the court order.
This conduct, submits the applicant, was wilful
and mala fide.
10. Counsel for the respondents, Mr Van
Tonder, contended that his clients have complied with the court order
on 30 January 2013
but concedes that the respondents are in default
in respect of application No. 231804. They undertook not to issue
the operator’s
licence (in respect of this application) before
the respondents have provided the reasons as required. They insisted
that Annexure
“H” contains the full reasons. It was
argued that for seven months after receipt of the said reasons and
documentation
the applicant has not complained about any deficiency.
The complaint was only received for the first time on 03 September
2013.
11. The respondents submitted further
that the applicant claimed, for months now, that it was in the
process of filing its appeals
against a number of the applications in
terms of Clause 4 of the order in respect of which adverse decisions
were made (See para
3 above). The period for lodgement of those
appeals has lapsed. As a consequence of the applicant’s failure
to lodge the
said appeals the respondents were entitled to issue the
relevant licences within 14 days from such default in terms of para 7
of
the court order. The respondents argued that the applicant could
not prevent the respondents indefinitely from issuing operators’
licences as this resulted in the delays, backlogs and prejudice to
the affected applicants. The operators’ licences had to
be
uplifted and issued within 60 days. The respondents argued that the
applicants have failed to lodge their appeals.
12. The respondents argued further that
the alleged inadequacy of the reasons they provided did not prevent
the applicant from lodging
the said appeals. This is so because in
the normal course of events the Chairman of the Board supplies
reasons once an appeal has
been lodged and not before. The applicant
was therefore expected to proceed with the lodgement of the appeals
within 21 days and
the Chairperson of the Licencing Board would
supply the reasons for its decision afterwards. For this argument the
respondents
relied on Regulation 3(2) of the Transport Appeal
Tribunal Regulations 2012, as published in GN 26 of 17 January 2013,
Government
Gazette No. 36077 which states:
“Appeal Practice Procedure:
Entity
3. (2) The relevant entity must within
21 days after the date of issue of the Notice to Entity by the
Tribunal, forward to the Tribunal
and to all the parties to the
Appeal –
(a) [C]opies of all documents relating
to an act, direction or decision, the original application form, the
Gazette wherein the
application was published if applicable, any
written representation lodged with it in regard to the application,
any letters of
recommendations from the municipalities, any maps and
route descriptions that were considered and any applicable integrated
transport
plans (ITP’s) that were considered together with a
transcript of the proceedings before it, if mechanically or manually
recorded,
if applicable state to state agreements relating to the
application and any further document that was considered during the
application
process; and
(b) [I]ts reasons in writing for the
decision appealed against.”
The aforementioned regulation and the
procedure it describes was not an issue and was never raised or
referred to when the settlement
agreement was made an order of court.
13. As far as the CBDTA (the Central
Business District Taxi Association) is concerned the respondents
explained that the CBDTA was
the last association registered in terms
of the old National Land Transport Transmission Act, 22 of 2000,
because the Northern
Cape Provincial Transport Act had not been
repealed. The original certificates were submitted to the CBDTA. It
is for that reason
that the respondents only had blank forms provided
to them.
14. The issue to be determined is
whether the respondents are guilty of contempt of court for failing
to comply with the court order
dated 29 October 2012. The respondents
deny any contemptuous conduct and contend that they were not wilful
or mala fide.
15. Contempt of court is committed,
generally speaking, when a person unlawfully and intentionally
violates the “dignity,
repute or authority of a judicial body”
or interferes in the administration of justice. (See para 15 of
VICTORIA PARK RATEPAYERS
ASSOCIATION v GREYVENOUW CC
[2004] 3 ALL SA
623
(SE)).
16. Cameron JA (Howie P and Cachalia
AJA concurring) in FAKIE NO v CCII SYSTEMS (PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para 42 held:
“[42] To sum up:
(a) The civil contempt procedure is a
valuable and important mechanism for securing compliance with court
orders, and survives constitutional
scrutiny in the form of a motion
court application adapted to constitutional requirements.
(b) The respondent in such proceedings
is not an ‘accused person’, but is entitled to analogous
protections as are appropriate
to motion proceedings.
(c) In particular, the applicant must
prove the requisites of contempt (the order; service or notice;
non-compliance; and wilfulness
and mala fides) beyond reasonable
doubt.
(d) But, once the applicant has proved
the order, service or notice, and non-compliance, the respondent
bears an evidential burden
in relation to wilfulness and mala fides:
Should the respondent fail to advance evidence that establishes a
reasonable doubt as
to whether non-compliance was wilful and mala
fides, contempt will have been established beyond reasonable doubt.
(e) A declaratory and other appropriate
remedies remain available to a civil applicant on proof on a balance
of probabilities.”
17. It is common cause that a court
order issued and was served on the respondents. What appears on
“Annexure H” is
the decision of the Board; the
representations by the applicant; the motivation and objections,
letters of support received, whether
the applicant was present or
not; but no reasons were furnished why a particular application was
granted. When this was brought
to the attention of Mr Van Tonder he
maintained that Mr Lategan advised the respondents that Annexure “H”
constituted
the full reasons. It is not clear under what
circumstances that advice was given and what advice was actually
given.
18. The fact that the applicant
complained seven months after the purported reasons were provided
does not detract from the validity
of the relief sought because the
applicant only has to prove that there was an order of court, service
thereof or notice and non-compliance
with the order by the affected
respondent.
19. It is not sufficient that the
respondents ‘bent over backwards in an attempt to accommodate
the applicant’ in that
they entered into a settlement agreement
with the applicant which was made an order of court. What was
required of them was to
comply with the court order. For the
respondents to now somersault and say ‘normally the information
and reasons from the
Chairman of the Licencing Board are only
provided once an appeal has been lodged’ is to deliberately
misconstrue the court
order. Clauses 1 and 2 of the Court order in
para 3 above do not need clarification as it is unambiguous. The
respondents’
argument that the rights of the operators need to
be taken into account as the delay in issuing the licences has no
merit as no
justification has been shown to limit or take away their
rights.
20. The next question is whether the
respondents’ non-compliance was wilful and mala fide? Mr Van
Tonder submitted that at
all material times the consent to furnish
reasons was intended to assist the applicant with the documentation
in order to lodge
the appeals, which the applicant has not done. He
insisted that Annexure “H” constituted the reasons.
21. In my view the evidence before me
established that the respondents have deliberately failed to supply
the reasons as required.
No evidence was presented to show that they
were not mala fide and wilful in their conduct. In terms of the order
the ‘applicant
will lodge its appeal, if any, against the
decisions made by the respondents in the prescribed manner within 21
days after receipt
of the reasons.’ I am satisfied that what is
contained in Annexure “H” cannot be equated with reasons
by the
Licensing Board to grant or refuse the said licenses. It is
therefore not possible for the applicant to lodge any appeal due to
the respondents’ non-compliance with the order. Nothing in the
agreement entered into between the parties, which is now made
an
order of court was merely intended to assist the applicant and its
members with processing of their applications or the acquisition
of
operators’ licences.
22. Cameron JA in the Fakie case cited
above (para 16) quoted with approval the case of VICTORIA PARK
RATEPAYERS ASSOCIATION (see
para 15 above) where Plasket J pointed
out that contempt of court has obvious implications for the
effectiveness and legitimacy
of the legal system and the legal arm of
government: There is thus a public interest element in every contempt
committal. At para
23 Plasket J said:
“It is clear that contempt of
court is not merely a mechanism for the enforcement of court orders.
The jurisdiction of the
superior courts to commit recalcitrant
litigants for contempt of court when they fail or refuse to obey
court orders has at its
heart the very effectiveness and legitimacy
of the judicial system. In this sense, contempt of court must be
viewed in a particularly
serious light in a Constitutional State such
as ours that is based on the democratic values listed in section 1 of
the Constitution,
particularly those of constitutional supremacy and
the rule of law. Contempt of court is not merely a means by which a
frustrated
successful litigant is able to force his or her opponent
to obey a court order. Whenever a litigant fails or refuses to obey a
court order, he or she thereby undermines the Constitution. That, in
turn, means that the court called upon to commit such a litigant
for
his or her contempt is not only dealing with the individual interest
of the frustrated successful litigant but also, as importantly,
acting as guardian of the public interest.”
23. In the instant case the applicant
launched these proceedings to punish the respondents in the hope of
compelling performance
with the court order. At para 19 Plasket J
stated:
“The principal purpose of
contempt of court proceedings when an order has been disobeyed has
been held to be “the imposition
of a penalty in order to
vindicate the Court’s honour consequent upon the disregard of
its order and to compel the performance
thereof.” This purpose
must, however, be viewed in a wider context. The Constitution, in
which the judicial authority of
the State is sourced, is founded,
inter alia, on constitutional supremacy and the rule of law. At the
heart of the rule of law
is the idea, foundational in civilised
society, that the law must be administered by independent courts and
that, as Dicey expressed
it, “no man is above the law”
and every man, whatever be his rank or condition, is subject to the
ordinary law of the
realm and amenable to the jurisdiction of the
ordinary tribunals.”
I am satisfied that the applicant has
successfully demonstrated that the respondents wilfully disregarded
the Court order dated
29 October 2012.
24. The circumstances of this case
warrant that I make a special costs order to show my disapproval of
the deliberate violation
of this Court’s dignity and authority.
I also take into account that the respondents are senior officials
who are obliged
to maintain integrity and honesty as heads of their
departments for which the service delivery injunction is: “Batho
pele
– People first”. It is also deeply concerning that
the respondents have not offered to purge their default by furnishing
the long outstanding reasons.
I make the following order.
1. The first to third respondents, the
MEC for Transport, Northern Cape, the Head of the Department of
Transport, Safety and Liaison,
Northern Cape and the Chairperson of
the Operating Licensing Board for the Northern Cape Province, have
acted in contempt of this
Court’s order dated 29 October 2012
in cases number 1737/12 and 1832/12 and are still in contempt of the
said order.
2. The respondents are committed to
goal for a period of 30 (thirty) days which is suspended on the
following conditions:
2.1 That the respondents comply with
the order dated 29 October 2012 within 30 (thirty) days from the date
of this order. The respondents
are to provide the applicant,
Greenpoint Taxi Association, with proper reasons for the decisions
taken by the 2nd respondent, the
Chairperson of the Operating
Licensing Board for the Northern Cape Province, on 19 September 2012
in respect of all the applications
set out in Annexure “F”
to the Founding Affidavit.
2.2 That the respondents revoke all
licenses issued in respect of any of the applications set out in
Annexure “F” within
15 (fifteen) days of this order.
2.3 That the respondents refrain from
issuing any license in respect of any of the applications as set out
in Annexure “F”
for as long as any appeal is still
pending.
2.4 That paras 2.2 and 2.3 of this
order shall operate as an interim interdict with immediate effect
pending the final determination
of this application.
3. The respondents are ordered to pay
the costs of this application on the scale as between attorney and
client.
BM PAKATI
JUDGE
On behalf of the Applicant: Adv van
Niekerk
Instructed by: Office of the State
Attorneys
On behalf of the Respondent: Adv van
Tonder
Instructed by: Engelsman Magabane
Inc