MEC for Public Works Roads and Transport Free State Provincial Government and Another v Phuthanang Transport Service (Pty) Ltd. (051/05) [2006] ZASCA 77; [2006] SCA 73 (RSA) (31 May 2006)

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[2006] ZASCA 77
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MEC for Public Works Roads and Transport Free State Provincial Government and Another v Phuthanang Transport Service (Pty) Ltd. (051/05) [2006] ZASCA 77; [2006] SCA 73 (RSA) (31 May 2006)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE
NO: 51/2005
In the matter between
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR PUBLIC WORKS, ROADS AND TRANSPORT,
FREE STATE PROVINCIAL GOVERNMENT
FIRST APPELLANT
REGISTRAR : PROVINCIAL TAXI REGISTRAR,
PUBLIC
WORKS, ROADS AND TRANSPORT,
FREE
STATE PROVINCIAL GOVERNMENT SECOND APPELLANT
and
PHUTHANANG TRANSPORT SERVICE (PTY)
LIMITED

RESPONDENT
CORAM: HOWIE P, STREICHER, MTHIYANE, HEHER JJA and
MAYA AJA
HEARD: 12 MAY 2006
DELIVERED: 31 MAY 2006
Summary: Interpretation and application of s 18 of
the Free State Passenger Transport Act 16 of 1998 read with
regulations 7 and 8
of the regulations promulgated under the Act.
Neutral
Citation: This judgment may be referred to as MEC Public Works, Roads
& Transport: Free State Provincial Government v
Phuthanang
Transport Service [2006] SCA 73 (RSA).
JUDGMENT
MTHIYANE JA:
MTHIYANE JA:
[1] This appeal is concerned with the interpretation and application
of s 18 of the Free State Interim Passenger Transport Act 16
of 1998
(as amended) read with regulations 7 and 8 of the regulations
1
promulgated under the Act. The purpose of the Act is to regulate and
control the minibus taxi industry. It seeks to achieve this
by
creating a mechanism for registering secondary and primary
associations or interprovincial associations and their members with
a
Provincial Registrar. The nature of the association involved in this
case is of no moment. The procedure for registration is prescribed
by
the Act and fleshed out in the regulations. The Act also created an
appeal forum in the form of a Provincial Appeal Tribunal,
presided
over by a Member of the Executive Council of the Provincial
Government or his appointee to handle appeals against refusals
to
register an association. It is the Registrar’s refusal to register
the applicant as a taxi association and the subsequent failure
of an
appeal to the MEC that led to this case.
[2] The respondent launched an application in the Free State High
Court seeking an order reviewing and setting aside the first and
second appellants’ refusal to register it as an association in
terms of s 18 of the Act. I shall for the remainder of this judgment
refer to the first and second appellants as ‘the MEC’ and ‘the
registrar’ respectively. The applicant succeeded in its application
in the High Court which set aside the refusal and ordered that the
applicant’s application for registration under s 18 of the Act
be
remitted to the registrar for reconsideration in the light of its
judgment. It further ordered that, pending reconsideration,
the
members of the applicant who had permits during 1997 be allowed to
continue to operate their taxis. The appeal is against that
order.
[3] The provisions of the Act relevant to the applicant’s
application are the following:
‘
18 Registration of associations, members and
non-members
A secondary and a primary association or
inter-provincial association, and each member thereof, or a
non-member, must in the prescribed
manner and accompanied by the
prescribed application fees, submit a written application for
registration to the Registrar.
The Registrar must grant a certificate of conditional
registration and a registration number to an association and each of
the members
of a primary association who upon application satisfies
him or her-
that it has been in existence for the prescribed
minimum period: Provided that the Registrar shall have a discretion
to register
associations that have been in existence for lesser
periods where in his or her opinion this is justified;
that the number of its members or, in the case of a
secondary association, the number of registered primary
associations affiliated
to it, meets the prescribed minimum number:
Provided that the Registrar shall have a discretion to register
associations with
fewer members or affiliated registered primary
associations, as the case may be, where in his or her opinion this
is justified
for geographical or demographic reasons;
that the constitution submitted by the association has
been signed and accepted by each of its members or, in the case of
a secondary
association, by each of its affiliated registered
primary associations and is consistent with and encompasses the
provisions
of the Standard Constitution and other prescribed
requirements;
. . .
The Registrar must grant a certificate of registration
and registration number to an association or inter-provincial
association,
who upon application satisfies the Registrar that-
it has been in existence for the prescribed minimum
period, subject to the proviso in subsection (2)(a);
the number of members or affiliated registered primary
associations, as the case may be, meets the prescribed minimum
number,
subject to the proviso in subsection (2)(b);
the constitution submitted by the association has been
signed and accepted by each of its members or affiliated registered
primary
associations, as the case may be, and is consistent with
and encompasses the provisions of the Standard Constitution and
other
prescribed requirements;
. . .
If, after considering the application for registration,
the Registrar is not satisfied that the applicant has complied with
the
requirements for registration, he or she must inform the
applicant of the requirements not met, and may provide the applicant
with
advice and assistance in order to enable the applicant to meet
the requirements for registration.’
[4] Regulations 7 and 8 provide as follows:
‘
7 Minimum
number of members or primary associations required for registration
of association
Subject to s 18 of the Act-
the minimum number of members which an association must
have before it may be registered in terms of the Act, shall be 20
(excluding
a conditional member referred to in the Standard
Constitution);
the minimum number of primary associations based in the
Province to be affiliated to a secondary association before it may
be registered
in terms of the Act, shall be two.
8 Minimum period that association must have existed
to qualify for registration
Subject to s 18 of the Act, an association must have
been in existence since 28 February 1995 in order to be registered in
terms of
the Act.’
[5] The Act came into effect on 20 November 1998 and the regulations
on 27 November 1998. The operation of the Act was backdated
to 1997.
Prior to their commencement a ‘general information document’ (for
lack of a better description) was issued by the National
Department
of Transport to assist prospective applicants for registration. This
document issued as ‘General Information Regarding
the Registration
of a Taxi Association’ foreshadowed threshold requirements for
registration embodied in s 18 of the Act and amplified
by regulations
7 and 8. It is not clear when the general information document was
issued. Suffice it to say that it preceded the
Act and the
regulations. Although the application was made before the effective
dates of the Act and regulations the application
purported to be made
in law of the legislation and was treated by all as such. At the time
the application was considered the Act
and the regulations had come
into effect.
[6] The applicant lodged its application for registration with the
registrar on 17 June 1997. It appears that the application form
submitted to the registrar contained particulars of the applicant,
the date of its incorporation (28 November 1996) and the names
and
addresses of its office bearers. The application was refused by the
registrar on two grounds. The first was that the applicant
had been
established after 28 February 1995. The second was that the
association did ‘not have a minimum number of 20 members as
contemplated by the Act’.
[7] On 18 September 2000 the applicant lodged an appeal with the MEC
against the refusal. The applicant’s appeal was dismissed
on the
same two grounds as those advanced by the registrar. But in addition
the MEC raised a further difficulty: that the applicant’s
constitution was defective in that its terms ‘were principally not
in keeping with the provisions of the Standard Constitution
provided
for in the Act’. In terms of section 1 of the Act ‘Standard
Constitution’ means ‘a prescribed set of rules and procedures
that govern the affairs of registered associations, and includes a
Code of Conduct, a Grievance Procedure and a Disciplinary Procedure
for members, or affiliated registered primary associations, as the
case may be, of those associations’. The MEC took the view that
the
applicant’s constitution did not meet the prescribed standard and
the application for registration failed on that account as
well.
[8] The question is whether the registrar was justified in refusing
the application for registration. The outcome of the decision
depends
upon the interpretation and application of the Act and the
regulations to the facts advanced on the applicant’s behalf.
The
relevant provisions of the Act and the regulations are clear and
unambiguous and must therefore be given their ordinary meaning.
Mr
Ploos van Amstel, for the applicant did not attempt to persuade us
otherwise. He argued, however, that in refusing to register
the
applicant the registrar had not applied his mind properly to the
matter and that the court
a quo
was correct in setting aside
his decision and that of the MEC.
[9] The sole issue raised on appeal by Mr Moerane for the appellant
was that when the application for registration was lodged with
the
registrar it was not accompanied by an application by each member of
the applicant as required by s 18(1) of the Act. If that
point is
good it is of course decisive of the appeal and disposes of all the
other issues raised on behalf of the respondent.
[10] Although
the Chairperson of the applicant, Mr Tholo Daniel Motsoeneng, states
in his affidavit that the applicant had 35 members
at the time of the
application, of whom 22 members had legal permits and the other 13
had applied for permits, only the applicant,
Phuthanang Transport
Services, applied for registration. This is, however, contrary to
18(1) of the Act which requires that ‘each
member . . .
must
in the prescribed manner submit a written application for
registration to the registrar.’ It is therefore clear that the
application
was defective for failure to comply with the peremptory
provisions of the Act.
[11] Confronted with the applicant’s failure to meet the threshold
minimum membership requirements, Mr Ploos van Amstel referred
us to
seven legal permits which were filed of record in this appeal. It was
not clear whether these permits were originally attached
to the
applicant’s application for registration. This was by all accounts
a desperate attempt to salvage a case that was desparately
slipping
from the applicant’s hands. As correctly pointed out by Mr Moerane
for the appellants, the dates on the permits concerned
clearly
indicate that they could not have accompanied the application for
registration on 16 June 1997. The first of these permits
is dated 26
February 1999 and the rest bear much later dates. Even if these
certificates were indeed attached they would still not
have assisted
the applicant because s 18(1) of the Act required that each member of
the association ‘must in the prescribed manner
. . . submit a
written application for registration to the registrar.’
[12] The court
a quo
held that there had been substantial
compliance with the requirements for registration and that the
registrar should have registered
the applicant as such under s 18 of
the Act. I do not agree. In s 18(2)(a) and (b), a discretion is
indeed conferred on the registrar
to register associations that have
been in existence for a lesser period than the prescribed minimum
period and those who have less
members than the prescribed minimum.
But the proviso is that the registrar can condone non-compliance
‘where in his or her opinion
this is justified for geographical or
demographic reasons.’ It is plain from the wording of the section
that the exercise of discretion
is not there for the asking. Nor can
it be exercised in
vacuo
. It was for the applicant to place
facts or information before the registrar, which the latter could
then have considered in order
to come to a proper decision as to
whether non-compliance with the section could be condoned. We are not
privy to such information
and there is a total absence of clarity
from the papers as to what would have justified the exercise by the
registrar of the discretion.
In fact the appellant’s case
throughout was that it had a membership of more than 20. But when it
lodged its application for registration
only the applicant,
Phuthanang Transport Service (Pty) Ltd, did so. In my view the
applicant did not comply with the provisions of
s 18 of the Act and
regulations 7 and 8 and the application was therefore correctly
refused. The court
a quo
should have found accordingly.
[13] In the result the appeal succeeds with costs, including costs
consequent upon the employment of two counsel. The order of the
court
a quo
is set aside and replaced with the following:
‘
The
application is dismissed with costs.’
_________________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
HOWIE P
STREICHER
JA
HEHER
JA
MAYA
AJA
1
The
regulations were published as ‘Free State Interim Passenger
Transport Regulations’ in the Free State Provincial Gazette
No.
220 of 1998.