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[2013] ZAFSHC 24
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Moqhaka Taxi Association v Moqhaka Municipality and Others (3706/2012) [2013] ZAFSHC 24 (7 March 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3706/2012
In the matter between:-
MOQHAKA TAXI
ASSOCIATION
............................................
Applicant
and
MOQHAKA
MUNICIPALITY
........................................
First
Respondent
FREE STATE
TRANSPORT OPERATING
LICENSING BOARD
...............................................
Second
Respondent
THE REGISTRAR OF
TRANSPORT
.........................
Third
Respondent
MEC FOR THE FREE
STATE PROVINCE
RESPONDENT FOR
TRANSPORT
..........................
Fourth
Respondent
_____________________________________________________
HEARD ON:
28 FEBRUARY 2013
_____________________________________________________
JUDGMENT BY:
KRUGER, J
_____________________________________________________
DELIVERED ON:
7 MARCH 2013
_____________________________________________________
[1] The applicant taxi
association is disgruntled because –
(i) members of registered
taxi associations,
(ii) licensed metered
taxi operators,
unlicensed operators of
taxi type vehicles (“pirate taxis”), and
vehicles used to convey
people for remuneration
use unlawful loading and
drop-off zones other than the official Station Street Taxi Rank
(Kroonstad) and specifically –
(a) in front of the
Shoprite Centre in Reitz Street, Kroonstad,
(b) across from the Ou
Hotel Emilio, Sarel Cilliers Bridge, and
(c) in Louw Street,
Kroonstad.
[2] Prayer 1 of the
Notice of Motion seeks to order the four respondents to take all
steps reasonably necessary to stop these activities
at those places.
The respondents are:
Moqhaka Municipality;
Free State Transport
Operating Licensing Board;
The Registrar of
Transport;
MEC for the Free State
Province Responsible for Transport.
Prayer 2 reads as
follows:
“
2. That the
Respondents be ordered to perform their functions and duties to
enforce the National, Provincial and Municipal legislation
and
regulations pertaining to regulating the metered taxi industry; road
transportation of passengers and enforcement of road traffic
rules
and regulations regarding the metered taxi industry in Kroonstad,
Free State Province including, but not necessarily limited
to:
2.1 regulating conduct of owners and
drivers of taxi type vehicles in accordance with conditions of
registration and the operating
licences and/or permits;
2.2 regulating registered taxi
associations’ compliance with their registration and conditions
of registration;
2.3 regulating conduct of registered
non-members in accordance with their conditions of registration and
the operating license and/or
permits;
2.4 policing the industry to stop and
prevent people from conducting taxi type business without complying
the National, Provincial
and/or Municipal Legislation pertaining to
Road Traffic rules and regulations and the Public Transportation of
passengers.”
In argument Mr
Snellenburg conceded that prayer 2 of the Notice of Motion possibly
is too vague and he did not press for an order
under prayer 2,
although he did not abandon it.
[3] Mr Snellenburg says
that the applicant was forced to come to court. Annexures R1 –
R50 attached to the replying affidavit
show that in order to address
the applicants’ problems, various suggestions were made over a
three month period. The point
is that nothing happened. The applicant
has a right that the law be enforced. The four respondents must sort
out amongst themselves
who does what in order to enforce the law to
applicant’s advantage.
[4] The respondents
oppose the relief sought. The first respondent filed an answering
affidavit and was represented by Mr Wessels,
assisted by Mr Roux at
the hearing. An answering affidavit, and a duplicating affidavit,
were filed by the second, third and fourth
respondents, who were
represented by Mr Claasen at the hearing.
[5] There is no dispute
that the application must be decided on the facts as set out in the
opposing affidavits –
Plascon-Evans Paints (Pty) Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634.
These allegations show that the inspectors of the respondents
frequently visit taxi operations and investigations take
place
regularly. There are 34 taxi associations in the Free State and in
excess of 14 000 operators. More than 500 busses pass
through the
Free State.
[6] Mr Wessels submitted
rather diffidently that the first respondent is a local municipality
and in terms of
sections 83
and
84
of the
Local Government: Municipal
Structures Act 117 of 1998
and as a local municipality it does not
have powers and functions to regulate the passenger transport system,
because those powers
vest in the district municipality, with
reference to the unreported judgment of
Amatole District
Municipality and Others v King William’s Town Taxi Management
and Others
, Eastern Cape Case No 011/2004 12 August 2004. Mr
Snellenburg raised two points to counter this argument:
(i) This is not an issue
on the papers.
(ii) It is not in dispute
on the papers that the first respondent is legally obliged to and in
fact controls traffic in Kroonstad
and enforces its bylaws and the
regulation of traffic in Kroonstad.
These contentions by Mr
Snellenburg are correct.
[7] One of the main
objections of the respondents is that the relief sought is too widely
couched and too vague. Mr Wessels says
that the applicants have
failed to tell the court what the status of an official taxi rank is.
He could not find a description
of an “official” taxi
rank anywhere. The court is not told what the permits of the persons
or entities, who allegedly
service passengers at the “unofficial”
points, at Shoprite, the Ou Hotel and in Louw Street, state. Which
bylaw says
they are not allowed to pick up passengers at these
points? There is no allegation that there is a sign prohibiting the
loading
or off-loading of passengers at those points.
[8] The ambit of the
relief sought by the applicant is, as set out by Mr Claasen on behalf
of the second, third and fourth respondents
in his heads of argument,
vague:
“
(a) Exactly
what will the Court order entail in regard to ‘
all
such steps as are reasonably necessary to stop’
the
four kinds of ‘
operators
’
from “
utilising
unlawful loading and drop-off zones...
’
Exactly what and where are these unlawful loading and drop-off zones?
It is common cause that any taxi can load and drop-off
passengers
en-route. Will that now be contravening the Court order?
(b) Exactly from where to where is the
‘
in front of or next to the Shoprite Checkers Centre in
Reitz Street, Kroonstad
’?
(c) Exactly what is the exact area of
‘
across from the old Hotel Emelio, Sarel Cilliers Bridge
’?”
[9] Mr Claasen contends
that the application transgresses the constitutional principle of the
separation of powers. To answer this
contention Mr Snellenburg relied
on
Chieftain Real Estate Incorporated in Ireland v Tshwane
Metropolitan Municipality and Others
[2008] ZAGPHC 101
;
2008 (5) SA 387
(T). The
Chieftain
case was an opposed application to join the
Government of the Republic of South Africa and the MEC for Housing as
second and third
respondents. The court stated that the judgment does
not concern the merits of the case, but deals with an application for
joinder
(par [26]). In that case the municipality had made an
undertaking to evict the 20 000 occupiers of property, but did not
perform
in terms of its undertaking. On that basis the court in the
Chieftain
case ordered that the Government and MEC be
joined. The case is not authority for the proposition that a court
has the power to
order a municipality in general terms to enforce the
law. It says that organs of state must assist each other.
[10] Mr Claasen has
referred to a number of cases where the Constitutional Court has
dealt with the issue of separation of powers.
The judiciary has a
crucial and sensitive role to play in controlling the exercise of
power and upholding the Bill of Rights. A
judge should not intrude
into the executive domain. See
South African Association of
Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) BCLR 77
(CC) par [46]. The basic structures of the Constitution are set out
in
In re: Certification of the Constitution of the Republic of
South Africa,
1996
1996 (10) BCLR 1253
(CC) par [45]. The
separation of powers emanates from the wording and structure of the
Constitution -
Justice Alliance of SA v President of the RSA
and Others and Two Similar Applications
2011 (10) BCLR 1017
(CC) par [32]. In
Glenister v President of the Republic of
South Africa and Others
[2008] ZACC 19
;
2009 (2) BCLR 136
(CC) at par
[29]
it
was stated that it is now axiomatic that the separation of powers is
part of our constitutional design. As Mr Claasen puts it,
the
underlying idea is that certain institutions are particularly well
equipped to perform a particular function. Laws are made
by
legislatures and executed by officials. It is the duty of the courts
to ensure that the powers are performed in line with constitutional
rights. See
Prince v President, Cape Law Society, and Others
[2002] ZACC 1
;
2002 (2) SA 794
(CC) par [155]. Courts have to be sensitive to
considerations of institutional competence. Courts must guard against
being timid
or over-valiant (par [156]).
[11] A case in which the
relief sought is similar to the relief asked for in this case, is
Soobramoney v Minister of Health (KwaZulu-Natal)
[1997] ZACC 17
;
1998
(1) SA 765
(CC). The respondent Health Department was unable to
provide the applicant with the kidney treatment he requested. The
court held
(at par [29]) that the provincial administration which is
responsible for health services has to make decisions about funding
that
should be made available for health care and how such funds
should be spent. A court will be slow to interfere with rational
decisions
taken in good faith by political organs and medical
authorities whose responsibility it is to deal with these matters
(par [29]).
A similar line was taken by the court in
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) at par
[38]
:
“
Courts are
ill-suited to adjudicate upon issues where court orders could have
multiple social and economic consequences for the
community. The
Constitution contemplates rather a restrained and focused role for
the courts, namely, to require the state to take
measures to meet its
constitutional obligations and to subject the reasonableness of these
measures to evaluation. Such determinations
of reasonableness may in
fact have budgetary implications, but are not in themselves directed
at rearranging budgets. In this way
the judicial, legislative and
executive functions achieve appropriate constitutional balance.”
[12] A
court will not make orders which cannot legally and practically be
enforced –
Mansell v Mansell
1953 (3) SA 716
(N) at 720F, 721E – F. An
example of an order which the court was willing to make, is to be
found in
Administrator, Cape and
Another v Ntshwaqela and Others
1990
(1) SA 705
(A), where the order made by the court was solely
prohibitory. Neither the owners nor the second and third respondents
were required
to do anything. There was no room for an argument that
the order is impossible of performance (at 721B – C).
[13]
In
Aetiology Today CC t/a Somerset
Schools v Van Aswegen and Another
1992
(1) SA 807
(W) the court refused to make an order restraining the
respondent from competing unlawfully with the applicant (at 816H –
J), because it was couched too widely and would cause difficulty in
enforcement. A court cannot make an order if it cannot enforce
compliance with it –
Metlika
Trading Ltd and Others v Commissioner, South African Revenue Service
2005 (3) SA 1
(SCA) par [36].
CONCLUSION
[14]
In the present case the respondents have given details of what they
can do and are doing to enforce the law. It would be inappropriate
for the court to give specific directions. The applicant seeks an
order that the respondents enforce the law. Such order would
be
couched as widely as that in the
Aetiology
case and would cause difficulty in enforcement.
The applicant has not referred to one case in which relief similar to
the relief
sought in this case has been granted. The
Soobramoney
case (
supra
),
on medical care, comes the closest. There the court refused to tell
the executive what to do.
[15] A
striking aspect of this application is that no alleged transgressor
has been cited as respondent.
The alleged
transgressors fall into four categories. As to the metered taxis,
they are in any event as a general rule allowed to
stop anywhere.
Also, it is not known what the permits of
the alleged transgressors, who use the “illegal” taxi
ranks, state as to where
they are allowed to operate from.
The
fact that the exact places where the alleged transgressors may stop,
have not been identified, creates a deficiency in applicant’s
case and leads to difficulty in making an enforceable order.
This
is not an unlawful competition case, as was
Bophuthatswana
Transport Holdings (Edms) Bpk v Matthysen Busvervoer (Edms) Bpk
[1995] ZASCA 105
;
1996 (2) SA 166
(A) at 173G – H. Without
proof of injury there is no proof of interference with a person’s
trade or of an infringement
of his right –
Patz
v Greene & CO.
1907 TS 428
at
438, as quoted in the
Bophuthatswana
case at 174G – H.
[16] The applicant is not
without a remedy. Mr Claasen gives three possible remedies:
(i) If a registered taxi
makes use of unofficial taxi ranks or allows passengers to embark or
disembark at illegal places, such
operator can be reported to the
Registrar in terms of section 84 of the Free State Public Transport
Act 4 of 2005 and the Registrar
can then after an inquiry suspend or
cancel the permit of such operator.
(ii)
The applicant can seek an interdict against persons contravening the
law and if they disobey the court order, the applicant
can bring an
application for contempt of court.
(iii)
The applicant can sue the illegal operators directly (for unlawful
competition, as in the
Bophuthatswana
case).
[17] In summary, the
relief sought by the applicant is too wide and too vague to justify
an order.
[18] As to costs, Mr
Wessels asked for the costs of two counsel in respect of the first
respondent. Novel points of law are raised
in this application and
the first respondent was justified in employing two counsel. The
second, third and fourth respondents were
represented by senior
counsel, although he had no junior. The costs of two counsel in
respect of the first respondent are to be
allowed.
ORDER
[19] 1. The application
is dismissed.
2. The applicant is to
pay the costs of the first respondent, including the costs attendant
upon the employment of two counsel.
3. The applicant is to
pay the costs of the second, third and fourth respondents.
____________
A. KRUGER, J
On
behalf of applicant: Adv N. Snellenburg
Instructed
by:
Naudes
BLOEMFONTEIN
On
behalf of first respondent: Adv M.H. Wessels SC
With
him:
Adv.
L.A. Roux
Instructed
by:
Moroka
Attorneys BLOEMFONTEIN
On
behalf of second, third and
fourth
respondents: Adv J.Y. Claasen SC
Instructed
by:
The
State Attorney
BLOEMFONTEIN
/spieterse/wm