About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 76
|
|
Moeng v Greater Bloemfontein Taxi Association and Another (930/12) [2013] ZAFSHC 76 (16 May 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 930/12
In
matter between:
Toz Moeng
...........................................................................
1
st
Applicant
T. M Leeuw
..........................................................................
2
nd
Applicant
M. J Mokito
...........................................................................
3
rd
Applicant
M. M Tladi
.............................................................................
4
th
Applicant
S.E Tsoeu
.............................................................................
5
th
Applicant
M. G Segalo
..........................................................................
6
th
Applicant
S. Phelane
.
...........................................................................
7
th
Applicant
M.N.A Agosi
..........................................................................
8
th
Applicant
T. G Thekiso
.........................................................................
9
th
Applicant
T. P Ntomane
.
....................................................................
10
th
Applicant
D. Mere
...............................................................................
11
th
Applicant
M.I Letswanyo
....................................................................
12
th
Applicant
P. M Seliane
.......................................................................
13
th
Applicant
M. J Khomo
........................................................................
14
th
Applicant
M.S Mojanaga
....................................................................
15
th
Applicant
M.S Mofokeng
...................................................................
16
th
Applicant
S. Nyathe
............................................................................
17
th
Applicant
M.K Mokalake
.....................................................................
18
th
Applicant
M. S Mohale
.......................................................................
19
th
Applicant
S. G Mokhobo
....................................................................
20
th
Applicant
M.S Selebano
....................................................................
21
st
Applicant
and
The Greater Bloemfontein
Taxi Association
..............................................................
1
st
Respondent
Free State Provincial
Taxi Registrar
..............................
2
nd
Respondent
CORAM
:
CJ MUSI, J
et
LEKALE, J
HEARD ON:
25 MARCH 2013
JUDGMENT BY:
C.J. MUSI, J
_____________________________________________________
DELIVERED ON:
16 MAY 2013
[1] It is a truism that
in any association of like-minded people there will be those who hold
a different view. How those differences
are managed can, in some
cases, be determinative of the harmonious co-operation between the
association’s members and in
extreme cases it can cause the
demise of the association. This is not an extreme case.
[2] The Greater
Bloemfontein Taxi Association (first respondent) is a voluntary
association of taxi owners and operators in Bloemfontein.
The
applicants are members of the JB Mafora Central Route (JB Mafora),
also known as Route 120, a sub-committee of the first respondent.
Members of JB Mafora have, in terms of their permits, exclusive right
to operate on Route 120. The second respondent, who does
not oppose
the application, is the Free State Taxi Registrar. No relief is
sought against him as he was cited only in as far as
he might have an
interest in the matter.
[3] Some members of JB
Mafora launched this application to review and set aside a decision
of the first respondent and to compel
it to comply with its
disciplinary procedure within 30(thirty) days of the finalisation of
this application, failing which, that
the first respondent be
interdicted from continuing with the disciplinary inquiry which it
had instituted against the applicants.
The applicants also sought an
order compelling the first respondent to adhere to its constitution
with regards to controlling the
use of Route 120 by its members, who
are not entitled to operate on the route.
[4] During 2010 members
of JB Mafora lodged complaints with the first respondent about some
of its members who operate on Route
120 without permits and illegal
operators (pirates).
[5] The applicants
alleged that the first respondent failed to exercise control over its
members who are still operating on Route
120 without permits. The
first respondent alleged that it received vague and unsubstantiated
complaints which it investigated,
without success. Due to the fact
that none of its members were identified by the complainants, it
requested the local traffic department
to police the route vigorously
in order to root out pirates and members who operate on the route
without permits (a taxi operates
on specific routes stated in the
permit).
[6] The applicants
alleged that the first respondent instructed them during 2010 to
increase their fare for commuters travelling
on Route 120 from R5.00
to R6.00. The first respondent on the other hand alleged that the
decision to increase the fare as stated
by the applicants was taken
at a properly constituted general meeting during 2007.
[7] The applicants
decided not to increase the taxi fare because pirate and unauthorised
operators did not increase their fare and
therefore commuters made
use of the cheaper option. According to the applicants they lodged
complaints with the first respondent
wherein they pointed out their
plight and requested the first respondent to address their problem.
The first respondent failed
to do so. The first respondent denied
that any complaints were laid and alleged that certain members of JB
Mafora completely disregarded
the resolution to increase the fare.
[8] The first respondent
decided to institute disciplinary proceeding against,
inter alia
,
JB Mafora’s chairperson and secretary. They were summoned on 31
January 2011 to appear, before the disciplinary committee,
on 7
February 2011 by the chairperson of the disciplinary committee of the
first respondent.
[9] The disciplinary
inquiry did not begin on 7 February 2011 and has still not commenced.
The parties blame each other for the
delay. It is not necessary to
discuss the reasons for the delay except to mention that the
disciplinary inquiry was postponed on
numerous occasions.
[10] On 30 November 2011
the first respondent communicated the impugned decision to the
applicant’s legal representative,
Mr Matee. The relevant part
of the letter reads as follows:
“
We have
tried all to meet your clients half way, but it yielded no results.
The only thing that we are realizing is that, your clients
are now
causing a lot of conflict with other operators of other routes. This
matter is getting out of control. We are unable to
even start to talk
about a fare increment with other routes as petrol has gone up.
The executive has resolved to close
all files of route committee and all operators who operate in this
route (sic). This means that,
no operator will be assisted
administratively, e.g. special permits, transfer, replacement,
renewals and all other things that
will need the office to help them
with (sic). This is with effect from delivery of this letter and
acknowledgement of receipt.”
[11] On 9 December 2011
the applicants responded as follows to the letter dated 30 November
2011:
“
We hereby
notify that our office is currently open for negotiations with regard
to the contents of your correspondence instant,
and further request
that you kindly reinstate the closed file of the members of the JB
Mafora central route (sic).
Further, in the interim, we kindly
request that you assist the JB Mafora central route members to
acquire permits from the executive
board and that you kindly provide
our office with regard to the time, date and venue of the
disciplinary hearing (sic).
Kindly take further notice that we
await to receive your response to this letter on or before the 12
th
December instant failure upon which legal steps will be embarked on
(sic).”
[12] On 12 December 2011
the first respondent responded as follows:
“
We agree to
the continuation of the disciplinary hearing. We are available for
the hearing and this was held back due to your client’s
noncompliance. The decision given on the letter send to yourself will
still be in force until the hearing has been finalised (sic).”
[12] The parties
unsuccessfully attempted to find a suitable date to hold the
disciplinary hearing. On 22 February 2012 the applicants’
legal
representatives wrote the following letter to the first respondent:
“
We have
received instructions to move an application to the High Court
against yourselves (sic).
It is our instructions that you did
not follow the proper procedure in terms of your Constitution in
closing our clients’
files and therefore our clients have an
option to appeal such a decision.
It is our further instructions that
considering the fact that we are already out of the prescribed time
period to lodge an appeal,
we should request consent from yourselves
to approach the High Court without having lodged an appeal in this
matter.
We humbly request that you should
revert to the author hereof within 24 hours of receipt of this
letter, failure upon which we will
have no other option but to
presume that proper consent has been granted (sic).”
[13] According to the
applicants, the constitution of the first respondent provides for an
internal appeal remedy. They alleged
that the appeal remedy is only
available to members when disciplinary action has been instituted in
accordance with the constitution
and as no disciplinary action has
been taken in accordance with the constitution they cannot invoke the
internal appeal remedy.
[14] Mr Greyling, on
behalf of the applicants, argued that the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) is applicable
because the impugned
decision was an administrative action taken by the first respondent
while exercising a public function.
[15] He based his
argument on the definition of administrative action in PAJA.
Administrative action in terms of PAJA
inter alia
means any
decision taken, or any failure to take a decision, by a natural or
justice person, other than an organ of state, when
exercising a
public power or performing a public function in terms of an
empowering provision, which adversely affects the rights
of any
person and which has a direct, external legal effect. (See section 1
of PAJA for the definitions of a decision and empowering
provision.)
[16] A decision on the
other hand is defined as any decision of an administrative nature
made, proposed to be made, or required
to be made as the case may be,
under an empowering provision, including a decision relating to
issuing, suspending, revoking or
refusing to issue a licence,
authority or other instrument.
[17] An empowering
provision is defined as a law, a rule of common law, customary law,
or an agreement instrument or other document
in terms of which an
administrative action was purportedly taken.
[18] It is common cause
that the first respondent is a voluntary association with a
constitution. Mr Greyling argued that the constitution
is the
instrument (empowering provision) in terms of which the decision not
to assist with the issuing of special permits, transfers,
renewals
etc. was taken. According to him that decision had a direct external
legal effect because the applicants were denied permission
to operate
their businesses on any other route and they cannot transfer or renew
their permits whilst other members of the first
respondent were
allowed to do so.
[19] Mr Snyman, on behalf
of the first respondent, in his heads of argument, accepted that the
review was properly brought in terms
of PAJA. During argument before
us he changed tact and argued that PAJA is not applicable because the
decision was not an administrative
decision. His main argument was
however that the applicants did not exhaust their internal remedies
as catered for in the first
respondent’s constitution.
[20] Mr Snyman’s
argument relating to the exhaustion of internal remedies is, in my
judgment, dispositive of this matter.
That requirement applies with
equal force to decisions that fall within the purview of PAJA and
those that fall outside of its
scope when taken by a voluntary
association. I found Mr Greyling’s arguments, in relation to
the applicability of PAJA, compelling.
Although he did not elaborate
much, if the facts of this matter and the issues that fell to be
decided allowed me to venture definitively
into the applicability of
PAJA to the first respondent’s decisions I would, in all
probability, have agreed with Mr Greyling.
I say this for the
following reasons. The first respondent controls the taxi business in
and around Bloemfontein. Its constitution
provides that it was
inter
alia
formed to structure and manage passenger transport in the
Free State in general and Bloemfontein in particular. It has the
power
to issue
ad hoc
special permits to members to transport
commuters to destinations outside of the operator’s designated
route. It can therefore
affect the right of taxi operators to be
issued with
ad hoc
special permits.It keeps files of all its
members and assists them administratively with special permits,
transfers, renewal of
permits etc. It decides the tariffs payable,
its increase and, although very unlikely, its decrease. If it does
not issue a special
permit the taxi operator may not venture beyond
his/her allocated route, which in turn affects the commuting public
who use such
taxis. It has a duty, in terms of its constitution, to
inform the second respondent, a public functionary, of the outcome of
disciplinary
hearings and grievances. It issues permits with the full
knowledge of the second repondent. Members of the public must, in
terms
of its constitution, lodge complaints about drivers and
operators to it. It is a well known fact that the government, in
terms
of its taxi recapitalization policy, has given large sums of
money to taxi operators in exchange for scrapping their vehicles or
buying new vehicles. It provides transport services to the public. In
many places it is the only mode of public transportation.
In
President of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC)
at para [173] it was
said that:
“
There are
many private institutions which, for historical or practical reasons,
are privately controlled, although their activities
manifestly affect
members of the public and give rise to considerable public interest
and, at times, public concern.”
The activities of the
first respondent can in my view be seen as an example of such a
private institution. It is unnecessary for
me, as I demonstrate
hereunder, to make any definitive finding. I return to the
requirement that a litigant should generally first
exhaust his
internal remedies before resorting to the courts.
Section 7(2) of PAJA
provides:
“
2(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court
or tribunal must, if it is not satisfied that any internal remedy
referred to in paragraph
(a) has been exhausted, direct that the
person concerned must first exhaust such remedy before instituting
proceedings in a court
or tribunal for judicial review in terms of
this Act.
(c) A court or tribunal may, in
exceptional circumstances and on application by the person concerned,
exempt such person from the
obligation to exhaust any internal remedy
if the court or tribunal deems it in the interest of justice.”
[21] The same holds true,
with the necessary changes, as I will show presently, for voluntary
associations. My conclusion in relation
to this issue renders it
unnecessary for me to make any definitive decision on whether PAJA
applies to decisions of the first respondent
or not. In short,
whether PAJA applies or not, if I find that the internal remedies as
catered for in the first respondent’s
constitution were not
followed or exhausted and that no good reasons for the non-compliance
have been proferred then the application
cannot succeed.
[22] The constitution of
a voluntary association constitutes a contract between its members.
The rights and duties of the members
and those elected or appointed
in terms of the constitution are governed by the constitution in all
matters affecting the association’s
internal governance and
management. Ordinarily a dispute such as this – between members
of a sub-committee and the “mother-body”
– is
governed by the law of contracts. If the contract (constitution)
between the parties contains a dispute resolution mechanism,
that
route should first be exhausted before recourse is taken to the
court. The court will grant relief to the aggrieved party
in
exceptional circumstances when the internal remedies as agreed upon
by the parties have not been exhausted.
See Constantinides v
Jockey Club of SA
1954 (3) SA 35
(C) at 44 B; Turner v Jockey Club of
South Africa
1974 (3) SA 633
(AD) at 657. Du Preez en Andere v
Nederduitse Gereformeerde Gemeente, De Deur
1994 (2) SA 191
(W) at
194 G – 195 A
.
[23] It has been said
that were a litigant has other remedies open to him/her there was no
necessity for him/her to invoke the aid
of the courts until he/she
had exhausted those remedies. See
Jockey Club of South Africa and
OthersV Feldman
1942 AD 340
at 360.
[24] Clause 10 of the
first respondent’s constitution deals comprehensively with its
grievance procedure. Its centrality to
the issue under consideration
necessitates its reproduction in this judgment. It reads as follows:
“
GRIEVANCE
FUNCTION
10.1
MAIN OBJECTIVE
10.1.1. The main objectives of the
grievance procedure is to enable a member, group of members, or a
member of the community public
to raise, and cause an adjudication of
a matter which he or she or they may feel aggrieved about.
The basic principle underlying the grievance procedure is that
all parties must be intent on equitably resolving the grievance at
the earliest stage.
10.1.2 The main purpose of such
adjudication is to-
a) Avoid conflict;
b) Settle disputes promptly;
c) Provide a vehicle for the efficient
functioning of the Association;
d) Recognize the rights of members;
e) Create a mechanism whereby members
may obtain a fair hearing against a practice that may appear to be
unjust.
10.2
INTERPRETATION AND
REQUIREMENTS
10.2.1 Grievance is any
dissatisfaction or feeling of having been wronged on the part of a
member or group of members regarding
membership and matters
pertaining to the duties, actions and participation of a member or
group of members of the Association.
10.2.2 The grievance procedure further
provides for a formal framework for the fair and equitable resolution
of complaints, grievances
and disputes.
10.2.3 The grievance procedure should
ensure-
a) That grievances are aired and
brought to finality; and
b) Settlement of grievances as close
to the point of origin as possible.
10.2.4 The grievance procedure should
not serve as an appeal mechanism against disciplinary steps taken in
terms of the disciplinary
procedure.
10.2.5 Every attempt should be made to
settle difficulties by discussion. The grievance procedure should
only be entered into if
it is proven that such discussions have
failed.
10.3
GREIVANCE COMMITTEE
a) A grievance committee must be
elected at the AGM consisting of:
(i) A chairperson referred to in
clause 4.1 (a) a (vii); and
(ii)
Three (3)
other
members (excluding conditional members) of which one must be
appointed at the first meeting of the Grievance Committee to
serve as
its secretary.”
[25] In terms of clause
10.4 the grievance procedure to be followed is contained in Annexure
C to the constitution. Annexure C states
the following:
“
PROCEDURE
WITHIN AN ASSOCIATION:
A member or group of members within
the Association must complete a grievance form (see example
attached)
The completed and signed form must be
submitted to the grievance committee of the Association.
The chairperson of the grievance
committee must in consultation with aggrieved member/ group of
members determine a date on which
such member/ group of members must
present their grievances to such committee.
The date must not be later than three
days after submission of the grievance form.
The chairperson of the grievance
committee must prepare a report on the proceedings of the grievance
committee for submission
to the Executive Committee. The report must
contain the decision of the Committee and the reasons thereof.
If the aggrieved member or group of
members is not satisfied with the decision of the grievance
committee such member or group
of members must notify the
chairperson of the grievance committee within 7 (seven) days after
such decision accordingly, and
the matter must be referred to the
Regional Taxi Council’s Grievance Committee by the chairperson
of the grievance committee
within seven (7) days after notification
by the member or group of members.
The chairperson of the Regional Taxi
Council’s Grievance Committee must in consultation with the
aggrieved member or group
of members determine a date on which such
member/ group of members must present their grievance to committee.
The date must not be later than seven
(7) days after the submission of the grievance form.
The chairperson of the Regional Taxi
Council‘s Grievance Committee must prepare a report on the
proceedings on the proceedings
of the Grievance Committee. The
report must contain the decision of the Committee and reasons
therefore.
The decision of the Regional Taxi
Council’s Grievance Committee shall be final.
[26] It is common cause
that the applicants did not make use of the grievance procedure. They
did not give any reason why they did
not comply with the prescripts
of the constitution.
[27] Mr Greyling
submitted that the grievance procedure could not be invoked because
clause 10.2.4 proscribes its use. Clause 10.2.4
reads:
“
The
grievance procedure should not serve as an appeal mechanism against
disciplinary steps taken
in
terms of the disciplinary procedure
.”
(
My
emphasis.)
[28] Mr Greyling argued
that the impugned decision was a disciplinary sanction imposed by the
first respondent on the applicants.
It was therefore a form of
discipline and therefore the grievance procedure could not be
utilised.
[29] I disagree. The
disciplinary procedure is comprehensively set out in Annexure B to
the constitution. Annexure B deals with
the investigation and
institution of disciplinary proceedings after a complaint has been
lodged. It
inter alia
governs how “the accused”
must be informed about the complaint and that both parties should be
allowed a fair and equal
opportunity to state their respective cases.
It sets out the rules of natural justice that shall be applied to
disciplinary proceedings
as well as the sanctions that may be imposed
(refusal to assist administratively is not one of the prescribed
sanctions). It also
contains an appeal procedure to the Regional
Taxis Association.
[30] It is clear that the
disciplinary procedure is a self-contained procedure which culminates
in its own appeal procedure after
conviction and sentence. Clause
10.2.4 was therefore created in order to make it clear that an
accused person who has been properly
tried and convicted must use the
appeal procedure contained in Annexure B and not use the grievance
procedure in Annexure C.
[31] Even if the decision
of the first respondent can be construed as a sanction it is still
not a sanction imposed in terms of
the disciplinary procedure for the
simple reason that the disciplinary procedure was not followed at
all. The applicants should
have invoked the grievance procedure in
order to challenge the impugned decision. Moreover, it is common
cause that the disciplinary
hearing must still unfold.
[32] Even if I find that
the first respondent could not constitutionally take the decision
that it did, the applicants were constitutionally
enjoined to utilise
the grievance procedures first.
[33] There is, as I have
said above, no reason given as to why the grievance procedures were
not followed. Although the first respondent’s
decision is
prima
facie
contrary to its constitutional terms no exceptional
circumstances for interference by this court have been shown.
[34] The application
ought to be dismissed.
[35] There is no reason
why the costs should not follow the success. Members of voluntary
associations should be discouraged from
approaching the courts before
complying with their contractual rights and duties.
[36] I therefore make the
following order:
a) The application is
dismissed.
b) The applicants are
ordered to pay the first respondent’s costs jointly and
severally, the one paying the other to be absolved.
_______________
C.J. MUSI, J
I
agree
______________
LEKALE,
J
On behalf of the
Plaintiff: Adv. Greyling
Instructed
by: Matee Attorneys
307
Cuthbert’s Building
Charlotte
Maxeke Street
BLOEMFONTEIN
On
behalf of the Defendant: Adv. Snyman
Instructed
by: C/o Lovius-Block
31
First Avenue
Westdene
BLOEMFONTEIN
/ar