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[2013] ZAFSHC 219
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Thahameso Ntswanatsatsi Thusanang Taxi Association v Qwaqwa United Taxi Association and Another (4670/2013) [2013] ZAFSHC 219 (12 December 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 4670/2013
In
the matter between:
THAHAMESO
NTSWANATSATSI THUSANANG
TAXI
ASSOCIATION
.............................................................................................................
Applicant
and
QWAQWA
UNITED TAXI
ASSOCIATION
.............................................................
First Respondent
LIST
OF
MEMBERS
.....................................................................................
2
nd
to further Respondents
(“ANNEXURE
FA1”)
CORAM:
L. Le R. POHL, AJ
HEARD
ON:
29 NOVEMBER 2013
DELIVERED
ON:
12 DECEMBER 2013
INTRODUCTION
[1]
In this matter, the applicant, being a Taxi Association from
Germiston, Gauteng, applies for an urgent final interdict against
the
first respondent and its members, being a Taxi Association from
Phuthaditjhaba, Free State Province, in the following terms:
“
4.
That the first respondent and its members be interdicted and
restrained from unlawfully operating as taxi operators on the
Germiston-Setsing
taxi route.”
BACKGROUND
[2]
Besides the abovementioned prayer for an interdict, the notice of
motion also contains a prayer in respect urgency. This
matter
first came before this court on 21 November 2013. It was then,
by agreement, postponed to 21 November 2013.
Supporting,
opposing and replying affidavits were filed. All the issues
have been ventilated. In all the circumstances I
consider the
application to be urgent and will thus take it onto the roll
accordingly.
The
notice of motion also contains the following two prayers with regards
to the alleged contempt of court:
“
2.
That the second to thirteenth respondents be found in contempt of the
court order issued out of this Honourable Court on 12 April
2012;
3.
That the second to thirteenth respondents who are in contempt of the
court order referred to in paragraph 2 above, be committed
to
imprisonment for contempt of court for a period of 30 days, or such
period as this Honourable Court deems just and equitable.”
[3]
The relevant court order of 12 April 2012, referred to above,
was in the form of a rule
nisi
which was confirmed and which reads as follows:
“
2.
A rule
nisi
is issued calling upon the respondent to furnish reasons, if any, on
Thursday 12 April 2012, as to why the following order should
not be
made:
2.1
That the respondent and its members be interdicted and restrained
from preventing the applicant and/or its members in any way
to make
use of the Setsing Taxi Rank, Phuthaditjhaba, Free State Province;
2.2
That the respondent and its members be ordered to allow the applicant
and/or its members to make use of the Setsing Taxi Rank,
Phuthaditjhaba, Free State Province;
2.3
That the respondent and its members be interdicted and restrained
from threatening, intimidating, harassing or assaulting the
applicant’s members and/or its employees;
2.4
That the respondent and its members be interdicted and restrained
from interfering with the applicant’s use of the Setsing
Taxi
Rank, Phuthaditjhaba, Free State Province;
2.5
That the respondent be ordered to pay the costs of the application.”
[4]
Mr Maritz, who appeared for the applicant in this matter before me,
requested the court to postpone the prayers that deal with
the
alleged contempt of court to the normal opposed motion roll of this
court. He also requested that the costs in respect
of same
should stand over to be determined with the said contempt of court
application. It is not necessary for me for purposes
of this
judgment to deal with the reasons for the postponement of the
application for contempt of court. Suffice it to say
though
that I think Mr Maritz’s request was a fair request and the
correct request in the circumstances of this case.
[5]
Mr Maritz, however indicated that the applicant still moves for the
abovementioned urgent, final interdict, together with costs.
[6]
As indicated above, the crux of this application is that the
applicant seeks to obtain a final interdict against the respondent
from unlawfully operating and conducting the business of conveyance
of passengers in the Free State Province along the Germiston-Setsing
taxi route, without being registered and/or holding the necessary
operating licences to do so.
[7]
The applicant alleges that on a continuous basis, the respondent and
its members prevented the applicant and its members access
to the
Setsing Taxi Rank to load and offload passengers and furthermore
alleged that they are using this particular route without
being
registered and/or holding the necessary operating licences to do so.
[8]
The uncontroverted evidence of the applicant is that as a taxi
association, it is lawfully registered to operate along the
Germiston-Setsing taxi route which runs between QwaQwa in the Free
State and Germiston in Gauteng. As proof of this, it attached
to the papers a copy of the operating licence issued to the applicant
in terms of the National Land Transport Act, Act 5 of 2009,
which
clearly indicates that the applicant is lawfully registered to
operate along this route.
[9]
The applicant alleges in its papers that the first respondent and its
members have violently threatened the applicant and its
members to
stay away from the Setsing Taxi Rank and are currently refusing the
applicant and its members access to the taxi rank
in order to load
passengers. It furthermore alleges that the current position is
that all operations from Setsing by the
applicant and its members
have stopped due to the threat or violence and fear of their lives.
The applicant alleges
that its members will suffer irreparable
harm if the interdict is not granted. The applicant
furthermore alleges that
it has no other remedy at its disposal.
This is so because the taxi rank at Setsing is the only taxi rank
that the applicant
can use and is in fact obliged to use in terms of
the route as indicated in the operating licence.
[10]
The respondents vehemently deny the use of any violence against the
applicant. The respondents also deny that they are
preventing
the applicant to use the Setsing Taxi Rank. It needs mentioning that
the alleged violent attacks by the respondents
form, to a large
extent, the basis of the abovementioned application for contempt of
court.
[11]
In its opposing affidavit, the respondents declared the following in
paragraphs 6.2 and 6.3 thereof:
“
6.2
The respondent specifically denies the allegations of unlawfully
operating and conveying passengers without holding the necessary
permits.
6.3
Respondent and its members aver that they have the authority to
legally convey passengers on the route between Setsing,
Phuthaditjhaba,
Free State Province and Germiston, Ekurhuleni
Municipality, Gauteng. As proof thereof, the respondent hereby
attaches
ad hoc
permits to convey passengers from Setsing Taxi Rank, Phuthaditjhaba,
Free State to Germiston, Ekurhuleni Municipality, Gauteng
issued by
the Department of Police, Roads and Transport on a renewable period
of 3 months. Copies of
ad hoc
permits are attached hereto and marked, annexure ‘TM1’.”
[12]
These
ad hoc
permits annexed to the respondent’s opposing papers, are all
virtually similar.
Ex facie
each ad hoc permit, it was typed and/or printed on the official
letterhead of the Department of Police, Roads and Transport
of the
Free State Province. They all have a reference to a specific
application number and a receipt number in respect of
each and every
one of them. They were all addressed to the specific applicants
in question which, on the papers, appears
to be members of the first
respondent. They all have the heading: “
Ad
hoc
authorisation (operating
licence)”. They all have the following introductory
paragraph:
“
The
abovementioned applicant has lodged an application with the Free
State Operating Licencing Board for an operating licencing
(sic), due
to unforeseen circumstances and technical problems, which we
experience, the applicant could not be issued with original
operating
licence.”
Each
and every one of these
ad hoc
authorisations has a reference to a specific vehicle, its capacity,
it has a reference to the operating licence reference number
and a
validity period of three to four months.
Each
and every one of these
ad hoc
authorisations then has a description of the route that may be used.
Each
and every one of these authorisations has the following concluding
paragraph:
“
This
document is only valid when it bears the original signature of the
secretary of the Free State Operating Licencing Board and
the
original stamp. Any queries should be referred to the Office of
the Free State Operating Licencing Board.”
They
were all then signed on behalf of the secretary by a senior admin
clerk and each and every one of them bears the official stamp
of the
Free State Operating Licencing Board.
[13]
It is common cause, that neither the applicant nor anybody else, has
to date attempted to have these
ad hoc
authorisations set aside by way of an application for review or in
any other way.
[14]
In the applicant’s replying affidavit, it declares the
following in paragraph 5.2 thereof:
“
5.2
The applicant denies that the
ad hoc
permits attached to the respondents’ answering affidavit as
annexure ‘TM1’ are valid, legal and permits the
respondents to convey passengers on the route between Setsing
Phuthaditjhaba, Free State Province and Germiston, Ekurhuleni
Municipality,
Gauteng on a continual basis in terms of the Free State
Public Transport Act, Act 102 of 2005 (the Act) read with the
National
Land Transport Act, Act 5 of 2009.
5.3
Even in the event that the
ad hoc
permits are valid (which is denied) the respondents failed to
disclose the true nature of an
ad hoc
permit in terms of the Act.”
THE
LEGISLATION
[15]
Section 65 of the Free State Public Transport Act, Act 4 of 2005,
that deals with
ad hoc
authorisations, has
inter alia
the following provisions:
“
65
Ad hoc
authorisations
(1)
No one may undertake public transport
services in connection with a particular occurrence, such as a sports
event, funeral or wedding,
except under the authority of an
ad
hoc
authorisation issued and completed
under this section.
(7) The Board may
disqualify a holder who habitually undertakes temporary transport
services without completing the necessary authorisation,
or who
habitually abuses
ad hoc
authorisations.
(8)
Ad hoc
authorisations must be in the prescribed form.
(9)
Ad hoc
authorisations may only be used to transport passengers for once-off
events and, while they are being used-
passengers may not
be picked up or dropped off en route;
the holder must
return from the
ad hoc
journey with the same passengers;
the
holder may not undertake minibus taxi-type services locally while
waiting for passengers.”
THE
LEGAL POSITION
[16]
It would appear, that on the face of these
ad
hoc
authorisations annexed to the
respondents’ opposing papers, that they do not strictly comply
with the provisions of section
65 of the Free State Public Transport
Act, Act 4 of 2005 and more in particular, with the provisions of
subsection 1 and/or subsection
9. If one has regard to the
abovementioned introductory paragraph of these authorisations, it
would appear that they were
issued, almost as a substitute for a
proper operating licence. They do not appear to be issued for
“a specific event,
funeral or wedding”, for
instance. They were issued for a validity period of three to
four months, indicating
that they were not issued for a specific
event. They were also not signed by the secretary himself, but
by the senior admin
clerk. Whether or not this clerk had
the necessary authority and/or delegation to sign these
authorisations, is unclear
on the papers before me.
[17]
In the premises there is a strong possibility that these
ad
hoc
authorisations could be set aside
by the proper forum if taken on review. As indicated above,
this had not been done to date.
[18]
Mr Maritz submitted that the court need not declare the specific
permits invalid. The applicant is not asking for a declaratory
order. He submitted that it would suffice if I find that on the face
of it, it appears to be invalid. Such a finding
would
then entitle the court to find that the respondents are in fact
unlawfully operating as taxi operators on the Germiston-
Setsing taxi
route. It would thus entitle the applicant to the interdict.
[19]
In this regard it is apposite to refer to the decision of
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) at p 241 par [26]:
“
[26]
For those reasons it is clear, in our view, that the Administrator's
permission was unlawful and invalid at the outset. Whether
he
thereafter also exceeded his powers in granting extensions for the
lodgement of the general plan thus takes the matter no further.
But
the question that arises is what consequences follow from the
conclusion that the Administrator acted unlawfully. Is the permission
that was granted by the Administrator simply to be disregarded as if
it had never existed? In other words, was the Cape Metropolitan
Council entitled to disregard the Administrator's approval and all
its consequences merely because it believed that they were invalid
provided that its belief was correct? In our view, it was not. Until
the Administrator's approval (and thus also the consequences
of the
approval) is set aside by a court in proceedings for judicial review
it exists in fact and it has legal consequences that
cannot simply be
overlooked. The proper functioning of a modern State would be
considerably compromised if all administrative acts
could be given
effect to or ignored depending upon the view the subject takes of the
validity of the act in question. No doubt
it is for this reason that
our law has always recognised that even an unlawful administrative
act is capable of producing legally
valid consequences for so long as
the unlawful act is not set aside.”
I
respectfully agree with the
Oudekraal
Estates
decision,
supra
.
This means that even if the
ad hoc
authorisations are susceptible to be set aside by a court of law, it
has not been done to date. It thus has legally valid
consequences for as long as the authorisations are not set aside.
The consequences that follow from these
ad
hoc
authorisations
are that the respondents, who are in possession of these
ad
hoc
authorisations, may operate with
them, as if they are valid, at least until they are set aside.
In the premises, I disagree
with Mr Maritz`s submissions referred to
in paragraph 18,
supra
.
[20]
It is trite law that in motion proceedings, unless concerned with
interim relief, are all about the resolution of legal issues
on
common cause facts. Unless the circumstances are special, they
cannot be used to resolve factual issues, because they
are not
designed to determine probabilities. It is well established
under the
Plascon-Evans
rule that where in motion proceedings, disputes of fact arise on
affidavits, a final order can be granted only if the facts averred
by
the applicant have been admitted by the respondent, together with the
facts alleged by the respondent, justify such an order.
It may
be different if the respondents’ version consists of a bald or
uncreditworthy denials, raises fictitious disputes
of fact, is
palpably implausible, farfetched or so clearly untenable that the
court is justified in rejecting them merely on the
papers.
(Compare
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A);
National Director of
Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2)
SA 277
(SCA).)
In
the premises, and when I apply the
Plascon-Evans
rule in motion proceedings to the
totality of the facts placed before me and I apply the
Oudekraal
Estates
decision,
supra,
to these facts, as I am obliged to do,
I cannot find that the applicant has proved that the respondents are
unlawfully operating
and conducting business of conveyance of
passengers on the relevant route without the necessary authorisation
to do so. This
finding of course precludes the applicant of
obtaining the final interdict contained in prayer 4 of the notice of
motion.
ORDERS
[21]
In the premises I make the following orders:
1.
Prayers 2 and 3 of the notice of
motion (i.e. the contempt of court) are postponed
sine
die
, to be heard on the normal
opposed roll of this court;
2.
The costs in respect of prayers 2
and 3 will stand over to be determined by the court hearing the
opposed motion in respect of prayers
2 and 3;
3.
This matter is taken on to the roll
as an urgent application in terms of prayer 1 of the notice of
motion, with reference to prayer
4 of the notice of motion. (the
interdict)
4.
The application for a final
interdict in terms of prayer 4 of the notice of motion is dismissed
with costs.
_______________
L. le R. POHL, AJ
On
behalf of applicant: Adv N G MARITZ
Instructed by:
Savage
Jooste & Adams Inc
NIEUW
MUCKLENEUK
c/o
A P Pretorius & Partners
BLOEMFONTEIN
On
behalf of respondents: Adv C SIHLALI
Instructed by:
Faku Attorneys
JOHANNESBURG
c/o Cengani &
Ass
BLOEMFONTEIN