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[2012] ZAGPPHC 45
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Mabunda and Others v Dalson (A1000/10) [2012] ZAGPPHC 45 (23 February 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Date:23/02/2012
Case
number: A1000/10
In
the appeal matter between;
N.G
MABUNDA
.....................................................................................................
First
Appellant
(First
Respondent a quo)
M.M
JACKSON
................................................................................................
Second
Appellant
(Second
Respondent a quo)
J
CHAUKE
...........................................................................................................
Third
Appellant
(Third
Respondent a quo)
B
SHIVAMBU
.....................................................................................................
Fourth
Appellant
(Fourt
Respondent a quo)
F
MALULEKE
......................................................................................................
Firth
Appellant
(Fifth
Respondent a quo)
And
M.N
DALSON
...........................................................................................................
Respondent
(Applicant
a quo)
JUDGMENT
BAQWA
A.J
[1]
This is an appeal against part of the order handed down by the
magistrate in the Magistrate's Court for the district of Hlanganani
on 2 March 2008 and for which written reasons were given on 17
September 2010.
[2]
This matter had come before the court a quo by way of urgent
application by the Respondent who sought an order against the five
Appellants.
[3]
Respondent sought and obtained an interim order dated 18 December
2009
in which the Appellants were prohibited from:
3.1.
Off-loading passengers from a motor vehicle with registration number
BYM 507 L being a vehicle that Respondent operated as
taxi between
Bungeni Taxi Rank and Giyani OBC through licence number LLP
LOL23835/L.
3.2.
In any way, interfering with the Respondent or any of his employees
while the Respondent was in the process of conveying passengers
from
Bungeni Taxi Rank to Giyani Taxi Rank and OBC Taxi Rank, or vice
versa as provided in the above-mentioned operating licence.
3.3.
Threatening the Respondent or his employees and/or drivers while
Respondent or his employees/drivers were in the process of
conveying
passengers from the Bungeni Taxi Rank to Giyani Taxi Rank at Shoprite
Taxi Rank and OBC Taxi Rank; or vice versa in line
with the
aforementioned operating licence.
3.4.
the Respondent also applied for costs on an attorney and client scale
but eventually costs were awarded on the basis that each
party pay
its own costs.
[4]
The interim order was granted subject to a rule-nisi returnable on 9
February 2010. This rule was subsequently extended on several
occasions for various reasons. It was eventually heard on 2 March
2010 on which date it was discharged as follows:
'The
rule nisi is discharged. Respondents are ordered to desist from
taking the law into their hands. Each party is to pay their
own
costs".
[5]
On 3 March 2010 and in terms of Rule 51(1) of the Magistrate's Court
Act the Appellants requested the Magistrate to furnish
reasons for
judgment which reasons were furnished on 17 September 2010. In those
reasons the final order is couched as follows:
"1.
That the rule nisi is hereby discharged.
2.
That the Respondents are ordered to desist from dragging passengers
ordering passengers out of the vehicle of the applicant (BYM
507 L)
or in any other way, taking the law into their own hands; with regard
to the vehicle of the applicant mentioned above.
3.
That each party shall pay its own costs."
[6]
In the urgent application the court a quo correctly found that;
6.1.
The Respondent was a taxi owner who had several taxis in his fleet.
6.2.
Respondent operated his taxis inter alia along the Giyani-Bungeni
public road and that route fell under the "control"
of
Hlanganani Taxi Association.
6.3.
The Respondent was a member of that Taxi Association and that he
hired drivers to operate his taxis.
6.4.
During or about November 2009 Respondent bought an additional vehicle
with a view to increasing his fleet of taxis. The registration
numbers of the Respondent's new vehicle are BYM 507 L and that the
make of the vehicle was a Toyota Quantum.
6.5.
After he had purchased the motor vehicle Respondent encountered
intransigence on the part of some authorities of the Hlanganani
Taxi
Association when he tried to obtain documents to operationalise the
vehicle as a taxi. Persons who appeared to obstruct Respondent's
progress in this regard were the Appellants.
6.6.
The obstruction activities culminated on 20 November 2009 where
members of the Hlanganani Taxi Association who were acting
under the
directions of or in collaboration with some or all of the Appellants
ordered passengers out of the vehicle in question.
6.7. Respondent
was under the impression that he was being victimised because he had
failed to support the First Appellant for
a leadership position in
the Taxi Association.
6.8.
The Respondent had reported the said actions of the Appellants to
Waterval Police to no avail as the police viewed the matter
as an
internal squabble between members of the Taxi Association.
[7]
Further, the court a quo accepted in the urgent application the
Respondent's averment that those events occurred whilst he was
operating his taxi in a manner compliant with the law. The court a
quo concluded in particular, correctly in my view, that:
7.1.
"the applicant in making those averments, and upon the balance
of probabilities, succeeded in proving a prima facie clear
right"
See
Setlogelo v Setlogelo
1914 AD 221
7.2.
That "this prima facie clear right of the Applicant stood to be
proected at law.
See
Msunduzi Municipality v Natal Joint Municipal Pension/Provident Fund
2007(1) SA 142 N".
7.3.
The court a quo also found from the facts that an injury had been and
was continuing against the Respondent and that the Appellants
were
inflicting an irreparable harm against the business interests of the
Respondent.
7.4.
Consequently, and correctly in my view, the court found that the
balance of convenience tilted in favour of the Respondent
and granted
interim order.
[8]
In their response on the return day of the rule nisi the Appellants
did not address the issue of forcibly off loading passengers
as
alleged by the Respondent. They instead challenged the legality of
the taxi operation run by the Respondent through the use
of the
vehicle BYM 507 L.
[9]
The Respondent had to prove a clear right for the rule nisi to be
made final. He instead conceded that he could not obtain certain
documents to fully legalise his taxi operation regarding motor
vehicle BYM 507 L due to some administrative impediments. The rule
nisi was accordingly discharged.
[10]
The appeal is against paragraph 2 and 3 of the order discharging the
rule nisi. Paragraph 2 interdicts the Appellants whilst
paragraph 3
orders each party to pay its own costs.
[11]
The court a quo took the view that it had the power to impose the
terms contained in paragraph 2 Of its order interdicting
the
Appellants from engaging in the acts specified therein. In my view
the court misdirected itself in coming to that conclusion.
[12]
The correct position is that any terms imposed against granting or
refusal of an order have to be reasonable.
See
Hillman Bros West Rand (Pty) Ltd v Van Den Heuvel
1937 WLD 41
12.1.
The rule nisi was discharged as a result of the fact that the court a
quo found the Respondent did not possess a right that
stood to be
protected with regard to his taxi operation. If this was so, it
follows that the Respondent could not therefore lawfully
continue to
operate his taxi. In the absence of such an operation the order in
paragraph 2 was academic and could therefore not
be a reasonable
order in the circumstances.
12.2.
The court a quo further misdirected itself in ordering each party to
pay its own costs. The Respondent had brought an application
against
the Appellants well knowing that he did not posses the requisite
documents to operate his taxi. The costs order should
accordingly
have been awarded against him.
[13]
In the result I propose that the following order be made:
13.1.
The appeal is upheld and the judgment handed down by the Magistrate
on 2 March 2008 and 17 September 2010 is set aside and
substituted
with the following:
"(1)
That the rule nisi is hereby discharged. (2) That the Applicant pay
the wasted costs."
I
agree.
BAQWA
S.A.M
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered.
FABRICIUS
H.J
JUDGE
OF THE HIGH COURT
Case
no.: A1000/2010 Heard on: 23/02/2012
Counsel
for the five Appellants: LK Van der Merwe
Instructed
by: Venter Attorneys c/o Van Zyl Le Roux INC
71
Steenbok Avenue
First
Floor, Block 3
Monumentpark
Pretoria
Counsel
for the Respondent: No appearance for respondent Instructed by:
Shirinda Attorneys Elim Hospital Waterval
Date
of Judgment: 23 February 2012 at 10:00am. In the High Court of South
Africa