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[2012] ZAFSHC 77
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MEC: Department of Police, Roads and Transport, Free State Province and Others v Mohokare Long Distance Taxi Association (A77/11) [2012] ZAFSHC 77 (26 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A77/11
In the appeal between:-
THE MEC: DEPARTMENT OF POLICE,
ROADS AND TRANSPORT, FREE STATE
PROVINCE
…....................................................................................
First
Appellant
THE PROVINCIAL REGISTRAR,
TRANSPORT:
FREE STATE PROVINCE
…......................................................
Second
Appellant
M NTHUPING
…..............................................................................
Third
Appellant
W MDHLULI
…..............................................................................
Fourth
Appellant
and
MOHOKARE LONG DISTANCE TAXI
ASSOCIATION
…..................................................................................
Respondent
_____________________________________________________
CORAM:
VAN
DER MERWE, J
et
MOCUMIE, J
et
LEKALE, J
_____________________________________________________
HEARD ON:
5
MARCH 2012
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
26 APRIL 2012
_____________________________________________________
[1]
This is an appeal to the Full Court against orders made by Moloi J in
three applications, namely applications 2968/09, 3357/09
and 3389/09.
The appeal is with the leave of the court
a quo
.
[2]
Application 2968/09 was launched by the respondent, as the first
applicant, and by Morning Star Taxi Association, as the second
applicant. The first appellant (the MEC) was the first respondent.
The second appellant (the provincial transport registrar) was
the
second respondent. The provincial transport registrar is appointed by
the MEC in terms of section 68 of the Free State Public
Transport Act
4 of 2005 (the Act). The main function of the provincial transport
registrar is the registration of associations
formed in relation to
public transport such as minibus taxis, the members thereof, as well
as non-members. The third and fourth
respondents in this application
were officials of the Free State Department of Police, Roads and
Transport (the department).
[3]
Application 2968/09 was based exclusively on spoliation. The
respondent alleged that it, Morning Star Taxi Association and their
members had been in peaceful and undisturbed possession of the taxi
rank known as the Border Box, Maseru Bridge, district Ladybrand
for
more than 20 years. It was further alleged that the respondents
disturbed this possession on 10 June 2009 by causing the offices
of
the respondent at the Border Box to be locked and by, on that date
and thereafter, prohibiting and hindering the members of
the
respondent to make use of the Border Box as taxi rank.
[4]
On 12 June 2009 C.J. Musi J issued a rule
nisi
in application 2968/09 in the
following terms:
“
WORD
DIT GELAS DAT:
.....
Die respondente
opgeroep word om redes, indien enige, aan te voer op Donderdag, 25
Junie 2009 om 09h30 waarom ‘n bevel met
die volgende bepalings
nie verleen sal word nie:
(a) dat die
respondente verbied word om die applikante of die lede van applikante
te verhoed om hulle besigheid as taxi eienaar
en/of bestuurders te
bedryf.
(b) dat die
respondente verbied word om die lede van die applikante te verhoed om
hulle besigheid as taxi eienaars en/of bestuurders
te bedryf vanaf
die perseel bekend as Border Box, Maseru Brug, distrik Ladybrand,
Vrystaat Provinsie.
(c) dat die
respondente of enige van die respondente se amptenare verbied word om
die lede van die applikante lastig te val, te
intimideer of in te
meng met hulle bedrywighede van taxi eienaars en/of taxi bestuurders.
(d) dat die
respondente, gesamentlik en afsonderlik, gelas word om die koste van
hierdie aansoek te betaal.
3. Die bevele
vervat in paragrawe 2 (a) tot (c) hierbo sal dien as tussentydse
bevel met onmiddellike werking hangende die uitslag
van hierdie
aansoek.”
[5]
The respondent was the only applicant in application 3357/09. The
application was brought against the provincial transport registrar,
as the first respondent, and the MEC, as the second respondent. The
heart of the case of the respondent in this application was
a
decision taken by the provincial transport registrar to deregister
the respondent as a taxi association in terms of the Act,
which
decision was conveyed to the respondent in a letter of the provincial
transport registrar dated 23 June 2009. The case of
the respondent
was that the decision was both unlawful and a contravention of the
order made in application 2968/09. Therefore
an order for committal
for contempt of court in respect of the provincial transport
registrar was sought.
[6]
Van Zyl J on 9 July 2009 issued a rule
nisi
in application 3357/09 in the
following terms:
“
WORD
DIT GELAS DAT: (By ooreenkoms)
1. Die eerste
respondent word opgeroep om redes aan te toon waarom die volgende
bevele nie verleen moet word nie:
1.1 dat die
eerste respondent skuldig bevind word aan minagting van die Hof
deurdat hy die bevele, uitgereik deur Sy Edele Regter
C J Musi, op 12
Junie 2009 onder saaknommer 2968/2009, aangeheg by die applikant se
funderende eedsverklaring en gemerk aanhangsel
‘JM1’
verontagsaam.
1.2 dat die
eerste respondent gelas word om te voldoen aan die bepalings van
voormelde Hofbevel.
1.3 die eerste
respondent word gelas om sy besluit, gedateer 23 Junie 2009, en
waarvan ‘n afskrif aangeheg is by die applikant
se funderende
eedsverklaring, gemerk aanhangsel ‘JM5’, te herroep.
1.4 dat die
eerste respondent ‘n vonnis opgelê word wat die Agbare
Hof onder die omstandighede billik mag ag.
1.5 dat die
eerste respondent gelas word om die koste van die aansoek te betaal.
2. Bede 1.3
hierbo sal dien as ‘n tussentydse bevel met onmiddellike
werking hangende die uitslag van hierdie aansoek.
3. .....”
[7]
The applicants in application 3389/09 were the respondent, Morning
Star Taxi Association, Mr. Moses, Mr. Chivase, Mr. Ntlema,
Mr. Khotso
and Mr. Selane. These persons are owners or drivers associated with
the respondent and Morning Star Taxi Association,
whose taxis were
impounded. The respondents were the MEC, as first respondent, the
provincial transport registrar, as second respondent,
Mr. Nthuping,
who was then the acting provincial transport registrar, as the third
respondent and Mr. Mdhluli, an official of the
department, as the
fourth respondent. The applicants in this application sought a rule
nisi
calling on the respondents to show cause why the
following orders should not be made:
“
(a)
Dat
die Respondente gelas word om die voertuie, met registrasienommers
DBN
963 FS; FWN 396 NW; NKR 223 GP; DPD 509 FS
en
WDN
623 GP
,
asook enige ander voertuie waarop die Respondente beslag gelê
het en geskut het na aanleiding van optredes op
5
en 6 Julie 2009
en
te Border Box Maserubrug, distrik Ladybrand, Vrystaat Provinsie, en
welke voertuie voor of op
5
Julie 2009
in
die regmatige besit van die lede van die Eerste en Tweede Applikante
was, onverwyld aan die regmatige eienaars en/of bestuurders
terug te
handig;
(b)
Dat die respondente gelas word om alle dokumente, welke insluit maar
nie beperk is nie tot bedryfslisensies en bestuurderslisensies,
welke
deur die respondente op beslag gelê is gedurende optredes deur
die Respondente op
5 en 6 Julie 2009
soos vermeld in paragraaf 2(a) hierbo onverwyld
aan die betrokke lisensiehouers en/of regmatige besitters daarvan,
terug te oorhandig;
(c)
Waarom die Respondente nie skuldig bevind sal word aan minagting van
die Hof nie, deurdat die respondente die bevele, uitgereik
deur Sy
Edele Regter CJ Musi op
12 Junie 2009
onder
saaknommer
2968/2009
, aangeheg by die Applikante
se funderende eedsverklaring en gemerk Aanhangsel
JM1
,
verontagsaam;
(d) Dat die
Respondente gelas word om te voldoen aan die bepalings van voormelde
hofbevel;
(e) Dat die
Respondente ‘n vonnis opgelê word wat die Agbare Hof
onder die omstandighede billik mag ag;
(f) Dat die
Respondente, gesamentlik en afsonderlik, gelas word om die koste van
hierdie aansoek te betaal op ‘n skaal soos
tussen prokureur en
kliënt, of sodanige skaal as wat die Agbare Hof onder die
omstandighede mag billik ag.”
[8]
The basis of this application was an operation carried out on 5 July
2009 by officials of the department headed by Mr. Mdhluli.
The
applicants in this application alleged that this operation was
launched and carried out in order to prevent the members of
the
respondent and Morning Star Taxi Association from using the Border
Box as a taxi rank and that in the process the vehicles
mentioned
were impounded.
[9]
On the extended return dates of applications 2968/09 and 3357/09 both
served before Moloi J, who heard both simultaneously with
application
3389/09. Moloi J confirmed both rules
nisi
with costs,
including the costs of two counsel and made the following order in
respect of application 3389/09:
“
The
prayers as per notice of motion in case number 3389/09 are granted
with costs including the costs of two counsel.”
In
addition the following formed part of Moloi J’s order:
“
2.
The registrar of Transport and Wally Mdhludi are found guilty of
contempt of court as set out in the judgment. The contempt of
court
findings are taken as one for purposes of sentence. Each one of them
is sentenced to three (3) months imprisonment wholly
suspended for a
period of three (3) years on condition that they are not found guilty
of contempt of court relating to their employment
situation as public
servants and committed during the period of suspension.”
[10]
In context it must be accepted that the provincial transport
registrar was convicted of contempt of court in respect of the
conduct relied upon in both applications 3357/09 and 3389/09. It must
also be accepted that final orders were made in terms of
prayers 2(a)
and 2(b) of the notice of motion in application 3389/09.
[11]
The only parties to the appeal are the parties mentioned in the
heading above. I propose to deal separately with the grounds
of
appeal of the appellants in respect of each of the applications.
APPLICATION
2968/09
[12]
Only two points were argued in respect of the orders made in this
application, namely first, that interference with the peaceful
and
undisturbed possession of the Border Box was not established and
second, that the orders were made in too wide terms.
[13]
I cannot agree with the first contention on behalf of the appellants.
It is trite that spoliation is committed when peaceful
and
undisturbed possession is disturbed or interfered with without due
and lawful process. The evidence that the respondent and
its members
were in peaceful and undisturbed possession of the Border Box taxi
rank, was not disputed at all. Not only was the
specific evidence of
the respondent of interference with this peaceful and undisturbed
possession met only with a bare denial on
the part of the appellants,
but on their showing the appellants spoliated the respondent and its
members. It appears from the evidence
that officials of the
department took a decision that taxi operations at the Border Box
will cease as a matter of urgency as of
10 June 2009 and that that
decision was executed. One of the officials of the department in his
affidavit before us in so many
words confirmed that he stopped taxis
driven by members of the respondent and informed them not to operate
from the Border Box,
but to use different premises.
[14]
I do agree, however, that par. 2(a) of the order of 12 June 2009 is
couched in too wide terms, in that lawful actions and conduct
on
behalf of the appellants also appears to be prohibited thereby. The
order should be amended so as to make it clear that only
unlawful
actions and conduct by or on behalf of the appellants are prohibited.
APPLICATION
3357/09
[15]
The appellants did not attack the necessarily implicit finding that
the decision to deregister the respondent as a taxi association
cannot stand, but confined their argument to the finding of contempt
of court. This was done for good reason, which, I think, should
be
briefly stated in the interest of the parties.
[16]
The date of commencement of the Act is 23 March 2007. The Act
repealed the Free State Interim Passenger Transport Act 16 of
1998.
In terms of section 80 of the Act the provincial transport registrar
is obliged to register a minibus taxi association, if
satisfied in
respect of the requirements tabulated in that section. Section 80(b)
provides that the provincial transport registrar
must be satisfied
that the number of members of the particular association meets the
prescribed minimum. It appears from the aforesaid
letter that the
respondent was purportedly deregistered for failure to maintain the
minimum prescribed number of members. Section
84 of the Act provides
that the provincial transport registrar may suspend or withdraw the
registration of an association for failure
to comply with the Act or
for other conduct that has been prescribed as improper conduct. This
section provides that on receipt
of a complaint, accusation or
allegation, the provincial transport registrar may conduct an enquiry
in the manner prescribed, but
before conducting an enquiry, the
provincial transport registrar must address a written warning to the
association requiring it
to remedy its failure within the time
stated, which may not be less than 21 days. It is common cause that
no such warning was addressed
to the respondent.
[17]
However, the respondent was never registered or deemed to be
registered as an association in terms of the Act. The respondent
was
only conditionally registered in terms of the repealed Act 16 of
1998. Its certificate of registration issued by the provincial
transport registrar on 20 September 2004 stated that the respondent
had been conditionally registered under section 18(2) of the
Free
State Interim Passenger Transport Act 16 of 1998 and that full
registration will be effected under section 18(3) of that Act
on
compliance with all requirements set out in that Act. Section 78(1)
of the Act provides that an association which has been fully
registered in terms of section 18 of the Free State Interim Passenger
Transport Act 16 of 1998, will be deemed to have been registered
under the Act. The Act does not provide for or recognise conditional
registration of an association. It follows that at best the
respondent’s application for full registration was not disposed
of at the time of the commencement of the Act. In this regard
section
112(5) of the Act provides that any application for registration as
an association in terms of Act 16 of 1998 which was
not disposed of
at the commencement of the Act, is deemed to be an application under
the Act. There was therefore no basis for
“deregistration”
of the respondent or for steps in terms of section 84 of the Act and
non-compliance with section 80(b)
should have led to refusal of
registration for the time being.
[18]
It is settled law that in civil contempt proceedings the applicant
has to prove the requisites of contempt, that is the order,
service
or notice thereof, non-compliance therewith and wilfulness and
mala
fides
, beyond a reasonable doubt, but that
once the applicant has proved the order, service or notice and
non-compliance, the respondent
bears an evidentiary burden to raise a
reasonable doubt in respect of wilfulness and
mala
fides
. See
FAKIE NO
v CCII SYSTEMS (PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). It is also clear that a public official who is ordered by a
court to do or to refrain from doing a particular act and fails
to do
so, is liable to be committed for contempt. See
MEC,
DEPARTMENT OF WELFARE, EASTERN CAPE v KATE
[2006] ZASCA 49
;
2006
(4) SA 478
(SCA) at 492 G – H.
[19]
In this regard it was argued by the appellants that the finding of
contempt of court in respect of the provincial transport
registrar is
bad in law as he or she was not identified “as a particular
human being”. It was also argued that the
provincial transport
registrar only exercised his official duties when taking the decision
to deregister the respondent as a taxi
association and that he was
therefore not
mala fide
.
[20]
I do not agree with the contention that a court order made against a
public official can only be enforced by civil contempt
proceedings if
a particular human being is identified as the holder of the
particular public office. Section 34 of the General
Law Amendment Act
62 of 1955 in fact prohibits the citing of a public official by name.
It provides that whenever any minister
of state or a public official
is cited in official capacity in any legal proceedings in any court,
he or she shall be cited by
his or her official title and not by
name. A court order made against a public official must therefore
ordinarily be interpreted
as an order against the holder of the
particular office for the time being. A contrary interpretation could
result therein that
the execution of a court order and the
enforcement of the rights of any person in terms thereof may be
frustrated by simply changing
the personnel involved. On the other
hand, this interpretation should not lead to any prejudice to a
public official or the state.
[21]
I do not find it necessary to deal with the contention that the
provincial transport registrar was not
mala
fide
. In my view the conduct relied upon in
this regard, namely the decision to deregister the respondent as a
minibus taxi association,
objectively did not constitute
non-compliance with the court order of 12 June 2009 in application
2968/09. Upon a proper construction
of this order, its import is to
prevent interference with the operation of taxis. The respondent does
not operate taxis, its members
and their drivers operate the taxis.
[22]
Section 4(3) of the Act provides as follows:
“
(3)
A person undertaking a public transport service must –
(a) have the
necessary permit, operating licence or ad hoc authorisation; and
(b) be registered in terms of this Act
in the case of minibus taxi-type, metered taxi, bus-type and coach
services, four plus one
taxi-type and education services subject to
section 77, 83, 86, 87, 89, 90, 92, 93, 94, 95 and 96 of this Act.”
A permit is a public road
carrier permit or similar authorisation issued under a previous law.
An operating licence is issued by
the Free State Transport Operating
Licensing Board in terms of the Act. Section 65 of the Act provides
for
ad hoc
authorisation by the Board to undertake public
transport services in connection with a particular occurrence, such
as a sports
event, funeral or wedding.
[23] As stated above,
section 80 of the Act provides for registration of minibus taxi
associations. Section 81 provides that where
an association has been
so registered, the provincial transport registrar must register every
member thereof who holds a valid
and appropriate permit or operating
licence. Section 83 deals with the registration of non-members of
minibus taxi associations.
Sections 86 to 96 are not relevant to the
present matter.
[24] As stated, section
4(3)(b) of the Act is expressly subject to section 77 thereof.
Section 77(1) of the Act provides that after
a date determined by the
MEC by notice in the provincial gazette, no operator may undertake
minibus taxi-type services and no association
may conduct business as
such, without being registered under the Act. The aim of this
provision is no doubt to allow existing associations
and operators
with permits or operating licences to continue to operate taxis
during the process of obtaining registration in terms
of the Act.
After having been given an opportunity to research the matter, the
appellants confirmed that to this day the MEC has
not determined a
date in terms of section 77(1) of the Act. It follows that at all
times relevant hereto a minibus taxi could have
been validly operated
without registration in terms of the Act, if the necessary permit or
operating licence had been issued. It
also follows that before the
date determined in terms of section 77, the deregistration or
cancellation of registration of an association
such as the
respondent, has no impact on the operation of the taxis by the
members of the association.
[25] In my view
therefore, the finding that the provincial transport registrar was
guilty of contempt of court as alleged in this
application, is wrong
and must be set aside.
APPLICATION 3389/09
[26] In respect of this
application only the findings that the provincial transport registrar
and the fourth appellant (Mr. Mdhluli)
were guilty of contempt of
court and the sentences imposed, were challenged before us.
[27] The finding that the
provincial transport registrar made himself guilty of contempt of
court in respect of the operation of
5 July 2009 can be briefly
disposed of. This application simply contains no evidence of failure
to comply with or contravention
of the relevant court order on the
part of the provincial transport registrar.
[28] In the answering
affidavits in this application, the allegations made against Mr.
Mdhluli were responded to in particularity.
It was stated that the
operation of 5 July 2009 was a scheduled normal law enforcement
operation that was carried out on a public
road far from the Border
Box, during which many vehicles were stopped and inspected. Some 15
vehicles were impounded and not only
the vehicles belonging to
members of the respondent and Morning Star Taxi Association. The
evidence is that these vehicles were
impounded because they were
operated as taxis without valid operating licences. It was therefor
also denied that any operating
licences were confiscated. It was
specifically denied that the operation was aimed at preventing the
use of the Border Box or that
anyone was informed accordingly. Mr.
Mdhluli also specifically denied that he used the vulgar words of
disregard in respect of
the court order ascribed to him.
[29] The evidence
referred to can in my view not be described as far-fetched or clearly
untenable and must therefore have been accepted
for purposes of
decision of the application. On this evidence there was no contempt
of court. In my judgment the court
a quo
therefore erred in
finding that Mr. Mdhluli was in contempt of court as alleged.
COSTS
[30] This appeal was
initially enrolled for hearing on 24 October 2011. The attorneys for
the respondent were notified thereof on
18 July 2011. However, on 21
October 2011 the respondent launched an application to have the
appeal postponed
sine die
in order for the respondent to file
heads of argument as required by the Rules of Court. This application
was successful, but on
24 October 2011 it was specifically ordered
that the respondent must file its heads of argument on or before 30
November 2011.
The appeal was enrolled on 25 October 2011 for hearing
on 23 January 2012. Only on 18 January 2012 did the respondent file
heads
of argument in respect of the appeal, accompanied by an
application for condonation for late filing of the heads of argument.
The
appellants on 23 January 2012 requested and were granted
opportunity to consider the application for condonation and to file
answering
affidavits thereto and the matter was postponed to 5 March
2012. Costs occasioned by the postponement were reserved. On 5 March
2012 the required condonation was granted, but costs reserved. It is
clear in my view that the respondent should be ordered to
pay the
costs of the application for condonation including the costs of
opposition thereto, as well as the costs occasioned by
the
postponement on 23 January 2012. Counsel for the appellants, however,
argued that these costs should be awarded on the scale
of attorney
and client. I seriously considered this request, but have come to the
conclusion that it is clear that the respondent
at all times intended
to resist the appeal and that lack of sufficient funds must have been
the major cause of the delay. In the
circumstances these costs should
be awarded on the normal party-and-party scale.
[31] Costs of the appeal
should follow the result, including the costs of two counsel. The
record of the appeal however includes
three volumes containing
transcription of oral argument delivered at various stages of hearing
of the matters up to and including
the application for leave to
appeal. There is no justification for including the costs of these
volumes in the costs of appeal
and this was correctly conceded by
counsel for the appellants. There is no reason to disturb the costs
orders made by the court
a quo
.
[32] In the result the
following orders are issued:
1. The appeal succeeds to
the following extent:
1.1 Paragraph 2(a) of the
order in application 2968/09 is amended to read as follows:
“
(a)
dat die respondente verbied word om die applikante of die lede van
applikante op onregmatige wyse te verhoed om hulle besigheid
as taxi
eienaar en/of bestuurders te bedryf.”
The findings that the
second and fourth appellants are guilty of contempt of court and
the sentences imposed in respect thereof
are set aside.
2. The respondent is
ordered to pay the costs of the appeal, excluding the costs
pertaining to the three volumes containing transcription
of oral
argument but including the costs occasioned by the postponement
thereof on 23 January 2012 and the costs of two counsel,
as well as
the costs of its application for condonation dated 18 January 2012
and the costs of opposition thereto.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
_______________
B.C. MOCUMIE, J
I concur.
_____________
L.J. LEKALE, J
On behalf of appellants:
Adv. M.T. K. Moerane SC
With him:
Adv. T.L. Manye
Instructed by:
The State Attorney
BLOEMFONTEIN
On behalf of respondent:
Adv. A.J.R. van Rhyn SC
With him:
Adv. P. du P. Greyling
Instructed by:
Goodrick & Franklin
BLOEMFONTEIN
/sp