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2012
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[2012] ZAFSHC 105
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Qibing Transport Ass and Others v Registrat of Public Transport and Others (3108/2011) [2012] ZAFSHC 105 (26 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3108/2011
In the matter between:-
QIBING TRANSPORT
ASSOCIATION
…................................
1
st
Appellant
A.T. MPITI
…............................................................................
2
nd
Applicant
M.A. MAKHETHA
3
rd
Applicant
P.J. RAMATHEBANE
4
th
Applicant
T.P. PHOMANE
5
th
Applicant
B. KHAMALI
6
th
Applicant
T.G. LELALA
7
th
Applicant
N. MAKOTI
8
th
Applicant
P.A. SHALE
9
th
Applicant
M.P. MIFI
10
th
Applicant
M.L. MOKOENA
11
th
Applicant
T.W. LIPHOLO
12
th
Applicant
M.V. SELEKE
13
th
Applicant
W. PHETHUKA
…...................................................................
14
th
Applicant
and
REGISTRAR OF PUBLIC
TRANSPORT
….........................
1
st
Respondent
(Free State Province)
FREE STATE
OPERATING LICENSING BOARD
….........
2
nd
Respondent
MOHANAPUSO TAXI
COMPANY LIMITED
…...................
3
rd
Respondent
M.T. MOTSIE
…....................................................................
4
th
Respondent
N.D. MPEDI
…......................................................................
5
th
Respondent
P.J. MAKHELEDISE
6
th
Respondent
M.E. TSEKELO
7
th
Respondent
Z.P. LEMPE
8
th
Respondent
S.I. NDLOVU
9
th
Respondent
G.I. GUAI
10
th
Respondent
M.M. MALEFANE
11
th
Respondent
N. MOLEFE
12
th
Respondent
P.E. TSIE
13
th
Respondent
T.P. KHUTO
14
th
Respondent
N.K. MOAHLOLI
15
th
Respondent
M.L. MOEKETSI
16
th
Respondent
M.E. TSHABALALA
17
th
Respondent
S.S. MOLOTSI
18
th
Respondent
G.P. LENCOE
19
th
Respondent
H.E. MANGESI
20
th
Respondent
H.E. KAIBANE
21
st
Respondent
D. MAJOE
22
nd
Respondent
M.A. PHUME
23
rd
Respondent
E.D. RASEBOKA
24
th
Respondent
T.A. MAGOJE
25
th
Respondent
M.J. MAFEREKA
26
th
Respondent
M.E. MAPUTLE
27
th
Respondent
T.J. MAHLATSI
28
th
Respondent
E. MAKLEIN
29
th
Respondent
M. MOTSETSE
30
th
Respondent
M.A. MPAPA
31
st
Respondent
G. NOMANA
32
nd
Respondent
M. KHOABANE
33
rd
Respondent
B.P. KORIBE
34
th
Respondent
J.P. MOLOTSI
35
th
Respondent
M.S. RAPITA
36
th
Respondent
W. GWILIKA
37
th
Respondent
S.S. MOLELEKOA
38
th
Respondent
M.P. MOROENG
39
th
Respondent
T.J. STENE
40
th
Respondent
D. LETEANE
41
st
Respondent
M. MORAKE
42
nd
Respondent
M.J. MOKONE
43
rd
Respondent
L.H. LEPOTA
44
th
Respondent
M.K. TEELE
45
th
Respondent
T.D. SETHOLE
46
th
Respondent
K.H. LOWALALA
47
th
Respondent
K.K. MOLETE
48
th
Respondent
M.I. MAMOME
49
th
Respondent
N.R. NTUKA
50
th
Respondent
F.T. MATUWANE
51
st
Respondent
S.C. MOTSAMAI
52
nd
Respondent
E.M. SILO
53
rd
Respondent
M.K. MEREKO
54
th
Respondent
M. MOLETE
55
th
Respondent
N.E. MAPUTLE
56
th
Respondent
M. MALEFANE
57
th
Respondent
P. KAIBANE
58
th
Respondent
J.P. MOLOTSI
…................................................................
59
th
Respondent
_______________________________________________________
HEARD ON:
1
MARCH 2012
_______________________________________________________
_______________________________________________________
JUDGMENT BY:
CHESIWE, AJ
_______________________________________________________
DELIVERED:
26 APRIL 2012
_______________________________________________________
[1] The first applicant,
Qibing Transport Association, which is duly registered in terms of
the National Land Transport Act, Act
No. 5 of 2009 (NLTA), with its
principal place of business situated at No. 17 De Bruin Street,
Wepener.
The second to 14
th
applicants are members of the first applicant. They operate their
taxi routes from Wepener to Bloemfontein, Johannesburg, Klerksdorp,
Carltonville, Westonaria, Rustenburg and return. They operate these
routes by virtue of their operating licences which were issued
by the
first respondent.
[2] The first respondent
is the Registrar of Transport, a public transport registrar who is
duly appointed by the MEC for Public
Works, Roads and Transport in
the Free State Province, with its principal place of business
situated in Bloemfontein, Free State
Province.
[3] The second respondent
is the Free State Operating Licensing Board, an operating licensing
board with its principal place of
business in Bloemfontein, Free
State Province.
[4] The third respondent
is Mohanapuso Taxi Company Limited, a company duly registered in
terms of the company laws of the Republic
of South Africa with its
principal business situated in Welkom, Free State Province.
[5] The fourth to fifty
ninth respondents are members of the third respondent and they are
taxi operators on the routes from Wepener
to Bloemfontein,
Johannesburg, Klerksdorp, Carltonville, Westonaria, Rustenburg and
return.
[6] The applicants
brought an application wherein they seek relief against the second
and third respondents
6.1 to withdrew all
temporary public carrier permits operating licences which authorises
the fourth to fifty ninth respondents to
operate on the same routes
as them, i.e. Wepener to Bloemfontein, Johannesburg, Klerksdorp,
Carltonville, Westonaria, Rustenburg
and return;
6.2 that the fourth to
fifty ninth respondents be interdicted and restrained from operating
on the abovementioned routes.
[7] The Qibing Transport
Association and Mohanapuso Taxi Company Limited are rival taxi
associations from as far back as the late
nineties (1990’s) for
some time due to the irregularities of the taxi business and
so-called taxi wars. There was continues
conflict between Qibing
Transport Association and Mohanapuso Taxi Company Limited. The
parties entered into several agreements.
One of their agreements was
that the taxi associations and their members will operate jointly on
all routes except for the local
operation which was reserved for the
applicants.
[8] The agreements and
members did not comply with the agreements. The third respondent
obtained interdicts from this Honourable
Court and the order was
granted on 27 April 2010. From thereon the conflict and disputes for
the routes continued.
[9] The applicants claim
that the Wepener route is legally reigstered in their names and the
respondents also claim that they are
registered to operate from
Wepener. In line with the National Taxi Task Team (NTTT) the Free
State Provincial Government embarked
on a process of
demo............................ the taxi industry. The first
respondent is task with the responsibility of capturing
the data of
all the taxi associations and their members. The second respondent is
tasked with the responsibility of granting of
operating licences to
the members of the taxi associations.
[10] To resolve this
conflict the Department embarked on a verification process in order
to regulate the taxi industry in the Free
State Province. During the
verification process the taxi operators were required to verify
routes they used to operate on for 180
days retrospectively from the
date of the application. The verification process revealed that some
of the routes operated by the
third respondent and its members were
not captured in its members’ permits. The verification process
also showed that the
first applicant and its members operated locally
in Wepener and nearby areas. The fourth to fifty ninth respondents
operated long
distance to various areas, such as Rustenburg,
Klerksdorp, Vereeniging, Johannesburg, etc.
[11] Advocate Mashavha,
on behalf of the applicants, in his oral submission and heads of
argument, argued that the routes the applicants
are currently
operating on, were currently allocated to them by the second
respondent. He submitted that the intention ro regulate
and register
these routes was to ensure that no member encroaches on the taxi
route of another association. He indicated to Court
that the routes
in the licence permits are clearly defined in the annexures “ATM3”
and “ATM4” (page 138
and 139 of paginated pleadings).
[12] Advocate Mashavha
submitted that the first and second respondents
en.....................ly issued operating licences to the
fourth to
fifty ninth respondents and that these licences must be set aside. He
argued that these licences are the cause of the
conflict between the
associations and their members. He indicated that it will be
advisable of each party and its members to operate
on their allocated
routes. He further submitted that the applicants have a clear right
to operate on the mentioned routes and that
the applicants must be
granted the relief sought.
[13] Advocate Mene, on
behalf of the first and second respondents, submitted in his oral
submission and heads of argument, that
the applicants seek that the
first and second respondents be ordered to withdraw all temporary
public carrier permits licences
which authorises fourth to fifty
ninth respondents to operate the route from Wepener to Bloemfontein,
Johannesburg, Klerksdorp,
Carltonville, Rustenburg, Westonaria and
return. He submitted that it is common cause that the mentioned
temporary permit licences
have lapse after three months. He explained
that licences are usually issued for a period of three months and
their parties must
re-apply again for renewal.
[14] Advocate Mene
submittes that the case against first and second respondents is
..................., as no live issue exists
which requires the court
to deal with. He disputed that the licences were issued erroneously.
He submitted that the applicants
failed to prove that the licences
were issued erroneously. He stated that the applicants, when
discovering that there was an error
in the licences, they should have
followed the ................... process as laid down in section
79(4)(1) of the National Land
Transport Transition Act, 22 of 2000
(“NLTT”) and not embark on an interdict application.
Advocate Mene submitted that
the application against first and second
respondents should be dismissed with costs.
[15]
Advocate Burger SC, on behalf of third to fifty ninth respondents, in
his heads of argument and oral submission, argued that
all the
respondents operate in the routes as allocated to them in the
documents “ATM3” and “ATM4”. He submitted
that on the papers there is no indication that there was an error
made on the part of the first and second respondents when the
licence
permits were issued. In his argument he made reference to
TOWNSEND
PRODUCTIONS (PTY) LTD v LEECH AND OTHERS
2001 (4) SA 33
(C). He submitted that the application has no relief
in this matter. He further submitted that the respondents are
entitled to
operate on all nine routes and that the application of
the applicants be dismissed with costs.
[16] From the affidavits
before me it is clear that there is a factual dispute and it was such
that only the authorities who issued
the permits would be able to
shed light on whether the applicant and/or the respondents’
valid permits for the routes already
mentioned.
Counsel for the first and
second respondents submitted that the applicants and the respondents
had valid permits, but the licence
permits which authorises the
fourth to fifty ninth respondents, lapsed in December 2011.
[17] From the affidavits
it is clear that the Department embark on a verification process in
order to properly regulate the taxi
industry in the Free State
Province. During the verification process, the taxi operators were
required to verify routes they used
to operate on 180 days
retrospectively from the date of the application.
[18] It appears on the
documents that the verification process revealed that some of the
routes operated by
Mohanapuso Taxi Company Limited
were not captured in its members’ permits. The verification
process also showed that most
of the Qibeng Transport Association
operated long distance to various destinations. This was due to the
fact that the parties had
previously entered into an agreement
whereby Qibeng Transport Association was allowed to operate routes
which were operated by
Mohanapuso Taxi Company Limited. This
agreement was entered into on 6 June 2000 and is annexed to the
applicants’ founding
affidavit as annexure “ATM5”.
[19] There were various
agreements prior to the annexure “ATM5”. The purpose of
the other agreements was merely to resume
the conflict between the
parties. However, the applicants at this stage alleged that they
entered the agreement because they were
....................... by
the first respondent that if they do not sign their operating
licences will not be renewed.
[20] It is rightly so
noted that after a period of three years the applicants only
complained in August 2011 that they were forced
to sign the
agreement.
During oral submission
none of the legal representatives took this issue any further nor was
there any further evidence adduced
to corroborate the allegation as
raised by the applicants. However, the affidavit of Olefile Bradley
Dibotelo acting Director of
second respondent at paragraph 24.3, p.
172, stated that the applicants should have challenged the said
agreement and have it declared
null and void. The mentioned affidavit
further ........................... the annexure “ATM4”
was an administrative
error which was feed to the National data base.
This document does not reflect the true state of affairs and it is
annexed as “OBD
1 – 5” and “OBO 6 – 10”
it indicated the correct routes of the members of Qibeng Transport
Association.
[21] It is regrettable
that the third to fifty ninth respondents did not proceed with an
application for review when it was discovered
that an error occurred
during the verification process. In deciding whether an applicant has
exhausted the internal remedies or
it is obliged to do so prior to
the institution of the review proceedings, it must be decided whether
there is any internal remedy
available to the applicant.
In
CITY OF CAPE TOWN v READER AND OTHERS
[2008] ZASCA 130
;
2009 (1)
SA 555
(SCA) the Appeal Division stated that in order to decide
whether there is an internal remedy available to a party, one has to
look
at the relevant statute.
In terms of section (1)
of the Promotion of Administrative Justice Act, Act 3 of 2000,
(hereinafter referred to as PAJA) provides
that:
“
Any
proceedings for judicial review in terms of Section 6(1) must be
instituted without unreasonable delay and not later than 180
days
after the date, subject to subsection 2(6) on which any proceeding
instituted in terms of internal remedies as contemplated
in
subsection 2(a) have been concluded or where no such remedies exists
on which the person was informed.”
[22] In my view this is
an administrative matter and the second respondent should have
immediately resolved the issue of the error
that was discovered at
the verification process. If it was resolved at that stage by the
first and second respondents, this matter
might not have been before
this Honourable Court.
Although the licence
permits have lapsed in December 2011 and the dispute is now only
academic, ............... when the application
was lodged, the
licence permits where then still in existence.
[24] The second
respondent claims that the licence permits were issued based on the
information given by the fourth to fifty ninth
respondents. Therefore
no error could be proven on their side. The second respondent denied
that any error was committed and in
any event they are currently in
the process of correcting the information on their data base. The
respondents cannot be blamed
for operating on a route that they were
issued with by the second respondent. With the difficulties
experienced by the Board of
the verification process it cannot be
said the fourth to fifty ninth respondents be blamed for the state of
affairs at the Licence
Board second respondent.
[25] Consequently I am of
the view that the Licence Board should keep proper records of all the
allocated routes, to prevent a situation
where conflict will arise
due to an administrative error. Although no evidence on the records
show that any violence empted, there
is an ongoing confrontation with
members of the applicants and the third respondent. The current
situation would be resolved if
members of the applicant operate on
their allocated route and members of the third respondent also
operate on their allocated routes.
It is common cause that
the interdict is against the withdrawal of the temporary permits and
that the fourth to fifty ninth respondents
are not to operate on the
route from Wepener to Bloemfontein, Johannesburg, Klerksdorp,
Carltonville, Westonaria, Rustenburg and
return, that these permits
have expired and the matter is .................... It would
therefore be academic to grant such an
order.
[25] Wit regard to costs,
it is trite that the costs follow the result which means the
successful party should be awarded costs
in its favour. The
applicants asked for costs if the application is opposed. The first
and second respondents prayed for dismissal
of the application
against them with costs in their favour. The third to fifty ninth
respondents also prayed for costs against
the applicants.
[26] I am of the view
that it would be just and appropriate not to award costs to any of
the parties or litigants, but instead to
order that each party pays
its own costs.
ORDER
In the circumstances the
following order is made:
Application for
interdict is dismissed.
Each party is ordered
to pay its own costs.
______________
S. CHESIWE, AJ
On behalf of applicants:
Adv. M.J. Mashavha
Instructed by:
Qwelani Theron Van
Niekerks Attorneys
BLOEMFONTEIN
On behalf of 1
st
and 2
nd
respondents: Adv. B.S.
Mene
Instructed by:
State Attorney
BLOEMFONTEIN
On behalf of 3
rd
to 59
th
respondents: Adv. A.H.
Burger SC
Instructed by:
Naudes
Attorneys
BLOEMFONTEIN
/sp