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[2012] ZAFSHC 96
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Thahameso Ntswanatsatsi Thusanang Taxi Association v Qwa Qwa United Taxi Association (1035/2012) [2012] ZAFSHC 96 (17 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1035/2012
In the matter between:-
THAHAMESO
NTSWANATSATSI
THUSANANG TAXI
ASSOCIATION
…..........................................
Applicant
and
QWA QWA UNITED TAXI
ASSOCIATION
…...........................
Respondent
_______________________________________________________
HEARD ON:
26 APRIL 2012
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED:
17 MAY 2012
_______________________________________________________
INTRODUCTION
[1] On 15 March 2012
applicant launched an urgent application whereupon a rule
nisi
was issued with return date 12 April 2012 in terms whereof respondent
was called upon to furnish reasons why final orders should
not be
made. Paragraphs 2 and 3 of the rule
nisi
read 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,
Phuthaditjaba , 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,
Phuthaditjaba, 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, Phuthaditjaba, Free
State Province;
2.5 That the Respondent be ordered to
pay the costs of this application on an attorney and client scale.
3. Directing that prayers 2.1 to 2.4
above will serve as an interim interdict with immediate effect
pending the finalisation of
this application.”
[2] On 12 April 2012 the
rule
nisi
was extended and the application postponed to 26
April 2012. The application is opposed. Opposing and replying
affidavits have
been filed and the matter is ripe for adjudication.
THE PARTIES
[3] Applicant is a taxi
association with its main place of business situated at the Old Post
Office building in Kathlehong. The
respondent is also a taxi
association and its main place of business is at Office No. 2,
Century Building, Setsing, Phuthaditjhaba,
Free State Province. Mr.
Els appeared on behalf of applicant and Me De Kock for respondent.
THE ISSUES
[4] The following issues
must be adjudicated:
4.1 Whether respondent
and/or its members are entitled to prevent applicant and/or its
members to utilise the Setsing Taxi Rank
for the loading and
off-loading of passengers by taking the law into their own hands;
4.2 Do applicant and its
members have a right, contractual or otherwise, to utilise the
Setsing Taxi Rank for the aforesaid purposes
and if so, whether they
are entitled to an interdict and the confirmation of the rule
nisi
issued on 15 March 2012.
PRINCIPLES TO BE
APPLIED IN ADJUDICATION OF THE APPLICATION
[5] The starting point in
adjudicating motion proceedings for final relief is the following
dictum
:
“
...
where
there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts as
stated by the
respondents together with the admitted facts in the applicant's
affidavits justify such an order. ... Where it is
clear that facts,
though not formally admitted cannot be denied, they must be regarded
as admitted.
”
See
STELLENBOSCH FARMERS' WINERY LTD v
STELLENVALE WINERY (PTY) LTD
1957
(4) SA 234
(C) at 235 E – G. This
dictum
has been qualified over the years in several
judgments. In
PLASCON-EVANS PAINTS LTD v VAN RIEBEECK
PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634J – 635C
the Appellate Division recognised that the denial by a respondent of
a fact alleged by the applicant
may not be such as to raise a real,
genuine or
bona fide
dispute of fact. In such cases and if the
court is satisfied with the inherent credibility of the applicant’s
factual averments,
it may proceed on the basis of the correctness
thereof and include these facts among those upon which it determines
whether the
applicant is entitled to final relief. See also
WIGHTMAN
t/a JW CONSTRUCTION v HEADFOUR (PTY) LTD AND ANOTHER
[2008] ZASCA 6
;
2008 (3)
SA 371
(SCA) at 375E – 376B and
FAKIE NO v CCII SYSTEMS
(PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA), para. [55] and [56] at 347G
– 348B.
FACTS NOT IN
DISPUTE AND/OR TO BE ACCEPTED FOR THE REASONS ADVANCED
[6] The application will
be adjudicated based on the following:
6.1 The applicant and the
respondent are two rival taxi associations whose members transport
passengers between Phuthaditjhaba and
Gauteng. Until early 2010
applicant operated from the Mokodumela Taxi Rank, a private taxi rank
owned by it. This taxi rank is
situated in Qwa Qwa.
6.2 On 28 April 2010 a
written agreement was entered into between applicant, respondent and
three other taxi associations. In terms
hereof applicant agreed to
migrate its operations from the Mokodumela Taxi Rank to Setsing Taxi
Rank since the latter had been
designated as an official taxi rank.
The parties agreed that the written agreement constituted their full
agreement and that no
variation thereof would be effective unless in
writing and signed by them. They also agreed that it might be
terminated by a party
giving 30 days’ notice of its intention
to terminate. In the event of a dispute arising, such dispute had to
be referred
for conciliation in accordance with the provisions of the
written agreement.
None of the parties has
been appointed to mete out sanctions and/or to act as a watchdog,
inter alia
to ensure compliance with any applicable
legislation.
A month later and on 26
May 2010 a meeting was held between applicant and respondent, an
entity referred to as JBQ and the Free
State Public Transport
Registrar. The purpose of the meeting was to discuss several
aspects relevant to the written agreement
referred to above. Those
are set out in item 4 paras 1 – 14. Although applicant and
respondent agreed to certain issues,
it is apparent from the
minutes that there was clearly no
consensus
in respect of
all the topics discussed and no agreement has been entered into
between the parties as anticipated.
It is clear from the
objective facts that the written agreement dated 28 April 2010
referred to above has not been varied and
even if that was the
case, such variation was never reduced to writing and signed by the
parties.
During 2010 and 2011
several disputes occurred between applicant and respondent and the
authorities were called in to intervene.
It is unnecessary to deal
with those disputes, save to state that apparently there was severe
tension between applicant and
respondent. Applicant avers that this
tension caused respondent to prevent it and its members to make use
of the Setsing Taxi
Rank. Although the reason or motive as alleged
by applicant is denied, respondent admits that applicant and/or its
members
are being prevented from utilising the taxi rank.
On 27 January 2012
applicant wrote a letter to respondent informing it that in future
its rights to make use of applicant’s
private taxi rank in
Kathlehong would be curtailed for reasons advanced and furthermore
that applicant’s members would
in future not make use of
respondent’s forms or passengers lists for listing of
passengers from Qwa Qwa.
Applicant’s
letter triggered the further events. On 1 February 2012 applicant
was informed in writing that all vehicles
belonging to members of
applicant had to vacate the Setsing Taxi Rank with effect from 2
February 2012. It was also recorded
that these vehicles would only
be allowed to load passengers at the rank “upon proof that
they came with a passenger
full load from Germiston/Natal Spruit”.
Applicant was directed to ensure that its members loading
passengers from Qwa
Qwa continued to make use of respondent’s
forms and passenger lists.
Although respondent
denies that its members threatened applicant’s members and/or
forcibly removed them and their vehicles
from the Setsing Taxi Rank
and/or interfered with the rights of applicant’s members to
make use of the Setsing Taxi Rank,
and continued with such illegal
activities, it is admitted that respondent refuses to allow
applicant’s members to utilise
the taxi rank. Respondent’s
right to prevent applicant’s members from using the Setsing
Taxi Rank is founded upon
its viewpoint that applicant’s
members are only allowed to operate from the Setsing Taxi Rank on
condition that they
are duly authorised and registered operators
and in possession of valid operating licences.
Applicant’s
averment that its members suffer irreparable harm in the form of
financial losses insofar as their vehicles
are no longer allowed to
make use of the Setsing Taxi Rank is neither admitted, nor denied.
Applicant’s allegation that
it is not allowed to make use of
its privately owned rank (as before) as it is not an officially
designated taxi rank is also
neither admitted, nor denied.
DISPUTED FACTS
[7] The following facts
are in dispute:
The extent of
respondent and its members’ actions in order to prevent
applicant’s members to make use of the Setsing
Taxi Rank.
Applicant’s allegations are somewhat vague although it is
stated that members of respondent chased away its
members and queue
marshals and threatened and intimidated them to such an extent that
they had no option than to vacate the
Setsing Taxi Rank. This
caused the executive committee of applicant to visit the taxi rank
whereupon members of respondent
made their intentions clear to
fight with applicant’s members. The police arrived at the
scene to restore peace. Respondent’s
deponent denies that any
grievance or complaint was lodged with his organisation and states
that he personally called the police
to prevent conflict. It is
clear that serious unrest occurred at least at the stage when
applicant’s executive visited
the taxi rank.
On applicant’s
version and despite several attempts to encourage respondent to
allow its members’ vehicles to make
use of the taxi rank,
such attempts were unsuccessful. Respondent’s version is that
those members of applicant with valid
operating licences are
allowed whilst those that fail to produce licences are not allowed.
Respondent’s version is denied
in reply insofar as it is
applicant’s case that all vehicles of all its members are
disallowed to make use of the taxi
rank. This is in line with
respondent’s letter of 1 February 2012.
Several documents have
been attached to the replying affidavit, being electronic printouts
by the Department of Public Transport,
Roads and Works,
Johannesburg Office, in an attempt to show that applicant’s
members do have authority to transport passengers
between Gauteng
and Qwa Qwa. It is also confirmed under oath by applicant’s
deponent that all its members are in possession
of operating
licences, a fact that is disputed by respondent. Me De Kock on
behalf of respondent made it clear in her argument
that the
electronic printouts relied upon by applicant are most definitely
not valid operating licences as the documents do
not contain the
information required by the relevant regulation issued in terms of
the National Land Transport Act 5 of 2009.
EVALUATION OF THE
EVIDENCE AND THE ARGUMENTS OF COUNSEL
[8] Me De Kock submitted
that the application should be dismissed with costs. She relied in
her argument solely on applicant’s
alleged non-compliance with
the first requisite of final interdicts and submitted that it has not
shown a clear right. Her submission
is based on the premise that
applicant has failed to prove that its members are in possession of
valid operating licences. That
being the case, applicant has not
shown a clear right to a final interdict. She did not address any of
the other two requirements
for a final interdict.
[9] Mr. Els submitted
that applicant and its members are entitled to utilise the Setsing
Taxi Rank in accordance with the written
agreement dated 28 April
2010 referred to above. He submitted that although some of the
allegations contained in the founding affidavit
pertaining to threats
and interference are denied, respondent on its own version fails to
allow members of applicant to make use
of the Setsing Taxi Rank. He
furthermore argued that respondent does not have a right to prevent
applicant and its members from
making use of the Setsing Taxi Rank on
the basis that applicant’s members (or some of them) do not
hold valid operating licences.
Even if that is the case, which he did
not concede, it is a matter for the authorities to ensure that
appropriate measures are
taken against such members and if necessary,
to impound their vehicles. Finally he submitted that applicant’s
members are
suffering irreparable harm and will continue to suffer
such harm if they are not allowed to make use of the Setsing Taxi
Rank.
These taxi operators must utilise the officially designated
taxi rank and may not use any privately owned taxi rank for their
business
purposes. Applicant does not have any other alternative and
satisfactory remedy available and therefore as Mr. Els submitted all
the requirements for a final interdict had been met and the rule
nisi
should be made final.
[10] The written
agreement entered into between the parties does not expressly provide
for aspects such as
a right to and/or
obligation imposed on any of the parties thereto and respondent in
particular to ensure that all taxi owners
and members of the
various associations making use of the taxi rank are indeed
properly licensed;
a member of an
association that is not in possession of a valid operating licence
may not make use of the taxi rank, although
it may be argued that
it is an implied term of the written agreement that all members
must be duly licensed;
in the event of any
member not in possession of a valid operating licence, or someone
who is not prepared to present his licence
at the request of
respondent or one of its officials, such person can be prevented
from making use of the taxi rank without
the intervention of court
procedure.
[11] If the written
agreement is considered it does not provide to any party the right to
take the law into its own hands and no
such obligation is imposed on
any party as well. The agreement deals with aspects such as breach of
contract and the arising of
any disputes and the manner in which
these must be dealt with. Provision is also made for termination of
the agreement by a party
by giving 30 days’ notice of its
intention to do so. Respondent is not the custodian of the Setsing
Taxi Rank in accordance
with the written agreement and also not the
watchdog of the transport authorities with the right and/or
obligation to decide which
members of the contracting taxi
associations may or may not make use of the Setsing Taxi Rank.
[12] It is clear that the
parties have to work together in order to make use of the same
facilities, i.e. the Setsing Taxi Rank,
but that there is
insufficient co-operation, probably because of the fact that they are
rival taxi associations and the members
thereof trying their best to
get the edge over others in order to load as many passengers as
possible to make their businesses
viable. The ongoing dispute between
the parties about taxi routes that I do not have to adjudicate upon
and applicant’s decision
pertaining to its privately owned taxi
rank in Kathlehong which negatively affected respondent and its
members, triggered the action
taken by respondent and its members in
the beginning of February 2012. Acting as they did, they took the law
into their hands and
this cannot be tolerated.
[13] Respondent admits
preventing applicant and its members from making use of the Setsing
Taxi Rank, it being the official taxi
rank that applicant’s
members are obliged to use. When considering respondent’s aim,
its version that it and its members
did not threaten, intimidate or
harass applicant’s members is so untenable and improbable that
it can safely be rejected.
It is also irreconcilable with the
volatility generally associated with taxi disputes where violence is
apparently an acceptable
means of solving such disputes. As mentioned
me De Kock did not present any argument in respect of the last two
requirements for
final interdicts and wisely so. I am satisfied that
applicant has made out a proper case for a final interdict.
[14] Applicant seeks
costs on an attorney and client scale. In his oral argument mr. Els
did not argue for such an order and effectively
conceded that party
and party costs only should be granted. There is no reason to grant
costs on attorney and client scale.
ORDER
[15] Therefore the
following orders do issue:
1. Paragraph 2.5 of the
rule
nisi
dated 15 March 2012 is amended by deleting the words
“on an attorney and client scale”.
2. So amended, the rule
nisi
is confirmed.
_____________
J.P. DAFFUE, J
On behalf of applicant:
Adv. J. Els
Instructed by:
E G Cooper Majiedt Inc
BLOEMFONTEIN
On behalf respondent:
Adv. D. de Kock
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/sp