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[2012] ZAFSHC 139
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Khokho v Makgetla and Others (3049/2012) [2012] ZAFSHC 139 (8 August 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3049/2012
In
the matter between:-
KHOKHO
M.D.T.
…....................................................................
Applicant
and
MAKGETLA D.E.
…......................................................
First
Respondent
JONAS S.
….............................................................
Second
Respondent
MANAGER-LICENCING
BOARD -
ROAD AND TRANSPORT
….......................................
Third
Respondent
CHAIRMAN-
GREATER BLOEMFONTEIN
TAXI
ASSOCIATION
….............................................
Fourth
Respondent
_____________________________________________________
HEARD ON:
1
AUGUST 2012
_____________________________________________________
DELIVERED ON:
8 AUGUST 2012
_____________________________________________________
JUDGMENT
_____________________________________________________
K.J. MOLOI, J
[1] The applicant
launched an application to this court wherein he sought relief as
follows:
“
2. that the
selling agreement of the Operating Licence, number LFSLB12248/3
between the First Respondent and Second Respondent be
declared
unlawful, thus null and void.
3. that the Second Respondent be
ordered to stop ulitizing the Operating Licence, number LFLSB12248/3
with immediate effect or from
the date of the granting of this order.
4. that all the documents including
original and/or copies of the Operating Licence, number LFSLB12248/3
in possession of either
the First or Second Respondent be returned to
the Applicant within seven (7) days from the date of this order.
5. that the Third Respondent be
prohibited from transferring the Operating Licence, number
LFSLB12248/3 into the names of the Second
Respondent, or cancelling
the said licence.
6. that the Third Respondent be
ordered to withdraw the temporary Operating Licence issued in favour
of the Second Respondent through
the cancellation of Operating
Licence, number LFSLB12248/3.
7. that the Third Respondent be
ordered to reinstate and restore the Operating Licence, number
LFSLB12248/3 to its original form
before its cancellation, amendment,
and its sale to the Second Respondent by the First Respondent.
8. that the Fourth respondent be
prohibited from recognising the temporary Operating Licence issued by
the Third Respondent in favour
of the Second Respondent through the
cancellation/amendment of the Operating Licence, number LFSLB12248/3.
9. that the Fourth Respondent be
ordered to recognise the original Operating Licence, number
LFSLB12248/3 before its cancellation/amendment
or sale.
10. that in the event of opposition,
the Respondents be ordered to pay the costs of this application on
the scale between attorney
and client the one paying to be absolved
by the other.”
The First and Second
Respondents opposed the application. The Third Respondent elected to
abide the decision of the court and drew
the attention of the court
to the provisions of the
National Land Transport Act No 5 of 2009
regarding the cession, alienation or hiring out of operating licence
or permit
(section 77)
thereof. The Fourth Respondent, a taxi
association, did not oppose the application and by inference elected
to abide the decision
of the court.
[2] The application was
based on two agreements concluded between the Applicant and the First
Respondent. The first agreement related
to the Applicant’s
taking over the finance agreement for a motor vehicle between the
First Respondent and ABSA Bank and the
lease of the operating permit
attaching to the said vehicle. This agreement was verbal and was
concluded between the parties on
1 May 2010. In terms of this
agreement the Applicant would continue to pay an amount of R4 500,00
being the monthly instalment
on the purchase price of the said
vehicle to ABSA Bank until the outstanding amount shall have been
paid in full whereupon the
said vehicle would be the property of the
Applicant and be transferred to his name. For the use of the First
respondent’s
taxi operating permit, the Applicant would pay to
her an amount of R700,00 per month.
[3] The above arrangement
continued until 30 April 2012 when the parties agreed that the
Applicant purchase the said taxi operating
permit from the First
Respondent for an amount of R30 000,00 which was duly paid and
receipt of which was acknowledged by the First
Respondent in a
document signed at the SA Police Station in Heidedal. From that date
the Applicant ceased to make payments of R700,00
to the First
respondent as he was then the owner of the operating permit.
[4] On 18 July 2012 the
Applicant learned that the First Respondent had sold the taxi
operating permit concerned to the Second Respondent
and that the
Fourth Respondent would consequently not allow him to operate the
taxi business any longer. He made enquiries from
the First and Second
Respondents, as well as from the Third and Fourth Respondents. He
learned that the Third Respondent was in
the process of transferring
the said operating permit into the name of the Second Respondent. The
Applicant then launched this
application primarily to stop the
transfer process of the said operating permit and the return thereof
to him.
[5] In her opposition of
the application the First Respondent alleged that she was entitled to
alienate the said operating permit
to the Second Respondent, because
the Applicant had cancelled the agreement in terms of which he
purchased the said operating permit.
The alleged cancellation of the
said agreement was done through SMS sent by the Applicant to herself
reading as follows:
“
I dont have
money now. I will pay it month end. You must stop giving people my
number to call me. This matter is in the hands of
my lawyers. I want
my R30 000 back. You must take your licence back. I dont want to work
with crooks.”
[6] The alleged SMS sent
by the Applicant was transmitted to the First Respondent on 18 June
2012 and was attached to her opposing
affidavit as annexure DM4B
headed “UME Content Manager SMS” with no logo nor name of
the service provider concerned
and was certified as a true copy of
the original document by a commissioner of oaths on an unknown date.
The Applicant argued strenuously
that the SMS, being an electronic
communication, was not properly placed before the court and was not
authenticated by a certificate
of a transcriber and should therefore
be ignored. Throughout his argument the Applicant did not deny having
sent the SMS, however,
and as such the court accepts that the
Applicant did sent the alleged SMS constituting an offer to cancel
the agreement of purchasing
the operating permit. Moreover, according
to his own papers, the Applicant stated that the relationship between
himself and the
First Respondent was so strained that direct
communication between them had become impossible.
[7] On behalf of the
First Respondent it was argued that as a consequence of the alleged
cancellation of the agreement the First
Respondent acted within her
rights to look for an alternative buyer of her operating permit and
eventually concluded a deal with
the Second Respondent. Several other
arguments were raised dealing with the urgency of the application and
the requirements for
an interdict, which the court does not intend
dealing with as they do not hold water.
[8] The crucial issue to
be decided is whether or not the First Respondent accepted the offer
to cancel the agreement of sale by
the Applicant. According to the
First Respondent she did by conveying the acceptance to the
Applicant’s wife as she could
not get hold of the Applicant.
The First Respondent stated that she also sent an SMS to the
Applicant informing him of her acceptance
of the cancellation and
that she will look for an alternative buyer as a result. Cancellation
of an agreement inter-party is an
agreement replacing the agreement
sought to be cancelled and is signified by an offer to cancel, which
must still be accepted by
the offeree failing which the original
agreement remains intact.
[9] It
is trite that an acceptance must be in the terms particularised in
the offer to be effective i.e. the acceptance must correspond
with
the offer exactly:
JOUBERT
v ENSLIN
1910
AD 6
at 29;
SAAMBOU-NASIONALE
BOUVERENIGING v FRIEDMAN
1979 (3) SA 978
(A). In this case the offer to cancel the purchase agreement
categorically stated:
“
I want my
R30 000-00 back you must take your licence back...”
Nowhere in the papers nor
in argument was the refund of the R30 000,00 offered, let alone paid
in terms of the offer to cancel to
bring the acceptance in line with
the offer to cancel. On the contrary, it was argued that the
Applicant did not prove that he
had no other remedy to justify the
granting of an interdict as he could claim the refund from the First
Respondent. This argument
signifies that the clear offer to cancel
the agreement upon refund of the R30 000,00 paid, was not accepted
and that the alleged
acceptance is invalid and ineffective. What his
means is that the First Respondent acted unlawfully in selling to the
Second Respondent
something not belonging to her, but to the
Applicant.
[10] Turning to the
prayers as per Notice of Motion, the court is of the view that most
of them are impractical to be ordered and
be acted upon. Since the
Applicant prayed for “such further and/or alternative relief”,
the court is prepared to consider
an appropriate order to make in the
circumstances and refrain from being prescriptive to the Third and
Fourth Respondents at the
same time.
[11] The court is of the
view that the following order is appropriate in the circumstances:
11.1 The First Respondent
is ordered to take the necessary steps to effect the transfer of the
authority under permit LFSLB 12248/3
to the Applicant to be processed
by the Third Respondent in terms of
section 58
of the
National Land
Transport Act No 5 of 2009
within ten days from date of this order.
11.2 The First Respondent
is ordered to pay the costs of this application.
____________
K.J. MOLOI, J
On
behalf of Applicant: D Khokho
Instructed
by:
Cengani
& Associates
BLOEMFONTEIN
On
behalf of First and
Second
Respondents: Adv. S E Motloung
Instructed
by:
Qwelane,
Theron & Van Niekerk
BLOEMFONTEIN
/sp