About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 2
|
|
Sehanka v Lebatla and Others (1665/2010) [2011] ZAFSHC 2 (20 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1665/2010
In the case between:
GABRIEL TUMELO
SEHANKA
…............................................
Applicant
and
L J LEBATLA
…..............................................................
1
st
Respondent
DIE LUR:
DEPARTEMENT POLISIE,
PAAIE & VERVOER
…...................................................
2
nd
Respondent
DIE VOORSITTER:
PLAASLIKE PADVERVOER-
RAAD, BLOEMFONTEIN
…............................................
3
rd
Respondent
DIE PROVINSIALE
REGISTRATEUR VERVOER,
VRYSTAAT PROVINSIE
….............................................
4
th
Respondent
GREATER
BLOEMFONTEIN TAXI ASSOCIAION
….....
5
th
Respondent
_____________________________________________________
JUDGMENT:
RAMPAI, J
HEARD ON:
25 NOVEMBER 2010
_____________________________________________________
DELIVERED ON:
20 JANUARY 2011
_____________________________________________________
[1] The matter came to
court by way of motion proceedings. The applicant applied for an
order whereby the 1
st
respondent is prohibited and
restrained from operating as a taxi service provider on a specified
route in Bloemfontein pending
the outcome of the 1
st
respondent’s proper application for a taxi permit –
alternative pending the outcome of the applicant’s appeal
for
the review of the 3
rd
respondent’s decision to grant
temporary taxi permit to the 1
st
respondent.
[2] The application was
opposed by the 1
st
respondent who was aided and abetted by
the 5
th
respondent. The 2
nd
, 3
rd
and
4
th
respondents decided to abide the decision of the
court. None of them disputed or admitted the averments contained in
the applicant’s
founding affidavit.
[3] In his founding
affidavit the applicant alleged that he was a member of the 5
th
respondent and the secretary of its sub-structure called Jacaranda
Route 16 Committee. He was a taxi service provider. He rendered
such
services from Jacaranda Taxi Rank in Dr Belcher Road to Universitas,
Wilgehof, Bayswater via Noordhoek, Dan Pienaar and back
to Jacaranda
Taxi Rank where his taxi had to be stationed. All those areas were
neighbourhoods in Bloemfontein. That route-network
on which he
operated was known as Route 16 among the taxi service providers.
[4] The applicant also
alleged that the 1
st
respondent was also a member of the
5
th
respondent. The 1
st
respondent had valid
permits in terms of which he was authorised to render minibus-type of
services as a taxi service provider
from Bloemfontein to Botshabelo
and back along the same route.
[5] During the course of
2009 he received complaints, from certain taxi service providers who
were lawful holders of valid permits
which authorised them to operate
on Jacaranda Route 16, that the 1
st
respondent was
conducting business on the same route but without any valid payment
authorising him to do so. He investigated the
complains. The
grievance was reported to the 5
th
respondent who convened
a meeting which was scheduled for the 15
th
May 2009. The
executive committee of the 5
th
respondent, the route
committee and the 1
st
respondent attended the urgent
meeting.
[6] The written
investigation report of the route committee was then tabled at the
meeting. The 5
th
respondent heard that the 1
st
respondent unlawfully operated on the local route in question and
that he threatened rank marshals whenever they confronted him
about
his unlawfully operations on the route. The 1
st
respondent’s response was that he possessed a valid permit but
failed to produce it. He relied on an invalid permit as well
as his
alleged undisturbed rendering of taxi services on the route since
2006.
[7] The 5
th
respondent found against the 1
st
respondent after hearing
the dispute. It was recommended that the 1
st
respondent
should cease operating on the route without a valid permit. On the
18
th
May 2009 the 5
th
respondent informed the
4
th
respondent about the outcome of the grievance lodged
by the route committee on behalf of its authorised but aggrieved
operators.
Notwithstanding the outcome of the grievance hearing the
1
st
respondent continued to conduct business operations on
the route without a valid permit.
[8] The 3
rd
respondent advised the attorneys of the route committee on the 29
th
July 2009 that the 1
st
respondent had applied for a
permit, that his application was gazetted on the 12 June 2009; that
the application was still open
for written objections and that no
date had as yet been fixed for the hearing thereof – annexure
“E”.
[9] On the 12
th
August 2009 the 5
th
respondent, through its attorneys sent
its written objection to the 3
rd
respondent against the
1
st
respondent’s application – annexure “F”.
The applicant alleged that the 1
st
respondent’s
application was highly irregular on the grounds that the 1
st
respondent did not first seek and obtain the consent of the route
committee and the recommendation of the 5
th
respondent.
The 5
th
respondent was not even furnished with a copy of
such an application for consideration. The gazetting of the
application was, for
various reasons, procedurally flawed.
[10] On the 30
th
November 2009 the 5
th
respondent heard, through its
attorneys, that the 1
st
respondent had been granted a
temporary permit in the meantime. The 4
th
respondent’s
decision to grant a temporary permit to the 1
st
respondent
would be reviewable on the grounds that the person or authority that
took such a decision would not have been authorised
by the empowering
legislation. The action or decision was influenced by an error of law
and thus procedurally unfair – section
6(b)
Promotion of
Administrative Justice Act, 3 of 2000
. The action taken by the 4
th
respondent instead of the 3
rd
respondent was a breach of a
material procedure. So alleged the applicant. The applicant was
frustrated by the reluctance or failure
of the 5
th
respondent to take decisive action against the 1
st
respondent. As a result of such reluctance the applicant decided to
bring this application in his personal capacity.
[11] The applicant
alleged that he had a clear right; that he stood to suffer harm
unless the 1
st
respondent was interdicted; that he had no
other suitable alternative remedy available and that the balance of
convenience favoured
the applicant more than the 1
st
respondent.
[12] In his answering
affidavit the 1
st
respondent alleged that he first applied
to the Jacaranda Platform Committee, a sub-committee of the 5
th
respondent for consent to operate on Jacaranda Route 16 and related
network of routes. The required consent, was given on 30 December
2004 – annexure “LL15”.
[13] Subsequently he
applied to the 5
th
respondent for the required
recommendation in support of his application to the permit board for
the official conversion of his
taxi permits from the external
provincial route known as Botshabelo (FS095) to the internal or local
route known as Jacaranda Route
16. Between the 8
th
July
2007 and 1 November 2007 he addressed three letters – annexures
“LL18”, “LL19” , “LL20”)
to the
5
th
respondent and its route committee. He received no
response from the 5
th
respondent. However, the Jacaranda
Route Committee gave him written consent – annexure “LL16”
on the 17
th
Augusts 2007 to operate on the four local
routes, namely, routes 16, 17, 18 and 19.
[14] He was frustrated by
the uncaring attitude of the 5
th
respondent. On the 6
December 2007 he complained to the 3
rd
respondent about
the apparent lack of co-operation by the 5
th
respondent
(annexure “LL17”). The 5
th
respondent
acknowledge receipt of his letter for the first time on the 12
December 2007.
[15] On the same day, 12
December 2007, the 3rd respondent enquired from the 5
th
respondent whether the 5
th
respondent recommended or
opposed his application for the proposed amendment of his permit
(annexure “LL22”). By the
11
th
February 2008
the 5
th
respondent had still not advised the 3
rd
respondent of his decision concerning his proposed migration from the
provincial route to the local route taxi operations (annexure
“LL22”).
[16] The 1
st
respondent alleged further that on the 7
th
May 2009 he
enquired from the 3
rd
respondent about the progress made
in its dealings with the 5
th
respondent (annexure “LL23”).
The 3
rd
respondent then convened a meeting which was held
on 13 May 2009. The meeting was attended by certain members of the
Jacaranda
Route 16 committee. At the meeting it emerged that the
Jacaranda Route 16 Committee was no longer supporting his application
(vide
2 annexure “LL1”) as it had earlier done per
annexure “LL16”).
[17] On the 15
th
May 2009 he attended a meeting convened by the 5
th
respondent. After that meeting the 5
th
respondent wrote a
letter, annexure “C” to the 3
rd
respondent in
which it objected to the amendment or transfer of his permits. On the
20 May 2009 the 3
rd
respondent informed the 5
th
respondent that his objection contained no reasons and that he would
be issued with temporary permits, if he applied for them pending
the
finalisation of his main application (9 annexure “LL1”).
He was then issued with the first temporary permit valid
from the
30
th
May 2009 (annexure “LL2”). The 3
rd
respondent issued further permits to him from time to time (annexure
“LL3” – annexure “LL9”).
[18] On the 5
th
February 2010 the 5
th
respondent, as the applicant, under
case number 91 of 2010 launched an application against him and the
3
rd
respondent among others. The 5
th
respondent’s application was withdrawn on the 11
th
February 2010. Notwithstanding its withdrawal, the 3
rd
respondent declined to issue any further temporary permits in his
favour from the 7 March 2010 after the expiry of his 7
th
temporary permit - annexure “LL9”.
[19] The 1
st
respondent further alleged that he was still busy trying to negotiate
with the 3
rd
respondent for the issue of a further
temporary permit when the current proceedings were brought. He
solicited the health of his
attorneys. They took the matter up with
the 3
rd
respondent, (annexure “LL10” and
annexure “LL12”). The 3
rd
respondent indicated
to his attorneys that it was not keen to re-issue any more temporary
permits to him pending the finalisation
of the litigation between the
parties (annexure “LL11” and annexure “LL13”).
[20] He added that after
a long struggle he eventually received the support or required
recommendation from the 5
th
respondent (“annexure
“LL24”) on the 26 April 2010 as well as the required
consent from the Jacaranda Route Committee
(annexure “LL25”)
dated the 29
th
April 2010. Over and above that, on 1 July
2010, he also received two affidavits in support of his application
from the chair of
the 5th respondent and the chair of the Jacaranda
Route Committee (annexure “LL26” and annexure “LL27”)
respectively.
[21] Through the
persistent intervention of his attorneys, (annexure “LL14”)
the 5th respondent relented and issued
a further temporary permit to
him. His operations on the route were validated or authorised by the
3
rd
respondent from the 2
nd
July 2010 to the
1
st
October 2010 (annexure “AO1”). The 9
th
temporary permit was attached to the 1
st
respondent
supplementary affidavit dated the 29
th
July 2010. These
then were the positive allegations contained in the answering
affidavit.
[22] There were also
negative allegations in the answering affidavit. The 1
st
respondent denied the applicants allegations that he was the
secretary or the chair of the Jacaranda Route 16 Committee but rather
the vice chair; that any operator of the route ever complained to the
applicant about him conducting business on the route; that
he was
operating on the route without a valid permit; that he did not
procedurally lodge a proper application with the permit board;
that
he made use of invalid permits to conduct his business; that he
threatened to harm the marshals; that he was aggressive towards
the
lawful operators of the route; that he never had the consent of the
Jacaranda Route 16 Committee to operate on the route or
that the
permit board acted unprocedurally in publishing his application in
the government gazette.
[23] In his replying
affidavit the applicant denied the 1
st
respondent’s
allegations: that he did not have the support of any operator of the
route; that he had any valid permit as
on the 18
th
May
2009; that the 5
th
respondent and its route committee now
supported him; that the 1
st
respondent ever lodged a
proper application for the conversion or amendment of his permit;
that annexure “AO1” was
a valid permit seeing that it was
issued on the 2
nd
July 2010 whereas the 1
st
respondent’s motor vehicle DKJ346FS in respect of which such
permit was issued was repossessed on 24
th
June 2010; that
annexure “LL15” was not a regular consent because it was
not made in support of a proper application;
that annexure “LL16”
also was not a regular document for the same reason in addition to
the defect that it was signed
by the secretary only; that the
objections of the 5
th
respondent (annexure “C”)
were not taking into account by the 3
rd
respondent as
evidenced by annexure “LL1”; that annexure “LL23”
served to prove that the 1
st
respondent did not have a
permit to operate on the route as on 7
th
May 2009 and that
the 1
st
respondent was, at present or in the past, ever
entitled to conduct taxi business on the specific route.
[25] The undisputed facts
are: that the applicant has a valid permit which entitles him to run
a taxi services on the specified
local routes; that the 1
st
respondent started rendering the same sort of services on the same
route from the year 2004; that until 30 May 2009 the 1
st
respondent was rendering taxi services on the same route without a
valid permit; that the 3
rd
respondent issued 7 temporary
permits to the 1
st
respondent to operate as a taxi service
provider on the specific routes between the 29
th
May 2009
and the 7
th
March 2010; that the 1
st
respondent
did not have a valid permit applicable to the specified route at the
time these proceedings were initiated on the 31
st
March
2010; that for the period commencing on the 7
th
March 2010
and ending on the 1 July 2010 the 1
st
respondent did not
have any temporary permit to continue with his business operation on
the specified route; that the 1
st
respondent nonetheless
continued with his unauthorised operations on that route; that on 2
nd
July 2010 the 3
rd
respondent again issued the 1
st
respondent with the eight temporary permit which lapsed on 1
st
October 2010 and that from then on until the hearing of the
application the 1
st
respondent was not issued with any
further temporary permit.
[26] The issue in the
case was whether, on these undisputed facts, the applicant was
entitled to the relief sought, be it final
or interim.
[27] Mr. Snellenburg,
counsel for the applicant, submitted that the applicant had made out
a case for the grant of a final interdict
or alternatively an interim
interdict. However, Mr Greyling differed. He submitted that, save for
a specified period of four months,
the 1
st
respondent was
entitled to operate on this specified route by virtue of the various
permits issued to him by the 3
rd
respondent, the permit
board.
[28] The requirements for
the grant of a final interdict are trite. To obtain a final interdict
the applicant has to allege and
prove a clear right; an injury to
such a right actually committed or reasonably apprehended; absence of
any other alternative ordinary
remedy that can adequately afford him
a similar or satisfactory protection –
SETLOGELO v SETLOGELO
1914 AD 221
on 227.
[29] As regards the first
requirements, it was clear and obvious, on the papers and during
argument, that the applicant was a holder
of a valid permit. The
permit entitled him to operate on the route concerned. Therefore he
had a clear right.
[30] As regards the
second requirements, it was common cause that the 1
st
temporary permit held by the 1
st
respondent entitled him
to render taxi services on the specified route as from 30 May 2009 –
annexure “LL2”.
It stands to reason therefore that prior
to the issue of the first temporary permit the 1
st
respondent was not authorised to provide taxi services on the route
in question.
[31] The seventh
temporary permit, annexure “LL9” expired on the 6 of
March 2010. When this application was launched
on the 31 March 2010
the 1
st
respondent did not have any valid temporary permit
to operate on this specific route. The 8
th
temporary
permit, annexure “AO1” again authorised him to operate on
the route as from the 2
nd
July 2010. It follows therefore
that the 1
st
respondent’s operations from the 7
th
March 2010 to the 1
st
July 2010 were unauthorised.
[32] Similarly, the 1
st
respondent’s continued operations from the 2
nd
October 2010 after the expiry of his 8
th
temporary permit
until the hearing on the 25 November 2010 were also unauthorised by
the permit board, the 3
rd
respondent.
[33] Whereas the
applicant was legally providing minibus taxi services on the route
concerned at all time material to this dispute,
the 1
st
respondent was not. In the three preceding paragraphs, I have
highlighted the three periods during which he conducted passenger
transport business on the route while he was not in possession of any
valid permits issued by the 3
rd
respondent. To the extent
that he did so, his operations were certainly illegal. BY conducting
such an unlawful trade competition
against the applicant, he actually
infringed the applicant’s clear right. Such an infringement
constituted an injury to another’s
protected right. I would,
therefore, find that the second requisite of harm to a clear right
has been established.
[34] It may well be so
that the 3
rd
respondent would, but for this application,
have continued to issue further temporary permits to the 1
st
respondent. The contention holds true in respect of the second and
third periods only of the 1
st
respondent’s
permitless operations. Certainly the contention hold no water in
respect of the first period. He described himself
as a member of the
operators of the Jacaranda Route 16. He has been operating on the
route for years, (annexure “LL1”)
before the current
application was launched on 31 March 2010. His illegal operations
started way back in 2004, annexure “LL12”.
[35] Notwithstanding the
belated application and the incorrect perception that it prohibited
or froze any issue of further permits
by the 3
rd
respondent to the 1
st
respondent and the perceived impact
it had on the minds of the functionaries of the 3
rd
respondent, the bottom line is that the 1
st
respondent had
virtually no valid permit at the time the interdictory application
was launched. The first temporary permit was
issued two months later.
[38] As regards the third
requisite of alternative remedy it was argued,
in limine
in
fact, on behalf of the 1
st
respondent that the applicant
did not follow the internal grievance procedure as laid down in the
5
th
respondent’s constitution. The applicant and the
1
st
respondent were members of the 5
th
respondent at all times relevant to the dispute. The constitution
provided that a member who was aggrieved by the decision of the
domestic grievance committee had a right to take the matter up, on
appeal, to the regional grievance committee. On the ground that
the
applicant had not exhausted internal remedies I was urged to dismiss
this application.
[39] On behalf of the
applicant it was argued that such internal remedies were not
meaningfully satisfactory in this particular
case. Mr Snellenburg
contended that it was the case of the applicant that his vested
interests in a lawful trade competition were
not properly protected
by the 5
th
respondent. He argued that the fact that the
5
th
respondent had so far done nothing meaningful or
effective to restrain the 1
st
respondent’s unlawful
operations was detrimental to the applicant’s pursuit of lawful
trade demonstrated the inefficacy
of such home based grievance
remedies.
[40] I am persuaded by Mr
Snellenburg’s submission. I may add two things to that
submission. Firstly, the 1
st
respondent himself has been
struggling for years to get the 5
th
respondent to
recommend or to decline recommending his application for the transfer
from a provincial to a local route. This demonstrated
how poorly the
affairs of the 5
th
respondent we managed. Obviously its
members were not receiving meaningful and good service. Secondly, the
5
th
respondent recently decided backing up the 1
st
respondent. This was a strange twist in the tail. Hardly two months
before these proceedings were instituted by the applicant,
the 5
th
respondent itself came rushing to court with guns blazing to stop the
1
st
respondent. They withdrew the case, went away, never
came back and never looked back. Can any objective member of the 5
th
respondent be optimistic about the fair workings of the local
grievance committee of the 5
th
respondent in the light of
such dismal and pathetic ineptitude and disarray of the 5
th
respondent’s executive committee?
[41] In my view the
applicant was entitled to obviate the internal grievance procedures.
Such noble procedures were not worth the
paper they were written on.
The 5
th
respondent has demonstrated that it cannot be
trusted to implement such procedures to realise the objective of
resolving grievances
among its members.
[42] I am persuaded that
such domestic remedies would not have provided the applicant with
adequate and satisfactory protection
similar to the protection which
the prohibitory interdict can provide. It follows therefore that I am
of the view that the applicant
did not have any other alternative of
an ordinary but satisfactory remedy available on the domestic front.
This third requirement
has also been established.
[43] In the circumstances
I have reached the conclusion that the applicant has established all
the requirements for the grant of
a final interdict -
V & A
WATERFRONT PROPERTIES (PTY) LTD AND ANOTHER v HELICOPTER & MARINE
SERVICES (PTY) LTD AND OTHERS
2006 (1) SA 252
(SCA) at 257 G
– H. On the premises I would grant the relief sought.
[44] Now I turn to the
question of costs. I came to the aforegoing conclusion with some
measure of trepidation. To start with, the
applicant’s
allegation that the first respondent has not applied to the third
respondent for the amendment of his taxi permit
has no substance. It
is based on speculative conjecture and not proven facts. The first
respondent’s case was that he applied,
in terms of
section
51(1)
Free State Interim Passenger Transport Act, No. 16 of 1988, to
the Provincial Licensing Board, the third respondent, some six years
ago, for permits to operate on the route(s). Since 2004 he has been
struggling to get the fifth respondent to participate in the
prescribed statutory processes.
[45] He averred that as a
result of lack of cooperation or share neglect of its statutory
obligation (sec 51(6)) the entire process
leading towards the hearing
of his application in terms of section 51(9) by the board has been
inordinately retarded. He became
frustrated. He realised that talking
to the 5
th
respondent was like talking to a stone. He
turned to the 3
rd
respondent to do something about his
desperate situation caused by the 5
th
respondent’s
dereliction of duty.
[46] The plight of the
1
st
respondent was seemingly brought to the attention of
the 2
nd
respondent. On the 20
th
May 2009 the
director of the 2
nd
respondent addressed a letter
(annexure “LL1”) to the 5
th
respondent. He
referred to numerous facsimiles from his department to the 5
th
respondent and in particular to the facsimile dated December 12, 2007
– some 18 months earlier. He made references to some
annexures
in respect of which the 5
th
respondent’s response
was still outstanding. He remarked, with an obvious feeling of utter
dismay, that various correspondences
subsequently addressed to the
5
th
respondent elicited no constructive response.
[47] He pointed out that
even that one letter (annexure “C”) dated the 18
th
May 2005 did not give any substantive reasons as to why the 5
th
respondent, after all those many years, was only then expressing its
vague objection. At paragraph 7, annexure “LL1”,
Mr
Phoshodi, the director of the second respondent politely warned the
5
th
respondent:
“
7. It is
regrettable that the Department is left with no choice but assume
that there are no valid reasons as to why Mr. Lebatla’s
application for amendment of route is not recommended.”
[48] Upon proper reading
of the 5
th
respondent’s letter (annexure “C”)
it becomes quite apparent that the 5
th
respondent does
not, in principle object to the grant of the 1
st
respondent’s application. The crux of the 5
th
respondent’s stance which the applicant obviously supported,
was that the 1
st
respondent should seek a permit that,
allowed him to operate (vide par 2 thereof); that the 1
st
respondent should refrain from operating without a valid permit (vide
par 1) and that he should not rely on his existing taxi permit
in
respect of Botshabelo (FS095). The 5
th
respondent cannot
eat its cake and still have it. They cannot fool anyone but itself by
overtly saying the 1
st
respondent must seek a permit. He
did that ages ago but they covertly frustrated him. Eventually after
many years the 5
th
respondent has recently reconsidered
its stance. Its decision is refreshing.
[49] The applicant does
not claim to have ever been in the executive committee of the 5
th
respondent. His claims that the 1
st
respondent did not
comply with certain statutory procedures; that the temporary permits
were issued through irregular procedures;
that the application of the
1
st
respondent was irregularly gazetted and that such
permits were issued on the strength of the decision taken by a
functionary which
was not authorised or statutorily empowered to do
so were all misplaced. What is more telling against the applicant is
that he
did not explain why he did not endeavour to have the 1
st
respondent interdicted in a long period of approximately six years.
[50] In my view the
applicant, by his own conduct, tacitly encouraged the 1
st
respondent to operate on the route over the years and welcome him as
a member of Jacaranda Route 16 operators knowing very well,
right
from the outset in 2004, that he did not have a valid permit. The
same Jacaranda Route 16 Committee consented, not once but
twice, that
3
rd
respondent should allow or grant the 1
st
respondent permit (vide annexures “LL15” dated 30
December 2004 as well as annexure “LL16” dated the 17
August 2008). By the way the two written consents were never
withdrawn. On 13 May 2010 certain operators of the same route had
a
meeting with the functionaries of the 2
nd
respondents and
seeming attempted to contradict or nullify those earlier decisions of
their own committee. The 3
rd
respondent would have nothing
of the sort.
[51] The applicant
vaguely alleged in the founding affidavit that the 1
st
respondent had threatened the rank marshals. It is remarkable that
the applicant attached no confirmatory affidavit by any such
marshal.
It is also interesting to note that his allegation that the 1
st
respondent acted aggressively towards the other operators on the
route was equally vague. The allegations were denied by the 1
st
respondent in the answering affidavit. The applicant annexed six
affidavits to the replying affidavit. The six deponents were members
or rather operators of route 16 but none of them verified the
particular allegation concerning the 1
st
respondent’s
aggression towards them.
[52] He urged me to
ignore the support which the 1
st
respondent received from
the 5
th
respondent and Jacaranda Route 16 Committee as
evidenced by annexures “LL24” and annexure “LL25”.
He alleged
that the deponents thereof, Mr Baadjies and Mr Valashiya,
were friends of the 1
st
respondent who were recently
elected the respective chairs of the 5
th
respondent and
its route committee. He made a bold and unsubstantiated claim that
the two chairs were not authorised to make affidavits
in support of
the 1
st
respondent. However, he attached no confirmatory
affidavit by the committee members of any of the two structures. He
has apparently
been voted out of office as the vice chairs.
[53] He relied on a
letter (annexure “C”) dated 18 May 2010 and another
letter dated the 14 May 2010 which was not attached
(vide par 20,
founding affidavit) which the route committee allegedly sent to the
5
th
respondent. Although he attached no copies of written
resolutions he criticised the 1
st
respondent for relying
on sworn statements instead of resolutions by the same entities on
whose letters he relied. The inconsistencies
of the argument are
quite apparent.
[54] In these
circumstances, my decision would not be compatible with proper
exercise of judicial discretion if I were to award
the costs hereof
in favour of the applicant. I am inclined to deprive him of the
fruits of his success.
[55] The powers of the
3
rd
respondent are set out in section 44. Among others,
the 3
rd
respondent can amend or transfer licences or
permits. I hasten to add that where, as in this instant, a holder of
a permit wishes
to amend and transfer his permit but his application
to migrate has been considerably delayed through no fault of his, the
3
rd
respondent may administratively exercise its
discretionary power to alleviate hardships by the grant of a
temporary permit. This
was a proper case where such an interim relief
was justified.
[56] The mere fact that
there was a pending litigation did not in itself, prevent or prohibit
the 3
rd
respondent from issuing further temporary permits
to extenuate the prolonged hardship which the 1
st
respondent had already suffered. Of course the objection which the
applicant has if any, will be considered at the hearing of the
1
st
respondent in due course. I am persuaded by Mr Greyling’s
submission that there is virtually no sound reason save this current
application why there should be any impediment against the issue of
further temporary permits by the 3
rd
respondent in favour
or the 1
st
respondent.
[57] Accordingly I make
the following order:
57.1 The 1
st
respondent is interdicted and restrained from operating as a minibus
taxi service provider without valid permit(s) from Jacaranda
Taxi
Rank in Dr Belcher route to Universitas, Wilgehof, Bayswater via
Noordhoek, Dan Pienaar and back to Jacaranda Taxi Rank where
the
taxis of route 16 operators are stationed.
57.2 The 3
rd
respondent is urged to expedite the finalisation of the 1
st
respondent’s application and in the meantime to reconsider his
interim application for a further temporary permit pending
the
leasing of his main application.
______________
M. H. RAMPAI, J
On behalf of the
applicant: Adv. N. Snelleburg
Instructed by:
Naudes
BLOEMFONTEIN
On behalf of the 1st
respondent
in main application: Adv.
P. Greyling
Instructed by:
Goodrick & Franklin
Inc.
BLOEMFONTEIN
On behalf of the 2nd –
5th
respondent in main
application: No appearance
/eb