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[2011] ZAFSHC 20
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Raleting v Kopano Thepo Transport Services (5778/2009) [2011] ZAFSHC 20 (3 February 2011)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 5778/2009
In
matter between:-
PIET RALETING
…................................................................
APPLICANT
and
KOPANO TSHEPO
TRANSPORT SERVICES
…..............
RESPONDENT
HEARD ON:
9
DECEMBER 2010
JUDGMENT BY:
K.J. MOLOI, J
_____________________________________________________
DELIVERED ON:
3 FEBRUARY 2011
JUDGMENT
_____________________________________________________
MOLOI,
J
[1] The applicant is a
taxi operator and is a member of the respondent, a taxi association.
On 23 November 2009 the applicant launched
an application for a final
interdict against the respondent to compel the respondent to allow
the applicant to operate his 23-seater
Volkswagen Crafter motor
vehicle with registration letters and numbers DMB502FS in terms of
the public operating licence entitling
him to convey for reward 23
passengers on the Welkom/Johannesburg and Welkom/ Ficksburg routes
and prohibiting the respondent from
limiting the number of passengers
to (15) and associated relief.
[2] The application was
opposed by the respondent on several grounds and this court dismissed
the application with costs on 9 December
2010. On 11 January 2011 the
applicant requested the reasons for such dismissal in terms of the
provisions of Rule 49(1)(c) of
the Uniform Rules of the High Courts.
What follows is a response to that request.
[3] The applicant, just
like all the other members of the respondent, had been operating the
passenger conveyance business under
public operating licences to
convey the maximum of (15) passengers at a time from Welkom to
Johannesburg and from Welkom to Ficksburg
using the taxi ranks
controlled by the associations known as
Jofeldta
and
WFK,
respectively, under the agreement they had with the respondent.
During 2008 and with the approval and recommendation of the
respondent,
the applicant acquired a larger motor vehicle with the
capacity to convey 23 passengers and obtained a public operating
licence
authorising such conveyance.
[4] From the onset the
officials of the respondent denied the applicant the right to convey
more than 15 passengers at a time. The
applicant did almost
everything possible to be allowed to convey 23 passengers at a time
to no avail. This gave rise to this application
as the approval and
recommendation of the respondent to the acquisition of a lager
vehicle and a public operating licence was seen
by the applicant as
authority for the conveyance of more than 15 passengers and, indeed,
23 passengers at a time, which, of course,
is denied by the
respondent. The denial, consequently, created a dispute of fact the
resolution of which dispute would require
referral to oral evidence
as envisaged in Rule 6(5)(g) of the Uniform Rules of Court as the
matter could not be disposed of on
papers alone.
[5] I stated above that
the applicant did almost everything possible to have the dispute
resolved save for referral of the dispute
to arbitration as required
by the Constitution of the respondent to which the applicant, as a
founder member, is subject and bound.
The grievance procedure
prescribed by the Constitution and form an addendum thereto describes
in article 2 thereof under
“…
Interpretation
and Requirements
”
in sub-article 1 a grievance as “
any
dissatisfaction of feeling of having being wronged on the part of
member or group of members regarding membership and matters
pertaining to the duties, action and participation of a member or
group of members of the association”,
and states under
“
Operators”
in article 1.1 (f) that
“
members must respect and adhere to the Constitution”
.
In article 3.5(a) under
“
Arbitration”
the constitution provides “
if a conflict cannot be resolved
by mediation the parties
must
(my underlying)
refer the matter for arbitration in terms of the arbitration act
1965”, (
sic
).
The launch of the application without
having taken the arbitration step by a founder member who may be
presumed to have been involved
in the drafting of the constitution
would be premature and on that score alone the application had to be
dismissed.
[6] The respondent had
also raised non-joinder as a point
in limine
in that the
applicant had not joined
Jofeldta
and
WFK
as parties to
the application. It argued that the two associations had a direct and
substantial interest in the matter in that
the agreements between
itself and the two associations respectively, forbade the conveyance
of more than 15 passengers per vehicle
at a time from their ranks in
Welkom and it was on that basis it acted as it did
vis-a-vis
the applicant. The applicant contended that no such agreement existed
as it was not reduced to writing as though an oral/verbal
agreement
was no agreement at all. Despite this the applicant in its reply
appended an affidavit by a former chairman of the respondent,
one
Jacob Litaba Nkobo who deposed as follows in paragraph 5.1 to support
his denial of the existence of an agreement to limit
the number of
passengers to 15:
“
I
am not aware of any agreement between the respondent and WFK or the
respondent and Jofeldta in terms of which members with 23
seaters are
only allowed to carry 15 passengers at a time”,
and
at 5.2:
“
I
am also operating a 15 seater taxi on the Welkom/Ficksburg route. I
attended a meeting at the offices of WFK between only members
of the
respondent and WFK that operates on the Welkom/Ficksburg route.
Heated discussions took place during this meeting as WFK
did not want
members of the respondent to operate their 23 seaters at full
capacity on this route, while members of WFK are operating
their 23
seaters at full capacity on this route. No agreement was reached
during this meeting. No further meeting was held with
WFK”,
and
at 6:
“
At
this stage Jofeldta is operating their 23 seaters from Johannesburg
to Welkom at full capacity, but will only load 15 passengers
on the
return leg from Welkom to Johannesburg, see hereto two passengers
lists of Jofeldta, marked Annexure ”C1 and C2”.
If the
current officials of the respondent reached an agreement with
Jofeldta, they never informed the members of the respondent
that they
reached an agreement and furthermore had no mandate from the members
of the respondent to enter into such an agreement.
If any such
unauthorised agreement was reached between the members of the
respondent and Jofeldta, it was only entered into after
the beginning
of 2009, therefore some time after Mr Raleting purchased his 23
seater vehicle”.
The above averments do
not deny the existence of the agreement alleged by the respondent
more that it confirms the direct interests
of the two associations in
the matter. They, on the contrary, confirm the necessity to join them
and reaffirms the dispute that
could not be solved on papers alone.
[7] The respondent
furthermore attached to its opposing affidavit extracts from the
minutes held on 24 October 2008, 1 June 2009,
17 June 2009, 25 June
2009, and 10 July 2009 where the issue of the number of passengers to
be limited to was pertinently discussed
and resolutions taken. This
did not only refute the doubts expressed by Mr Nkobo in his
supporting affidavit of the applicant’s
denial but more than
anything else indicated that the applicant lacked a ‘
clear
right ‘
to obtain a final interdict as that was a
pre-requisite to such an-interdict and his application was doomed to
fail. This fact
is also borne out by the fact that at no stage since
the applicant acquired the larger vehicle was he ever allowed to
convey passengers
in excess of 15. As a holder of a public operating
licence the applicant is authorised to convey 23 passengers legally
provided
he meets the requirements of the association he voluntarily
chose to be a member.
[8] As a consequence the
application must fail and it is accordingly dismissed with costs.
_____________
MOLOI, J
On behalf of the
applicant:
W.J. BOTHA
HEFFER ATTORNEYS
Attorneys for the
Applicant
Profinsa House, First
Floor
Cnr Tweedelaan and Pres.
SteynStr
BLOEMFONTEIN
9300
On behalf of the
Respondent:
HONEY ATTORNEYS
Attorneys for the
Respondent
Honey Chambers
North Ridge Mall
Eeufees Road Helican
Hiehgts
BLOEMFONTEIN