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[2011] ZAFSHC 69
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Thusaneng Taxi Association and Others v MEC Police Roads & Transport and Another (4794/2009) [2011] ZAFSHC 69 (24 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4794/2009
In
the matter between:
THUSANENG TAXI
ASSOCIATION
…..............................
First
applicant
HLAPO GEORGE HLAPO
….......................................
Second
Applicant
JACOB
TSOTETSI
….......................................................
Third
applicant
and
THE
MEMBER OF EXECUTIVE COUNCIL:
POLICE, ROADS &
TRANSPORT
…...........................
First
Respondent
THE
PROVINCIAL TRANSPORT
REGISTRAR: FREE
STATE PROVINCE
…............
Second
Respondent
CORAM:
EBRAHIM, J
et
LEKALE, AJ
_____________________________________________________
HEARD ON:
31 JANUARY 2011; 28 FEBRUARY 201 1
JUDGMENT BY:
EBRAHIM, J
DELIVERED ON:
24 MARCH 2011
[1] The first, second and
third applicants apply in terms of section 6 of the Promotion of
Administrative Justice Act, 3 of 2000,
(“PAJA”) for the
judicial review and setting aside of a decision of the second
respondent refusing to register first
applicant as a taxi
association. Second and third applicants are members of first
applicant. In their founding papers the applicants
rely on Section
6(2)(d) and (e)(iii) as the jurisdictional basis for these
proceedings.
[2] The subsection reads
as follows:
"(2) A court or tribunal has
the power to judicially review an administrative action if-
(d)
the action was
materially influenced by an error of law;
(e)
the action was taken-
(iii) because irrelevant
considerations were taken into account or relevant considerations
were not considered;”
[3] The application for
registration was lodged with the second respondent during 2008. On 5
January 2009 the second respondent,
by letter, notified the
applicants that their application had been unsuccessful. I quote the
relevant letter, verbatim:
“
January 5,
2009
FAX: 056 2141479
Tell: 0727741542
Thusanang Taxi Association
P.O. Box 5160
Lengau
9499
RE: Application for Registration of
Association
Your application for the Registration
of Thusanang Taxi Association refers.
You are hereby informed that the above
mentioned application has been declined based on a provision of the
Free- State transport
Act no 4 (2005).
Section 80 of the Act states that ‘the
Registrar must register an Association which upon application,
satisfies the prescribed
minimum period of existence, namely 28
February 1995 and has applied for Registration on or before 31 July
1997’.
Your application does not therefore
meet the above requirements.
You have the right to appeal the
decision of the registrar with the MEC, Community Safety and
Transport.
Yours truly,
ST LEKHEMA
TRANSPORT REGISTRAR”
[4] The applicants
thereafter pursued the internal remedy provided for and appealed to
the first respondent, who on 18 March 2009
dismissed their appeal.
The letter of notification reads as follows:
“
The
Secretary
Thusanang Taxi Association
P.O. Box 5160
KROONSTAD
9503
Dear sir,
APPEAL: THUSANANG TAXI ASSOCIATION
1. I refer to the above matter and to
your appeal dated 8 January 2009 against the decision of the
Transport Registrar not to register
your association.
2. After I have considered your
appeal, all information submitted and relevant legislation, I agree
with the decision of the Registrar.
3. Your appeal has therefore been
unsuccessful because your association does not meet the requirements
that are set out in section
80 of the free State Public Transport Act
2005 (Act NO. 4 of 2005) (the Act) together with regulations 7 and 8
of the Free State
Interim Passenger Transport Regulations, 1998 (the
Regulations).
4. Kindly note that you have a right
to approach the court within 180 days after receipt of this letter
for a judicial review if
your are not satisfied with the outcome of
the appeal.
5. Please find attached copies of the
section of the Act and the regulations referred to above for ease of
reference.
Mr. ES MAGASHULE
MEC: COMMUNITY SAFETY AND TRANSPORT
Date: 18/03/2009”
[5] Prior to enlightening
the reader on the factual matrix surrounding the circumstances of the
application for registration, I
think it necessary to set out the
relevant provisions of the Free State Public Transport Act 2005 (Act
No. 4 of 2005 and the applicable
Regulations framed under the Free
State Interim Passenger Transport Act 1998 (Act 16 of 1998) (“the
Regulations”))
Section 80 provides:
“
80.
Registration
of associations.
– The Registrar must register an association which upon
application satisfies the Registrar-
(a) that it has been in existence for
a period not less than the minimum prescribed period;
(b) that the number of members meets
the prescribed minimum;
(c) that the Registered Constitution
and code of conduct submitted by the association has been signed and
accepted by each of its
members;
(d) that the said Constitution and
code of conduct are consistent with and comply with the prescribed
requirements;
(e) that the association enjoys the
support of relevant municipalities and transport authorities;
(f) that each member of the
association holds a valid permit or operating license for each motor
vehicle that he or she operates
and that his or her operations are
within the authority thereof;
(g) that each member of the
association has furnished proof to the satisfaction of the Registrar
that the member is registered as
a tax payer under the Income Tax
Act, or, in terms of that Act, is not required so to register; and
(h) that all of the information
required by the Registrar in terms of this Act or other legislation
has been provided and this information
has been verified in the
manner prescribed.”
Section 23(5) of the Act
provides:
“
Any
regulation made in terms of a law repealed or excluded by this Act
and enforced immediately before the commencement of this
Act with
regard to matters in relation to which the MEC is competent to make
regulations in terms of this section, is regarded
for the purpose of
this Act, as regulations made in terms of this section until the MEC
makes a superseding regulation under this
section.”
Regulation 7 reads:
“
7.
Minimum
number of members or primary associations required for registration
of association
–
Subject to section 18 of the Act –
(a) the minimum number of members
which an association must have before it may be registered in terms
of the Act, shall be 20 (excluding
a conditional member referred to
in the Standard Constitution);
(b) the minimum number of primary
associations based in the Province to be affiliated to a secondary
association before it may be
registered in terms of the Act, shall be
two.”
Regulation 8 reads:
“
8.
Minimum period that association must have existed to qualify for
registration –
Subject to section 18 of the Act, an
association must have been in existence since 28 February 1995 in
order to be registered in
terms of the Act.”
[6] It was common cause
between the parties at the hearing of the present proceedings that
the applicant qualified for registration
on the basis of Regulation
7(a), its membership being of the order of 64 members when the
initial application for registration
was submitted. Both parties were
agreed that the success of the present proceedings depended on
whether or not the applicants fell
foul of the provisions of section
80(a) of the Act and/or of Regulation 8.
[7] The proceedings for
review commenced before my brother Lekale AJ and I on 28 February
2011. Due to insufficient clarity in the
respondents’ papers as
to their defence, I postponed the hearing, at the respondents’
costs, and granted both parties
leave to supplement their papers. A
fresh set of affidavits from both parties was received and in
addition the respondents used
the opportunity to raise,
in limine
,
an objection to the application on the basis that it had been
launched outside of the time limits prescribed in subsection 7(1)
of
PAJA which provides:
“
(1) 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,
(a) subject to sub-section (2)(c),
on which any proceedings instituted in terms of internal remedies as
contemplated in sub-section
(2)(a) have been concluded or
(b) Where no such remedies exist,
on which the person concerned was informed of the administrative
action, became aware of the action
and the reasons for it or might
reasonably have been expected to have become aware of the action and
the reasons.”
[8] The first applicant
came into existence with a membership list of 64 members in 1989 in
Kroonstad. This was not disputed by
the respondents.
As with all provincial
administrations, taxi operators in the Free State are under legal
obligation to operate their taxis under
licence, which can only be
obtained if the operator is a member of a duly registered taxi
association.
The first applicant
applied for registration as a taxi association for the first time
under the provisions of the Free State Interim
Passenger Transport
Act, 1998 (Act 16 of 1998) and was conditionally registered as such
on 27 November 1998. Full registration
was denied to the first
applicant on the same grounds as those upon which its subsequent
application for registration was refused
outright
viz
failure
to comply with the statutory minimum requirements as to membership
and period of existence. In both instances, the Regulations
which
were applicable were Registration 7 and 8 quoted in this judgment.
[9] The essence of the
respondents’ defence is that the first applicant has not
enjoyed continued existence since 28 February
1995. Respondents
allege that subsequent to first applicant being conditionally
registered, it merged with another taxi association
from Kroonstad,
the Moakeng Taxi Association, to form a new association called the
Moqhaka Association. According to the respondents
the first applicant
thereupon ceased to exist as an independent taxi association, with
its own legal persona. It became a new entity
called the Moqhaka
Association.
[10] The applicants
contend that there was an
attempted
merger, which did not get
off first base, because the members of first applicant and Moakeng
Taxi Association could not agree on
a constitution which would
satisfy all of them. The respondents counter this with the retort
that the Moqhaka Taxi Association
was very much in existence with
elected officials from both Moakeng Taxi Association and the first
applicant and that it operated
on the basis of a standard
constitution applicable to all taxi associations.
[11] In addition, the
respondents have argued that first applicant was, in fact,
deregistered as a taxi association and that the
merger was registered
with second respondent, as the Moqhaka Taxi Association. Accordingly
they have denied a failure of the merger
and referred us to the fact
that the applicants submitted the requisite application fee for a new
application as proof that the
first applicant was a new association
requiring registration for the first time in 2008.
[12] Mr. Wessels, on
behalf of respondents, seeks an order dismissing the review
application with costs on two grounds
viz
on the merits and on
the ground of having failed to abide the 180 day time period
prescribed for the bringing of review proceedings
(Section 7(1)
PAJA). In this regard he argues that the belated application for
condonation brought by the applicants is fatally
flawed for lack of
prospects of success on the merits and because the applicants have
not provided a full explanation for the delay.
He argued that the
explanation provided is blatantly false and does not cover the entire
period of the delay. He relied exclusively
for his submissions in
this regard on
MINISTER OF AGRICULTURE AND LAND AFFAIRS v CJ
RANCE (PTY) LTD
2010 (4) SA 109
(SCA).
[13] In the founding
affidavit supporting the application for condonation, the applicants
place the reason for the delay squarely
on the shoulders of the
second respondent, in that notification of the dismissal of their
appeal only reached them by post on 27
March 2009. The respondents
deny this and point to a faxed transmission of the notification on 19
March 2009 (annexure “MN2”
and “MN3”) to the
supplementary answering affidavit), which the applicants deny
receiving.
They calculate the 180
day period as of the date of receipt of notification, which on my
arithmetic, means that the founding papers
in the main application
were timeously issued on the 23
rd
September 2009, being
the 180
th
day. Only service on the respondents was
effected after that period had expired. On my interpretation of
subsection 7(1) of PAJA,
the proceedings were timeously instituted.
[14] Mr. Wessels contends
for, in my view, an erroneous construction of subsection 7(1). He
argues that the legislature clearly
intended a distinction to be
drawn between the date when the person concerned is informed of the
administrative action (decision)
taken and the date on which
proceedings instituted in terms of internal remedies such as the
internal appeal proceedings under
consideration in the present review
application, have been concluded. That would mean the effective date
in the present case would
be 18 March 2009 when the appeal was
dismissed and not 27 March 2009 when the applicants were informed of
the dismissal. As authority
for this proposition, he has referred to
BRÜMMER v MINISTER FOR SOCIAL DEVELOPMENT AND OTHERS
2009 (6) SA 323
(CC) (per Ngcobo CJ). His reliance on this authority
is severely misconceived as it is in fact authority for the
diametrically
opposed construction contended for by the applicant:
that the
dies induciae
is calculated from the date the
applicant was informed of the decision of the appeal. At p. 350, par.
[77] the learned Chief Justice
held:
“
The period
of 180 days must be calculated from the date when the requester
receives notification of the decision on internal appeal.”
In these circumstances
therefore the application for condonation was unnecessary and
accordingly I make no order in this regard.
[15] I deal now with the
merits of the respondents’ decision. The crux of the matter is
whether or not a merger did take place.
Mr. Wessels, quite correctly,
has reminded me of the trite legal principle that a court, in motion
proceedings for final relief
must, in the event of conflict, accept
the respondent’s version. This is so save that the rule only
applies provided the
respondent’s allegations are, in the
opinion of the court, not such as to raise a real, genuine or
bona
fide
dispute of fact or one so farfetched or clearly untenable
that the court is justified in rejecting them merely on the papers -
PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E – 635 C.
[16] In
WIGHTMAN
t/a JW CONSTRUCTION v HEADFOUR (PTY) LTD AND ANOTHER
[2008] ZASCA 6
;
2008 (3)
SA 371
(SCA) at 375 - 376 par. [13] Heher JA lays down a useful guide
to be employed in determining a real, genuine and
bona fide
dispute of fact.
“
[13] A real,
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports to raise
the dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed. There will of course be instances
where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more can therefore
be expected of him.
But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party
and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing
party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true
or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally
have difficulty in
finding that the test is satisfied. I say
'generally' because factual averments seldom stand apart from a
broader matrix of circumstances
all of which needs to be borne in
mind when arriving at a decision. A litigant may not necessarily
recognise or understand the
nuances of a bare or general denial as
against a real attempt to grapple with all relevant factual
allegations made by the other
party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and will only
in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser who settles
an answering affidavit to ascertain and engage
with facts which his client disputes and to reflect such disputes
fully and accurately
in the answering affidavit. If that does not
happen it should come as no surprise that the court takes a robust
view of the matter.”
[17] A bald allegation by
the respondents in their answering affidavit that the merger was
founded on a standard constitution applicable
to all associations
does not, in my view, satisfy this test. No attempt is made by the
respondents to set out supporting facts
and evidence, for example, a
copy of the standard constitution and the resolution of members
adopting it as their constitution
upon which the merged new
association, the Moqhaka Taxi Association, was to operate. This, is
in fact what, in my view, lends the
lie to the respondents’
allegation for, had such a constitution in fact have been adopted and
put in place, it would have
been an easy matter to annex it as
evidence. In this regard it should be noted that Section 80(c) of the
Act requires the Registrar
to be satisfied that the Registered
Constitution and Code of Conduct submitted by the applicant
association has been signed and
accepted by each of its members
before he or she can register such an association. Moreover, upon
proper contemplation and analysis
of this allegation, it appears to
me to be totally devoid of truth, because of the impracticality of
such a course. It seems to
me that the primary purpose of adopting a
constitution in the present case (in addition to giving the new
association an independent
legal persona as a voluntary association)
would have been fundamentally, to regulate the manner in which the
various taxi operators
who had merged with one another were to
conduct themselves concerning matters such as their trade routes,
fares to be charged,
and the operating times of taxis as well as the
allocation of other administrative and executive functions. I ask
myself how a
standard constitution applicable to all and any taxi
association, is able to do this bearing in mind that each association
consists
of different members, presumably conducts their taxi
operations on different routes and charges different fares. That,
after all,
is the very rationale for having different associations,
so that monopolies may be contained and restricted and taxi wars and
taxi
violence averted. How does one embrace these objectives if a
standard constitution is to apply each and every time a merger takes
place and a new taxi association is formed?
[18] The respondents’
bare and ambiguous denial of the applicants’ factual averment
that no merger took place, because
no constitution could be agreed
upon, is untenable against the broad circumstantial matrix existing
in the case of taxi operators
hoping to join to form an association
for the benefit of all its members. I am accordingly enjoined by the
law to take a robust
view and accept the applicants’ version –
WIGHTMAN
,
supra
.
[19] I find that no real
genuine and
bona fide
dispute of fact exists on the papers as
to the continued existence of the first applicant since its inception
in 1989. I find further
that it has continued to operate, without
interruption, as an association and an independent entity since 1989,
when it began functioning
as an association, despite being
erroneously deregistered by second respondent during 2008. More
specifically I find that no merger
of the kind referred to earlier in
this judgment occurred. Since the first applicant is and has always
been on all fours with the
requirements of the law for registration
as an association since 1989, second respondent’s decision to
refuse to register
first applicant as an association, was clearly
unlawful.
[20] 20.1 The decision is
accordingly set aside.
20.2 The first
applicant’s application for registration as a taxi association
is remitted to the office of the second respondent
for consideration
afresh.
20.3 The costs of these
proceedings are to be borne by the respondents, jointly and
severally, the one paying, the other to be absolved.
_____________
S. EBRAHIM, J
I
concur.
______________
L.J. LEKALE, AJ
On
behalf of applicants: Adv. A.H. Burger SC
Instructed
by:
Naudes
Attorneys
BLOEMFONTEIN
On
behalf of respondents: Adv. M.H. Wessels SC
With
him:
Adv.
S. Motloung
Instructed
by:
J
H Engelbrecht
Office
of the State Attorney
BLOEMFONTEIN
Ref:
610/200901382/P6 T/zm
/sp