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[2009] ZAGPPHC 48
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Stinkwater Eersterus Taxi Association (SETA) v Mthombeni and Others (215/08) [2009] ZAGPPHC 48 (4 March 2009)
IN
THE HIGH COURT OF THESOUTH AFRICA
[NORTH
GAUTENG HIGH COURT, PRETORIA]
Case
Number: 215/08
In
the matter between:
STINKWATER
EERSTERUS TAXI ASSOCIATION (SETA)
Applicant
v
s
SAMUEL
GEZANI MTHOMBENI
1 Respondent
MALULU
PETRUS SEPOGOANE
2nd Respondent
MATHUKGU
PETRUS SIBIYA
3rd Respondent
MAKOBA
J. MAHABA
4th Respondent
NTOMBIFUTHI
SWEETNESS MAKOU
5th Respondent
REGISTRAR
OF GAUTENG PROVINCE
6th Respondent
REGISTRAR
OF NORTH WEST PROVINCE
7th Respondent
GAUTENG
PROVINCE OPERATING LICENCE BOARD
8th Respondent
NORTH
EST PROVINCE OPERATING
LICENCE
BOARD
9th Respondent
GA
MOKONE TAXI
ASSOCIATION
10th Respondent
REASONS
FOR ORDER
Delivered
on: 04 March 2009
POTTERILL
(AJ)
[1] The Applicant brought
an application against first to fifth respondents interdicting and
prohibiting them from transporting
passengers on the following
routes:
From Kapanong taxi rank
situated in Hammanskraal, through Kekana, Tamboville, Sekampaneng,
Temba City, Suurman, Dilopye, Refentse,
Stinkwater, Mogogela
Eersterus, F4 to Mabopane Station and return.
[2]
From the affidavits before me it was clear that there was a factual
dispute and it was such that only the authorities who issued
the
permits would be able to shed light on whether the applicant and or
the respondents had valid permits for the routes. On the
papers
before me both the applicant and respondents prima facie were in
possession of valid permits.
[3] By agreement between
the parties the matter was postponed to 8 September 2008 to join the
Registrars of the Provinces of North
West and Gauteng as sixth and
seventh respondents and the licensing boards of the Provinces of the
North West and Gauteng as eighth
and Ninth respondents. Furthermore
the Ga-Mokone Taxi Association was joined as the Tenth Respondent.
These parties were to file
affidavits from which it could be
ascertained or a decision could be made whether the Applicant and
tenth respondent were authorized
to use the above route and have
valid permits to operate on the route. The parties agreed that each
party was to pay their own
costs for the postponement.
From all the affidavits
it is clear that in terms of section 34(2) and 41(2)(a)(iii) that an
applicant for an operating licence
should be a member of a registered
association.
The
sixth respondent(The registrar of Public transport for the province
of Gauteng) filed an affidavit in which in paragraphs 13.2
and 13.3
it is stated that the first - fourth respondents' ARTA forms "do
not even emanate from the office of the Gauteng
Registrar, neither
does it form part of the records of the First Respondent's file in
the Gauteng Transport Register.
The authenticity of this
document(s) is, as a result questionable." / annex hereto marked
"SL3" being a copy of
the actual document which originates
from the Registrar's office. This document was generated after the
Tenth Respondent had indicated
an interest in the routes indicated
thereon. ..The last two columns of annexure "SL3" which
states "NO CODE"
indicates that the Registrar did not
allocate any codes to the routes concerned as there was a "As
far as our records are
concerned Ga-Mokone Taxi association has not
been authorized/allocated/registered to operate on the route from
Kaponeng Taxi Rank
to Mabopane Taxi Rank."
4
[6] As far as the fifth
respondent is concerned the situation is summed up by the sixth
respondent in paragraph 23.2:
"The case of the
Fifth Respondent is totally different from that of the First. Second,
Third and Fourth Respondents in that
she was never a member of the
applicant. According to her, she had applied for membership to the
Applicant and was told by the
Applicant, in writing, that her
application for membership is approved on condition that she pays an
amount of R50 000.00 for joining
fee...She states that she did not
have R50 000.00 and, therefore, decided to join the tenth Respondent
as she was informed that
the said association operates on the same
route as the route on her permit. However her right to operate will
depend on the outcome
of the investigation to be earned out by the
Eight Respondents''
[7] The contents of sixth
respondent affidavit is confirmed by Maffa Statson Dingaan a public
transport assessor appointed and employed
in the office of the
Registrar of Transport Gauteng Province.
[8]
In the Eight Respondent's affidavit (Gauteng transport Operating
Licence Board) in paragraph 11 the court is informed that first
to
fourth
respondents all have permits but not
permits for the route in dispute. Fifth respondent " as made one
application for a transfer
of a permit from M J Mnyakeni ... The said
permit seems to be valid with an authorization to operate on the
route from Kopanong
Taxi Rank to Mabopane Railway Station Taxi Rank
and return....However the fact that the permit had, at some stage
prior to the
transfer to the Fifth Respondent, its route amended from
Soshunguve to Bloed Street to the route from Kopanong Complex to
Mabopane
Station raises some concern and the board will carry out an
investigation... The fate of the permit will be determined by the
outcome
of the investigation."
[9] The seventh
respondent (the Provincial Taxi/Transport Registrar for the province
of North West) states that after it received
notification of
termination of membership of the first to fourth respondents they
were individually informed of their deregistration
as members of the
applicant. The Board is the only authority who can cancel the
licenses.
[10]
The Ninth Respondent (the North West Transport Operating Licence
Board summarizes the applicant's position as follows in paragraph
6.3: "I respectfully submit that it is clear from the annexed
report that the route is recognized as that operated by SETA,
ie the
Applicant in this matter." The position of first to fourth
respondents is put out in paragraph 10.3:
" I respectfully
submit that subsequent to the North West Registrar's deregistration
of the First, Second. Third and Fourth
Respondents as members of the
applicant all these Respondents permits which authorized them to
operate on the route from Kapanong
taxi rank to Mabopane station
automatically lapsed in terms of section 120 of the National Act in
that they failed to obtain membership
of another registered or
provisionally registered association operating on the route in
question."
[11] The first to fifth
and tenth respondents then proceeded to file a replying affidavit to
sixth and eight respondents' affidavit.
Their main contention was
that first to fifth respondent and tenth respondents did have written
permissions issued by eighth respondent
to operate on the route in
question and the written permissions were attached.
[12] The eighth
respondent then filed a supplementary affidavit categorically stating
that the attached written permissions
were all fake for one
and/or all of the following reasons:
[12-1] Neither a copy of
the written permission nor the supporting documents for the
application of the said written permission
could be found in the
records of the Eighth respondent,
[12-2] The handwriting on
the written permission does not belong to any of the authorized
personnel in the department.
[12-3] The route
print-out annexed to the written permission was not generated from
their system as the font and colouring is totally
different.
[12-4] There is no record
in their system of the would-be applications or they belong to other
people, not the respondents.
[12-5]The receipt number
is fake or relate to other transactions.
[13]
The sixth respondent then filed a further affidavit noting the
admission of the tenth respondent that in their initial application
for registration the route from Kopanong Taxi Rank to Mabopane
Station was not included in the route operated by the tenth
respondent.
Tenth Respondent also admits that the route in dispute is
in fact registered by the Registrar North West as the route operated
by the Applicant. They dispute as being
inconceivable
that the former Registrar would have allowed two rival taxi
associations to register for the same route due to potential
violence
between the associations. They submit that the tenth respondent is
not authorized and registered to operate the route.
[14] The tenth respondent
in response to the supplementary affidavit of the sixth respondent
then files another affidavit in which
it avers that the route was
successfully verified in favour of the tenth respondent. One Mr Paul
Mnisi who had authority to represent
and/or act on behalf of the
Registrar's Office had signed the verification. Also responding to
eighth respondent's further affidavit
they aver that they instructed
a consultant to obtain the written permissions, but they have not
been successful in reaching the
consultant.
[15] The first to fifth
respondents requested a further postponement to enable them to call
as a witness the previous registrar.
This was denied and the reasons
therefore are on record.
[16]
The ostensible real dispute of fact that existed on the papers before
the sixth- ninth respondents were joined is resolved.
The allegations
of the first to fifth respondents and tenth respondents ballooned as
the affidavits went along. At first they submitted
the ARTA forms
entitled them to the route. When these ARTA forms were successfully
reduced to a nullity
they then proceeded to
allege that they had written permissions. When these written
permissions were exposed as fake they have to
resort to calling a
previous registrar or to obtain affidavits to verify signatures. This
is never put before court and the consultant
who obtained the
permissions also does not come to light. The allegations by the first
to fifth and tenth respondents are so untenable
that I am justified
in rejecting them merely on the papers. From the crux of the lengthy
papers set out above it is common cause
that the route in dispute is
in fact registered by the Registrar North West as the route operated
by the Applicant. All the authorities
categorically state that the
tenth respondent is not authorized or registered to operate the
route. The first to fourth respondents
were deregistered and do not
have valid written permissions. The fifth respondent also has no
written permission. Granting the
order is in fact stating the
obvious.
[17] Accordingly the
first to fifth and tenth respondents are prohibited from transporting
on the following routes:
From Kapanong taxi rank
situated in Hammanskraal, through Kekana, Tamboville, Sekampaneng,
Temba City, Suurman, Dilopye, Refentse,
Stinkwater, Mogogela
Eersterus, F4 to Mabopane Station and return.
S,
POTTERHILL
ACTING
JUDGE OF THE HIGH COURT