Radebe and Others v Ficksburg Taxi Association and Others (7139/2008) [2009] ZAFSHC 37 (19 March 2009)

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[2009] ZAFSHC 37
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Radebe and Others v Ficksburg Taxi Association and Others (7139/2008) [2009] ZAFSHC 37 (19 March 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE PROVINCIAL DIVISION)
Case No. : 7139/2008
In
the matter between:-
MTHANDASO
RADEBE
1
st
Applicant
SEBAKENG
SHADRACK PHAKOE
2
nd
Applicant
STIBA
HOSEA LEFI
3
rd
Applicant
versus
THE
FICKSBURG TAXI ASSOCIATION
1
st
Respondent
E
M MOKHELE
2
nd
Respondent
MOTABUDI
DAVID FETHETSANE
3
rd
Respondent
ORIA
RAMOTSO
4
th
Respondent
_____________________________________________________
HEARD
ON
:
5
MARCH 2009
JUDGMENT
BY:
K.J.
MOLOI, AJ
DELIVERED
ON:
19
MARCH 2009
[1] The
applicants, members of the first respondent, sought a two-fold order
from this court.
First,
against the first respondent, a duly constituted taxi association
(hereinafter referred to as “the association”) to compel
it to
comply with the association’s constitution and the relevant
statutory provisions. Secondly, against the second to fourth

respondents (hereinafter referred to as “the respondents”), also
members of the association, to be prohibited from acting in
a manner
inconsistent with the association’s constitution and the relevant
statutory provisions. The application was argued
on behalf of the
first and third applicants only as the second applicant had passed on
in the meanwhile and no executor had been
appointed to represent his
estate as yet.
[2] In
terms of the constitution of the association the association must
take all reasonable steps to prevent any breach of its
code of
conduct and any other misconduct by its members and to take
disciplinary action whenever necessary in the interests of
its
members. The association’s constitution further implores it to
protect and secure the interests of its members, to take
all
necessary steps to preclude misconduct on the part of its members and
their drivers and to report such misconduct to the authorities
when
necessary. It may also take legal action against any person who act
contrary to the interests of its members. The members
of the
association must, in terms of its constitution, comply with the code
of conduct and the grievance procedure, to refrain
from threatening
or intimidating any person, to refrain from interfering with the
queue marshalls and drivers and avoid violent
incidents and
interference with the rank facilities.
[3] The
applicants alleged that the association regulated certain routes and
its code of conduct contains certain procedures to
be followed by all
the taxi operators who qualify as its members. The executive
committee of the association must see to the compliance
with the code
of conduct for the benefit of the members of the association and
allocate routes accordingly. The respondents, who
are executive
members of the association, at different times and for reasons that
are not forming the basis of their qualification
of membership of the
association, prevented them from operating their taxi businesses
along the routes already allocated to them
and thus virtually stopped
their operations. At various times they reported the incidents to
the chairperson of the association
personally and through their legal
representative in terms of the association’s code of conduct and
grievance procedure without
getting any joy. The prescribed
procedures of the association were not followed by the executive to
their detriment. All their
complaints were not attended to despite
the several meetings held and correspondence exchanged and despite
them providing the necessary
proof of ownership of their vehicles to
counteract the reasons given for their unwarranted exclusion from
normal operations of
their taxis.
[4] On
behalf of the association and the respondents the chairperson of the
association disputed the
locus
standi
of the applicants in this court on the basis that they did not follow
the prescribed procedure of lodging their complaints. He
also raised
several other defences against the substance of the applicant’s
allegations which the court does not deem necessary
to deal with
fully for the purposes of this judgment. He, for instance, disputed
the letter of authorisation for the first applicant
to acquire a new
taxi. He further disputed that the applicants are, in fact, the
owners of the taxi vehicles they operated before
they were stopped.
This despite the fact that the association initially authorised and
allocated routes on which the applicants
operated until they were
prohibited to do so by the respondents. He also stated that the
first applicant was prohibited from operating
his taxi because he
was in fulltime employment of a municipality and could not personally
operate a taxi as a result. This, again,
is not a requirement for
membership of the association according to its constitution. He also
denied the association was unwilling
to resolve the complaints of the
applicants. Since the complaints were raised and meetings held no
resolution of the problems
had been found and no reports were made to
the authorities as required by the association’s own code of
conduct and grievance
procedure. This is more than enough proof of
such unwillingness and failure to execute the duties imposed by the
association’s
constitution.
[5] On
behalf of the association and the respondents it was submitted that
the prayers go beyond the powers of the court as they
seek that the
court resolve the dispute between the parties and that the court
could not do so without investigating the dispute
which is the
competency of the association alone according to the constitution.
This view does not find support from the facts,
to my mind, as the
prayers relate directly to what the constitution implores the
executive to do and which it fails and/or neglect
to do.
[6] A taxi association is
defined as a
“
group of persons formed primarily
in relation to the operation of any mode of public transport service
and (b) whose object is to
promote the interests of its members”:
Section
1 of the Free State Public Transport Act, No. 4 of 2005.
The constitution of the
association sets out its aims and objectives as
“
(a) to protect,
secure and promote the interests of the members of the Association:
”
P
aragraph
3.2 of the constitution of the association.
The
operating licences of the applicants issued under the provisions of
the National Land Transport Act, No 22 of 2000
clearly
and unambiguously authorises the applicants to operate the taxi
business on the indicated routes. The conduct of the association
in
failing to protect the applicants’ rights against the conduct of
the respondents is contrary to its constitution and the Free
State
Public Transport Act, No. 4 of 2005. The conduct of the respondents
is not only against the constitution of the association,
its code of
conduct and grievance procedure but is also illegal as they have no
powers nor right to act as they did.
[7] Consequently the
following order is made:
1. The association (first
respondent) is directed to immediately take all steps reasonably
necessary to:
1.1 protect the interests
of the applicants and allow them to operate their taxis in terms of
the operating licences issued to them
and their membership in terms
of the association’s constitution;
1.2 ensure that there is
no unlawful or unfair competition with the taxi services offered by
the applicants in terms of the operating
licences issued to them.
1.3 prevent the second to
fourth respondents from interfering in any way whatsoever with:
1.3.1 the
queue marshalls appointed by it in respect of the Einde Street taxi
rank in Ficksburg in the performance of their duties
as such.
1.3.2 the ranking
facilities at the aforementioned taxi rank.
1.3.3 the utilisation by
the applicants of the routes, networks and taxi ranks which the first
respondent operates or controls,
which includes the Einde Street taxi
rank in Ficksburg.
2. The second to fourth
respondents are prohibited from in any way whatsoever:
2.1 interfering
with the queue marshalls appointed by the first respondent in respect
of the Einde Street taxi rank in Ficksburg
in the performance of
their duties as such, or causing or allowing same to be done;
2.2 interfering with the
ranking facilities at the aforementioned taxi rank or causing or
allowing same to be done;
2.3 interfering with the
utilisation by the applicants of the routes, networks and taxi ranks
which the first respondent operates
or controls, including the Einde
Street taxi rank in Ficksburg, or indeed causing or allowing same to
be done;
2.4 threatening,
inducing or intimidating any persons whatsoever into taking any
action which is not permitted by the first respondent’s

constitution, or causing or allowing same to be done.
3. The second to fourth
respondents are ordered to henceforth obey and adhere strictly to the
association’s code of conduct.
4. All the respondents
are ordered to pay the costs of this application jointly and
severally, the one paying the others to be absolved.
_____________
K.J.
MOLOI, A
J
On behalf of first and
third applicants: Adv. C.A. Human
Instructed by:
Du Toit Louw Botha
Inc
BLOEMFONTEIN
On behalf of
respondents: Adv. P.J. Loubser
Instructed by:
E
G Cooper Majiedt Inc
BLOEMFONTEIN
/
sp