Mohokare Long Distance Taxi Association and Another v MEC: Department of Community, Safety, Transport, Free State and Others (2968/2009, 3357/2009, 3389/2009) [2009] ZAFSHC 124 (3 December 2009)

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[2009] ZAFSHC 124
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Mohokare Long Distance Taxi Association and Another v MEC: Department of Community, Safety, Transport, Free State and Others (2968/2009, 3357/2009, 3389/2009) [2009] ZAFSHC 124 (3 December 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2968/2009
3357/2009
3389/2009
In
the
matter
between:-
MOHOKARE
LONG DISTANCE TAXI
1
st
Applicant
ASSOCIATION
MORNING
STAR TAXI ASSOCIATION
2
nd
Applicant
and
THE
MEC: DEPARTMENT OF COMMUNITY
1
st
Respondent
SAFETY
AND TRANSPORT, FREE STATE
PROVINCE
THE
PROVINCIAL REGISTRAR, TRANSPORT,
2
nd
Respondent
FREE STATE PROVINCE
MR
SHUPING
3
rd
Respondent
MR
MOLISE
4
th
Respondent
_____________________________________________________
HEARD
ON:
30
JULY 2009
_____________________________________________________
DELIVERED
ON:
3
DECEMBER 2009
_____________________________________________________
JUDGMENT
BY:
SIMELANE,
AJ
_____________________________________________________
[1] On 12 June 2009 an
order was granted by the Honourable Mr. Justice C.J. Musi, in terms
of the provisions of rule 6(12) and section
35 of Act 62 of 1955, for
condonation for not complying with the limits prescribed by Rules of
Court.
[2] On
the same day a rule
nisi
issued calling upon the respondents to show cause, if any, on
Thursday 25 June 2009 at 09h30 why an order should not be granted
in
the following terms:
(a) that the respondents
be prohibited from preventing the applicants or members of applicants
to do their business as taxi owners
and/or drivers;
(b) that the respondents
be prohibited from preventing the members of the applicants to do
their business as taxi owners and/or
drivers from a plot known as
Border Box, Maseru Bridge, district of Ladybrand, Free State
Province;
(c) that the respondents
or any of the respondents’ officials be prohibited from attacking,
intimidating or interfering with members
of the applicants’ or
their business as taxi owners or taxi drivers;
(d) that the respondents,
jointly and severally be ordered to pay the costs of this
application. The orders contained in paragraphs
2(a) to (c) to
operate as interim interdicts with immediate effect pending the
outcome of the application.
[3] On
25 June 2009 the rule
nisi
was extended to 30 June 2009 when the arguments began. It was argued
in
limine
that the representatives of both the applicants and respondents did
not have either
locus
standi
or authority to act for the parties. It was argued further that the
applicants had not complied with the provisions of section
35 of Act
62 of 1955 and that the court erred in granting condonation to the
applicants.
[4] In
my view, the arguments
in
limine
called for closer scrutiny. The parties were, therefore, requested
to file supplementary Heads of Argument dealing with that.
These
were to be filed by the 13
th
August 2009.
[5] There
are three applications as the numbers indicate above. The main
application is number 2968/2009. The other two are the
application
for condonation and an application for contempt of court. Argument
was raised in court whether these should be dealt
with individually
or reference could be made to all of them during argument. The
ruling of the court was that during the argument
on the main
application reference to other applications could be made as the
applications are interrelated.
In
limine
it was argued by counsel for the respondents, firstly, that James
Moses (representative of the 1
st
applicant) had no authority to act on behalf of the 1
st
applicant. Secondly, that the 1
st
applicant had no
locus
standi
to bring the application to court. James Moses avers that he is the
chairperson of the Executive Committee of First Applicant
and
authorised to act on behalf of the applicant and depose to the
founding affidavit. The reply to this averment by Mr. Michael

Nthuping, on behalf of the respondents, is anything but clear. It
runs as follows:
“
Save to deny that the applicant is
a member of a registered association; the contents of these
paragraphs are admitted.”
[6] The inference is
inescapable that the chairpersonship of James Moses or his authority
to act (on behalf of first applicant)
is not disputed.
[7] The
respondents argued that James Moses had resigned as chairperson of
the first applicant and that there were no resolutions
reinstating
him as chairperson of the first applicant. In its replying affidavit
the first applicant produced in cases 3357/2009
and 3389/2009 the
relevant resolutions reinstating James Moses as chairperson.
[8] Then
the next question is the
locus
standi
of the first applicant to bring the application in case no.2869/2009
to court. The argument is that first applicant has less the
required
number of members provided for in the Act.
[9] This argument brings
forward a very interesting observation. The first applicant argues
that it has been conducting business
at the Border Box Taxi Rank for
many years - more than twenty years. It argues further that it has
enough membership and that
the membership complies with the provision
of the Act. There is no documentary evidence supporting the lack of
membership of the
first applicant.
[10] The first applicant
further argues that the second respondent i.e. the Provincial
Registrar has de-registered it. The question
arises: Why would the
Provincial Registrar take steps to de-register a taxi association
that does not exist? The inference is
that the reason behind this is
that because the first applicant is refusing to abandon the Border
Box Taxi Rank and join the Manyatseng
Taxi Rank.
[11] The
conclusion the court came to in this regard is that James Moses has
authority to act on behalf of the first applicant and
that first
applicant has
locus
standi
to bring the present applications to court.
[12] I now turn to the
granting of condonation by the court to the first applicant for not
complying with the provisions of section
35 of Act 62 of 1955. It
was argued before me that the Honourable Mr. Justice C.J. Musi
misdirected himself in granting an order
condoning such
non-compliance. It was further argued that this court has authority
to set aside that order. I do not agree.
The relevant section 35
reads as follows:
“35
interim interdicts against the state.
Notwithstanding
anything to the contrary contained in any law, no court shall issue
any rule
nisi
operating as an interim interdict against..... unless notice of
intention to apply for such rule..... was served upon the said.....

at least 72 hours or such lesser period as the court may in all the
circumstances of the case consider reasonable, before the time

mentioned in the notice for hearing of the application.”
[13] It
is further argued that this prov
ision
is peremptory. I agree. However, the provision itself makes it
clear that the court may accept a lesser period which it
deems
reasonable in the circumstances of the case. It can be accepted that
C J Musi J allowed a lesser period on this basis when
granting the
interim order.
[14] I
now come to the issue of Mr. Michael Nthuping’s authority to act on
behalf of the MEC. It is argued by the first applicant
that Mr.
Michael Nthuping has no authority to act on behalf of the MEC and
other respondents. This argument is based on the fact
that the
opposing affidavit under case no. 2968/2009 was signed by Mr. Michael
Nthuping on the 23
rd
June 2009, but the letter authorising Mr. Michael Nthuping reads as
follows:
“
Kindly note that
I have ‘authorized’ the acting Provincial Transport Registrar Mr.
Michael Nthuping to act on behalf of the
Department in his official
capacity and oppose any court application
that
is brought by Mohokare and Morning Star Long Distance Taxi
Associations against the Department.”
[15] Counsel
for the respondents was, during argument, at pains to explain what
the effect of the word
“authorised”
is. In my view, the word authorised was put in parenthesis purely
for purpose of emphasis and this does not detract
from its ordinary
meaning.
[16]
In
the premises, both points
in
limine
are dismissed and each party to pay their own costs.
The parties are free to
arrange new dates for the hearing of the merits of the applications.
___________
____
A. SIMELANE, AJ
On
behalf
of applicants: Adv. A.J.R. van Rhyn SC
With
him:
Adv.
P. du P. Greyling
Instructed
by:
Cobus
le Roux Inc
BLOEMFONTEIN
On
behalf of
respondents: Adv.
S.E. Motloung
Instructed
by:
State
Attorney
BLOEMFONTEIN
/sp