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[1986] ZASCA 6
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Airoadexpress (Pty) Ltd. v Chairman and Others (6/86) [1986] ZASCA 6; 1986 (2) SA 663 (A); (27 February 1986)
AIROADEXPRESS (PROPRIETARY)
LIMITED
Appellant
and
THE CHAIRMAN OF
THE LOCAL ROAD
1st Respondent
TRANSPORTATION BOARD,
DURBAN
THE SOUTH AFRICAN TRANSPORT SERVICES
2nd
Respondent
MARKET SERVICE STATION TRANSPORT
3rd
Respondent
(PRIVATE) LIMITED
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
AIROADEXPRESS (PROPRIETARY) LIMITED
Appellant
and
THE CHAIRMAN OF THE LOCAL ROAD
1st
Respondent
TRANSPORTATION BOARD, DURBAN
THE
SOUTH AFRICAN TRANSPORT SERVICES
2nd
Respondent
MARKET SERVICE STATION TRANSPORT
3rd
Respondent
(PRIVATE) LIMITED
Coram
: Kotzé, Miller, Joubert, Van Heerden et
Grosskopf, JJ A
Heard
: 5 November 1985
Delivered
: 27 February
1986
JUDGMENT
KOTZÉ, J A
:
This /2
-2-This appeal arises out of proceedings in the
Natal Provincial Division. On 23 December 1983 BROOME J granted an urgent rule
nisi
to the present appellant (as applicant). On 17 August 1984, after
the rule had been extended several times, KUMLEBEN J discharged
the rule with
costs. Four days later the lastmentioned learned Judge granted leave to appeal
to this Court -hence the present proceedings.
Reasoned judgments were delivered
in both the rule
nisi
and the return day proceedings and are respectively
reported in 1984(3) S A 65 and 1984(4) S A 593 (
sub nomine Airoadexpress
(Pty) Ltd v Chairman, Local Road Transportation Board
,
Durban, and
others
). Since I do not propose to indulge
in /3
-3-in unnecessary repetition, this judgment should be read with the
reported judgments.
To the terms of the rule
nisi
set out by KUMLEBEN J at 595 D- 596C
should be added par 4(b):
"the applicant be and is hereby ordered ... to note and prosecute an appeal
to the National Transport Commission in accordance with
the provisions of the
Road Transportation Act No. 74 of 1977, as amended, and the regulations
published thereunder, against the first
respondent's decision given on 15
December 1983 not to grant and issue to the applicant the said public
permits."
The appeal to the National Transport
Commission (NTC)
had /4
-4-
had been duly noted on 20 December 1983.
The appellant, first respondent and second respondent were represented
before us. The third respondent filed an affidavit to the effect
that it
a-dopted. the argument presented on behalf of the second respondent.
KUMLEBEN J correctly, in my view, points out that there are differences
between the nature of the authorisation which the appellant
enjoyed for five
years up to 31 December 1983 and the nature of the authorisation applied for on
26 September 1983. Yet I agree with
BROOME, J that
"(o)ne /5
-5-
"(o)ne must look at the substance and not the form of this particular
application and that it would be unfair to adopt a strict legalistic
approach
... by categorising these matters as either applications for a renewal or
applications for a new certificate ... When one
looks at the facts of this case
one finds that what is intended should happen and the permission which is sought
to come into operation
after 1 January 1984 is the same applicant, the same
operator, conveying the same goods between the same points, enjoying the
patronage
of the same customers and in fact even employing the same drivers and
same staff. In other words, without elaborating any further,
it is fundamentally
the same service with one difference and one difference only, that is, the
vehicles involved. Up to 31 December
there were 17 one-ton bakkies. Thereafter
there are two bigger trucks. So really, when one takes what I believe to be a
sensible
view /6
-6-
view of the facts of this case, a realistic view, one finds that what the
applicant is seeking to do is substantially the same as
it has been doing
lawfully with one difference and one difference only, that is, using two larger
vehicles (to comply with what it
apparently believes is the policy as evidenced
by the amendments to the Act) instead of a number of smaller
vehicles."
(At 76I-77B).
(In regard to the marked apparent difference between
the
carrying capacity of the seventeen one ton vehicles
on the one hand
and the two twenty-two ton vehicles on
the other hand, one should
bear in mind the explanation
referred to by KUMLEBEN, J at 605 B-E).
BROOME, J found that
(a)
appellant /7
-7-
appellant established a well-grounded apprehen sion of irreparable harm
if relief be withheld from it (at 69E-70 E);
the balance of convenience favoured the grant of the rule applied for
(ibid);
no other satisfactory remedy was available to appellant (at
71F-I);
appellant established
prima facie
that the local board adopted a
wrong approach to the application (at 73 A-C), made out a powerful case on the
merits likely to succeed
on appeal to the NTC
(at 73 H-I) and the application was wrongly refused on the merits (at 74
D-F).
KUMLEBEN, J /8
-8-
KUMLEBEN- J agreed that requisites (a), (b) and (c) for
an interim interdict were established (at 605
i f
- 606 A). In regard to
(d) he had reservations: see at 603 H - 605 I. My view in this connection can be
stated briefly. The virtually
uncontradicted evidence (of Nicole and Mentrup)
referred to by BROOME, J at 67 E-G, established that with effect from January
1978
the appellant brought into operation a specialised form of overnight
door-to-door motor carrier transportation between the Reef and
Durban which, in
the public interest, is both necessary and desirable. The rail services offered
by second respondent and the services
of the other . respondents are neither
satisfactory nor sufficient.
Moreover, /9
-9- Moreover, it seems to me that regard being
had
inter alia
to
(i) the reasons furnished by the local board in the Ratner and Collett
Agencies application, Von Bratt's failure to dissociate himself
therefrom in
clear terms and Muller's unconvincing declaration that he neither thought of nor
mentioned the said reasons to Von Bratt
in the course of their deliberations;
(ii) Botha's statements to Van der Berg; (iii) the undue importance attached to
the amendment
to sec 1(2)(L) of the Road Transportation Act, 74 of 1977 (the
Act) by Act 8 of 1983; and (iv) the unconvincing reasons given by
the
local
board /10
-10-board for its refusal of appellant's application (one such reason,
unconfirmed by evidence, e g being that the board "felt" that
a 22 ton trailer
restricted to 10 hours travelling time could not travel between the Reef and
Durban without exceeding the speed
limit);
substantial grounds exist to
support the contention that at least portion of the causa relied upon in the
founding affidavit has been
substantiated. The said causa takes the form of a
submission that the local board in refusing to grant the application:
"(a) applied the wrong principles in that it approached the hearing of
the
application....../ll
-11-
application and the decision which it had to make upon the basis that the
legislature did not intend that road transportation of the
kind applied for
should be granted by a Local Board:
failed to apply or keep in mind the relevant provisions of the Act when
arriving at its decision and accordingly failed to exercise
its statutory
duty;
approached the exercise of its statutory duty upon the basis that the
application should have been heard and considered
by the National Transport Commission and not by a Local Board in that
local boards should not be called upon to decide applications
of this kind and
accordingly should not grant them;
was prompted by some ulterior motive or some policy of which it did not
inform the applicant at any time during the course of the
proceedings;
failed to apply its mind to the issues between the applicant and the
respondents;
(f) acted /12
-12-
acted arbitrarily and capriciously;
relied on irrelevant considerations and wrong principles;
(h) failed to appreciate the nature and limits of the power to be
exercised by it;
(i) relied on irrelevant considerations and wrong
principles."
Each of the above grounds (a)- (i) is an
appropriate ground upon which the Supreme Court may, pursuant to its inherent
power, review
and correct the proceedings of a body such as a local board
established in terms of section 4 of the Act. But, as I shall endeavour
to point
out, they are at the same time grounds which may be advanced on appeal to the
NTC.
The /13
-13- The factual background can be summed up briefly:
For five years from January 1978 to 31 December 1983 the appellant
provided a transportation service which served the public interest.
No alternative satisfactory service exists.
The service referred to in (a) lapsed by virtue of legislative
enactment.
The local board refused an application by
the /14
-14- the appellant to replace the service referred to in (a) by a
fundamentally similar service. (e) In essence the refusal referred
to in
(d)
arose out of a failure to exercise an unfettered discretion in that the
local board refused the application because of a wrong impression
that the Act
as amended prohibited the grant of the permits applied
for.
It is against the said background
that the crucial legal submission relied upon by the appellant has to be
decided. The said submission,
strongly contested by the respondents, is that the
Supreme Court is endowed with power to grant public road transportation
permits
by /14(a)
-14(a)-by mandatory order affording interim
protection pending an appeal to the NTC in circumstances where a local board's
decision
is apparently vitiated by irregularity. None of the authorities cited
to us deals directly with the problem posed. It has to be determined
largely on
principle.
In /15
-15- In terms of sec 8 of the Act any person who has
applied to a local road transportation board for the grant of a public road
carrier permit and is affected by any decision of such board, may appeal against
the decision to the NTC which may reject the appeal
and confirm the decision or
uphold the appeal wholly or partially, set aside the decision and substitute
therefor any other decision
which the board could have given or remit the matter
for fresh consideration. It follows that the NTC possesses powers similar to
those which the Supreme Court possesses in terms of its review jurisdiction.
These powers exist side by side and do not exclude each
other. What is
significant is that
the /16
-16-
the NTC is not endowed with any power to afford interim relief pending an
appeal to it.
On the material before us a strong
prima facie
case has been made
out that the permits applied for were wrongly refused by reason of the local
board's wrong belief that the Act
as amended precluded the grant of the
certificates. In the event of such proof the Court would, upon application to
it, be empowered
under its review jurisdiction to set the matter right by
directing the grant of the permits or by referring the matter back for proper
consideration. (Cf
W C Greyling and Erasmus (Pty) Ltd v Johannesburg Local
Road Transportation Board ant others
, 1982(4) S A 427 (a)). The NTC is
empowered,
in /17
-17- in terms of its statutory appellate
jurisdiction, to afford like relief. In either event, i e a review to the
Supreme Court
or an appeal to the NTC, a delay in the delivery of judgment after
31 December 1983 would cause loss and hardship to the appellant.
In deciding
what I have referred to above as the crucial legal submission, it is convenient
first to consider the approach adopted
by our Courts in resolving problems of
this nature where interim relief is sought pending main proceedings in the
Courts themselves
and thereafter to consider whether different considerations
apply pending the final decision of a statutory functionary.
The question has in the past frequently arisen
in /18
-18-in regard to the renewal of liquor licences. For
more than half a century interim relief in the form of mandatory orders to
prevent prejudice or injustice has been decreed in several of the provinces. I
will refer to a few of the better known cases.
Morkel and others and Hahne v Johannesburg Licensing
Court
,
1914 TPD 395
was a case in which applications
for /19
-19-
for the renewal of liquor licences were refused. An
error of procedure by the licensing authority led to a refusal of the
applications
resulting in "hardship" and "injustice" to the applicants. The
Court (MASON, J) set aside the refusal and referred the matter back
to the
licensing authority for a proper hearing. The next sitting of that authority
would not take place soon and the Court granted
an interim order that a
temporary licence be issued. The learned Judge said at pp 397-8:
"With reference to the other part of the application, namely, for an
interim order authorising the applicants to carry on business
until the
rehearing, that really is an application to the Court to allow them to carry on
business without a licence. I am not at
all
satisfied /20
-20-
satisfied that the Court has authority to give any such order. But I
think, taking into consideration the Cape cases, and the words
of the statute,
the Court can give relief. Supposing the licensing court had wished to take a
considerable time to consider the position,
I think they would have been
entitled, under sec. 27, to issue a conditional licence to the applicants,
saying, 'You can carry on
your business meantime, while we are considering this
matter, or for such and such a period, till we can determine exactly what is
to
be done with your licences.' I propose acting on what I believe to be the power
of the licensing court, and, under the circumstances,
directing the president of
the licensing court to sign a certificate for a licence to the various
applicants until such time as the
licensing court has reconsidered and dealt
afresh with the matter."
In
Golomb v Pretoria Liquor Licensing Court
,
1917 TPD /21
-21-
1917 TPD 1
- also a case where a renewal
of a liquor licence was refused on an improper ground - GREGOROWSKI, J
said:
"It seems to me that this question of a licensed dealer carrying on his
business during the
interim
when he has a dispute as to the correctness
of the decision of the licensing Court in refusing his licence is a
casus
omissus
in the Ordinance. It would certainly be a great hardship, if in a
matter of renewing a licence the licensing court had gone wrong
and in this way
deprived the applicant of his right and the matter could not be heard by the
Court at once, that during the
interim
the applicant should be debarred
from carrying on his business. There is no provision made by the law for such a
case, and yet extraordinary
loss might be entailed if a
business
had /22
-22-
had to be closed entirely for a few days. ... There is a precedent where
the Court has come to the assistance of an applicant for
the renewal of a
licence under circumstances like the present, namely,
Morkel and Others v.
Johannesburg Liquor Licensing Court
(1914 T.P.D. 395).
The safe course for
me to adopt is to follow that decision and to give exactly the same relief here
as was given there."
In
De Fraetas v Cape Licensing
Court
,
1922 CPD 350
, - a similar case - GARDINER, J said at 350-1:
"In the present case the licensee was successful upon an application for
review in obtaining the setting aside of the proceedings
of the Licensing Court,
and an order was made on the Licensing Court to call a further meeting to
consider his application.
Against /23
-23-
Against that judgment the Licensing Court has appealed, and this appeal
cannot be heard until three months will have expired. It would
be obviously
unjust to the licensee if, pending the appeal, he were required to cease
carrying on business. My attention had not
been directed to any specific
authority by which I can grant the extension, but I think that the Court has a
general power when the
hearing of an appeal is pending to do what may be
necessary to secure that neither party shall be
prejudiced."
That portion of the above extract dealing
with the "general power" of the Court was quoted with approval and followed by
MATTHEWS,
A J P in
Patterson v Umvoti Liquor Licensing Board
,
1932 NPD
766
- also a case in which the issue of a liquor licence was directed
pending /24
-24- pending the return day of a
rule nisi
.
I should point out that there are examples of cases which point the
opposite way. One of the most notable of these is the case of
Groenkloof
Drankhandelaars (Edms) Bpk and another v Liquor Licensing Board
, 1965(1) SA
866(C) in which CORBETT, J , as he then was, declined, pending an appeal, to
extend the validity of a licence the renewal
of which had been refused in order
to permit the sale of stocks. The ra
tio
of the decision was that the
Court did not possess the jurisdiction to grant the relief prayed - to exercise
such a jurisdiction
would be to "usurp ... the functions of the liquor licensing
boards".
The /25
-25- The cases of
Morkel
,
Golomb
,
De Fraetas and Patterson
all deal with the renewal of liquor licences and
may be regarded as examples (there are many other) of the "product of judicial
ingenuity"
and "sound authority" referred to by Baxter (
Administrative
Law
, p 690). The instant case, apart from the fact that it is concerned with
a different statute, also differs from the above cases in
that an interim order
is sought pending a decision of the NTC and not of the Court and that in form it
is not an application for
renewal but for a new grant. The latter point of
distinction is, in my view, unimportant: the said position is in essence no
different
from an application for renewal since, as pointed
out /26
-26- out above, the application is fundamentally
for the continuation of the pre-existing service. As far as the other point of
distinction,
viz that the interim relief sought is unrelated to Court
proceedings, is concerned I can find no indication in the Act that the power
of
the Supreme Court to grant interim relief (if it exists) is excluded. On the
contrary such power seems to be impliedly recognised
by the Act. Sec 8(A), as
inserted by sec 5 of. Act No 91 of 1980, provides:
"Whenever the commission or a board has, in the case of a public permit
authorizing the conveyance of persons for reward, imposed
a requirement or
condition that such conveyance shall
be /27
-27-
be undertaken at tariffs approved or laid down by the commission or that
board, as the case may be, and the commission or the competent
board thereafter
on application in terms of section 12(2), or the commission thereafter in the
exercise of any power conferred upon
it by section 8(2)(b)(i) or (2)(c), amends
that requirement or condition by increasing any of the tariffs so approved or
laid down,
the coming into operation of the tariffs so increased shall not be
suspended pending final judgment in any proceedings in a court
of law in
connection with such amendment."
The above section
expressly excludes the jurisdiction of courts of law in respect of tariff
increases and tends to show that the
legislature was only concerned to prevent
interim interference in that respect. A further indicator against an
intention
to /28
-28-to exclude the power of the Court is the failure of the legislature
to endow the NTC with power to afford interim relief.
In the instant case the order of the local board has not yet been set
aside and it may be argued that confirmation of the rule will
run counter to the
local board's order. Setting aside of the order could, at the earliest, take
place when the NTC decides the appeal.
That may involve a long delay. I cannot
accept that if it can be shown in a case of this kind that the appellant must
inevitably
succeed in the appeal, interim relief pending the determination
thereof
can /29
-29-
can lawfully be withheld solely by reason of an order
which cannot conceivably be sustained. I am of the view further that in
principle
the same approach should prevail where a strong
prima facie
case is established that the permits applied for were wrongly refused. In my
view the principle applied in the
De Fraetas
type of case should be
extended to a case like the present. The decision in that case is based on the
existence of a "general power"
or, put differently, an inherent jurisdiction to
grant
pendente lite
relief to avoid injustice and hardship. An inherent
power of this kind is a salutary power which should be jealously preserved and
even extended where exceptional circumstances
are /30
-30-are present and where but for the exercise of such power a litigant
would be remediless as is the case
here.
I would allow the appeal with costs - such costs to include the costs of
two counsel - and substitute in the stead of par (i) of the
order in the Court
a quo
the following:
(i) that the rule
nisi
is confirmed with costs.
JUDGE OF APPEAL JOUBERT, J A ) agrees
LL
Case No. 319/1984
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
AIROADEXPRESS (PROPRIETARY)
LIMITED
Appellant
and
THE CHAIRMAN OF
THE LOCAL ROAD
TRANSPORTATION BOARD,
DURBAN
First Respondent
THE SOUTH AFRICAN TRANSPORT
SERVICES
Second Respondent
MARKET SERVICE STATION
TRANSPORT
(PRIVATE) LIMITED
Third Respondent
CORAM
:
KOTZé, MILLER, JOUBERT, VAN
HEERDEN
et
GROSSKOPF, JJA
HEARD
:
5 NOVEMBER 1985
DELIVERED
:
27
FEBRUARY 1986
JUDGMENT
/
VAN HEERDEN, JA
...
2.
VAN HEERDEN, JA
:
I
have had the advantage of reading the judgment of Kotzé, JA, but, with
respect, do not agree with the conclusion reached
by him.
In a number of cases, most of which are discussed in my brother's
judgment, a temporary interdict in the form of a mandatory order
was decreed
against licensing boards or similar bodies. It should be stressed, however, that
in those cases the appropriate authority's
refusal to grant a licence, a permit
or the like had been set aside by the court and the matter referred back for a
rehearing. The
interim relief then took the form of an order directing the
authority to issue a temporary licence pending a rehearing of the original
application (or, in
De Fraetas's
case,
1922 CPD 350
, pending the hearing
of an appeal against the setting aside of the proceedings of a licensing court).
A perusal of the passages quoted
by Kotzé, JA, from the relevant
judgments
/leaves ...
3.
leaves the distinct impression that the courts
experienced difficulty in justifying the grant of the temporary orders. In
cases
decided in the Cape Provincial Division it was said that the basis upon
which such an order may be granted is that a court has the
power to order its
judgment to be carried into execution. See, e g,
Freedman v Herbert Liquor
Licensing Board and Others
,
1946 CPD 255
, 259. ' I must confess that I have
some difficulty in following that reasoning. If, as a sequel to the successful
review of the proceedings
of an administrative authority such as a licensing
board, the matter is remitted to the board for reconsideration, it appears to
me
that the judgment is "carried into execution" when, and only when, the
application is reconsidered by the board. Be that as it
may, the above cases are
not in point in the present matter for the simple reason that the appellant did
not seek an order setting
aside the decision of the Local Road Transportation
Board, Durban
/("LRTBD") ...
4.
("LRTBD"). Nor has it been found that,
irrespective of the relief claimed by it but having regard to the contents of
the opposing
affidavits, the appellant made out a sufficiently clear case for
the setting aside of the refusal of its application by the LRTBD.
In other cases in which the applicant sought to invoke the court's review
jurisdiction, interim relief has been granted pending the
court's final decision
as to whether the decision of the administrative body should be set aside. See
Pietermaritzburg City Council v Local Road Transportation Board
,
1959 (2)
SA 758
(N), and
Patterson v Umvoti Liquor Licensing Board
,
1932 NPD 766.
It can be gleaned from the report of the decision of this Court in
Local Road
Transportation Board and Another v Durban City Council and Another
,
1965 (1)
SA 586
(A), that similar relief was granted by Miller, J, in the court below
when, pending the return day of a rule
nisi
, the Local Board was ordered
to grant the applications refused
/by ...
5.
by it. I shall revert to these cases.
I am aware of only one case in which interim relief was granted pending
the hearing of an appeal to a statutory body. In
Sing and Co (Pty) Ltd v
Pieter
-
maritzburg Local Road Transportation Board and Another
,
1959
(3) SA 822
(N), the applicant had appealed to the National Transport Commission
("NTC") against the respondent Board's suspension of motor carrier
certificates
held by the applicant. The court granted a rule calling upon the Local Board and
the Commission to show cause why an
order should not be granted staying the
suspension pending the appeal, the rule to operate as an interim interdict
pending the return
day. Jansen, J, said, however (at p 824):
"The very urgency excludes a full investigation into the facts and the law,
and it allows only of a superficial approach which might
well be
erroneous."
It is convenient at this stage to consider
what
/the ...
6.
the appellant would have had to establish in
order to obtain an order setting aside the decision of the LRTBD and a further
order,
which would have had final effect, directing that Board to issue to the
appellant the two permits in issue. It is trite law that
the power of a court of
law to interfere with a decision of a board such as the LRTBD is narrowly
circumscribed. The following
dictum
of Holmes, JA, in
Johannesburg
Local Road Transportation Board and Others v David Morton Transport (Pty)
Ltd
,
1976 (1) SA 887
(A) 895, concerning the justici-ablity of a decision of
the NTC applies with equal force in regard to that of a local board:
"... right or wrong, for better or worse, reasonable or unreasonable, its
decision in ... [its special field] ... stands and is not
justiciable in a court
of law, unless it is vitiated by proof on review in the Supreme Court that it
failed honestly to apply its
mind to the issues in accordance with the behests
of the statute and the tenets of natural justice; in other words
that, considered de
jure
, it failed to decide the matter at all. Such
failure
/would ...
7.
would, for example, be proved, if the
Commission's opinion is arbitrary, capricious,
mala fide
, or the result
of an unwarranted adherence to a fixed principle."
But even if such a decision is set aside, it does not follow that a court
will direct a local board to exercise its functions in a
manner determined by
the court, e g by issuing a permit. On the contrary, since the issue of a permit
is in the discretion of the
board and not of the court, the ordinary course is
to remit the matter to the board for reconsideration. In special cases the court
may, however, order the board to issue a permit. This Court has held that "it is
a matter of fairness to both sides":
Livestock and Meat Industries Control
Board v Garda
,
1961 (1) SA 342
(A) 349. But in the absence of exceptional
circumstances such as bias or gross incompetence on the part of the board, or a
long delay
occasioned by an arbitrary decision, a court will not order the issue
of a permit unless the only proper decision of the board on
remittal would be to
grant
/the ...
8.
the application. Cf
Garde's
case,
supra
, at p 349;
Johannesburg City Council v Administrator, Transvaal
and Another
,
1969 (2) SA 72
(T) 76;
Vries v Du Plessis
, NO,
1967 (4)
SA 469
(SWA) 482.
The first requisite for a claim to an interdict is a clear right.
Interim relief may, however, be granted if the applicant establishes
a
prima
facie
right, "even if open to some doubt". (In order to obviate repetition I
shall henceforth not restate the qualification in inverted
commas. I shall also
not refer to the further requisites for either a final or interim interdict.) In
the present context the use
of the word "right" is apt to be somewhat
misleading. An applicant for a permit cannot be said to have a right to a permit
in the
sense that e g an owner has a right in respect of the corporeal thing
owned by him. In so far as the principles relating to the granting
of an interim
interdict may be applicable when an unsuccessful applicant for
/a ...
9.
a permit seeks to obtain interim relief, it may
per haps be more accurate to speak of the establishment of a
prima facie
case. But whatever the correct terminology may be, it follows from what has been
said above that such an applicant must at least
prima facie
show not only
that the decision of the board should be set aside, but also that because of the
existence of special circumstances
the board should be directed to issue a
temporary permit. It is, I conceive, substantially on this approach that interim
interdicts
were granted in the Pieter
maritzburg City Council
,
Patterso
n and
Durban City Council
cases,
supra
.
In those cases the applicants obtained interim relief pending a final
decision of a court of law. In the present case the appellant
sought to obtain
such relief pending the decision of the NTC on the appeal noted to it.
According to the judgment of Kotzé,
JA, this point of distinction is
unimportant since i) there is no indi-
/cation ...
10.
cation in the Road Transportation Act (74 of
1977) that
the power of the Supreme Court to order interim relief
is excluded, and ii) a court has an inherent jurisdiction
to grant such relief to avoid injustice and hardship,
at all events if a strong prima
facie
case is established
that permits applied for were wrongly refused. For
the reasons which follow I am in respectful disagreement.
According to Van der Linde, Institutes 2.1.4 7, an applicant for an
interdict who is unable to prove a clear right may obtain interim
relief in
order to enable him to establish his right "in een vollediger Regtsgeding". The
author therefore envisages a later and
final determination of the existence of
the right in question. Hence, as is stated in Joubert, The Law of South Africa,
vol 11. p
297, an interim interdict does not involve a final determination of
the rights of the parties and does not affect such a determination.
In short, an
interim interdict serves to adjust the applicant's interests until the
/merits ...
11.
merits of the matter are finally resolved. That
final decision has to be arrived at by a court of law or, conceivably, another
body
or person such as an arbitrator. Consequently a temporary injunction does
not necessarily constitute interim relief in the above
sense: if an applicant
seeks an interdict which is to be operative for a fixed or determinable period,
it may still be final in its
nature and effect:
Fourie v Uys
,
1957 (2) SA
125
(C) 126;
Cape Tex Engineering Works (Pty) Ltd v S A B Lines (Pty)
Ltd
,
1968 (2) SA 508
(C) 530.
In passing I should point out that Van der Linda's formulation of the
requisites for an interdict has always been followed by our
courts: Nathan, The
Law and Practice Relating to Interdicts, p 5. Nor, in my view, does the decision
of the Court of Holland, referred
to by
inter
alia Kersteman, Hollandsch
Rechts-geleerd Woordeboek, s n Mandament Poenaal, p 275, detract from that
formulation. As I read Kersterman's
/summary ...
12.
summary of the relevant facts, the wife of the
husband who claimed an interdict prohibiting her from molesting him, did not
dispute
the essential facts on the basis of which he alleged that her conduct
was vexatious. Her only defence was that, although she had
committed adultery,
her husband had forgiven her and that subsequently they had lived together as
spouses. Hence she denied that
in visiting her husband daily she had been acting
vexatiously. It follows that the real dispute between the parties, i e, whether
her husband had condoned the adultery, would have arisen in the divorce
proceedings instituted in Delft. As Kersterman says: "dog
dit alles diende op de
principals zaake."
If in the present case the rule
nisi
were
to be confirmed, no court of law would in the future have to make a final
determination of the merits (or demerits) of the applicant's
case, and more
particularly of the question of whether the LRTBD commited a reviewable
/irregularity ...
13.
irregularity. Nor will that be the function of
the NTC on appeal to it. It is true that that body possesses powers similar to
those
which the Supreme Court may exercise in terms of its review jurisdiction.
But the grounds on which such powers may be invoked by
a court are entirely
different from those on which the NTC may exercise its appellate jurisdiction.
It is clearly not the only function
of the NTC to ascertain whether a local
board properly exercised its discretion (cf
Golden Arrow Bus Services v
Central Road Transportation Board and Others
,
1948 (3) SA 918
(A) 924.) On
the contrary, an appeal to the NTC involves a rehearing in the fullest sense of
the word. As was said in
National Transport Commission and Another v Chetty's
Motor Transport (Pty) Ltd
,
1972 (3) SA 726
(A) 734-5:
"The Commission is not a court. It is a body of men appointed for their
expertise in their particular field. It is not bound by rules
of judicial
procedure.
/It ...
14.
It is not obliged to hear oral evidence. It is
not required to keep a record of the proceedings. It can reach its decision in
its
own way, so long as it honestly applies its mind to the issue: observes the
requirements of natural justice, such as
audi alteram partem
; and bears
in mind any relevant statutory provisions, such as sec. 13 (2) of Act 39 of
1930, as amended. In terms of reg. 57 it may
consider further information which
the local board did not have before it. And it is not obliged to give reasons
for its decision."
And (at p 735):
"It follows that, on appeal, the issue before the Commission is hot
whether it is persuaded that the local board was wrong. The Commission
comes to
its own decision. The most that can be said about the decision of a local board,
and its reasons, is that these constitute
a factor which the Commission will
bear in mind."
(
Chetty's
case was decided under Act 39 of 1930 and the
regulations promulgated in terms of that Act. However, for present purposes
there does
not appear to be any material difference between the provisions of
that Act and its regulations and those of Act 74 of 1977 and its
regulations.)
/In ...
15.
In a somewhat loose sense it may be said that in
the present case the same question which arose before the LRTBD will have to be
answered
by the NTC, viz, whether the appellant should be granted the permits in
question. But even if the NTC were to decide that question
on the same facts and
information placed before or available to the LRTBD, it will do so in the
exercise of its own, independent
discretion. Consequently, on the assumption
that the LRTBD did not improperly exercise its discretion, the NTC may without
committing
a reviewable irregularity arrive at a different decision.
At most the appellant made out a
prima
facie case, albeit a strong
one, that the LRTBD committed a reviewable irregularity and that had that Board
properly exercised its
discretion it would have granted the application. It
follows that if the rule
nisi
were to be confirmed, the appellants on the
strength of a
prima
/facie ...
16.
facie
case, would obtain an.
interdict which, although temporary in duration, will have final effect. This
conclusion is borne out by
the fact that in terms of the order proposed by
Kotzé, JA, the rule is to be confirmed with costs. Whatever decision may
be
given by the NTC on appeal will not affect the order as to costs, and as
appears from the decision of the Full Bench of the Eastern
Cape Division in
E
M S Belling Co of SA (Pty) Ltd and Others v Lloyd and Another
,
1983 (1) SA
641
(E) 644, there are sound reasons for not awarding the costs relating to an
interim interdict to a successful applicant in the absence
of exceptional
circumstances.
It is said that if it can be shown that in a case of the present kind an
appeal to the NTC must inevitably succeed, "interim relief"
pending the
determination thereof cannot be withheld solely because the order of the local
board has not been set aside. It is also
/said ...
17.
said that the same approach should prevail
where a strong prima facie case is established that the permits in ques tion
were wrongly
refused. In my opinion there are at least two answers to this line
of reasoning. Firstly, if an applicant establishes that his appeal
to the NTC
must inevitably succeed, it may be said that he has made out a clear case, as
distinguished from a
prima facie
case, for relief with final effect.
Secondly, I find it difficult to imagine circumstances in which an applicant can
show that his
appeal will definitely or even probably succeed. I say so because
his prospects of success on appeal cannot be assessed merely with
reference to
the proceedings before the local board, and particularly the evidence and
information placed before or available to
that board, and the reasons furnished
by the board for its decision. In terms of s 9 of the Road Transportation Act
the NTC may inter
alia allow any person affected by or interested in a matter
before it to give evidence or make oral representations or to call
witnesses
/and ...
18.
and lead evidence relevant to such matter. The NTC may therefore be
called upon to exercise its original discretion on evidence, information
and
representations substantially different from that which the local board had to
consider. It would furthermore appear that it
may allow an "interested" person,
who was not a party to the proceedings before the local board, to oppose the
appeal. Hence a court
approached for an interdict pending an appeal to the NTC
cannot assess the nature of the evidence etc on which at some future date
the
NTC will exercise its discretion.
In sum: In my view the appellant is not entitled on the strength of a
prima
facie case to obtain an interdict which is final in effect. I would
therefore dismiss the appeal.
H.J.O. VAN HEERDEN
, JA
MILLER, JA
CONCURS
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
AIROADEXPRESS (PROPRIETARY)LIMITED
Appellant
and
THE CHAIRMAN OF THE LOCAL
ROAD
TRANSPORTATION BOARD, DURBAN
1st
Respondent
THE SOUTH AFRICAN TRANSPORT SERVICES
2nd
Respondent
MARKET SERVICE STATION TRANSPORT
(PRIVATE) LIMITED
3rd Respondent
CORAM
: KOTZé, MILLER, JOUBERT, VAN HEERDEN et
GROSSKOPF, JJA
HEARD
: 5 November 1985
DELIVERED
: 27 February 1986
JUDGMENT GROSSKOPF, JA
I
2 I have had the benefit of reading the judgments of Kotzé JA and
Van Heerden JA. I propose setting out briefly my reasons
for agreeing with
Kotzé JA.
At the risk of emphasizing the obvious I
would
commence by pointing out the practical problem faced
by
an applicant in a case like the present. The
applicant,
let us assume, presented an unanswerable case to the
Local
Road Transportation Board (LRTB) for the grant of the
per
mits in question. Nevertheless he finds that his
ap
plication has failed because (let us assume again)
the
LRTB applied a wrong principle in deciding the
matter.
There are now two courses open to the
appli
cant. He may firstly appeal to the National
Trans
port
3 port Commission (NTC). If he adopts this
course, the question which is substantially in issue between the parties (i.e.,
whether
the applicant should be granted
the permits) will be
resolved by a valid decision of the appellate body.
The second
possible course would be to take the decision of the LRTB on review. On the
assumptions I have made above the applicant
would succeed in having the decision
of the LRTB set aside. The application would then either be remitted for
reconsideration by
the LRTB, or the Court would order the LRTB to issue the
permits in question. In either event the appellant would have no more than
a
decision by the LRTB (even if
it
4 it were a "decision" in terms ordered by the
Court). Such a decision would be subject to appeal to the NTC. Ultimately,
again, it
is only the NTC which can finally decide whether or not the applicant
is entitled to permits. From a practical point of view it is
obviously in
everybody's interest that an applicant should rather appeal direct to the NTC
than first engage in time-consuming and
expensive litigation which cannot
resolve the issue of substance between the parties.
The difference
of opinion which has emerged from the judgments can, I think, briefly be stated
as being whether interim relief is
available to an applicant in the above
circumstances who appeals direct to the NTC;
or
5 or whether it is limited to one who institutes review proceedings.
This question falls to be decided on principle and authority.
In
principle there does not seem to me to be any important difference of character
between an interim order
pendente lite
and an interim order pending an
appeal to the NTC. In both cases the orders have temporary effect pending the
determination of certain
defined disputes by a designated tribunal. But, while
the orders are in force, both have final effect in that nothing which may
subsequently
be decided can detract from the efficacy which the orders enjoyed
while they were in force. It seems to me that the only substantial
difference
between the two types of order
relates
6
relates to the matter of costs. In the case of an
interdict
pendente lite
the Court would normally be able to decide in the
main proceedings whether the interdict should have been granted or not, and
could
then make an appropriate order for the costs. The same possibility does
not exist where an order is made pending appeal to the NTC.
This difference does
not in my view create an insurmountable obstacle. The Court has a wide
discretion regarding costs, and could
in any proceedings make an order which
does justice between the parties. If necessary or if the parties so wish, the
Court may even
as a last resort order evidence to be led and argument be
presented solely on the question
of
7 of the costs of the interim interdict. It
does not seem to me therefore that there is any reason of principle for
distinguishing
between an interdict
pendente lite
and an interdict
pending a decision of a tribunal like the NTC.
I turn now to
authority. In Roman Dutch law, temporary relief of the nature with which we are
concerned was usually granted by way
of a
mandamentum
poenaal
(
mandatum poenale
). See Voet,
Commentarius
ad
Pandectas
,
43.1.9, and Van der Linden,
Institutes
3.1.4.7. These orders were granted
in a wide variety of circumstances where an applicant was threatened by
irreparable loss, examples
of which may be found
in
8 in Kersteman, Hollandsch Rechtsgeleerd Woordenboek
(sub. nom.
Mandament Poenaal
); Bort, Nagelaten Werken, Lib. 1 Tit. xxv
and Merula, Manier van Proceduren, lib. IV Tit. II Cap. 24. Van Leeuwen
describes the privilege
of the Court and Supreme Court of Holland to grant
orders
of
mandament poenaal
as covering " all
orders
to those who do something to others contrary to law,
vulgò mandament poenaal
.... Whereby the Court, under a heavy
penalty, forbids or commands something in cases where another suffers damage,
which he cannot
prevent by any
ordinary
remedy, or where something has
been done, against which he cannot well be restored, or which may lead to
considerable damage, or
where the case
admits
9 admits of no delay". (R.D.L., Kotzé's Translation (2nd ed) vol.
II p. 423. See also Bort, ubi sup.)
Although a
mandament
poenaal
was usually incidental to a Rauw Actie in which the plaintiff's
right was sought to be established, this was not an invariable rule.
See
Kersteman (
supra
, p. 274-5) and Merula (
supra
, notes) who both
quote an example,
inter alia
, where the Court of Holland granted a
mandament poenaal
(despite fundamental disputes of fact) to prohibit a
wife from molesting her husband pending the determination of a divorce action
which was to be heard before a different Court (the Court at Delft). The fact
that no further proceedings would be instituted before
the Court of Holland was
not regarded as a bar
to
10 to the grant of a mandament
poenaal
. The
Court at Delft could, in deciding the action of divorce, presumably not have
been required to determine specifically whether
the mandament should have been
granted but would have decided the parties' rights in a more general and
substantial way. Depending
on how the divorce trial developed, the issues in the
two proceedings would have overlapped to a greater or lesser extent, but they
were not necessarily identical. In that respect the case seems somewhat
analogous to the present one.
On the whole, the Court's powers in
Dutch practice to prevent injustice by the issue of orders of
mandament
poenaal
seem to have been extensive, and it
does
11
does not seem that the Court would have been
prevented in law from acting in a case like the present.
It is not
clear whether Van der Linden, in the passage referred to by Van Heerden JA, gave
a somewhat more restricted effect to the
mandamentum poenaal
than appears
from the other authorities quoted above. I am inclined to think that he did not,
but, be that as it may, his statement,
in wide terms, of the general rule does
not in my view imply that the rule was not subject to the exceptions noted by
the authors
of the more detailed commentaries.
The South African
case law does not appear to be very helpful. At most it may be said that
judges
in
12 in the past have felt the need for granting
relief in cases analogous to the present case, but did not give totally
convincing
reasons for meeting this need. On the other hand I agree respectfully
with Van Heerden JA that the basis upon which these cases were
distinguished in,
inter alia
,
Freedman v. Herbert Liquor Licensing Board and Others
1946 CPD 255
at 259 is not convincing. The question now in issue must
accordingly be regarded as open in so far as our case law is
concerned.
Having concluded that neither principle nor authority
stands in the way of the order claimed by the appellant, I turn now to the facts
of the present case. They are considered in some detail in the judgment
of
Kotzé
13 Kotzé JA and I need not repeat them
herein. In my view the appellant has made out a strong
prima facie
case
that the LRTB irregularly failed to grant the permits in question, that the
appellant was gravely prejudiced by this failure,
and that the balance of
convenience is strongly in its favour. No remedy other than an interim interdict
was available to the appellant.
In these circumstances I consider that the Court
a quo could, and should, have ordered the issue of the permits pending
determination
by the NTC of the matter substantially in issue between the
parties, viz., whether the permits should or must be granted.
This leaves the question of costs. The
appellant
14 appellant was entitled to succeed in both
Courts and is
prima facie
entitled to its costs. The respondent did not
ask for a special order. I agree with the order of costs made by Kotzé
JA.
E.M.GROSSKOPF, JA