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[2008] ZAFSHC 93
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Matsoso v Thaba Nchu Long and Short Distance Taxi Association (2165/2008) [2008] ZAFSHC 93 (25 September 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 2165/2008
In the
matter between:
TEFU
BEN MATSOSO
Applicant
and
THABA
’NCHU
LONG AND
SHORT
DISTANCE
TAXI ASSOCIATION
Defendant
HEARD
ON:
28 AUGUST 2008
_______________________________________________________
DELIVERED
ON:
25 SEPTEMBER 2008
_______________________________________________________
MOCUMIE J
[1]
This
is an opposed motion. The applicant brings an application for an
order that:
“
(a)
The respondent and its members, be restrained from preventing
applicant to operate on route codes FSBC073THALDTA (Tweespruit)
and
FSBC072THALDTA (Mafikeng);
(b)
Respondent
pays the costs of the application.”
[2]
Applicant
is doing business as a minibus taxi operator and a member of the
respondent, the Thaba’ Nchu Long and Short Taxi
Association
(“THALSTA”), a voluntary association of minibus taxi
operators, with its offices situated at Shoprite
Complex, Thaba’
Nchu, Free State.
[3] In
his founding affidavit applicant states that he was originally
issued with what was termed a taxi permit in 1972. This
PUBLIC
permit was converted to a minibus operator’s licence in August
2001 to comply with the newly introduced legislation.
He was issued
with licence No BFN 5521162. He states further that
“at the time of the said application, I had to apply for the
verification in regard to certain specified routes which I
was
operating on at that stage. Because I was indeed operating on such
routes, I applied for a permit in regard to the following
routes:
FS070 (Botshabelo), FS073 (Tweespruit), FS072 (Mafikeng) and FS076
(Welkom).”
A
nnexure
“A” to the founding affidavit. It is not in dispute
that applicant was issued with a new operating licence
incorporating
these routes.
[4] In
order to appreciate the legal context within which this application
for interdictory relief is brought it is instructive
to refer to the
following remarks by
Navsa
JA
in
Mzamba
Taxi Owners Association v Bizana Taxi Association
2006 (2) SA 154
(SCA) paras 15-17 where the learned judge says:
“
[15]
It
is necessary at this stage to examine the statutory framework within
which minibus taxi operators are obliged to operate.
[16] The Road
Transportation Act 74 of 1977 (the RTA) provides for the control of
certain forms of road transportation and for
matters connected
therewith. The authority to operate a minibus taxi within or
across particular geographical areas is granted
by local boards
established in terms of the RTA (see s 7). This is done by issuing
a public permit. Section 21 deals with the
conditions governing the
issue of a permit. Section 21(3)(e) provides that the permit should
specify:
'(T)he points between and the
routes upon which or the area or areas within which the motor
vehicle to which it refers may be
used in road transportation, and
if any restriction is imposed in connection with any transportation
upon any portion of such
a route or routes or in any area or areas
or in any portion of such area or areas, the points between or the
area within which
such restriction shall be applied and conditions
thereof.
[17] The
National Land Transport Transition Act 22 of 2000 (the NLTTA) was
enacted to provide for the transformation and restructuring
of the
national land transport system of South Africa and matters
incidental thereto. Section 2 provides, inter alia, the measures
to
give effect to national policy concerning the first phase of the
transformation and restructuring process and to achieve a
smooth
transition to a new system, applicable nationally.”
[5]
In
the Free State province the provisions of the Free State Public
Transport Act 4 of 2005 which repealed the Free State Interim
Passenger Transport Act No 16 of 1998 are applicable. The preamble
of this Act reads as follows:
“
To
provide for a public transport system as part of an integrated
system of land transport for the Free State, compatible with
the
National Land Transport System and the Land Transport Systems of the
other provinces; to repeal the Free State Interim Passenger
Transport Act; to bring provincial public transport legislation in
line with Chapter 2 of the National Land Transport Transition
Act,
2000 (Act 22 of 2000) and to replace Chapter 3 of that Act as
regards public transport matters that are dealt with in this
Act;
and to provide for connected matters.”
A
study of the provincial and national legislation shows that there is
no conflict in their texts relevant to this matter.
I will accordingly merely refer to the national legislation where
apposite.
[6]
The
National Land Transport Transition Act 2000
, was subsequently
amended in
2006: Act 26
of 2006
(“the
2006 Amendment Act”
).
The 2006 Amendment Act requires minibus taxi operators to convert
or further convert their operating licences issued under
the 2000
Act to meet the requirements ushered in by the current amendment.
The applicant applied for the same four routes as
he previously did
and on 7 March 2007 a license under number LFSL89852/7 was issued in
his name in respect of the following routes:
FSBC070, destination
Reahola complex;
FSBC073THALDTA,
destination Tweespruit;
FSB072THALDTA,
destination Mafikeng; and
FSB076THALDTA,
destination Welkom.
[7] In
order for the applicant to obtain the licence and operate the routes
referred to in para 3 (above) he required the recommendation
of the
respondent. He avers that the respondent gave the required
recommendation in that:
“
At the
time of such application referred to, the Respondent recommended the
granting, removal, amendment or transfer of the permit
concerned in
regard to the routes as specified and in particular in regard to
Mafikeng and Tweespruit routes. Such recommendation,
signed by the
chairperson of the Respondent and endorsed by the Respondent itself,
is annexed hereto as annexure “C3”.”
[
8] Applicant
states that during March 2007 he attempted to ferry commuters to
their destinations in accordance with his operating
licence but was
prevented from doing so by some members of the respondent. He then
wrote several letters to the respondent asking
for its intervention.
These letters to which the respondent responded are attached to the
papers as annexures “D2”;”E2”;”G2”
and “H2”. The attitude of the respondent in their
response was essentially keeping applicant in suspense by intimating
that the respondent will revert to him.
[
9] On
4 September 2007 all parties attended a meeting with the Provincial
Taxi Registrar appointed in terms of section 15 of the
Free State
Interim Passenger Transportation Act. The meeting was arranged by
the respondent. The powers and functions of the
Registrar are set
out in section 54 of the National Act as follows:
“
A
Registrar - (a) receives and, in accordance with this Act and
applicable provincial laws, considers and decides on applications
for the registration or provisional registration of associations
based in the province and their members, and of any non-members
so
based;
(b) in the
circumstances determined in this Act, decides on and effects the
suspension or cancellation of such a registration
of any association
or any of its members or any non-member in accordance with such
laws;
(c) keeps
records of all other information required to maintain the National
Transport Register.”
The
Free State province has its own
registrar.
There is no indication that during this mediation effort the
registrar found applicant’s licence wanting nor
did he make
any adverse decision against him. Even after this intervention
members of the respondent persistently prevented
the applicant from
plying his trade.
[
10] The
hapless applicant thereafter wrote several further letters to the
respondent pleading for its positive intervention.
Two meetings
were arranged to resolve the impasse. Applicant refused to
partipate in both meetings because the executive committee
had
co-opted into its ranks non-members one of whom physically
restrained him from transporting passengers. He accordingly
objected to the matter in which the committee was constituted. On
11 September 2007, in his absence, the executive committee
of the
respondent resolved that applicant will not be permitted to operate
the routes in issue (Tweespruit and Mafikeng) except
when called
upon to do so by his competitors. Applicant was informed of this
resolution in a letter dated 13 September 2007.
Despite the
so-called concession by respondent by November 2007 applicant had
not been invited to transport commuters. On 15
November 2007, two
months later, applicant went to the taxi rank to enforce his right
to transport commuters on the approved
routes in order to earn a
living. He was physically prevented from exercising his aforesaid
right.
[
11] Another
letter dated 20 November 2007 attached as annexure “O2”
to the founding affidavit was sent to applicant.
The letter
reiterated what was stated in the letter of 13 September. It is
common cause or at least not in dispute that since
this resolution
of 11 September 2007 applicant has not been able or allowed to
operate the Mafikeng and Tweespruit routes due
the conduct of the
respondent or its members.
[12] The
respondent’s case is that applicant has never operated the
Mafikeng and Tweespruit routes. Secondly, that he misrepresented
the true state of affairs to the Department of Transport responsible
for issuing the operators certificates for the routes in
dispute.
[13] The
relief sought by applicant is for a final interdict. The requisites
for a final interdict are set out in
Setlogelo
v Setlogelo
1914 AD 221
at 227 as follows:
“
The
requisites for the right to claim an interdict a
re
well known; a clear right, injury actually committed or reasonably
apprehended, and the absence of similar protection by any
other
ordinary remedy.”
See
also
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter &
Marine Services (Pty) Ltd and Others
2006 (1) SA 252
(SCA) at 257G-H.
[14] Mr
Snellenberg, on behalf of the respondent, conceded that the first
two requisites of a final interdict were met. It is
the third
requisite, he argued, that was not satisfied. He contended that the
refusal to allow applicant the right to transport
commuters on the
disputed routes was a decision of the respondent as a voluntary
association. He maintained that such decision,
whether wrong or
irregular, should not be lightly interfered with by a court of law
as voluntary associations have powers derived
from their own
governing statutes to regulate the industry within which they
operate.
[15] The
respondent submitted further that a final interdict was not the only
appropriate remedy available to the applicant considering
the fact
that there was a dispute of fact not soluble on papers. He argued
that applicant was aware of the potential dispute
of fact and yet
opted to proceed on motion and not by way of action. Mr Snellenberg
maintained that applicant could also as
an alternative have applied
for an interim interdict pending a review of the respondent’s
decision preventing or refusing
him the opportunity to conduct
business in accordance with his licence.
[1
6] Respondent
derives its powers from the Standard Constitution (of Local Taxi
Association) (
“the
Constitution”
)
which it adopted as its own and marked Annexure “O1” to
the papers. The Standard Constitution is a 19-page document
divided
into 16 parts. What is significant therewith is that nowhere does it
vest the respondent with any power to,
inter
alia,
prevent or disallow a member from carrying on his or her trade as
provided for in an ostensibly valid licence. In fact after
deliberations and several meetings the respondent clearly accepted
that applicant’s licence was what it purported to be.
Hence
the resolution of 11 September 2007 which purported to allow limited
room to applicant to operate on the approved routes.
[1
7] A
perusal of the Act, in terms of which the applicant was granted his
licence, reveals that there is no provision which empowers
the
respondent as a voluntary body to set aside or alter a decision of
the Department, nor can the rules embodied in the constitution
of a
subordinate body such as the respondent’s ever trump national
or provincial legislation. Instead the Act makes provision
for a
procedure which an aggrieved person should follow in the event that
such person is not satisfied with a decision.
[
18]
Section 129 provides for appeals to the Transport Appeal Tribunal
by any person or association adversely affected by an
act, direction
or decision of a board, in the manner and within the time prescribed
including: (a) a person who has applied to
that board for the grant,
renewal, amendment or transfer of an operating licence; (b) the
holder of an operating licence issued
by that board; (c) a person
who has submitted representations to that board objecting to or
supporting an application published
by that board under section 37.
[19] In
my view respondent should have exhausted its own internal remedies
including appealing against the challenged decision
as set out in
section 129 if it was not satisfied with the decision of the
department granting the applicant the licence to operate
the routes
in dispute. The respondent’s submission that the applicant
could have taken the actions of the respondent on
review is flawed.
It is the respondent that should have taken the decision of the
Department of Transport and or the Registrar
on review as it was the
respondent that was not satisfied with the decision. The
respondent’s argument that applicant’s
licence was
obtained improperly can also not stand as it is in conflict with its
earlier assumption that applicant has to be
regarded as being in
possession of a valid certificate. In any event the respondent’s
claim of impropriety is unsubstantiated
and unfounded; a mere
defence mechanism because it took the law into its own hands.
[
20] I
am not persuaded that there is a genuine dispute of fact in this
matter. The respondent admits that applicant has an operating
licence granted in respect of the routes in dispute. The
respondent’s argument that applicant was not prevented from
transporting commuters is not only far-fetched but also patently
false. It is also in direct conflict with what respondent states
in
its opposing affidavit at p.73 para 44.7 that
“(iii)The
applicant’s taxi was refused entrance to the platform in the
interest of himself, the operator as well as
the other members in
order to facilitate [sic defuse] the situation without the risk of
the matter escalating into violence”.
Clearly
when applicant insisted on conducting his business as he was
entitled to he was prevented from doing so. Adopting the
approach
set out in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
AD at 635C i.e. taking into account the facts as stated
by the respondent together with the facts alleged by the applicant
that
are admitted by the respondent I am satisfied that applicant
made out a proper case for a final interdict.
[
21] In
the circumstances I make the following order:
Order
1
. Respondent
(The Thaba’Nchu Long and Short Distance Taxi Association) and
its members, are interdicted and restrained from
preventing
applicant to operate his minibus taxi trade on routes FSBC073THALDTA
(Tweespruit) and FSBC072THALDTA (Mafikeng).
2
. Respondent
is to pay the costs of the application.
_________________
B. C. MOCUMIE, J
On behalf of
Applicant: Adv. J. J. F. Hefer
Instructed by
Mcintyre & Van
Der Post
BLOEMFONTEIN
On behalf of
Respondent: Adv. N. Snellenberg
Instructed by
Naudes
BLOEMFONTEIN