About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2007
>>
[2007] ZAFSHC 142
|
|
Tswelopele Driving School CC and Others v Member of the Executive Council for the Public Works, Roads and Transport, Free State and Others (4801/07) [2007] ZAFSHC 142 (6 December 2007)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 4801/07
In
the matter between:
TSWELOPELO DRIVING
SCHOOL CC
1
st
Applicant
PRESTPROPS
1266 BK t/a K53 BESTUURSKOOL
2
nd
Applicant
PRESTPROPS
3315 BK t/a BLIND SPOT
3
rd
Applicant
DRIVING
SCHOOL
and
MEMBERS
OF THE EXECUTIVE COUNCIL FOR
1
st
Respondent
PUBLIC
WORKS, ROADS & TRANSPORT,
FREE STATE PROVINCE
HEAD
OF DEPARTMENT: DEPARTMENT OF
2
nd
Respondent
PUBLIC WORKS, ROADS
& TRANSPORT
CONTROL
PROVINCIAL INSPECTOR:
3
rd
Respondent
THABO MOFUTSANYANA
DISTRICT
CONTROL
PROVINCIAL INSPECTOR:
4
th
Respondent
FEZILE
DABI DISTRICT
HEARD ON:
8
NOVEMBER 2007
JUDGMENT:
EBRAHIM,
J
DELIVERED ON:
6
DECEMBER 2007
[1] This is an
application for interim relief pending the finalisation of review
proceedings concerned with a decision taken by the
first, second,
third and fourth respondents (âthe respondentsâ) to place an
embargo on the testing and/or issuing of drivers
licences to persons
who do not reside within the province of the Free State.
[2] All three applicants
(âthe applicantsâ) are duly registered closed corporations
conducting business as driving schools and
as such, involved
primarily in the instruction of persons,
inter
alia
,
in the driving of a motor vehicle. On the papers, as far I have been
able to make out, there is no dispute that the applicants
provide
courses which are very valuable to prospective drivers in the sense
that such courses place the latter in a position to pass
the
prescribed driving test held at various testing centres in the
province of the Free State by personnel and examiners who are
obliged
to act under powers resorting in the first and second respondents.
[3] It is common cause
that during 2005 concern was raised in the Department of Public Works
and Transport about the backlog of drivers
and learners licence test
appointments which had accumulated resulting in a turnaround time of
approximately three to five months
instead of the desired period of
seven days in the Free State. Subsequent meetings held by interested
parties led to a decision
taken by the respondents on 18 May 2007
that persons who resided outside the province of the Free State would
not be given appointments
for driving tests within the provinceâs
testing centres. There is a dispute of fact on the papers as to
whether and during when
this decision came to the knowledge of the
applicants. For the purposes of adjudicating this matter, I have
accepted, without deciding
finally, in favour of the applicants that
this decision came to their knowledge only on 16 August 2007 when the
first applicant was
informed that the testing centre in Bethlehem
would in future not test any applicants from outside the Free State
Province.
[4] It is common cause
that subsequently the second and third applicants also became aware
of the position, which necessitated the
bringing of review
proceedings on 20 September 2007. No request for interim relief
formed part of the review application and it
is undisputed that the
respondents refused to consent to any form of interim relief allowing
clients of the applicants from outside
the Free State to be tested
for drivers licences within the province. That refusal was
communicated to the applicants on 3 October
2007 and on 5 October
2007 it came to their knowledge that an attempt to obtain a driving
test appointment for a client from outside
the Free State failed at
the Welkom testing ground. The applicants consequently lodged this
application on 9 October 2007 on grounds
of urgency for an order that
the respondents be interdicted from refusing to test persons from
outside the Free State Province pending
the finalisation of their
review application (âthe main applicationâ).
[5] Against this
background two issues arise for consideration. The first is whether
this application for interim relief is urgent
and the second is
whether the requirements for interim relief have been satisfied by
the applicants. I deal with these
seriatim
.
Urgency
The legal principles and
requirements applicable in urgent applications and the approach to be
adopted are set out in the dictum in
the following decisions:
LUNA
MEUBEL VERVAARDIGERS (EDMS) BPK v MAKIN AND ANOTHER (t/a MAKIN'S
FURNITURE MANUFACTURERS)
1977 (4) SA 135
(W);
GALLAGHER
v NORMAN'S TRANSPORT LINES (PTY) LTD
1992 (3) SA 500
(W);
CALEDON
STREET RESTAURANTS CC v DâAVIERA
[1998] JOH 1832 (SE).
The respondents contend
that no urgency has been shown on the facts by the applicants and
that, should this Court be inclined to find
that the matter had
become urgent, such urgency as there was, had been self created by
the applicants. I do not agree. The applicants,
although experienced
in the practice of business, are clearly lay persons when it comes to
the intricacies of the law. On the evidence
it is clear that as soon
as they became aware of the consequences of the decision taken by the
respondents, they took immediate steps
to revise the situation by
launching the main application and, thereafter engaging the
respondents in discussions to secure some
form of indulgence pending
the obtaining of a final decision on the main application. It is
true that, thereafter, the applicants
appear to have dragged their
heels as it was only six days after they were informed of the
respondentsâ refusal to consent to interim
relief on 3 October 2007
that this application was launched. I do not, however, view this as
a show of laxity on the part of the
applicants or as a failure to
understand and appreciate the urgency of the compromised situation
that they were in. In my view,
whether the application was issued on
any of the days immediately succeeding 3 October 2007 or on the 9
th
October 2007 is irrelevant in the greater scheme of things for it is
abundantly clear from the evidence that the applicants, appreciative
of the predicament they were in and of the possibility of serious
financial losses to follow, took steps in September 2007 to redeem
the situation by launching the main application albeit ill advisedly
without coupling thereto a request for interim relief. Thereafter
matters followed their natural course until 3 October 2007, when the
applicants realised that they would have to approach this Court
for
urgent relief. That they were not advised to include a prayer for
the interim relief at the time when the main application was
launched
cannot be blamed on the applicants. As I have already said, the
applicants are not legally trained and were guided by their
legal
representatives who saw fit at the time the main application was
launched to omit any prayer for interim relief. This does
not
indicate a lack of their appreciation of urgency on the part of the
applicants. I rule therefore in favour of the applicants
that the
matter was correctly enrolled in terms of the provisions of Rule
6(12) of the Uniform Rules of the High Court.
The second issue
presents the applicants with insurmountable difficulty. An
applicant for interim relief must, on a balance of
probabilities,
establish a
prima
facie
right to the relief sought;
show that he will
suffer irreparable harm if the relief sought is not granted;
show that the balance
of convenience is in his favour; and
show that he has no
satisfactory alternative remedy.
See
WEBSTER
v MITCHELL
1948 (1) SA 1186
(W).
It
is necessary to analyse these requirements in the light of the proven
facts in this case.
A
prima
facie
right
:
In order to decide
whether the applicants have shown a
prima
facie
right, it is first necessary to show that the applicants have a right
which entitles them to the protection of this Court. This
is central
to the enquiry and it is only once this has been established that the
nature of that right becomes essential to the enquiry.
On the
evidence before me the applicants have failed to demonstrate that
they have any protectable interest or right in these proceedings.
This is so for the simple reason that no contract, alternatively
agreement, verbal or otherwise, has been shown to exist between
the
applicants and the respondents which enjoins the latter to test the
clients of the applicants who have been taught and instructed
in the
technique of driving by the applicants. Any such contract between
the parties would in any event be illegal and
contra
bonos mores
.
The only party against whom the applicants have any rights are its
clients with whom they have entered into an agreement to offer
driving instruction in return for a certain sum of money. The terms
of that agreement, however, have nothing to do with the respondents
and there is nothing in the evidence to indicate anything to the
contrary.
The applicants have
therefore not demonstrated that they have the requisite
locus
standi
to bring this application. As a general rule the requirements to
establish
locus
standi
in
judicio
are the following:
(a) The applicant for
relief must have an adequate interest in the subject matter of the
litigation. This is not a technical interest
but a direct interest;
The interest must not be
too far removed;
The interest must be
actual not abstract or academic;
The interest must be
current and not a hypothetical one.
See
MARS
INCORPORATED v CANDY WORLD (PTY) LTD
[1990] ZASCA 149
;
1991 (1) SA 567
(A) at 575 H â I;
TRAKMAN
NO v LIVSHITZ AND OTHERS
1995 (1) SA 282
(A) at 287 B â F;
KOMMISSARIS
VAN BINNELANDSE INKOMSTE v VAN DER HEEVER
1999 (3) SA 1051
(SCA) at 1057 G â H.
Put a different way the
applicants must demonstrate a direct and substantial interest in the
subject matter of this application.
The fact that the applicants may
suffer a loss of profits and accordingly have a purely financial
interest in the matter, is not
sufficient to confer
locus
standi
on them in the circumstances of this case. As authority for the
proposition that the applicants have a sufficient interest in the
relief sought by virtue of having been invited to make
representations prior to the respondents taking the decision to stop
testing
persons from outside the Free State Province, Mr. Reinders
referred me to the decision in
TRANSVAAL
CANOE UNION AND ANOTHER v BUTGEREIT AND ANOTHER
1986 (4) SA 207
(T).
The facts of that case
are, however, distinguishable from those of the present. In that
case the Union sued in its capacity as a
legal persona on behalf of
certain canoe clubs who were its members. The Union on behalf of its
members had as one of its functions
the fostering and organising of
the sport of amateur canoeing clubs in the river area concerned and
that function was directly affected
by the attitude of the respondent
that its members were trespassing on her property through which the
river flowed. The Unionâs
interests were directly involved in the
litigation and it was empowered in terms of its Constitution to
litigate to safeguard those
interests. In the present case the
applicants have not sued as members of any particular union in
association having a legal persona
of its own in respect of a common
interest which has been threatened and in order to safeguard which,
they are empowered in terms
of a Constitution to litigate.
Applicants have sued in their capacities as close corporations
individually in order to safeguard
their respective personal
financial interests which have been threatened by the possible loss
of clientele as a result of the decision
taken by the respondents not
to test clients of theirs from outside the Free State Province, a
decision wholly outside their capacity
to control or influence.
[6] The application is
accordingly dismissed and the applicants are ordered to pay the
respondents costs which costs are to include
those costs attendant
upon the employment of two counsel.
_____________
S. EBRAHIM, J
On
behalf of applicants: Adv. S.J. Reinders Instructed by:
Naudes BLOEMFONTEIN
On
behalf of respondents: Adv. Kessie Naidu SC Instructed by:
State
Attorney
BLOEMFONTEIN
/sp