Mohammed i. Tilly t/a Tilly's Bus Service v MJ Mphuti t/a Tsepos Bus Service & ORS (1110/2006) [2007] ZANCHC 9 (1 January 2007)

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[2007] ZANCHC 9
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Mohammed i. Tilly t/a Tilly's Bus Service v MJ Mphuti t/a Tsepos Bus Service & ORS (1110/2006) [2007] ZANCHC 9 (1 January 2007)

IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSKEI
DIVISION)
Case
: 1110/2006
Heard:
Delivered:
In the matter between
MOHAMMED I. TILLY t/a
TILLY’S BUS SERVICE APPLICANT
and
MJ MPHUTI t/a TSEPOS
BUS SERVICE & ORS RESPONDENT
JUDGMENT
NDUNA
AJ
This
is an application for leave to appeal against the judgment delivered
on 07 March 2007 (“order”) in terms of which I upheld
the first
to the third respondent’s point
in
limine
that the applicant has failed to establish amongst other a clear
right resulting in the dismissal of the latter’s application
with
costs.
At
the hearing this application, Mr Zilwa appearing on behalf of the
applicant, informed the court that the applicant’s notice
of
application for leave to appeal filed on 02 April 2007 has been
amended by the amended notice dated 11
th
April 2007(“amended notice”), the latter document being the
basis for the application. He further confirmed that the only
ground the order is being challenged is the finding that appellant
has failed to prove a ‘clear right’, as lack of jurisdiction,
being additional ground for dismissal of applicant’s case, was
conceded to at hearing of the matter.
3
.
The application is opposed by the second to the third
respondents on the merits and further, the following points in
limine
have been raised
:-
(a) Non
compliance of the amended notice to appeal with the requirement
of
Rule 49 (3)
of the Uniform Rules
.
(b) Non
compliance with
Rule
28
in respect of fully amended notice of application for leave to
appeal.
Before
dealing with the merits of the application, I need first deal with
the points
in
limine
.
5.
Non
compliance with provision of
Rule
49 (3).
Both
counsel for the respondents are
ad
idem
that applicant’s notice is flawed in that it did not specify the
finding of fact and/or the rule of law appealed against as required
by
Rule 49(3).
It is further contended that as these provisions are peremptory,
failure to comply with them is a fatal defect. As authority for
this
proposition reliance was placed on
Sogono
v Minister of Law Order
1996 (4) SA 384
(E).
I cannot agree with this submission. Reading of this sub – rule
makes it abundantly clear that it refers to a Notice of Appeal
and
not to a notice of application for leave to appeal. Application for
leave to appeal and specifically one not made at the time
the
judgment or order was granted, is regulated by
Rule
49 (1) (b)
which does not contain the requisites of specifying
whether
the appeal is against the finding of fact and or the rule of law
.
The
argument advanced is thus non sustainable and consequently this point
in
limine
is
dismissed.
6.
Non compliance with provision of
Rule
28
It
is submitted on behalf of the respondents that it was irregular for
the applicant to have merely filed the amended notice without
adhering to procedure set out in
Rule
28
as
the notice qualifies as a document in terms of this Rule
.
In response thereto, it was submitted that
Rule
28
being only applicable to pleadings has no relevance to amendment of
notice. I am of the view that, for the purposes of this judgment,
it
is not necessary to make a finding on whether the notice is a
document as envisaged in
Rule
28
with compliance with procedures set down therein required. This view
is informed on the main by the fact that the respondents, regarding
the steps taken as being irregular, should have availed themselves of
the
Rule
30
route. Further, no arguments have been advanced that allowing the
notice to stand would cause prejudice and or injustice to the
respondents
and I can find none. In the absence of any such prejudice
and or injustice to the respondents and in the exercise of my
discretion,
I am allowing the notice to stand thus dismissing this
point
in
limine
as well.
7.
I
now turn to deal with the merits of the application. Mr Zilwa argued
that the court misdirected itself firstly by stating of its
judgment
that applicant’s case has been that concurrence was not necessary
for inter provincial transportation whereas in fact
the applicant’s
version was that such concurrence was necessary but that such
certificate concurrence (“certificate”) is passed
between the
various provincial boards and with applicant not laying its hand
thereon. Based on the non handling of such certificate
by the
applicant it was thus not reasonable of the respondents to request
the applicant to produce such. It is further his submission
that the
issuing of a transport permit (permit) which transverse the
provinces, is
ipso
facto
proof that the certificate has been issued relieving applicant of the
burden of proof. It is further submitted that account of the
long
standing dealings and or relationships, between applicant and the
respondents, with the latter not raising the question of concurrence
certificate establishes the applicants locus standi.
8.
In gainsaying these submissions, on behalf of the respondents,
it is submitted that the issue of the permit cannot ipso
facto
be proof that the certificate had been issued and/ or exists. It is
further submitted that in the face of challenge of the issue
and/or
existence of the certificate, a duty was cast on the applicant to
prove existence of such and that the applicant cannot simply
hide
behind being not physically in the possession of the concurrence
certificate as it could have availed itself of the discovery
process
provided for in the
Rule
25 (12).
9.
What
Mr Zilwas submission amounts to is that the respondents have by their
conduct impliedly abandoned their rights they now seek
to assert
against the applicant thus vesting the applicant with the powers to
bring an interdict against the respondents in the manner
sought. It
set procedure that a defence of waiver must be pleaded, and only in
exceptional circumstances will a Court consider such
a plea without
it being properly pleaded. See in this regard
Montese
Township and Investment Corp (Pty)
LTD
v Gouws NO
1965 (4) St 373
(A)
and
Road
Accident Fund v Mothupi 2000
(4)
St 38 (SCA)
.
The waiver was never raised in applicant’s paper and no
exceptional circumstances have been advanced why I should consider
such
at this late stage of the proceedings. It is also doubtful
whether there can be waiver of a statutory requirement.
10.
When
I made the order, I was well alert to the applicant’s history of
dealing with the respondents. I reasoned however that despite
such
the language employed in section __________ _______of Act
___________________renders the permit ineffective if no certificate
for the undertaking of a journey transversing two provinces has been
issued. Reasoning in this manner, I came to the conclusion
that when
granting of the concurrence certificate was being denied, challenged
by the very authority that should have issued it,
it was incumbent
upon the applicant to produce such a view I still hold.
I
am thus of the view that the applicant has not made out a case for
reasonable prospect of success if appeal is allowed. In the
circumstances, leave to appeal is denied.
_______________
N. NDUNA
ACTING
JUDGE
HIGH
COURT
TRANSKEI DIVISION
COUNSEL FOR THE
APPLICANT:MR ZILWA
INSTRUCTED
BY: CHRIS BODLANI
COUNSEL FOR THE
1st & 2nd RESPONDENTS: MR MTSHABE
INSTRUCTED BY:
COUNSEL FOR THE
3
RD
RESPONDENT: MR SISHUBA
INSTRUCTED BY: