Morningstar Minibus Hiring Services Ficksburg (Pty) Ltd and Others v Melodita Taxi Association and Others (164/2003) [2005] ZAFSHC 46 (5 May 2005)

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[2005] ZAFSHC 46
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Morningstar Minibus Hiring Services Ficksburg (Pty) Ltd and Others v Melodita Taxi Association and Others (164/2003) [2005] ZAFSHC 46 (5 May 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 164/2003
In
the case between:
MORNING
STAR MINIBUS HIRING
1
st
Applicant
SERVICES
FICKSBURG (PTY) LTD
MORNING
STAR MINIBUS HIRING
2
nd
Applicant
SERVICES
(PTY) LTD
PETER
LUCKY MOLEBATSI
3
rd
Applicant
MESHACK
LESOLE MKWANE
4
th
Applicant
SUBERCAB
TRANSPORT ASSOCIATION
5
th
Applicant
TEBOHO
VINCENT NTSOERENG
6
th
Applicant
PETER
MOSOETSA
7
th
Applicant
and
MELODITA
TAXI ASSOCIATION
1
st
Respondent
D
M FETETSANE
2
nd
Respondent
M
D SEUTLA
3
rd
Respondent
I
S SELLANE
4
th
Respondent
D
M NTSO
5
th
Respondent
M
T MAVUSO
6
th
Respondent
G
M MHLABI
7
th
Respondent
M
MHLABI
8
th
Respondent
_____________________________________________________
CORAM:
EBRAHIM
J
_____________________________________________________
HEARD
ON:
14,
15, 17 SEPTEMBER 2004;
13, 14, 15 DECEMBER 2004;
10
FEBRUARY 2005
_____________________________________________________
JUDGMENT:
EBRAHIM
J
_____________________________________________________
DELIVERED
ON:
5
MAY 2005
_____________________________________________________
[1] The first applicant
is the owner of premises described as “Onderverdeling 2, 3 en 4 van
Erf 377, geleë in die distrik Ficksburg,
provinsie Vrystaat”. The
property is situated on the corner of Toorn- and Endstreets in
Ficksburg. It has been registered into
the name of the first
applicant. All this is common cause as also the fact that the first
applicant operated a taxi rank for the
benefit of its members, that
is the second to the seventh applicants, from these premises. This
rank was referred to in evidence
as the private taxi rank.
[2] The first respondent
and its members, that is the second to the eighth respondents,
operated from what is known as the public
taxi rank in Ficksburg
which is situated almost directly opposite the private taxi rank.
[3] On the 17
th
January 2003 the applicants brought an application on an urgent basis
to this court for a spoliation order as well as certain interdictory
relief. I refer to the notice of motion which sets up the relief
claimed as follows:
“
1. Dat die aansoek as een van
dringendheid aangehoor sal word en dat die Agbare Hof die
nie-nakoming van die Hofreëls met betrekking
tot vorm en betekening
sal kondoneer.
2. Dat
respondente opgeroep word om redes aan te voer, indien enige, by
genoemde Agbare Hof op Donderdag 27 Februarie 2003 om 09h30
waarom
die volgende bevele nie verleen sal word nie:
3. Dat
respondente gelas word om hulle summier van die perseel geleë te
Gedeeltes 2, 3 en 4 van Erf 377, h/v Toorn- en Eindstrate,
FICKSBURG
te onttrek en die ongestoorde besit en gebruik daarvan aan applikante
terug te oorhandig;
4. Dat respondente verbied word om in
te meng met die huurmotoraktiwiteite van tweede tot sewende
applikante en/of die op- en aflaai
van tweede tot sewende applikante
van hul huurmotorpassasiers of van die lede van tweede en vyfde
applikante, te die perseel in paragraaf
3 verwys;
5. Dat
respondente verbied word om tweede tot sewende applikante of die lede
van tweeede en vyfde applikante en/of hul passasiers
en/of hul
huurmotorbestuurders aan te rand en/of te intimideer en/of te dreig
om hulle aan te rand of te beseer en/of hul huurmotorvoertuie
te
beskadig;
6. Dat eerste respondent gelas word om
toe te sien dat sy lede gevolg gee aan die bevele in paragrawe 3 en 4
gemaak;
7. Dat
die Adjunk Balju FICKSBURG gelas word om toe te sien dat uitvoering
gegee word aan die bevel in paragraaf 3 gemaak;
8. Dat respondente gelas word om die
kostes van hierdie aansoek te betaal, gesamentlik en afsonderlik, die
een betaal die ander kwytgeskeld
te word;
9. Dat
die bevele in paragrawe 3 tot 6 gemaak sal dien as tussentydse
interdik met onmiddellike werking;
10. Dat
die bevele hierin verleen aan respondente beteken sal word; en
11. Verdere
en/of alternatiewe regshulp.”
[4] A rule
nisi
was subsequently granted returnable on the 27
th
February 2003. The rule was extended on a number of occasions until
on the 4
th
December 2003 the matter was referred for oral evidence on the
following issues:
“
1. Die aangeleentheid word vir
mondelinge getuienis verwys rondom die volgende aspekte.
(a) Die vraag of respondente die
perseel geleë te Gedeeltes 2, 3 en 4 van erf 377, h/v Toorn- en
Eindstrate, Ficksburg vanaf 3 Desember
2001 beset het en applikante
die gebruik daarvan ontneem het.
(b) Die vraag of respondente ingemeng
het met die huurmotoraktiwiteite van tweede tot sewende applikante
en/of die op- en aflaai van
tweede tot sewende applikante van hul
motorpassasiers of van die lede van tweede en vyfde applikante te die
perseel in par 1(a) verwys.
(c) Die vraag of respondente tweede
tot sewende applikante of die lede van tweede en vyfde applikante
en/of hul passasiers en/of hul
huurmotorbestuurders aangerand en/of
geintimideer en/of gedreig het om hulle aan te rand of beseer het
en/of hul huurmotorvoertuie
beskadig het.”
[5] According
to witnesses called on behalf of the applicants, on Friday the 13
th
December 2002 members of the first respondent padlocked the gate at
the entrance to the private taxi rank, at the same time surrounding
the rank thereby depriving the applicants’ members from using their
own premises for operating their taxis and preventing the applicants’
members from loading fee-paying passengers onto their taxis, thus
preventing the applicants’ members from properly conducting their
taxi business activity. It is the applicants’ case further that
the first respondent wished to divert all taxi passenger traffic
to
the public rank for the benefit of its members. Consequently
prospective passengers for the private taxi rank were chased away
from that rank. It is alleged further by the applicants that the
respondents sought to accomplish their aims by assaults, threats
of
assaults in the form of stone throwing and the firing of gunshots as
well as intimidation of the first applicants’ members,
their
drivers as well as prospective passengers. Applicants allege that
because the respondents padlocked the rank those of their
taxi
drivers who were inside the rank could not leave the taxi rank on the
13
th
and 14
th
December 2002 or load passengers and transport them to their various
destinations. The result was a serious monetary loss to the
various
members of the first applicant who own taxis and had to pay their
drivers as the locking of their rank brought their taxi
operation
business to a complete halt. First applicant, itself, suffered
losses in terms of revenue from the other applicants in
respect of
their use of the rank and its facilities. A short-term agreement was
entered into with the respondents on the 14
th
December 2002 to enable those applicants whose taxis were impounded
inside the private rank to obtain the release of their vehicles.

But, applicants allege, at no stage were they allowed by the
respondents to make use of the rank for the operation of their taxis
after the rank was reopened on the 15
th
December 2002. The evidence was that applicants were, under pain of
threat of intimidation from the respondents, not allowed to
operate
their taxis from the private rank.
[6] 6.1 The background
history to the struggle between the two taxi associations appears to
be steeped in a tussle for passenger traffic.
According to the
applicants the respondents wish to entrench a system whereby drivers
of the taxis of both associations load their
passengers in turn at
the public rank. According to the applicants this system would not
work as the first respondent has been registered
for the purpose of
its members operating only within the province of the Free State
whereas the first applicant is registered for
the purpose of its
members transporting passengers inter-provincially and cross border.
This is disputed by the respondents and
has in turn created disputes
with regard to the routes operated by the members of the two
associations. Because of the undesirability
and untenability of the
situation continuing whereby first applicant and its members were
prevented by the respondents from earning
a living, according to them
operating from their own taxi rank, the applicants applied for urgent
relief on the 17
th
January 2003.
6.2 According to the
applicants, despite the grant of the rule
nisi,
its terms have been ignored from the outset by the respondents and
the intimidation from the respondents of the applicants to ensure
that the applicants refrained from using and operating their taxis
from their own rank continued, making it impossible for applicants
to
operate their taxi business. It is the applicants’ case that
whilst the agreement of the 14
th
December 2002 entered into with the respondents entitles them to
operate their taxis from the public rank, they steadfastly have
refused to do so in view of the fact that they believe that they are
entitled to make use of their own private rank from which to
operate
their taxi businesses.
[7] 7.1 The respondents
have denied assaulting, threatening to assault, throwing stones and
firing gunshots at the drivers of taxis
owned by members of the first
applicant on the 13
th
and 14
th
December 2002. It is conceded by respondents that there had been
friction prior to the 13
th
December 2002 between the two associations and that this was due to a
race for passenger traffic as it was perceived that first applicant
was gaining an unfair advantage in this regard operating from a
separate rank of its own. In oral evidence on behalf of the
respondents
all allegations of assault and intimidation of the
applicants was denied. The respondents also deny having padlocked
the gate to
the private rank.
7.2 According to the
third respondent members of the first respondent were present at the
public rank on the 13
th
December 2002 and the 14
th
December 2002. They were standing around inside their own rank doing
nothing when he arrived at the rank. He said he had been summoned
to
the rank by the second respondent who informed him the drivers of the
two associations were fighting over passengers, but he saw
no
fighting when he arrived at the rank, nor did he witness any form of
violence or intimidation by the first respondents’ members
or
drivers of members or drivers of the first applicant. He also did
not see any of the first respondents’ members armed with
stones or
firearms. He said the gate to the private rank was open when he
arrived.
7.3 According to the
second respondent the drivers of the first applicant were touting
passengers directing them to their vehicles
in the private rank when
he arrived at the rank on the morning of the 13
th
December 2002. According to him this was irregular as the private
rank had been shut down for a long time prior to the 13
th
December 2002 and consequently no loading of passengers was to be
done in the private rank. He said he suddenly heard a gunshot
and
people at the rank started to disperse. The police were called and
when they arrived attempted to enter the private rank, but
the gate
to that rank was closed by the drivers of the members of first
applicant. After 10 to 15 minutes the gates were then re-opened.
No
more loading of passengers was done from that private rank and a new
agreement was entered into between the two associations
on the 14
th
December 2002 to provide for all loading of passengers to be done
from the public rank. According to this witness none of the
respondents’
drivers or members assaulted or intimidated or
threatened to assault the applicants’ members or drivers or
passengers.
[8] It is the applicants’
case that individual members of first applicant signed the agreement
dated the 14
th
December 2002 providing for the loading of passengers from the public
rank. According to the applicants the agreement was signed
by these
individual members in order to enable them to obtain the release of
their vehicles which had been impounded inside the private
rank after
the members of the first respondent had padlocked the gate to the
private rank. After they signed the agreement the respondents’
members unlocked the gate to the private rank. According to the
applicants these members did not sign on behalf of the entire Morning
Star Taxi Association as the first applicant and all its members were
vehemently opposed to operating from any rank other than its
own
private rank in Ficksburg.
[9] In deciding the
issues before me I deal firstly with that relating to whether or not
there were any assaults, threats of assault
and intimidation of the
first applicants’ members on the relevant date. In this regard I
have been unable to make any favourable
credibility findings in
respect of any of the so-called eye witnesses to the events of the
13
th
and 14
th
December 2002. This is for reason of the fact that because of the
nature of the circumstances prevailing at the ranks at the relevant
time as testified to by the various witnesses (these were fast moving
events involving a crowd of people) and in view of the length
of time
which has elapsed since the various witnesses observed the events in
question, there were, quite naturally, some discrepancies
and
contradictions in the testimony on material aspects. In my view,
none of the witnesses therefore meet the test required to pass
muster
in order for their evidence to be accepted. In fact the only
conclusion I can come to in regard to these witnesses’ testimony
on
this issue is that, on the probabilities, there must have been
aggression exhibited by members and drivers of both associations
given the background history to the matter and the issues at stake
namely the race to capture as many passengers for themselves as
possible. In view of the fact that it is the applicant who carries
the onus in these proceedings, I must conclude that the applicant
has
failed to discharge that onus on a balance of probabilities.
Consequently I find that the applicant has not proved that it is
entitled to relief in so far as this aspect of the rule
nisi
is concerned.
[10] In so far as the
other two issues are concerned, on the probabilities it is apparent
that there would have been no need for the
applicants to have
launched the present application had they not been deprived of the
use of their premises and had their taxi business
activities not been
interfered with. Indeed the applicants’ case in this regard is far
more than just inherently probable. To
accept otherwise would not
make any sense at all, given all the attendant costs involved in
launching an application of this nature.
There must have been
depravation and interference of the kind complained of namely the
locking of the gate of the premises of the
private rank by the
respondents and the consequent refusal to allow the applicants’
drivers to make use of their rank to load passengers
with resultant
financial loss to the applicants. The reasons advanced by the
applicants for the signing of the agreement of the
14
th
December 2002, is, in addition, to my mind perfectly logical and
sound. I interpret the conduct of those drivers in signing the
agreement to have been due to desperation and the real need to free
their vehicles in the hope that they would immediately be able
to
conduct their business and earn a living. The following month proved
this to be impossible hence the bringing of this application.
The
details of the method employed to stop applicants plying their trade,
whether by threats, intimidation or assault is not relevant
for the
purpose of deciding these two issues. On the probabilities
therefore, I find that applicants have succeeded in making out
a case
for the relief sought in respect of issues (a) and (b) as set out in
the court order dated the 4
th
December 2003 viz that between 13 December 2002 and 14 December 2002
inclusive the respondents took control of the private rank of
the
applicants, by padlocking the gate thereof and thereafter prevented
the applicants and drivers or members of the first applicant
from
conducting their taxi business activities by loading and off loading
passengers from their own private taxi rank.
[11] Because the
applicants have been partially successful they are entitled to their
costs. I have not been called upon to decide
the issue of urgency in
these proceedings and I refrain from doing so.
The
order I make is the following:
The rule
nisi
is confirmed in the following respects:
“
1.1 Dat
respondente gelas word om hulle summier van die perseel geleë te
Gedeeltes 2, 3 en 4 van Erf 377, h/v Toorn- en Eindstrate,
FICKSBURG
te onttrek en die ongestoorde besit en gebruik daarvan aan applikante
terug te oorhandig.
1.2 Dat respondente verbied word om in
te meng met die huurmotoraktiwiteite van tweede tot sewende
applikante en/of die op- en aflaai
van tweede tot sewende applikante
van hul huurmotorpassasiers of van die lede van tweede en vyfde
applikante, te die perseel in paragraaf
1.1 verwys;
1.3 Dat eerste respondent gelas word
om toe te sien dat sy lede gevolg gee aan die bevele in paragrawe 1.1
en 1.2 gemaak;
The sheriff, Ficksburg
is ordered to ensure that effect is given immediately to the order
made in paragraph 1.1 hereof and that
this order in the terms as set
out in paragraph 1.1, 1.2, 1.3 and 3 hereof are served on the
respondents.
3. The respondents are
ordered to pay the costs of the application jointly and separately
the one paying the other to be absolved.
_____________
S. EBRAHIM, J
On
behalf of applicants: Adv. A.H. Burger
Instructed
by:
E
G Cooper & Sons Inc
BLOEMFONTEIN
On
behalf of respondents: Adv. J.J.F. Hefer
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
/sp