Mollo v Qwaldptta and Another (945/2004) [2004] ZAFSHC 154 (10 June 2004)

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
>>
2004
>>
[2004] ZAFSHC 154
|

|

Mollo v Qwaldptta and Another (945/2004) [2004] ZAFSHC 154 (10 June 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 945/2004
In
the matter between:
BENJAMIN
MOLLO
Applicant
and
QWALDPTTA
First
Respondent
THE
REGISTRAR OF TRANSPORT
Second Respondent
___________________________________________________________
CORAM:
RAMPAI,
J
___________________________________________________________
HEARD
ON:
29 APRIL 2004
___________________________________________________________
DELIVERED
ON:
10 JUNE 2004
___________________________________________________________
[1] The matter first came to this court by way of an
urgent application on Friday, 26 March 2004, before Beckley, J who
granted the
rule nisi returnable on Thursday, 29 April 2004. On the
return day I heard argument for and against the rule nisi. Having
heard
argument, I reserved judgment and extended the rule nisi until
Thursday, 10 June 2004.
[2] The applicant is a taxi service provider of
Phuthaditjhaba in Qwa-Qwa here in the Free State Province. He owns
two minibus taxis.
Both taxis operate on the route between
Phuthaditjhaba and Vereeniging. The one taxi is a Nissan E20 with
registration number BRZ501FS.
The other is a Nissan E20 with
registration number BRC275FS. These two taxis have valid public
permits which authorise them to
convey passengers for reward.
[3] The first respondent is Qwaldptta an acronym of
Qwaqwa Long Distance Passenger Transport Taxi Association. The first
respondent
is a merger of two associations. The one founding taxi
association was called Qwaqwa Long Distance Taxi Association. The
other
constituent taxi association was called Qwaqwa Passenger
Transport Taxi Association. Prior to the merger, the applicant was a
member
of the former.
[4] The second respondent is the Registrar of Transport
appointed in accordance with the provisions of the Free State
Passenger Transport
Act No. 16 of 1998.
[5] The relief sought by the applicant is a final
interdict whereby the respondents are restrained: firstly, from
preventing two minibus
taxis belonging to the applicant from loading
passengers at Setsing Taxi Rank, Phuthaditjhaba in Qwaqwa and,
secondly, from intimidating
the two drivers thereof.
[6] In his founding affidavit the applicant averred that
on Tuesday, 17 February 2004, the agents of the first respondent
prohibited
his two taxis from loading passengers at Setsing Taxi
Rank. He was called upon to appear before the disciplinary committee
of the
first respondent. He was accused of insubordination in that
he bypassed the authorised functionary of the first respondent and
personally
represented himself before the second respondent without
the authority of the first respondent. He was also accused of
initiating
legal proceedings against the first respondent in the Free
State High Court.
[7] On Saturday, 6 March 2004 he attended the
disciplinary hearing. He admitted that he personally represented
himself before the
second respondent but told the disciplinary
committee that as a taxi service provider he had the right to
approach the second respondent
concerning his taxi business
operations. He also admitted that Qwaqwa Long Distance Taxi
Association together with its members had
the right to challenge the
decision of the second respondent in a court of law and he, as a
member of Qwaqwa Long Distance Taxi Association,
had made the main
affidavit on behalf of his taxi association to challenge its
deregistration and registration of the first respondent.
[8] As a result of the stance he adopted, the first
respondent’s disciplinary committee suspended him indefinitely. He
was told
by the disciplinary committee that his taxis would no longer
load passengers from Setsing Taxi Rank.
[9] In his answering affidavit the first respondent
averred that there were two distinct and separate taxi associations
at Phuthaditjhaba
operating from Setsing Taxi Rank on the same long
route to Gauteng Province. The two taxi associations were dissolved
or deregistered.
Their members merged and through such merger the
first respondent came into existence.
[10] The first respondent received a complaint that the
applicant was communicating with the second respondent on behalf of
the member
of the first respondent without the authority of the first
respondent. It also emerged that the applicant was using the
letterheads
of his dissolved taxi association in communicating with
the second respondent. As a result of this complaint, the first
respondent
set the disciplinary proceedings in motion against the
applicant. He was called upon to attend the disciplinary hearing on
Tuesday,
27 January 2004.
[11] The applicant attended the hearing and informed the
members of the disciplinary committee that he was the secretary of
Qwaqwa
Long Distance Taxi Association and that he took instructions
from its chairperson only. He made it known to the disciplinary
committee
that he did not accept the deregistration of Qwaqwa Long
Distance Taxi Association by the second respondent. The matter was
then
postponed for further hearing. The applicant did not attend the
disciplinary hearing later on on 3 February 2004.
[12] He was found guilty of misconduct on Tuesday, 17
February 2004 in his absence. The disciplinary committee found that
the applicant
was a member of the first respondent despite his
contention to the contrary. As such, the disciplinary committee
found that he had
no right to act for any member of the first
respondent. In addition the first respondent disputed the alleged
right of the applicant
to represent a dissolved taxi association in
legal proceedings. Finally, the first respondent stated that it was
empowered to suspend
the applicant in terms of the provisions of its
constitution.
[13] In his replying affidavit the applicant contended
that Qwaqwa Long Distance Taxi Association and its members withdrew
in July
2003 from the merger that created the first respondent. He
also stated that an application by Qwaqwa Long Distance Taxi
Association
to have the decision of the second respondent reviewed
was still pending before this court. In brief, the stance of the
applicant
was still that since he was no longer a member of the first
respondent, the first respondent did not have any powers to
discipline
him at all.
[14] It is trite law that a party which seeks relief in
the form of a final interdict has to prove the three requisites which
are
the cornerstones of the final interdict, namely, firstly, a clear
right; secondly an injury to such a right actually committed or
reasonably apprehended; and thirdly, the absence of similar
protection by any other ordinary remedy. (
Vide
SETLOGELO v SETLOGELO
1914 AD 221
on 227
per Innes, JA).
[15] The right of the applicant is not perfectly clear.
It is not disputed that the applicant is a taxi service provider. He
is
the holder of two valid public permits. The first public permit
number BFN551772 was issued in Bloemfontein by the second respondent
on 29 March 1999 in respect of his minibus taxi BRZ501FS. It
authorised him to station this taxi at Setsing Taxi Rank at
Phuthaditjhaba
and to operate from there to among others towns,
Vereeniging in Gauteng Province (
vide
p.19-20 of the court record).
The second public permit number BFN551773 was issued in
Bloemfontein on 11 December 2001 in respect of his minibus taxi
BRC275FS.
It authorised him to station this taxi at the general post
office at Witsieshoek and to operate from there to any point situated
within a radius of 300 kilometres and to return along the same route
(
vide
p.21 – 22 of
the court record).
[16] The
applicant does not aver that over and above his two taxi permits,
Phuthaditjhaba Municipality has granted him as an individual
taxi
service provider consent for the use of Setsing Taxi Rank. His case
is that because he is the holder of two valid taxi permits,
he is
entitled to use the taxi rank in dispute. Later in my judgment I
shall illustrate why the applicant’s contention is flawed.
Whereas
his right to operate on the route in question is clear, his alleged
right to use the rank is somewhat unclear. And it is
about the
latter and not the former we are here concerned with.
Moreover,
it is also unclear to me the operational activities of the
applicant’s second taxi could have been detrimentally affected
by
the first respondent’s prohibition. Apparently the second taxi was
never authorised to load passengers from Setsing Taxi Rank
in any
event. In terms of its public permit it has to be stationed at the
General Post Office and not Setsing Taxi Rank.
[17] I now turn to the second requisite of an injury to
a clear right. The first respondent admitted that on Tuesday, 17
February
2004 its agents prohibited the applicant’s two taxis from
loading passengers at Setsing Taxi Rank. The question which falls to
be determined in this second leg of the enquiry is whether the first
respondent by so doing infringed the applicant’s clear right
to
station two minibus taxis at that taxi rank and to load passengers
from there, assuming of course, that he had established such
a clear
right, which he has not.
[18] It was the first respondent’s defence that the
applicant was its member, that he was subject to its disciplinary
code, that
he violated the constitution which applies to all its
members, that he was disciplined and that he was suspended in terms
of the
constitution. In the premise the first respondent denied that
it had harmed the applicant’s right in any manner by suspending
him
and prohibiting his taxis from using the taxi rank in question.
[19] The applicant’s case on the other hand is that he
was not a member of the first respondent but a member of Qwaqwa Long
Distance
Taxi Association; that therefore he was not subject to its
disciplinary code; that the constitution of the first respondent did
not
apply to him; that the disciplinary action taken against him and
the suspension imposed on him were invalid and of no force and
effect.
[20] Prior to 18 December 2002, the applicant was a
member of the Qwaqwa Long Distance Taxi Association which operated
from Qwa-Qwa.
At that time there was also another taxi association
which also carried out passengers conveyance operations from Qwa-Qwa.
These
rival taxi associations operated on the same route from
Phuthaditjhaba to Vereeniging and Johannesburg and back. The two
rival taxi
associations were so bedevilled by endless conflict that
the Free State Provincial Government took the initiative to
facilitate the
merger between the two rival taxi associations. The
merger negotiations brokered through the Department of Public Works,
Roads and
Transport were held on 12 December 2002. The historic
meeting was chaired by the former MEC for Public Works, Roads and
Transport,
Mr S.M. Malebo. The two rival taxi associations agreed in
principle to amalgamate. Four days later the two rival taxi
associations
were dissolved and by mutual pact they amalgamated. The
new entity or merger created the first respondent on 16 December
2002.
[21] The intervention of the Free State Provincial
Government in the taxi conflict between these two rival taxi
associations was not
something new. The Free State Provincial
Government had done so on previous occasions. See for instance Case
No. 4/2002 and 73/2003.
The chairing of the first meeting between
the two rival taxi associations on 12 December 2002 was in itself an
event of great significance
within the context of these legal
proceedings. Its significance lies in this: It demonstrated the
seriousness of the Free State
Provincial Government to effectively
address the taxi conflict. Fundamental to that, governmental
commitment was the attainment
of enduring peace. The undeniable and
the sole purpose of the merger was aimed at that ultimate objective
of securing lasting peace.
In my view, that was and still is the
official governmental policy in the Free State Province at least. It
is important to bear
this in mind as we move along to examine the
events.
[22] On 16 December 2002 the first respondent was formed
through the negotiations which were pioneered by the Free State
Government.
The two rival taxi associations were dissolved and
deregistered on 18 December 2002. On the same day the first
respondent was officially
registered in terms of section 18(2) of the
Free State Interim Passenger Transport Act, No. 16 of 1998 – see
p.23 par 3.8 read
with p.40, Case No. 351/2004, Free State Division.
Therefore, officially the applicant’s former taxi association
Qwaqwa Long Distance
Taxi Association ceased to exist on 18 December
2002. Subsequently all its members became members of the first
respondent and they
remain to be. They were registered as such by
mutual agreement between the former separate taxi entities. The Free
State Provincial
Government sanctioned the mutual agreement and gave
official recognition to the new merged entity and the status of its
individual
members.
[23] It seems to me that this is a classical case where
the legal maxim
omnia praesumitur rite esse
acta
applies. The act of cancelling the
registration of the applicant’s former taxi association and the act
of registering the first
respondent as a merged new taxi association,
were done by an organ of the state. The law presumes them to have
been done in a regular
manner until the contrary is proven. It had
not been done at the time these urgent legal proceedings were
launched. Implicit in
those vital official acts is the conclusion
that the first respondent acquired the exclusive right in respect of
the facility called
Setsing, to impose certain levies on its members,
to collect such levies from its members, and to utilise such funds
for the upkeep
of the facility, and above all this, to sustain the
official or governmental policy of eradicating the endless taxi
violence by
integrating or bringing together all those taxi service
providers who share the same route and the same rank under one
umbrella.
[24] It has to be remembered that the applicant and the
other members of the defunct Qwaqwa Long Distance Taxi Association
participated
in the first general elections of the first respondent
after the dissolution of their taxi association. Some of them were
elected
into the formative structures of the first respondent. The
deregistration of the rival taxi associations and the registration of
the united taxi association were the logical and necessary official
steps flowing from the bilateral negotiations which eventually
culminated in the formation of the merger. The alleged unilateral
withdrawal of the applicant or his former taxi association is
of no
legal force and effect on the merger and its membership, unless and
until those two official acts of deregistration and registration
had
been nullified by a competent court of law.
[25] Until that happens the applicant remains a members
of the first respondent. He is bound by its domestic rules and its
constitution.
As its member he is liable to be disciplined by the
first respondent if he violates its rules. He cannot be heard to say
his right
has been injured when such harm was occasioned by his own
misconduct. His own acts of indiscipline justified his suspension by
the
first respondent. Apparently there has been no wholesale
suspension of all the former members of Qwaqwa Long Distance Taxi
Association
who are now members of the first respondent. Only the
applicant has been suspended. Therefore I have reached the
conclusion that
there was no actual injury to the applicant’s
rights, if he had any, committed by the first respondent. It is
clear and obvious
to me that what the applicant seeks to achieve is
to break the merger apart and to resuscitate his defunct taxi
association. Such
a move will have adverse impact on the genuine
government policy to curb if not to eliminate the prevalent conflict
and violence
in the taxi industry. I can see no sound reason as to
why any outstanding issues pertinent to the merger should not be
addressed
and resolved without destroying the merger itself. As I
see it, the merger is the only hope for lasting peace on the route in
question.
[26] Not so long ago, Qwaqwa Long Distance Taxi
Association, of which the applicant claims that he is still a member,
brought an application
against the first respondent and the second
respondent among others, seeking essentially the same relief on
behalf of its alleged
members in respect of the same taxi terminus we
are here dealing with. On Thursday, 12 February 2004, I dismissed
that application
with costs. I abide by the reasons I advanced for
the judgment I gave in that application under Case No. 351/2004. I
have once
again read the papers filed in that application since in
conjunction with those in this application they were relevant to the
current
application. Counsel for the applicant failed to persuade me
to see how I should now arrive at a different conclusion as I did
then.
[27] It also appears that there is yet another
application pending against the first and second respondents. In
this third application
brought under Case No. 35/2004 of this court,
apparently the applicant is Qwaqwa Long Distance Taxi Association.
On the applicant’s
own version in the instant case, the very
foundation of his
locus standi in indicio
to provide a taxi service and to use the rank in question as a member
of a dissolved, deregistered or defunct taxi association, forms
the
subject matter of the review proceedings instituted under Case No.
35/2004. Those proceedings were already pending when the
instant
proceedings were instituted. Those proceedings were still pending
when I presided over the instant proceedings.
Should the outcome of the pending review proceedings be
favourable to the applicant’s defunct taxi association, the
applicant in
the instant case will have the same relief which he now
seeks in these proceedings. Herein lies the alternative and adequate
remedy.
This application merely duplicates the issues. The applicant
made it known to the first respondent that he did not recognise the
jurisdiction of the first respondent over him and that he did not
accept the deregistration of his dissolved taxi association. But
the
fact of the matter is that officially Qwaqwa Long Distance Taxi
Association does not exist any more and the first respondent
is
officially the sole recognised representative of the taxi service
providers who station their taxis at the terminus in question
and
operate on the route in question.
[28] The mere fact that the applicant holds a taxi
permit, in other words a public permit authorising him to station his
taxi at Setsing
Taxi Rank, is not an overriding factor. The fact of
the matter is that the first respondent is in
de
facto
control of the taxi terminus and all
its members have to obey its statutory constitution and its rules of
discipline notwithstanding
that they too have taxi permits allowing
them to operate from Setsing Taxi Rank just like the applicant. For
instance, if Phuthaditjhaba
Local Municipality wants to close Setsing
Taxi Rank in order to build a shopping mall and to shift the taxi
terminus away, no taxi
service provider can successfully stop it from
doing so, because in terms of his or her taxi permit he has to
operate his taxi business
from there. Democracy informs us that at
times individual interests have to yield in favour of collective
interests of the public.
For this reason it is of no relevance at to
who owns the facility in question.
[29] In my view the applicant also failed to prove that
third requisite of a final interdict. In terms of the constitution,
clause
5.6.2 the members of the first respondent have the right to
utilise any taxi rank allotted to, or operated or controlled by the
first
respondent. Naturally any member who rebels and declares
himself a member of a defunct taxi association disqualifies himself
from
enjoying that right. Whatever harm he may suffer afterwards, is
of his own making. It is the duty of the first respondent to protect
its members against unlawful and unfair competition by non-members or
by members themselves.
[30] It was incumbent upon the applicant to establish
all the three requisites for a final interdict. Failure by the
applicant to
prove one of the three requisites, is fatal to the
applicant’s case. In the instant case the applicant has failed to
establish
all of the three requisites. It follows therefore that the
relief sought cannot be granted. The application has to fail.
[31] As regards costs, I can see no reason why the
general rule should not apply in the instant case. The successful
party is entitled
to be awarded the costs. Such costs must be
awarded to the first respondent. I am still in the dark as to why
the second respondent
was cited as a party. No relief was sought
from the second respondent. Although the second respondent did not
descent into the
arena, he was certainly inconvenienced by the whole
irrelevant affair. Not only did the second respondent have to read
the voluminous
papers, but also had his important time spent in
attending to the unnecessary service of the founding affidavit by the
applicant,
the answering affidavit by the respondent and the replying
affidavit by the applicant, all of which had nothing to do with him.
This kind of conduct must be avoided by the litigants. Disinterested
parties should not be cited for virtually unknown reasons.
[32] According the rule
nisi
is hereby discharged. The applicant is ordered to pay the costs of
this application.
________________
M.H. RAMPAI, J
On behalf of Applicant:
Adv.
M.J. Mashavha
Instructed by
Phalatsi & Partners
On behalf of 1
st
Respondent:
Adv. P.U. Fischer
Instructed by
Honey
Attorneys
/scd