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[2024] ZAECMHC 57
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Jobela v Member of the Executive Council Responsible for the Department of Transport: Eastern Cape (2326/2024) [2024] ZAECMHC 57 (25 June 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No. 2326/2024
Heard
on: 13 June 2024
Date
delivered: 25 June 2024
In
the matter between:
MASONGWANDILE
MULTITUDE JOBELA
Applicant
And
MEMBER
OF THE EXECUTIVE COUNCIL
responsible
for
THE DEPARTMENT OF
TRANSPORT:
EASTERN CAPE
Respondent
JUDGMENT
MAJIKI
J:
[1]
The applicant approached this court by way of urgency seeking
restoration of the possession of
his bus. The bus was impounded
by traffic officers of the department of the respondent on 2 July
2024. The application
is opposed by the respondent. It
was heard as an opposed application, with all three (3) sets of
affidavits filed, in the
afternoon on 13 June 2024.
[2]
The conduct of the legal representatives representing the applicant
is somewhat disconcerting
in this matter. Firstly, around 17h00
on Tuesday 11 June 2024 the Court, whilst still busy with unopposed
motion court roll,
realised it would not get through to the entire
roll of urgent applications. That roll being handled after the
unopposed
roll has been completed. The Court engaged legal
representatives regarding the re-scheduling of the hearing of the
urgent
court roll, within the same week. Counsel for the
applicant persisted that the applicant’s matter required to be
heard,
it was extremely urgent because the applicant was losing daily
income in the sum of R60 000,00. The matter was eventually
heard on 13 June as aforestated, with other matters in the urgent
Court after the court finished the opposed court roll.
Judgment
was reserved. Subsequently the applicant emailed no less than
three (3) documents including supplementary heads
of argument for the
Court’s attention, without any prior arrangement or involvement
of the respondent, other than the stamp
on the supplementary heads of
argument indicating that there had been service on the respondent.
[3]
Finally, on Tuesday 18 June 2024 whilst the Court was busy preparing
judgment the applicant sent
through a letter to the registrar
requesting urgent delivery of judgment. When the matter was
heard it was among other matters
that had been enrolled in the urgent
court. The degree of urgency in each of those matters depended
on a number of considerations,
including the nature of the protection
sought.
The
applicant would have made out his case on urgency in the papers and
submissions made in court. It would not be courteous
for his
representative to inundate the court with further presentations on
the issue, firstly in open court whilst trying to schedule
a hearing
and after judgment had been reserved.
[4]
It is common cause that on 2 June 2024 along R61 near Mthatha
airport, the traffic officers in
the course of their duties conducted
a roadblock and did routine inspection to ensure that motor vehicles
were road regulation
compliant. The officers stopped the
applicant’s bus, with registration letters and numbers JBL[…].
They
noticed that no licence and roadworthy disc was displayed as
required of such vehicles operating in public road.
[5]
The bus had a load of passengers who were being transported from
Mthatha to Cape Town. The
driver of the bus, Mr Tshem explained
that the disc was withheld by the licencing department.
According to the applicant
the driver said it was withheld due to
some minor issue related to his other vehicle. According to the
respondent the driver
said disc was withheld because of the
outstanding payment in another motor vehicle belonging to the
applicant, that blocked the
release of all other discs for the
applicant’s motor vehicles.
[6]
It is also common cause that Mr Tshem was issued with notice and
seems to appear in court in terms
of section 56 of the Criminal
Procedure Act 51 of 1977 (the CPA). He was further issued with
notice of intention to prosecute
for an offence of driving unlicensed
motor vehicle and that notice was endorsed, AN AG amount of R4 000.00
must be paid.
[7]
In the notice that includes summons, reference was made to
regulations 18 and 36(1) read with
section 89 of the National Road
Traffic Act 93 of 1966 (NRTA). He was called upon to appear in
court to answer to charges
of wrongfully operating a bus on a public
road with an unlicensed vehicle (sic) contrary to term (sic) and
conditions of an operating
licence. Further, that the driver
failed to produce a valid licence. He was informed to pay an
admission of guilt of
a sum of R1 500.00 and R300.00 on an
alternative charge. The bus was then impounded.
[8]
According to the applicant Mr Tshem informed the respondent’s
officers that the bus license disc was
withheld for a minor issue
related to his other vehicle. The license for this bus had been
recently renewed and paid for around
3 April 2024. Mr Tshem was
in possession of a document which proved that. The officer refused to
have a look at the said
document. They also refused to speak to the
applicant over the phone. They issued the notices referred to above.
They failed to
check in the licensing department’s data base if
his license disc was not paid for and renewed.
[9]
The applicant’s case is that his bus was irrationally,
unlawfully and unconstitutionally impounded, without
a court order or
statutory provision or law authorising the dispossession. He views
the transfer of his passengers to bus called
by the officers as a
possible collusion to deprive him of earnings to benefit another bus
owner.
[10]
According to the applicant the matter is extremely urgent. He is
losing R60,000.00 a day. The respondent
ignored use of less
restrictive means through which he could be reprimanded with.
[11]
On Monday 3 June 2024 he went to the Provincial Traffic Office in
Mthatha but could not be assisted. There are
no details of the
assistance he went to seek there.
[12]
The applicant listed the circumstances under which the law provides
for the impounding of a motor vehicle.
He submits that
impoundment is permitted under exceptional circumstances, it is a
drastic measure. The impoundment of his
vehicle does fall under
those. He attached the license of the bus and a long-distance
operating license. According to the applicant
the bus was impounded
in terms regulations 18 and 36(1) read with section 89 of NRTA.
[13]
He further says the respondent or his employees failed to advise him
that, in terms of section 84(3) of NRTA,
he could obtain a temporal
permit in order to operate his bus on a public road.
[14]
Further, section 87(1) of National Land Transport Act 5 0f 2009
(NLTA) provides for impoundment but the notices
issued were not
premised on this section.
[15]
With regard to the requirement of an interdict the applicant made
submissions regarding both those for interim and final interdict.
Regarding alternate remedy, for the speedy return of the possession
of his bus which he was unlawfully disposed of, he says he
has none.
He continues to suffer harm by losing daily income his family depend
on for food, health, electricity and clothing.
[16]
The deponent on behalf of the respondent is the acting head of the
department, he is the accounting officer
responsible for the use of
resources and collection of all monies due to the department. He
says he is authorized to
depose to the affidavit and is familiar with
the circumstances of the matter. He disputes that the impoundment of
the bus was unlawful.
He avers that after the officers stopped the
bus, Mr Tshem explained that the disc in respect of the licensing of
the bus was withheld
because of outstanding payment of another
vehicle belonging to the applicant.
[17]
The officers informed Mr Tshem that they would not allow the bus to
continue being on the road. He
was in contravention of several
statutory provisions, section 42(2) of NRTA and 87(1) of NLTCA.
[18]
The respondent submits that the applicant’s financial loss on
its own cannot be a reason to allow unlawful
conduct to continue.
[19]
According to the respondent the applicant has an alternate remedy, to
pay the fine and or the outstanding
amount to get his disc.
[20]
Both the applicant and the respondent listed circumstances under
which a motor vehicle maybe impounded, including:
·
Where a vehicle did not display any form of
identification.
·
Where taxis or buses have no permit or
operate contrary to the permit and
·
A vehicle that is not roadworthy in any
form, manner or conduct.
[21]
The respondent annexed a sworn statement deposed to by officer Bruce.
He is the one who interacted with the
applicant’s driver and
eventually impounded the bus. Summarily, he said upon finding out
that the bus did not have a disc
displayed, he asked officer Mpolweni
to issue the documents that the applicant annexed to his founding
affidavit, in particular,
the notice of intended prosecution which
states ‘
the bus must be pounded (sic) due to unlicensed disc
or fail (sic) to display valid license disc since it was operated on
a public
road ferring passengers for reward. Section 90(1) (b) read
with section 50(1) of NLTA, operating a public transport vehicle
contrary
to terms and condition(sic) of operating a license.
[22]
According to the applicant, the respondent’s reference to other
statutes than regulations 18
and 36(1) read section 89 of NRTA
together with the statement by officer Bruce attached to the
answering affidavit is an afterthought.
[23]
Section 42 (2) of NRTA provides:
‘
No
person shall operate a motor vehicle on a public road unless the
requirements in respect of certification of roadworthiness
contemplated in subsection (4) in relation to such motor vehicle are
complied with, and except in accordance with the conditions
of such
certification of roadworthiness’.
Section 87(1) NLTA
provides:
‘
An
authorised officer who is satisfied on reasonable grounds that a
motor vehicle is being used by any person for operation of a
public
transport without the necessary operating license or permit or
contrary to the conditions thereof, may impound the vehicle,
pending
the investigation and prosecution of that person an offence mentioned
in section 90(1)(a) or (b)’.
Regulation 36(1)
provides:
‘
The
owner of a motor vehicle shall display a licence disc and/or a
licence and road- worthy certificate disc, whichever the case
may be,
issued in respect of such motor vehicle’.
Regulation 18 provides:
‘
Subject
to the provisions of regulation 19 and 20, every motor vehicle in the
Republic shall, whether or not is operated on a public
road, be
licensed by the owner of such motor vehicle, in accordance with
provisions of this part with the appropriate registering
authority’.
[24]
In Yeko v Qana 1973(4) SA 735 A at 735 G,
mandament van spolie
was
described as:
‘
The
fundamental principle of remedy is that no one is allowed to take law
into his own hands. All that the spoliatus has to prove,
is
possession of a kind which warrants the protection accorded by the
remedy, and that he was unlawfully ousted’.
[25]
The starting point is the urgency of the matter. Indeed, by its very
nature
mandament van spolie
is a speedy remedy aimed at
restoration of possession to a person who has been unlawfully
deprived of possession. According to
the applicant his bus made
income of R60 000.00 a day for his family. In that regard the nature
of the application is that of commercial
urgency. The directives
issued upon consideration of certificate of urgency on Wednesday 5
June 2024 referred the hearing of the
matter to the normal motion
court day the following Tuesday, 11 June 2024. Ordinarily, that
enrolment did not even require a directive
in terms of rule 12 (c) of
the Joint Rules of Practice. The Judge in her wisdom, did not regard
the matter as extremely urgent
as the applicant would want the matter
to be handled. It is trite that depending on several
considerations, commercial interest
may or may not require such
protection as matters involving threat to life or liberty. This court
agrees with the Judge that issued
directives that the matter is not
as urgent as to warrant the conduct of the applicant’s legal
representatives outlined earlier
in the judgment.
[26]
The next consideration is the absence of alternative relief. The
applicant does not explain the nature of
the minor administrative
issue that makes the licensing department to withhold his disk. He
also does not explain the difficulty
he has in solving the said minor
issue. Even when he went to the provincial office, he does not
furnish details of what transpired
in that office. According to the
respondent Mr Tshem said the disc was withheld because the
applicant’s other motor vehicle
had an outstanding payment.
This was not seriously disputed in the applicant’s reply,
except to refer to the issue as some
administrative reason.
[27]
At the time of the drafting of his founding papers he was aware that
he could also apply for temporal license.
He does not allege that
there were impediments in the making such application.
[28]
In this light, the spoliation being a final relief the applicant has
failed to show that he has no other
satisfactory remedy.
According to the respondent, which submission this Court agrees with,
payment of the outstanding amounts
is a remedy that would address the
issue of the withheld disk. Alternatively, that and/or payment
of fine would allow the
bus to be released to the applicant.
[29]
The first requirement that the applicant needs to prove in spoliation
proceedings is common cause. The issue that
requires determination is
whether the applicant was unlawfully dispossessed.
[30]
In that regard, as a start the Court considers the version of the
applicant himself. Section 56 of
CPA notice attached to the founding
affidavit contained a notice of intention to prosecute the applicant
for specified offences,
including that ‘
operate a blue and
yellow bus on a public road with an unlicensed motor vehicle
(contrary to term and conditions of operating license).
The court
notes that the endorsement is not phrased in strict a replication of
section 87(1) which is,
a motor vehicle is being used by any
person for operation of a public transport without the necessary
operating license or permit
or contrary to the conditions thereof.
However, the Court of the view that, in essence, the offence is
sufficiently described. It cannot be said reference to section 87(1)
in the answering affidavit is an afterthought in the light thereof.
Further, according to the respondent officer Bruce told Mr
Tshem that
he would not be legally allowed to continue driving the bus without
license.
[31]
The applicant submits that officer Bruce refused to look at the
documents that would prove that the disc
of the bus has been licensed
and paid for or to speak to him on the phone. According to the
respondent after Mr Tshem explained
that the disc was withheld,
officer Bruce advised Mr Tshem that he was in contravention of
several statutory provisions. Noteworthy,
over and above the
requirement of section 87(1) of NLTA, among the instances that both
litigants agree that a motor vehicle may
be impounded for, include,
not being roadworthy, as provided for in section 42(2) of NRTA.
[32]
The applicant does not address the issue of roadworthiness of the
bus. That information would have been on
display had the disc been
affixed as required. Regulation 18 requires that a motor vehicle to
display of license and roadworthy
certificate disc as in this
instance, that of a bus.
[33]
The applicant seeks a final order, according to the principle in the
often referred to
Plascon-Evans Paints LTD v Van Riebeeck Paints
(PTY) Ltd
1984(3) SA 623 at paragraphs 7 to 9, this court must
accept the version of the respondent unless it is far fetched or is
untenable.
In my view, there is no basis to find that the
respondent’s version is farfetched, the respondent would not
have admitted
that Mr Tshem explained that the disc was withheld, in
the first place.
[34]
In considering whether the dispossession was unlawful the court must
have regard to the position as
at the time of the dispossession. In
the circumstances, the court is unable to conclude that the
dispossession was unlawful.
[35]
With regard to costs both litigants prayed for cost on punitive
scale. The respondent specifically submitted
that the applicant
burdened the papers with legal arguments and authorities in the
affidavits, instead of limiting the affidavits
to factual averments.
Indeed, that put strain and made dealing with the matter
unnecessarily cumbersome, whilst the same applicant
was putting
pressure in the finalization of the matter.
[36]
That said, having regard to what the Constitutional Court said in
Ngqukumba v Minister of Safety and Security and others,
2014
(2) SACR 325
(CC) at paragraph 9, that, spoliation involves issue
relating to possession, a subset of right to property and a legal
issue that
is Constitutional, this court is not inclined to apply the
general rule and make an order of costs against the applicant.
In
the result,
The application is hereby
dismissed.
B
MAJIKI
JUDGE
OF THE HIGH COURT
Appearances:
Applicant
Mr
Nonkelela
Instructed
by
Messrs
Mgudlwa Attorneys
No.
18 William Avenue
Vincent
EAST
LONDON
c/o
Titi W Attorneys
No.
47 Cumberland Street
MTHATHA
Respondent’s
Counsel
Mr
Maliwa
Instructed
by
The
State Attorney
Broadcast
House
94
Sisson Street
Fortgale
MTHATHA