017039/2025 -hj 2 JUDGMENT
28-03-2025 Application for Leave to Appeal
implementing a decision recorded in a GPRE letter of 16
January 2025. That decision permanently excluded WATA
members from operating on defined taxi routes in Soweto.
The second paragraph of my interim order
prevented the GPRE, NANDUWE or the MEC from
interfering with WATA members’ rights to operat e on the
defined routes. The second paragraph of the interdict
imposed that restraint only insofar as individual members of
WATA were in possession of a license permitting them to
operate on the defined routes. 10
NANDUWE now seeks leave to appeal against my
interim order. Although they have not said so expressly, it
appears that the GPRE and the MEC abide my decision on
the application for leave to appeal . They have not turned up
to court to support or oppose the application.
I asked the parties to address me first on whether
the interim order is appealable. Interim orders are generally
not appealable , but there are exceptions to that rule where
an interim order is final in effect or when an interim order
not having final effect ought nevertheless to be the subject 20
of an appeal in the interest s of justice. It was submitted that
both these exceptions apply here .
In truth, neither of them does. In the first place, t he
order is plainly not final. The order does nothing other than
restore the situation as it was before the decision to
017039/2025 -hj 3 JUDGMENT
28-03-2025 Application for Leave to Appeal
exclude members of WATA from the defined routes was
taken. Only members of WATA in possession of an
operating license will be permitted to operate, and even
then , only , pending an appeal or review of the 16 January
2025 decision. The question of whether WATA members
have enforceable rights arising from their licences was left
open for later determination.
Mr Mashav ha, who appeared for NANDUWE, sought
to persuade me that I had in fact finally determined the
issue of whether WATA’s members are in possession of 10
valid operating license s. But my judgment has no such
effect. Mr Mashavha’s attempts to interpret my order
otherwise were untenable.
Mr Mashav ha sought further to suggest that
paragraph 15.2 of my judgment has final effect insofar as it
authorises the Metropolitan Police and the South African
Police Services to take such steps as may be necessary to
enforce the order . Again, that submission was misguided.
The authority granted in paragraph 15.2 of my judgment
lasts only for so long as the interim order itself lasts. It can 20
have no final effect.
It was then suggested that the costs order I granted
against the second respondent was of final effect. While
that is true, an appeal against a cost order is only allowed
in exceptional circumstances , such as an abuse of
017039/2025 -hj 4 JUDGMENT
28-03-2025 Application for Leave to Appeal
discretion . No case has been made out for such an appeal.
It was not argue d before me a quo that the second
respondent should not bear the costs of the application,
jointly and severally with the first and third respondents, if
the application succeeded. Accordingly, costs followed the
result, which is the normal order.
For all those reasons, the substance of my order
has no final effect . To the extent that the cost s order does,
there is no basis to permit an appeal against it.
I now turn to the question of whether it would be in 10
the interest s of justice to grant leave to appeal against the
interim order. Mr. Mashavha asserted that WATA members
are not in possession of operating licenses at all; that my
judgment entailed a clearly erroneous factual finding to the
contrary ; and that leave to appeal should be granted to
reverse that erroneous factual finding in the interests of
justice.
In truth I made no such factual finding, although it
seems to me that the existence of such licences – whether
they are valid or not – was in fact common cause a quo . 20
GPRE’s decision refers to the need to review and reissue
WATA’s licences, and the Gauteng National Taxi Council
confirms in a n affidavit , the contents of which were
undisputed, that such licenses were issued to WATA or its
members.
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28-03-2025 Application for Leave to Appeal
In any event, I was not called upon to make a final
factual finding on the issue. The question was whether the
WATA’s version that such licences exist had been thrown
into serious doubt. Clearly it had not. When the application
for final relief comes to be heard, the court will be at liberty
to revisit the factual issue of whether such licences exist
and to determine it on the evidence as it will then stand.
There is no need to ask an appeal court to perform that
task.
Moreover, and in any event, if Mr. Mashavha was 10
right to submit that WATA members are not in fact in
possession of operating licences, then my order can cause
NANDUWE no harm at all, since it permits WATA members
to operate on the defined routes if an d only if they can
produce an operating licence when challenged to do so.
Mr Veerasamy , who appeared together with Mr
Mncunu for WATA , referred me to the case of Economic
Freedom Fighters v Gord han 2020 (6) SA 325 (CC) at
paragraph 45. In that matter the Constitutional Court sets
out eight factors which a court will generally consider in 20
deciding whether it is in the interest s of justice to grant
leave to appeal against an order lacking final effect. The
overall question seems to me to be whether the second
respondent will suffer any irreparable harm to a
constitutionally protected interest or an interest of
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28-03-2025 Application for Leave to Appeal
comparable intensity, unless it is granted leave to appeal
against my judgment. No such harm has been
demonstrated.
It was finally suggested that my interim order
impermissibly interfere s with the exercise of GPRE’s
statutory functions. I think the fact that neither the GPRE
nor the MEC have shown up to suggest that I have so
interfered counts against that argument. Nevertheless, the
possibility of such interference only matters where an
applicant for interim relief has not made out a clear case of 10
illegality. In this matter, WATA’s case was that the GPRE
took a completely unreasoned decision to exclude WATA
from routes it had operated for years notwithstanding the
fact that this court had ordered that the question of WATA’s
rights to operate the routes be submitted to arbitration.
That, if finally established, would amount to a clear
illegality.
For all the reasons I have given there is no basis in
law for me to detain a court of appeal with a challenge to a n
interim order not having final effect. 20
The parties did not address me on the merits of the
appeal , but I have had regard to the application for leave to
appeal. I have also had regard to the second respondent’s
written submissions in support of that application . Having
considered those documents, I do not wish to add anything