IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION -MTHATHA)
CASE NO: 2021/ 2024
In the matter between:
PORT ST JOHNS TAXI OWNERS ASSOCIATION APPLICANT
And
MEC FOR TRANSPORT, SAFETY AND 1ST RESPONDENT
LIAISON EASTERN CAPE
THE MINISTER OF POLICE 2ND RESPONDENT
THE PROVINCIAL COMMISSIONER 3RD RESPONDENT
SOUTH AFRICAN POLICE SERVICES,
EASTERN CAPE
THE MUNICIPAL MANAGER PORT ST 4TH RESPONDENT
JOHNS MUNICIPALITY
UNCEDO TAXI ASSOCIATION LUSIKISIKI 5TH RESPONDENT
THE STATION COMMANDER PORT ST
JOHNS POLICE STATION 6TH RESPONDENT
JUDGMENT
NKELE A.J
INTRODUCTION
1. The applicant seeks an order to interdict, prohibit and restrain the fifth
respondent from picking up and dropping passengers along the R61 National Road
from Lusikisiki to Port St Johns. The applicant also seeks an order directing the first,
second, third, fourth and sixth respondents to ensure that the fifth Respondent is
restrained and prohibited from picking up and dropping off passengers along the R61
National Road en route from Lusikisiki to Port St Johns .
APPLICANT ’S CASE
2. The applicant premises its case on the argument that it is in possession of a
permit to pick up and drop off passengers from Lusikisiki to Port St Johns in the
National Route R61. In substantiation thereof , the applicant further states that it has
an exclusive right to so pick up and drop off passengers on the R61 Route from
Lusikisiki to Port St Johns. The applicant also further submits that the fifth
respondent’s conduct encroaches upon its exclusive righ t to pick up and drop off
passengers in that Route and for that reason it should be prohibited and restrained
from dropping off and picking up passengers.
3. In the Founding Affidavit the applicant submits that the fifth respondent’s
conduct prejudices it economically in that it is not able to make profit and that all
attempts have been made to solve the problem such that negotiations between the
applicant and the fifth respond ent to solve the problem failed.
4. Furthermore, the applicant seeks an order interdicting the fifth respondent
from dropping off and picking up passengers along the R61 Route from Lusikisiki to
Port St Johns. It further seeks an order declaring the first, second, third , fourth and
sixth respondent ’s conduct of refusing to interdict and restrain the fifth respondent’s
conduct of dropping off and picking up passengers , en route from Lusikisiki to Port St
Johns via R61 , unlawful .
5. A further order is bei ng sought authorising the first, second, third, fourth and
sixth respondents to ensure that the interdict against the fifth respondent is
implement ed against the fifth respondent.
6. The applicant further submits that it is necessary for the law enforcement
agencies and the Local Municipality to intervene so as to save them from the
prejudice they continue to suffer on a daily basis. The prejudice that they continue to
suffer is of a financial nature and manifests itself in that they owe money for their
vehic les to the Banks and other financial institutions. So, their livelihood s have been
placed in jeopardy and for that reason the intervention of the other respondents to
enforce the law is necessary.
FIFTH RESPONDENT’S CASE
7. In its Answering Affidavit, the fifth Respondent disputes the applicant’s Locus
Standi on the basis that the permit attached a s PSJ2 to the founding papers, to
prove that it has an exclusive right to pick up and drop off passengers from Port St
Johns to Lusikisiki, was issued by the Department of Transport to Mr Caleni. That
licence, the 5th Respondent submits, does not mean that the applicant has an
exclusive right and that other people who are members of other associations do not
have a right to pick up and drop off passengers in the same route.
8. The fifth respondent further dispute s that the deponent to the Founding
Affidavit , Mr Velaphi Fanele, has the necessary Locus Standi to bring this
application. To substantiate this defence the applicant submits that annexure PSJ1
does not give the deponent authority to depose to the Founding Affidavit in that it
was signed by him only and therefore he cannot give authority to himself.
9. On the merits , the fifth respondent disputes that the Applicant has an
exclusive right to pick up and drop off passengers enroute from Lusikisiki to Port St
Johns. For that reason , the fifth respondent s ubmits that its members have an equal
right to pick up and drop off passengers at the disputed route and they have been
issued with operating licences for that purpose . In support of this assertion the fifth
respondent attaches copies of operating licences of Messrs Tholakele Zenzile,
Simlindile Nkqayi , Mlungisi Mazaleni and Sipho Mnyameni to the Answering
Affidavit.
10. The fifth respondent submits that those operating licences give its member s
all the right also to pick up and drop off passengers from Lusikisiki to Port St Johns,
along the R61 National Road. Therefore, the fifth respondent submits, the applicant
does not have an exclusive right to use the route from Lusikisiki to Port St Johns.
The applicants, for that reason, have failed to prove a clear right to the interdict and,
consequently, are not entitled to the relief sought in the papers. If the duly issued
operating licences of the fifth respondents’ members were to be suspended, that
would be equivalent to suspending them unlawfully to their prejudice. On this basis
the fifth respondent disputes that there is any need for the intervention of the law
enforcement agencies , as well as the Local Municipality , as no prejudice has been
suffered or contravention of the law has been committed by the members of the fifth
respondent .
THE GOVERNING LEGAL PRINCIPLES.
REQUIREMENTS FOR AN INTERDICT
11. It is trite that for a party to be granted an interdict , he or she must establish a
clear right and, in this regard, must prove that on a balance of probabilities the right
relied upon.1 The concept of clear right means that an undisputed right has to be
established in favour of the applicant. The word ‘clear ’ right relates to the degree of
proof required to establish the right and should strictly not be used to qualify ‘right’
at all.2 The right must be a definite one and in order for the applicant to establish
such a right , he or she has to prove on a balanc e of probabilities the right which he
1 LAWSA Vol 4 para 50 page 49 .
2 Edrei Investments 9 Ltd
seeks to protect.3 In an instance where the proceeding s are brought by way of an
appli cation and there is a material dispute of fact, a clear right cannot be established
and a final interdict will not be granted.4
12. The second requirement for an interdict is an injury actually committed or
reasonably apprehended and that means an infringement of a right which has been
established and the prejudice that ensues therefr om.5 Prejudice is not equated with
or synonymous with damages and it is sufficient to establish p otential prejudice6. The
injury must be the one that a reasonable man might entertain on being faced with the
facts and the test is objective.7 The facts grounding an apprehension must be set out
in the application to enable the Court to judge for itself whether the fears are indeed
well founded.8 That means the applicant need not established on a balance of
probabilities that the injury will follow .9
13. The third requirement for an interdict is the absence of an other adequate or
alternative remedy.10 The alternative remedy must:
(a) be adequate in the circumstances;
(b) be ordinary and reasonable;
(c) be a legal remedy; and
(d) grant similar protection.
14. As a general rule , the applicant must fir st exhaust other remedies at his or
her disposal before approaching the Court for an interdict.11 The question whether or
not an alternative remedy exists and is suitable will require the court to exercise its
discretion.12 It is settled law that the Courts will not, in general, grant an interdict
3Johannesburg City Council v National Transport Commission 1990 (SA199 (WLD) at 202F -203H
4 Peter Van Blerk Precedents for Applications in Civil Proceedings Juta 2018 page 23.
5 LAWSA Vol 4 para 51 page 49
6 ibid LAWSA para 51 page 49
7 Erasmus Superior Court Practice D6 -16A.
8 Erasmus Superior Court Practice page D6 -16A.
9 Ibid LAWSA Vol 4 para 49, Antares Inte rnational Ltd v Louw Coetzee & Malan Inc 2014 (1) SA 172
(WCC) para 31
10 LAWSA Vol 4 para 52 page 50
11 LAWSA Vol 4 para 52 page 50 .
12 P. Van Blerk ibid para 4.9 page 24, Wynne & Godlonton v Mitchell, Wynne & Cornish v Mitchell
1973 (1) S.A 283 (E) at 294 and 296 .
when the applicant can obtain adequate redress by an award of damages .13 For an
applicant for a final interdict to succeed he or she must allege that there is no
alternative legal remedy14.
15. If there is an existing remedy with almost the same result for the protection of
the applicant’s right, an interdict will not be granted.15 Wallis J.A as he then was,
gave a clear explanation of the requirement of an absence of an adequate remedy in
the matter of Hotz v University of Cape Town when he said: -
[36] “firstly , the purpose of an interdict is to put an end to the conduct in
breach of the applicant’s rights. The applicant invokes the aid of the Court to
order the respondent to desist from such conduct and, if the respondent does
not comply, to enforce its order by way of the sanctions for contempt of court.
Secondly, the existence of another remedy will not preclude the granting of an
interdict where the proposed alternative remedy will afford the injured party a
remedy that gives it similar protection to an interdict against the injury that is
occurring or apprehended. That is why in many cases a court will weigh up
whether an award of damages will be adequate to compensate the injured
party for any harm they may suffer. There may also be instances where, in the
case of statutory breach, a criminal prosecution, in appropriate circumstances,
will provide an adequate remedy, but there are likely to be few instances
where that will be the case. Thirdly, the alternative remedy must be a legal
remedy, that is, a remedy that a court may grant and, if need be, enforce,
either by the process of execution or by way of proceedings for contempt of
Court. The fact that one of the parties, or even the judge, may think that the
problem would be better solved, or can ultimately only be solved, by extra -
curial means , is not a justification for refusing to grant an interdict.
13 Erasmus Superior Court Practice D6 -16A.
14 Francis v Roberts 1973 (1) SA 507 (RAD) at 512D -E remedy Chapmans Peak Hotel (Pty) Ltd v Jab
and Annalene Restaurants CC T/A O’Hagan’s [ 2001] 1 SA 415 (C ) at 420g, Exxaro Coal
Mpumalanga (Pty) Ltd v TDS Projects Construction and Newark Mining JV (Pty) Ltd (unreported, SCA
CASE NO. 169/2021 DATED 27 May 2022) at para 15.
15Francis v Roberts 1973 (1) SA 507 (RAD) at 512D -E remedy See Chapmans Peak Hotel (Pty) Ltd v
Jab and Annalene Restaurants CC T/A O’Hagan ’s [2001] 1 SA 415 (C) at 420g, Exxaro Coal
Mpumalanga (Pty) Ltd v TDS Projects Construction and Newark Mining JV (Pty) Ltd (unreported, SCA
CASE NO. 169/2021 DATED 27 May 2022) at para 15.
[39] This understanding of the nature and purpose of an interdict is rooted in
constitutional principles . Section 34 of the Constitution guarantees access t o
courts, or, where appropriate , some other independent or impartial tribunal,
for the resolution of all disputes capable of being resolved by application of
law. The Constitutional Court has described the right as being of cardinal
importance and “foundational to the stability of an orderly s ociety” as it
“ensures the peaceful, regulated and institutionalised mechanisms to resolve
disputes without resorting to self -help” . It is a “ bulwark against vigilantism, and
…chaos and anarchy”. Not only is the Constitution the source of the
university’s right to approach the Court for assistance; in doing so it is
exercising a right that the Constitution guarantees. In granting an interdict the
court is enforcing the principle of legality that ob liges the Courts to give effect
to legally recognised rights. In the same way the principle of legality precludes
a court from granting legal recognition and enforcement to unlawful conduct.
To do so “is the very an tithesis of the rule of law ”. 16
16. It is a trite principle that once the req uirements for a final interdict have been
established, the scope for exercising the Court’s discretion against the granting of an
interdict is limited17. The Court will not exercise i ts discretion in favour of granting an
interdict where to do so will would serve no purpose.18 The ultimate objective of an
interdict is the prohibition of illegitimate activities and for that reason , the court will be
slow in restraining a person from exercising his rights and carr ying on his activities
applies only in respect of legitimate activities.19
17. The ultimate objective of an interdict is to prohibition of illegitimate activities
and for that reason, the Court will be slow in restraining a person from exercising his
rights a nd carrying on his lawful activities because an interdict only applies in respect
of illegitimate activities.20
16 2016 ZSCZ159 (20 October 2016 ).
17 P. Van Blerk ibid para 4.10 pa ge 24, United Technical Equipment Company (Pty) Ltd v
Johannesburg City Council 1987 (4) SA 343 (T).
18 LAWSA Vol 4 para 52 page 50, Gugu v Zongwana [2014] 1 All SA 203 (ECM) para 35
19 Erasmus Superior Court Practice D6 -1.
20 Para 40 page 21
THE LEGAL PRINCIPLES REGULATING SERVICE OF PROCESS UPON AN
ORGAN OF STATE.
18. In terms of Section 5(1) of the Institution of Legal Proceedings Against
Certain Orders of the State Act any process by which any legal proceedings
contemplated in Section 3(1) are instituted must be s erved in accordance with the
provisions of Section 2 of the State Li ability Act No. 20 of 1952. Where the defendant
or respondent is the Minister of Police, service of process must be effected upon the
National Commissioner as defined in the South African Police Service Act no. 68 of
1995, at the Head Office of the departm ent21.
19. Section 2(2)(a) provides that the plaintiff or applicant, as the case may be, or
his or her legal representatives must, after any Court process instituting proceedings
and in which the executive authority of a Department is cited as nominal defend ant
or respondent has been issued, serve a copy of that process on the Head of
Department concerned at the Head Office of the Department.
20. In interpreting the provisions of Section 2(2) of the State Liability Act , the
Supreme Court of Appeal in Minister of Police v Miya remarked as follows : -
“as already stated above, it is common cause the main issue in this appeal
concerns the interpretation of section 2(2) of the State Liability Act. It is by
now trite that when a legislative provision is to be interpreted, consideration
should be given to th e language used in the light of the ordinary rules of
grammar and syntax; the process of interpretation is objective, not subjective;
and a sensible meaning should be preferred than insensible one.
Furthermore, the Constitutional Court has made it clear th at when interpreting
legislation, the purpose of the impugned section must be fulfilled, and if it is
fulfilled, a mechanical approach is to be deprecated”22. At para 14 the
Supreme Court of Appeal further stated that “… the right implicated in this
Sectio n is that of access to Courts, enshrined in Section 34 of the
Constitution. Consistent with this injunction, the interpretation of Section 2(2)
21 Section 5(1)(a), (b)(ii) of Act no. 40 of 2002).
22 (1250/2022) [2024] ZASCA 71 (6 May 2024) para 12
of the State Liability Act must be one which promotes this right, by considering
the underlying purpose of the section , rather than merely its text. This
purposive approach is far more consistent with our constitutional values, than
reading the section narrowly and strictly…”
21. The Supreme Court of Appeal in Minister of Police v Molokwane made the
following remarks “this approach received the imprimatur of the Constitutional
Court in African Christian Democratic Party v Electoral Commission and
Others …para 25. There, it was held that the adoption of the purposive approach in
our law has r endered obsolete all the previous attempts to determine whether a
statutory provision is directory or peremptory on the basis of the wording and subject
of the text of the provision. The question was thus ‘whether what the applicant did
constituted complia nce with the statutory provisions viewed in the light of
their purpose’. A narrow textual approach is to be avoided ”.23
22. In a most recent case, the central issue for determination before the Supreme
Court of Appeal was whether non -compliance with the prov isions of section 2(2)(a)
of the State Liability Act renders a Summons a nullity. In Minister of Police v Miya,
the issue arose as a result of a failure to serve summons on the Minister of Police in
terms of Section 2(2)(a), although the summons was served upon the State Attorney
representing the Minister. As result of that the Minister raised a special plea of
prescription due to non-service of the summons on him. The High Court dismissed
the special plea on the basis that the Minister was made aware of the Summons and
even filed an appearance to defend. For that reason, the High Court concluded that,
non-complianc e with Section 2(2)(a) did not render the summons void, as the
purpose of Section 2(2)(a) was achieved. In that matter it would appear that the
Minister received the statutory notice and he gave instructions to the State Attorney
to defend the matter. The Supreme Court of Appeal took into account that the
Minister fully participated in all stages of the proceedings until trial and that showed
that he was fully aware of the proceedings instituted against him. The Supreme
Court of Appeal endorsed the purposiv e interpretation of Section 2(2) adopted in
23 (1250/2022) [2024] ZASCA 71 (6 May 2024) para 12
Minister of Police v Molokwane.24 The end result was that, on the facts of that
matter, the Court concluded that the failure to serve summons, in terms of the
provisions of Section 2(2) of the State Liability Act , was not fatal.
LEGAL PRINCIPLES GOVERNING THE RESOLUTION OF A DISPUTE OF FACT.
23. Rule 6(5)(g) of the Uniform Rules of Court provides that “Where an
application cannot properly be decided on affidavit the court may dismiss the
application or make such order as to it seems meet with a view to ensuring a just
and expeditious decision. In particular, but without affecting the generality of the
foregoing, it may direct that oral evidence be heard on specified issues with a view to
resolving any dispute of fact…”
24. The Court has a discretion to dismiss an application where a serious dispute
of fact has arisen and which is not resoluble in the papers especially where it is of
the view that the applicant should have realised that a serious dispute of fact w as
bound to develop.25
25. Murray AJP in Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
indicated different instances where a material dispute of fact may arise, namely;
(a) “When the respondent denies all the material allegations made by the
various deponents on the applican t’s behalf and produces or will produce
positive evidence by deponents or witnesses to the contrary;
(b) The respondent may admit the applicant’s affidavit evidence but allege
other facts which throw a different light on the applicant’s allegations, which
fact the applicant disputes ’’.
26. The respondent may concede that he has no knowledge of the main facts
stated by the applicant, but may deny them, putting the applicant to the proof and
himself giving or proposing to give evidence to show that the applicant and his
24 (730/2021) [2022] ZASCA 111 (15 July 2022).
25 Food & Nutritional Products (Pty) Ltd 1986 (3) SA 464 at 470A -C.
deponents are biased and untruthful or otherwise unreliable and that certain facts
upon which applicant and his deponents rely to prove the main facts are untrue.”26
27. It is trite that where a dispute of fact becomes apparent on the Affidavits a
final order may only be granted if the allegations in the Applicant’s Affidavit, which
have been admitted by the respondent, considered together with the allegations
made by the respondent, justify the granting of such an order.27
28. Watermeyer CJ enunciated the test to determine whether there is a real
dispute of fact as follows “ In every case the Court must…examine the alleged
dispute of fact and see whether in truth there is a real issue of fact which cannot be
satisfactorily determined without the aid of oral evidence”28 The Court should dismiss
the application where there are fundamental disputes of fact on the papers and the
applicant failed to make out a case for the relief sought.29 The test to determine
whether there is a real and genuine dispute of fact on the papers is stringent one that
is not easily satisfied.30
APPLICATION OF LAW TO THE FACTS
29. Section 2(2)(a) and (b) of the State Liability Act mandates the applicant or
plaintiff, as the case may be, to serve the process instituting proceedings upon the
head office of the department and, thereafter, within five days after such service,
serve a co py on the office of the State Attorney.
30. In terms of section 2(3) of the State Liability Act, once the State Attorney is in
receipt of a copy of the process served on its office, it is mandate d to, without undue
delay, send a written request to the Head of Department concerned to provide the
State Attorney with written instructions regarding the proceedings in question.
26 1949 (3) SA 1155 (T) at 1163.
27 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Ltd) Ltd 1984 (3) SA 620 (A) at 634E -635C,
Pete & Hulme’s Civil Procedure a Practical Guide Oxford 4th Ed page 175 .
28 Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428, Nampesca (SA) Products (Pty) Ltd v Zaderer
and Others 1999 (1) SA 866 (CPD) at 892H, Townsend Productions (Pty) Ltd v Leech and Others
2001 (4) SA 33 (CPD) at 4040E -H.
29 Erasmus Superior Court Practice Vol 2 D1. Rule 6-41, Transnet Ltd t/a Metrorail v Rail Commuters
2003 (6) SA 349 (A) at 368C -D and 368G -H.
30National Scrap Metal (Cape Town) (Pty) Ltd v Murray & Roberts Ltd 2012 (5) SA 300 (SCA)
Moreover, the State Attorney is required to, within 10 days of receipt of the process,
provide the Head of Department with legal advice o n the merits of the matter.
31. In the factual circumstances of this matter, it is not in dispute that the
application papers were not served at the Head Office of the second Re spondent , as
contemplated in section 2(2)(a) of the Act. The inevitable conclusion is that the
Minister is not aware of the present proceedings due to the fact that no service of the
present application was not served at the offices of the Head of Department, as
envisaged in the Act. In the same vein, it also i ndisputable that the provisions of
section 2(3) of the Act have not been complied with in that no service of papers was
effected upon the State Attorney , and therefore the second respondent is not aware
of the present application proceedings. That office, as a result of non - service, could
not perform the obligations imposed upon it in terms of section 2(3) of the Act. That
in my view, explain s why there was no notice to oppose as well as opposing papers
filed and why the Minister did not partic ipate in the whole proceedings.
32. Now, despite the fact that no proof of service upon the head of department
and the State Attorney, as contemplated in the Act, the applicant requires this court
to iss ue orders , in particular against the 2nd respondent to;
(a) “Prevent , prohibit and restrain forthwith the fifth respondent from his
conduct of picking up passengers from R61 road which is from Lusikisiki
district and drop them to Port St Johns district without any operating licence
and to declare wrongful, unlawful and wit hout legal cause their refusal to do
so; and
(b) directing the second respondent , in particular , to implement law
prohibiting the fifth respondent from using R61 road from Lusikisiki to Port St
Johns on a daily basis and issue a costs order affecting the secon d
respondent ”.
33. During argument the issue of lack of service of the papers was pertinently
raised with Mr Mkhongozeli. In response, he was adamant that there has been
proper service of the papers in the manner prescribed by the Act. The parties were
even invited to file supplementary heads of argument to address this issue. Even
those heads did not change, as they could not, the fact that there was no proper
service. I respectfully disagree that there was proper service of application papers
herein for the simple reason that no service was effected upon Provincial
Commissioner , as contemplated in the State Liability Act, as well as upon the State
Attorney. The papers were only served upon the Provincial Commissioner and the
State Attorney as required by the Act. The failure to serve the papers upon the 2nd
Respondent is in my view, fatal to the applicant’s case .
34. In my respectful opinion, it is inconceivable of the applicant to expect this
Court to grant such orders , in the present matter , against the second respondent
when it has not been served with the application papers to enable it to decide
whether to oppose it or not. That would be a grave injustice. Generally, the
importance of service of court process upon a party, against whom an order is
sought, cannot be over -emphasised, especially in the light of the fact the legislature
has made it clear that it is necessary to do so. In the circumstances, this c ourt does
not have the power to , and therefore cannot, issue such orders against the second
respondent when the requirements for service of the process prescribed by the State
Liability Act have not been complied with.
35. The paramount rule regulating service is that the court must be satisfied that
the defend ant or respondent has been served with the court process or documents
and is, therefore, aware that legal proceedings are being brought against him or her.
Our Courts have been unwavering in the enforcement of the requirement that an
opponent should be no tified timeously of the legal proceedings instituted against him
or her and her or she must be given a fair opportunity to present his or her side of
the story. That is a basic common law principle expressed in the maxim, audi
alterram parte m.31 I am not persuaded that service of the application papers has
been effected upon the Second Respondent.
36. In addition to the rules regulating how service of process initiati ng an action
or application should be effected u pon the Minister of Police, the State Liabi lity Act
prescribe s how pr ocess should be served upon the Minister of Police . The applicant
31 First National Bank of SA Ltd v Schweizer Drank Winkel (Pty) L td 1998 (4) SA 565 (NCD) at 568C -
D, Pete & Hulme ibid page 156
dismally failed to comply with that piece of legislation regarding ser vice upon the
Second Respondent in that there was no service of the application on both the
National Commissioner and the State Attorney , as prescribed therein. There was, in
my view, no way that the Minister was expected to know of these proceedings if the
manner in which he was expected to be notified in terms of the governing legislation
has not been complied with and there is not even proof of an attempt to do so.
37. This Court cannot , therefore, sanction a contravention of and/ or non -
compliance with a legislative enactment. It is for that reason that I am of the view that
no order of any kind can be issued by this cour t against the second respondent in
the present fact ual circumstances. Clearly in this matter the Minister has not been
served with the application papers in the manner contemplated in Section 2(2) of the
State Liability Act or at all, and that means there has not been compliance with the
governing legislation in this regard. Moreover, as the facts of this case are
distinguishable from those that the court had to deal with in the decision of Minister
of Police v Miya , I have come to the conclusion that the second respondent is not
aware of the present proceedings as the application papers were not served upon
the National Commissioner and the State Attorney, in terms of the Act.
38. As is apparent from the notice of motion, the applicant s eeks, in the main, an
order interdicting the fifth respondent from picking up passengers from Lusiki siki and
dropping them off at Port St Johns district and on the way back . The ap plicant also
seeks, as an ancillary relief, an order compelling the first, s econd, third, fourth and
sixth respondent to prevent, prohibit and restrain the fifth respondent from picking up
passengers from R61 road from Lusikisiki and dropping them at Port St Johns
without an operating licence. Among the orders sought is a prayer to declare the
last-mentioned respondents’ conduct to be wrongful, unlawful and without any legal
cause. For that reason, in my view, it was imperative that service of the application
papers be effected upon all the respondents, in particular the s econd respondent in
the manner prescribed by law, to enable them to respond to the averments made
therein.
39. Even if I am wrong in coming to the conclusion that the application should be
dismissed because the second respondent has not been served with the papers, I
am of the view that the dispute of fact raised in the papers is not capable of being
resolved such that the application should be dismissed. The dispute of fact on the
papers is of a kind that it is irresolvable in the papers and, in my considered view, the
only appropriate order that should be granted is the dismissal of the application. This
is so because the dispute of fact is genuine, material and it goes to the heart of the
very issue that this court is called upon to resolve. Above all, the applicant should
have well anticipated that even before this application was launched or, at least after
the answering was filed, it should have re -considered its stance. Now that it has
failed to do so , there is no going back.
40. The applicant’s a llegation that it has an exclusive right to drop off and pick up
passengers from Lusikisiki to Port St Johns is serious ly disputed by the fifth
respondent which relies on the operating permit, marked as PSJ 2 , in its endeavour
to prove that it has an exclusive right to drop off and pick up passengers along the
R61 route running between Lusikisiki and Port St Johns.32. The relevant part of the
operator permit reads as follows “ From Port St Johns taxi rank join R61 turn right to
Lusikisiki taxi rank (Dro p off and pick up) return via the same route” .
41. The fifth respondent corroborates its submission by attaching operating
licences issued by the Department of Transport t o members as LV 3, LV 4 and LV
5.33 All those operating licences contain a description of the routes that each licence
holder is permitted to use . Of particular importance for purposes of the present
matter is that they contain a similar, if not the same description, of the Lusikisiki to
Port St Johns route. The route description is as follows:
“From Lusikisiki uNcedo main Taxi Rank with passengers to location
along the R61 to Port St Johns, dropping and picking up passengers
and Lusikisiski Uncedo Taxi Rank with passengers along the R61 to Port
St Johns and turn left to Egoso Location and straight to Msikaba Area,
dropping off and picking up passengers on the way and return back to
Lusikisiki main rank with passenger s, dropping and picking up
passengers on the way back”.
32Record pages 20 to 25
33 pages 86 -89,90 -93, 94 -97 and 98 -103
42. A close scrutiny of the route description reveals that the members of the fifth
respondent have been granted operating licence s to drop off and pick up passengers
from Lusikisiki to Port St Johns and on their way back , that is from Port St Johns to
Lusikisiki. Therefore, in the light of the clear description of the route, which gives the
members of the fifth respondent a right to drop off and pick up passengers from
Lusikisiki to Port St Johns and on the way back, the applicant’s case of an exclusive
right is not s upported by any documentary or other evidence on the papers.
43. In any event it is well established, in our jurisprudence, that a person seeking
a remedy must have a legal right that is under some kind of a threat and that right
may be a common law, statutory or constitutional one or a right created in terms of a
contact or will.34 It is unfathomable that the applicant could have conceived of a
threat on the facts of this case, when other operators have also bee issued with
operator licences. The fact that the applicant wishes to have a monopoly of the
route, when in reality it has none, does not translate into a legal right which can be
enforce and protected by this Court.
44. A perusal of the legal authorities makes it pla in that our Courts have only
issued protection order s under the following circumstances:
(i) to prohi bit the commission of the crime35;
(ii) to prohibit the commission of a delict36;
(iii) to restrain interference with an owner’s rights of enjoyment of his
property and to prevent a breach of a statutory provision, among
others37.
45. From a reading of the authorities cited above, I am fortified in my view that
the right that the applicant see ks to protect does not fall under the categories of
legally enforceable rights for that reason it cannot be enforced by this court.
34 Peter & Hulme’s Civil Procedure page 520
35 Booth and Others NNO v Minister of Local Government, Environmental Affairs and Development
Planning 2013 (4) SA 519 (WCC)
36 Regal V African Superslate (Pty) Ltd 1963 (1) SA 102, Nativa (Pty) Ltd v Austell Laboratories (Pty)
Ltd 2020 (5) SA 452 (A),
37 Pats v Greene & Co 1907 TS 427, Pete & Hulmes’s page 520 .
46. It is abundantly clear, in my view, that the fifth respondent’s members have
been granted operator permits to drop off and pick up passengers from Lusikisiki to
Port St Johns as well. Those permits were issued to them by a competent authority
which also issued the very same one that the applicant seeks to rely on to assert its
right. Th e fifth respondent is not, and cannot be regarded by any stretch of
imagination , to be engaged in an illegal activity. Instead, the members of the fifth
respondent are exercising their rights in terms of the permits duly issued to them by
a competent autho rity.38 There can therefore be no reason, either in law or logic, to
grant the interdict sought in these papers. In any event, the applicant has failed to
make out a case for the relief sought.
47. It seems to me that the applicant takes issue with the fact that the members
of the fifth respondent are operating in the same route as its members and if that is
the case it should either challenge their operator permits in the proper manner or
address its complaint to the responsible government functionary. On t he face of
them, the permits are valid and any activity perform ed by their holders by virtue
thereof cannot be regarded as illegal and therefore susceptible to being interdicted,
as the applicant would have it. The end result is that the applicant has fail ed dismally
to establish a clear right that is worthy of protection by an order of Court. That being
the case, it has failed to meet the requirements for an interdict and the consequence
thereof is that the relief sought in the notice of motion cannot be granted.
48. In the result the following order is granted : -
(a) The application is dismissed; and
(b) The applicant is ordered to pay the fifth respondent’s costs .
________________________
T.A NKELE
ACTING JUDGE OF THE HIGH COURT
38 Erasmus Superior Court Practice D6 -1.
APPEARANCES:
For the Applicant: Mr H.S Mkhongozeli
Instructed by : Mkhongozeli Attorneys
For the Fifth Respondent: Mr G. Madubela
Instructed by : Zimasa Speelman Incorporated
Date Heard 3 October 2024
Date Delivered 13 February 2025