Amatole District Municipality and Another v King William?s Town Taxi Management and Others (ECJ 048/2004) [2004] ZAECHC 41 (25 November 2004)

12

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ NO : 048/2004

PARTIES: Amatole District Municipality and Another

and

King William’s Town Taxi Management

and 7 Others

REFERENCE NUMBERS -

Registrar: 477/04

DATE HEARD: 12 November 2004

DATE DELIVERED: 25 November 2004

JUDGE(S): Plasket J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): RP Quinn SC

for the accused/respondent(s): HJ Van der Linde SC & PE Jooste

Instructing attorneys:

Applicant(s)/Appellant(s): Whitesides

Respondent(s): Netteltons

CASE INFORMATION -

Nature of proceedings : Application for leave to appeal

IN THE HIGH COURT

OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO. 477/04

DATE DELIVERED: 25/11/04

In the matter between:

AMATOLE DISTRICT MUNICIPALITY

FIRST APPLICANT

BUFFALO CITY MUNICIPALITY

SECOND APPLICANT

KING WILLIAM’S TOWN TAXI

MANAGEMENT FIRST RESPONDENT

KING WILLIAM’S TOWN UNCEDO TAXI

ASSOCIATION

SECOND RESPONDENT

BISHO/KING WILLIAM’S TOWN TAXI

ASSOCIATION

THIRD RESPONDENT

DIMBAZA DISTRICT TAXI ASSOCIATION

FOURTH RESPONDENT

DIMBAZA/KING WILLIAM’S TOWN TAXI

ASSOCIATION

FIFTH RESPONDENT

GINSBERG TAXI ASSOCIATION

SIXTH RESPONDENT

ILITHA NDEVANA TAXI ASSOCIATION

SEVENTH RESPONDENT

WARREN JULIE t/a TAXI VIOLENCE UNIT

V.I.P. PROTECTION

EIGHTH RESPONDENT

___________________JUDGMENT_______

Application for leave to appeal – section 21A of the Supreme Court Act 59 of 1959 -- no live issue between the parties and no broader issues of public interest – no basis for court to exercise discretion to grant leave to appeal.

______________

PLASKET J:

[A] INTRODUCTION

[1] The first and second applicants apply for leave to appeal against a judgment in which I dismissed an urgent application brought by them as well as by a third applicant, the South African Police Service. This party, although initially also bringing an application for leave to appeal, has subsequently withdrawn that application. Leave to appeal is opposed by the eighth respondent, the only party to oppose in the urgent application.

[2] In essence, the urgent application concerned an attack, by the applicants, on the validity of, and the manner of performance of, a contract between the first respondent and the eighth respondent in terms of which the latter undertook to provide security services to the latter. That contract was entered into for a fixed term and is no longer in existence. This raises the application of s21A of the Supreme Court Act 59 of 1959.

[B] SECTION 21A OF THE SUPREME

COURT ACT

[3] Section 21A of the Act, to the extent relevant to this matter, provides:

‘(1) When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone.

(2) …

(3) Save under exceptional circumstances, the question whether the judgment or order would have no practical effect or result, is to be determined without reference to consideration of costs.’

(4) … .’

[4] The purpose and effect of s21A has been set out in the following terms by Olivier JA in Premier, Provinsie Mpumalanga en ‘n ander v Groblersdalse Stadsraad:1

‘Die artikel is, myns insiens, daarop gerig om die drukkende werklas op Howe van appèl, insluitende en miskien veral hierdie Hof, te verlig. Dit breek weg van die destydse vae begrippe soos “abstrak”, “academies” of “hipoteties”, as maatstawwe vir die uitoefening van 'n Hof van appèl se bevoegdheid om 'n appèl nie aan te hoor nie. Dit stel nou 'n direkte en positiewe toets: sal die uitspraak of bevel 'n praktiese uitwerking of gevolg hê? Gesien die doel en die duidelike betekenis van hierdie formulering, is die vraag of die uitspraak in die geding voor die Hof 'n praktiese uitwerking of gevolg het en nie of dit vir 'n hipotetiese toekomstige geding van belang mag wees nie.’

[5] In Rand Water Board v Rotek Industries (Pty) Ltd2 Navsa JA surveyed the case law on s21A and warned of an unwarranted tendency on the part of practitioners to assume that there had been a watering down of the approach taken in the Premier, Provinsie Mpumalanga case. Apart from an affirmation of this judgment, Navsa JA’s judgment holds: (a) that the section is a re-affirmation of the old principle that, as stated in Geldenhuys and Neethling v Beuthin,3 ‘courts of law exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions, or to advise upon differing contentions, however important’;4 (b) that the effect of the section is that courts of appeal are vested with a discretion to dismiss an appeal where the judgment or order appealed against will have no practical effect;5 (c) that the issue of whether a judgment or order will have no practical effect is a factual one to be decided on the facts of each particular case;6 and (d) that the provisions of s21A apply not only at the appeal stage, but also when leave to appeal is considered.7

[6] The Supreme Court of Appeal has not decided definitively whether the presence or absence of ‘a practical effect or result’ is reliant on the presence or absence of a live dispute between the parties, or whether considerations of public interest may be sufficient, in the absence of a live dispute between the parties, to justify a court exercising its appellate jurisdiction.8 In Port Elizabeth Municipality v Smit,9 however, Brand JA referred to a dictum of Lord Slynn of Hadley, in R v Secretary of State for the Home Department, Ex Parte Salem,10 to the effect that a broader approach is justified in cases involving public authorities and questions of public law. He then held:11

‘It is true that Lord Slynn immediately proceeded to confine this discretion to entertain an appeal, where there is no longer a lis between the parties, to the area of public law and added that the decisions in the Sun Life case and Ainsbury v Millington must accordingly be read as limited to disputes concerning private law rights between the parties to the case (at 487H-488A (WLR) and 47c-d (All ER)). In my respectful view it seems, however, that this distinction between public law and private law is founded on considerations of expedience rather than on principle. If, as a matter of principle, a court has no power and therefore no discretion to consider an appeal where there is no lis, in the sense of a matter in actual controversy inter se, I can see no reason why this principle should not apply to matters of public law as well. Conversely, if a court has the discretion to entertain an appeal despite the absence of a lis, in the above sense, there seems to be no reason in principle why this discretion should not also extend to litigation between two private individuals as well. However, in the view that I hold regarding the outcome of this matter, it is unnecessary to resolve these questions. I will assume in favour of the appellant, without deciding, that this Court has a discretion to entertain the instant appeal under s 21A.’

[7] It is also not necessary to decide the issue in this matter, although the tenor of the judgments that I have referred to on this point appear to me to favour a broader approach to the meaning of the term ‘practical effect or result’ rather than a narrow and legalistic one. Indeed, in Natal Rugby Union v Gould,12 a central factor that persuaded the court to determine the appeal on its merits was that there was uncertainty as to the interpretation of the appellant’s constitution and ‘the union, its office bearers and council members are entitled to have it interpreted to guide them for the future’.13 In Coin Security Group (Pty) Ltd v SA National Union for Security Officers14 Plewman JA explained the court’s approach in the Natal Rugby Union case in these terms:

‘But there is something which I must add. Firstly, the judgment in the Natal Rugby case lays down no new or different criteria from those adopted in the Groblersdal case. I was party to the decision in the Natal Rugby case. It must, I think, be said that given the factual setting and, in particular, the uncertainty which arose in the context of the peremption argument (see at 443F-444G) the members of the union had, as a result of the litigation, been left “disturbingly but understandably divided” with regard to the meaning and effect of their constitution. This was felt to be a “living issue” -- sufficiently so for the exercise of the Court’s discretion in the manner in which it was exercised. To suggest, as counsel did, that the facts reveal a different approach to that taken in the Groblersdal case is not correct.’

[8] In the Rand Water Board case, Navsa JA held that even in matters in which the public interest is involved, the discretion to determine an appeal where the issues between the parties are dead should be exercised with circumspection. He cited with approval a passage from the speech of Lord Slynn of Hadley in R v Secretary of State for the Home Department, Ex Parte Salem15 that the ‘discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future’.

[9] With this in mind, and also assuming without deciding that a public interest element would entitle a court to exercise its appellate powers and determine the merits of an otherwise dead appeal, I proceed to consider the facts of the present case.

[C] THE FACTS

[10] In this matter, as I have indicated at the outset of this judgment, the issues involved the validity of, and the manner of performance of, a fixed term contract between the first respondent and the eighth respondent, which contract is no longer in operation as a result of the effluxion of time. There is thus no live issue between the parties requiring resolution by a court of appeal.

[11] Even though the matter impacts to an extent on the public interest, involving as it does the taxi industry, and because the applicants are public bodies, it is not, in my view, a matter in which the facts or the impact of the judgment cry out for a discretion to be exercised in favour of granting leave to appeal. I shall deal with this aspect in more detail below.

[12] The papers are extensive, running to over 500 pages and the facts are wide-ranging and complex. Indeed, in my judgment I made this very point. I stated:16

‘A great deal of space was taken up in the papers with attempts to show that the eighth respondent, and the contractual relationship between it and the first respondent, contributed to taxi-related violence in the province. There were allegations and denials, counter allegations and more denials. It would be impossible to resolve this issue on the papers and the hearing of oral evidence would bring one no closer to an answer. The truth of the matter is that the nature of the violence in the taxi industry is far more complex than that. It is, in other words, a sterile and pointless debate. It is one that I have no intention of joining in this judgment.’

[13] The merits do not concern a discrete point of statutory interpretation, or the like, and this is not a test case that will impact on substantial numbers of pending or anticipated cases. Indeed, it concerns a once-off contract between two parties who decided not to renew their contractual arrangement when it expired. The attack on the validity of the contract was specifically aimed at particular clauses of the contract and the way in which its provisions were performed, rather than at all contracts to provide security services in the taxi industry.17 It was, most certainly, not a test case and has not closed the door to any future challenges to contracts for the provision of security services in the taxi industry, should anyone, at some time in the future, enter into such a contract again.

[14] The attack on the validity of the contract failed, not on the basis of principle, but because I held that this issue was not raised in the founding papers, first having been squarely raised in reply.18 I did proceed to say, however, that if I was wrong in this respect, ‘the challenge to the validity of the agreement must also fail because, poorly drafted and confusing as it may be, I cannot see how it can be said that an agreement to provide protection services to a client in “King William’s Town and rutes” (sic) is contrary to public policy, contra bonos mores or contrary to the national interest’ and that the real issue to be determined was ‘whether in performing in terms of the agreement, the eighth respondent’s employees have acted in a lawful manner’.19 In the light of this, the argument that the judgment will have a negative impact on the efforts of the authorities to regulate the taxi industry read far too much into it and are misplaced.

[15] The submission that the import of the judgment is that the applicants do not have the power to regulate the use of their ranking facilities is simply based on a misunderstanding of the judgment. It was argued by the applicants that a non-statutory domestic rule made the King William’s Town taxi rank a ‘gun free zone’ and that employees of the eighth respondent had acted unlawfully by entering the taxi rank bearing firearms. Nowhere in my judgment do I hold that it would not be competent for the applicants to regulate the use of ranks: instead I held that it had not been established that the domestic rule had rendered the conduct of the eighth respondent’s employees unlawful because that rule did not have the force of law, a conclusion that was taken from the judgment of Sandi J in Buffalo City Municipality v Border Alliance Taxi Association and others,20 the very judgment relied upon by the applicants.

[16] In any event, the contents of the rule were never placed before me and proved. According to the judgment of Sandi J, however, they ‘do nothing more than stipulate the place of ranking at the applicant’s ranks’, they are ‘limited as to place and objects’ and they only apply ‘to the ranks and taxis which have paid fees and tariffs’.21 From this starting point, I concluded:22

‘No instrument or document has been placed before me to indicate what the rules say and how they purport to make the King William’s Town taxi ranks ‘gun free zones’. As admirable and sensible as that is – and I have no doubt that it is both admirable and sensible – a local government can only do what the law permits it to do.23 In the absence of a specific empowerment to regulate the bearing of firearms, the first and second applicants, even as owners of taxi ranks, have no power to make taxi ranks ‘gun free zones’, except perhaps by agreement, in which event the agreement would only be binding on the parties to it. That being so, there is no lawful power vested in the first and second applicants to prohibit the employees of the eighth respondent from entering taxi ranks in King William’s Town bearing their arms. The relief claimed in paragraph 2.2.2 of the Notice of Motion cannot therefore be granted.’

[17] It was, finally, argued that the effect of my judgment was to set aside, on the basis of vagueness, the Code of Conduct for security officers. The foundation of this argument was that the alternative relief claimed by the applicants was framed by slavishly following the wording of the Code of Conduct and I had found that ‘[c]ertain of the relief claimed is of such a vague and nebulous nature that it cannot be granted because the eighth respondent will not know, and neither will anyone else, with sufficient certainty what conduct is prohibited and what is allowed’.24

[18] Two examples of the five orders sought by the applicants that I had refused on this basis were: an order directing the eighth respondent to ‘at all times act in a manner which does not threaten or harm the public or national interest’; and an order directing the eighth respondent to ‘prevent crime, effectively protect persons and property and to refrain from conducting itself in a manner which will or may in any manner whatsoever further or encourage the commission of an offence or which may unlawfully endanger the safety or security of any person or property’.

[19] The applicants’ contention that this amounts to striking down provisions of the Code of Conduct is simply misconceived: it misconceives the nature of interdict proceedings, confuses them with the disciplinary system envisaged by the Code of Conduct and conflates the legislative standard set in the Code of Conduct with the facts that are necessary to establish an infringement of that legislative standard. For this reason, it is my view that the there is no merit in the applicants’ contention that leave to appeal is necessary in the public interest to ‘save’ the Code of Conduct because I never struck it down. The assertion that I did is based on an erroneous reading of my judgment.

[D] CONCLUSION

[20] My conclusion is that leave to appeal must be refused because the judgment or order sought on appeal would have no practical effect or result, as envisaged by s21A of the Supreme Court Act.

[21] The application for leave to appeal is accordingly dismissed and the applicants are ordered to pay the eighth respondent’s costs, such costs to include the costs of two counsel.

_____

C. PLASKET

JUDGE OF THE HIGH COURT

1 1998 (2) SA 1136 (SCA), 1141D-E. See too Radio Pretoria v Chairperson of the Independent Communications Authority of South Africa and others [2004] 4 All SA 16 (SCA).

2 2003 (4) SA 58 (SCA), 61A-62J.

3 1918 AD 426, 441.

4 Para 13. See too Coin Security Group (Pty) Ltd v SA National Union for Security Officers [2000] ZASCA 137; 2001 (2) SA 872 (SCA), para 7; Radio Pretoria v Chairperson of the Independent Communications Authority of South Africa and others supra, para 41.

5 Para 14. See too the Coin Security Group case, supra, para 8; President, Ordinary Court Martial and others v Freedom of Expression Institute and others [1999] ZACC 10; 1999 (4) SA 682 (CC); 1999 (11) BCLR 1219 (CC), para 13.

6 Para 14. See too the Coin Security Group case, supra, para 8; Western Cape Education Department and another v George 1998 (3) SA 77 (SCA), F-I; Natal Rugby Union v Gould [1998] ZASCA 62; 1999 (1) SA 432 (SCA), 444F-445B.

7 Para 17; See too Western Cape Education Department and another v George supra, 84G. In Give Ziyawa Construction CC v Ndlambe Municipality and another ECD 3 November 2004 (case no.977/04) unreported, Chetty J held (at para 3): ‘Although s21A refers to an appeal, a court hearing an application for leave to appeal would be justified in refusing leave where the grant thereof would have no practical effect.’

8 The Rand Water Board case supra, para 16 and para 23; Western Cape Education Department v George supra, 83E-F, in which Howie JA stated that ‘I shall assume, without deciding that the practical effect or result referred to in s21 is not restricted to the position inter partes and that the expression is wide enough to include a practical effect or result in some other respect’. See too Radio Pretoria v Chairperson of the Independent Communications Authority of South Africa and others supra, para 40.

9 2002 (4) SA 241 (SCA).

10 [1999] 2 All ER 42 (HL), 47c.

11 Para 7.

12 [1998] ZASCA 62; 1999 (1) SA 432 (SCA).

13 At 445A-B.

14 [2000] ZASCA 137; 2001 (2) SA 872 (SCA), para 8.

15 [1999] 2 All ER 42, 47d-f.

16 Para 42.

17 The principal relief claimed by the applicants was an order directing the eighth respondent ‘to cease rendering to the first respondent and any of its members the services referred to in paragraph two of the memorandum of agreement entered into between the first and eighth respondents and dated 30 January 2004’.

18 Para 39.

19 Para 40.

20 ECD undated judgment (case no. 871/03) unreported, para 20.

21 Para 18.

22 Para 58.

23 Fedsure Life Assurance Ltd and others v Greater Johannesburg Transitional Metropolitan Council and others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC), paras 56-59. (Footnote in the original.)

24 Para 49. I relied on the authority of Cargo Laden and Lately Laden on Board the MV Thalassini Avgi v MV Dimitris 1989 (3) SA 821 (A), 830G-H and Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd and others 1990 (2) SA 718 (T), 724H-I.