Amatole District Municipality and Others v King William's Town Taxi Management and Others (ECJ 2004/011) [2004] ZAECHC 18 (5 July 2004)

28

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ NO : 011/2004

PARTIES: AMATOLE DISTRICT MUNICIPALITY 1ST APPLICANT

BUFFALO CITY MUNICIPALITY 2ND APPLICANT

SOUTH AFRICAN POLICE SERVICE 3RD APPLICANT

AND

KING WILLIAM’S TOWN TAXI MANAGEMENT 1ST RESPONDENT

KING WILLIAM’S TOWN UNCEDO TAXI

ASSOCIATION 2ND

RESPONDENT

BISHO/KING WILLIAM’S TOWN TAXI

ASSOCIATION 3RD

RESPONDENT

DIMBAZA DISTRICT TAXI ASSOCIATION 4TH RESPONDENT

DIMBAZA/KING WILLIAM’S TOWN TAXI

ASSOCIATION 5TH

RESPONDENT

GINSBERG TAXI ASSOCIATION 6TH RESPONDENT

ILITHA NDEVANA TAXI ASSOCIATION 7TH RESPONDENT

WARREN JULIE t/a TAXI VIOLENCE UNIT

V.I.P. PROTECTION 8TH RESPONDENT

REFERENCE NUMBERS -

Registrar: 477/04

DATE OF HEARING: 27 MAY 2004

DATE DELIVERED: 12 AUGUST 2004

JUDGE(S):

PLASKET J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): RP QUINN SC & BL BOSWELL

for the accused/respondent(s): HJ VAN DER LINDE SC & PE JOOSTE

Instructing attorneys:

Applicant(s)/Appellant(s):

Respondent(s):

CASE INFORMATION -

Nature of proceedings : APPLICATION FOR INTERDICT

Topic: LAWFULNESS

OF PROVISION OF PRIVATE SECURITY SERVICE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO. 477/04

DATE DELIVERED: 12/8/04

In the matter between:

AMATOLE DISTRICT MUNICIPALITY

FIRST APPLICANT

BUFFALO CITY MUNICIPALITY

SECOND APPLICANT

SOUTH AFRICAN POLICE SERVICE

THIRD APPLICANT

and

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_______

Urgency – whether sufficient compliance with the rules and whether application an abuse of process

Standing of first and second applicants to litigate on their own behalves and in the public interest

Authority of deponent to launch proceedings on behalf of the South African Police Service

Vagueness of orders sought and whether the facts made out a case for the remaining relief

______________

PLASKET J:

[A] INTRODUCTION

[1] This province, like many other parts of the country, has, for a number of years, been beset by gangsterism, with its attendant violence, in the taxi industry. Most people are in agreement that the ultimate cause of the violence is economic in nature: it relates to competition for routes, ranks and passengers. Despite various official initiatives and law enforcement measures, the violence continues. All that changes is the intensity: at times the violence abates, and at other times it flares up.

[2] It is probably fair to say that at all times there is a degree of tension in the taxi industry in this province. The depravity of those who instigate, fuel and take part in the violence is marked by their contemptuous disregard for those who make the taxi industry a profitable one -- the paying passengers -- who are often the target of intimidation and are also often caught in the crossfire.

[3] This urgent application plays out against the backdrop that I have sketched above. The applicants, two municipalities and the South African Police Service (hereafter, the SAPS), seek far-reaching relief (which I shall set out in detail below) against the eighth respondent, a business that has entered into a contract with the first respondent in terms of which it undertakes, in return for R38 500.00 per week, to provide protection services to the members of the first respondent.

[4] The applicants claim, in the first instance, 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’. They also claim an order directing the eighth respondent ‘to remove the words “Taxi Violence Unit” from such vehicles as it employs in the course of rendering security services to the first respondent’.

[5] In the alternative to the first order mentioned above (paragraph 2.1 of the Notice of Motion), the applicants seek an order:

‘2.2.1 directing the eighth respondent to strictly comply with the provisions of the Private Security Industry Regulation Act No.56 of 2001 and the code of conduct promulgated thereunder. More particularly and without derogating from the generality of the aforegoing, the eighth respondent is ordered;

to not interfere with, resist, obstruct, hinder or delay a member or an employee of an organ of state in the performance of a function which such person may lawfully perform;

to not enter upon any crime scene unless authorized to do so by the member in charge of investigation of the South African Police Services;

to at all times act in a manner which does not threaten or harm the public or national interest;

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;

to act in a manner that does not threaten or which poses an unreasonable risk to the public order or safety;

to not incite, encourage or help any person to use force unlawfully or commit any unlawful act;

not to make any person available or use or permit the use of any firearm, ammunition, weapon or equipment if this exposes the first respondent or any other person to any unlawful harm, or the reasonable risk of unlawful harm, of which the eighth respondent is aware or should reasonably be aware;

interdicting and restraining the eighth respondent from bringing any firearms into any taxi ranks in the towns of King William’s Town, Ginsberg, Bisho, Dimbaza, Stutterheim, Alice, Peddie and Middledrift;

cease interfering with the lawful execution of the duties of the members of the first applicant and the South African Police Services.’

[6] The applicants also seek an order of costs against those respondents who have opposed the application, such costs to include the costs of two counsel. It is only the eighth respondent that opposes the relief sought by the applicants.

[B] THE AGREEMENT

[7] As mentioned above, the eighth respondent entered into a contract with the first respondent in terms of which the eighth respondent undertook to provide protection services to members of the first respondent in return for a consideration of R38 500.00 per week. The services to be rendered are set out in clause two of the contract. It reads as follows;

‘Mr Julie and his duly appointed representatives and/or members of staff, shall perform the following services;

Protection of owners, drivers and commuters from 06:00 to 18:00 daily, seven (6) (sic) days a week.

Protection and security to members of the client on the premises.

Protection and security to members of the client other than the premises (sic) as may be specifically required from time to time.

Serve as liaison between the client and Policing Forms, Taxi Registry, the Office of the Minister of Transport, the SANDF and other protection services, as may be specifically required from time to time.

Escorting of owners.’

[8] The term ‘the premises’ is defined in clause 1.1 of the contract as meaning ‘King William’s Town and rutes (sic)’. In terms of clause 5, the eighth respondent, through Mr Julie ‘shall supply and deploy no less than nine (9) members of his staff on a daily basis, seven (6) (sic) days per week’. In terms of clause 6, Mr Julie is required to supply his staff with ‘any firearms, ammunition, communication radios, uniforms and bullet proof vests, at his expense’ and any staff training ‘shall also be for the expense of Mr. Julie’.

[9] In terms of clause 7.1 ‘Mr Julie and the members of his staff shall obey all lawful instructions by members of the client, in execution of the services and duties listed in paragraph 2 herein above’. In terms of clause 7.2, ‘Mr Julie and the members of his staff shall not be under any obligation to carry out an instruction or order which is unlawful, wrongful or in contravention of any laws of the Republic of South Africa or the Province of KwaZulu-Natal’.

[10] Clause 8 contains an indemnity given by the first respondent in favour of ‘Mr Julie and the members of his staff’ indemnifying them from ‘any consequences and/or legal process, whether by action or application or any other legal remedy, for any loss, damage or injury of whatever nature caused by Mr Julie and/or members of his staff in execution of their duties listed herein above’. Clause 8.3 excludes from the operation of the indemnity any loss, damage or injury ‘caused by the gross negligence or wilful unlawful conduct of Mr Julie and members of his staff’. Clause 8.4 is a warranty in terms of which ‘Mr Julie hereby warrants that he and the members of his staff are conversant with the laws pertaining to their duties as security personnel and that Mr Julie and his staff are trained in the use and care of firearms and are conversant with the laws pertaining to firearms’.

[11] Finally clause 15 provides:

‘The client authorises Mr Julie and any member(s) of his staff, in turn duly authorized by Mr Julie, to remove or cause the removal of any vehicle and/or taxi on the premises, which vehicle and/or taxi is not duly authorized to load or offload passengers/persons/goods/items on the premises by the client or any other recognized governing body or legal authority’.

[12] It will be apparent to the reader that the agreement purports to vest significant powers in the eighth respondent for purposes of providing protection services set out therein. It will also be apparent that the agreement was sloppily and badly drafted with the original purpose of regulating a relationship between the eighth respondent and a third party in the province of KwaZulu-Natal and then sloppily and badly changed to meet the needs of the first respondent.

[13] Pursuant to this agreement the eighth respondent began to provide protection services to the first respondent on 16 February 2004. He did so – and this is common cause – by deploying employees armed with firearms and wearing uniforms at the King William’s Town taxi rank, a facility that is controlled by the second applicant. It would appear that these employees took it upon themselves to re-arrange ranking facilities at the taxi rank. They were ordered to leave by a Director Swart of the South African Police Service (SAPS) and were told that if they returned armed with firearms, they would be arrested because there was a policy in place that the taxi rank was a ‘gun free zone’.

[14] It is also common cause that on the same day employees of the eighth respondent proceeded to the Middledrift taxi rank and, in subsequent days, the employees of the eighth respondent escorted taxis to and from various destinations in the province. At various times they or the taxis that they were meant to be protecting came under attack, presumably from taxi owners or their minions in competition with the taxi owners affiliated to the first respondent. Pursuant to such attacks employees of the eighth respondent laid various criminal charges at a number of police stations. There were also incidents when shots were fired by employees of the eighth respondent but there appears to be no evidence that suggests that any death, injuries to persons or damage to property resulted from them.

[15] The applicants contend that the eighth respondent, through the actions of its employees, has contributed to an escalation of taxi violence, that the agreement between the eighth respondent and the first respondent is an unlawful one because it conflicts with the terms of the Private Security Industry Regulation Act, is contra bonos mores and contrary to the national interest.

[16] Before dealing any further with the merits, however, it is necessary to turn to three preliminary issues namely, the question of urgency, whether the first and second applicants have the necessary standing to bring these proceedings and whether the third applicant is properly before court.

[C] THE PRELIMANARY ISSUES

(a) Urgency

[17] Mr van der Linde, who appears with Mr Jooste for the respondent argues that the application must be dismissed due to lack of urgency. He relies squarely on the judgment of Kroon J in Caledon Street Restaurant CC v D’Abiera.1 In that matter an application was dismissed because it did not comply with the provisions of rule 6(12) of the Rules of Court and amounted to an abuse of process.2

[18] While it is so that, in this case, the notice given by the first and second applicants was exceptionally short (given the fact that the founding papers run to over 200 pages), I am of the view that it would not be just to non-suit the applicants on account of this and their failure to comply more fully with the provisions of Rule 6(5) of the Rules. The applicants can perhaps consider themselves fortunate that their first attempt to move their application – on notice of one day -- was abortive because they had not served the papers on the respondents. As a result, a lengthier period of notice, more consonant with the urgency of the matter, was afforded to the respondent.

[19] In the absence of prejudice to the respondents I am not willing to dismiss the application for want of urgency. The challenge based on lack of urgency therefore fails.

(b) Standing

[20] Mr van der Linde argues too that the applicants have no standing to seek the relief contained in the notice of motion. The challenge to the first and second applicants’ standing is two fold, in the first instance, it is argued that the resolutions authorizing the institution of proceedings do not authorize the seeking of the relief that is claimed in the Notice of Motion; secondly, the respondent argues that the second applicant does not have a sufficient interest in the subject matter of the dispute.

[21] The resolutions adopted by both the first and second applicants are in almost identical terms. The resolution adopted by the first applicant reads:

‘Smith Tabata Incorporated be hereby instructed to institute urgent legal proceedings in the High Court, Grahamstown against the Taxi Violence Unit VIP Protection, the King William’s Town Taxi Management and such other taxi associations and/or persons as may be necessary for an order, amongst others, restraining the Taxi Violence Unit from rendering protection services to taxi associations in contravention of the law.’

[22] In my view the resolutions do indeed authorize the institution of proceedings for the type of relief claimed in the Notice of Motion. In the first instance, the applicants seek an order directing the eighth respondent to cease rendering to the first respondent and any of its members the services referred to in paragraph 2 of the memorandum of agreement entered into between the first and eighth respondents. Such relief is clearly contemplated by the resolutions. Secondly, the alternative relief sought all has as its foundation the aim of forcing the eighth respondent, if the principal relief is not granted, to render its services in accordance with the provisions of the Private Security Industry Regulation Act. That too is contemplated by the resolutions. Thirdly, the relief sought in paragraph 2.3 of the Notice of Motion directing the eighth respondent ‘to remove the words “Taxi Violence Unit” from such vehicles as it employs in the course of rendering security services to the first respondent’ is premised on the idea that the rendering of the service while creating the impression that the employees of the eighth respondent are in fact policemen amounts to rendering the service unlawfully. It too, therefore, is covered by the resolutions.

[23] In my view, therefore, the challenge to the capacity of the first and second applicants to seek the relief claimed must fail.

[24] It is argued by Mr Van Der Linde that the second applicant does not have a sufficient direct interest in the subject matter of the application and so lacks standing to seek the relief claimed. He relies on s84 of the Local Government: Municipal Structures Act 117 of 1998. Section 84(1)(g) provides that a district municipality such as the first applicant enjoys powers and functions in relation to the regulation of passenger transport systems. Section 84(2) provides, however, that a local municipality such as the second applicant ‘has the functions and powers referred to in section 83(1), excluding those functions and powers vested in terms of subsection (1) of this section in the district municipality in whose area it falls’.3

[25] The mere fact that a local municipality does not have the power to deal with the regulation of passenger transport, does not mean that it does not have standing. I reach this conclusion for two reasons.

[26] First, the second applicant has a constitutional obligation to respect, protect, promote and fulfil the rights in the Bill of Rights,4 which include the rights to life,5 and to freedom and security of the person, including the right ‘to be free from all forms of violence from either public or private sources’.6 The case of the applicants is that the conduct of the eighth respondent – the manner in which it performs its contractual obligations, in particular – has the effect of escalating violence in the taxi industry and that, as a result, the rights of those who live and work within their areas of jurisdiction are affected or threatened. It is stated in the founding affidavit that the purpose of the application is to ‘prevent and forestall further violence, loss of life and damage to property, alternatively to direct the eighth respondent and his guards to act lawfully and not to precipitate or ferment violence between the respondent taxi associations and other taxi associations and the public in general’. (It must be borne in mind that at this stage, one is not concerned with whether the applicants make out a case for the relief they claim: in Steel and Engineering Industries Federation and others v National Union of Metalworkers of South Africa (1)7 Myburgh J held that an ‘objection taken in limine to the locus standi of an applicant must be dealt with on the assumption that all the allegations of fact relied on by the party are true’.) On this basis, but subject to what I say below about the first and second applicants’ standing to claim the relief set out in paragraph 2.3 of the Notice of Motion, the second applicant, like the first applicant, has a sufficient and direct interest in the subject matter of this application.

[27] Secondly, as the dispute in this matter is not an academic one, fundamental rights are in issue and it is of significance to the public at large, the second applicant has, in terms of s38(d) of the Constitution, the standing to litigate in the public interest.8 The eighth respondent’s challenge to the standing of the second applicant must, therefore, fail, once again subject to what is said below about the standing of the applicants to claim the relief sought in paragraph 2.3 of the Notice of Motion.

(c) The Third Applicant

[28] The third applicant was joined as an applicant subsequent to the application being launched. The affidavit in support of the application for joinder was made by Assistant Commissioner BAY Hoosain, who had deposed to the founding affidavit on behalf of the first and second applicants. In his affidavit in support of the joinder application, Assistant Commissioner Hoosain stated that he was ‘duly authorised to make this affidavit on behalf of the South African Police Services’ and that ‘the [founding] affidavit of Assistant Commissioner Hoosain be read as an affidavit made on behalf of the South African Police Services’.

[29] In the eighth respondent’s answering affidavit, the following is stated:

‘11.1 I deny that the South African Police Services (SAPS) are entitled to seek relief from the above Honourable Court in the nature that it is currently doing.

11.2 SAPS has the full might of the statutory and common criminal law available to it. In this regard SAPS are also subject to the Criminal Procedure Act and all conduct must be conducted in terms of the relevant legislation.

11.3 SAPS had applied to join as a co-applicant in the aforementioned proceedings and I deny that it has the necessary locus standi to seek relief as set out in this matter.

11.4 It is therefore pertinent to take cognisance of the allegation contained in this paragraph that SAPS are entitled to enforce the criminal law through the procedures created by legislation.’

[30] In response to this paragraph, Assistant Commissioner Hoosain stated in his replying affidavit:

‘The South African Police Services (SAPS) is statutorily enjoined to exercise the powers and fulfil the obligations referred to in paragraph 3 of the founding affidavit. Insofar as any person or organisation interferes with or obstructs the SAPS in the performance of its obligations or the exercise of its powers, the SAPS has locus standi to prevent such person or organisation from doing so. Whatever else SAPS is duty bound to act in the public interest. Legal argument on this issue will be presented at the hearing of this matter.’

[31] Mr Van der Linde attacked the authority of Assistant Commissioner Hoosain to institute proceedings on behalf of the third applicant, took the point that the SAPS, not being a juristic person, could not litigate in its own name and argued that it had no power to launch civil proceedings of the nature of these proceedings, but was restricted to the use of its policing powers and the enforcement of the criminal law.

[32] On the view I take of this aspect of the case, it is not necessary for me to deal with all of these arguments. It appears to me that the point is well taken that the authority of Assistant Commissioner Hoosain to litigate on behalf of the National Commissioner of the SAPS has not been established. Mr Quinn, who appeared with Mr Boswell for the applicants stated that he hoped to be able to place before me an affidavit to confirm Assistant Commissioner Hoosain’s authority but this was not forthcoming.

[33] Section 205(2) of the Constitution requires national legislation to be enacted to ‘establish the powers and functions of the police service’ envisaged by s205(1) – namely, a national police service -- to enable it to ‘discharge its responsibilities effectively’. The legislation in question -- the South African Police Service Act 68 of 1995 – was, in fact, enacted before the enactment of the final Constitution. Section 5(1) provides that the ‘South African Police Service contemplated in section 214(1) of the [interim] Constitution is hereby established’. Section 5(2) tabulates the classes of persons who are members of the SAPS. Unlike many other statutes that create institutions, this Act does not create the SAPS as a juristic person.9

[34] Section 6(1) of the Act makes provision for the appointment of a National Commissioner of the SAPS and s6(2) empowers this functionary to appoint Provincial Commissioners for each province. Section 11(2) sets out the powers, duties and functions of the National Commissioner. Section 11(2)(g) empowers him or her to ‘perform any legal act or act in any legal capacity on behalf of the Service’. No other functionary is given any similar power but s15(1) provides that the National Commissioner may, subject to certain limitations not of relevance for present purposes, delegate any power vested in him or her, in writing, to ‘any member or other person in the employment of the Service’.

[35] The only basis upon which Assistant Commissioner Hoosain could have instituted proceedings on behalf of the National Commissioner was if he had been authorised to do so by the National Commissioner acting in terms of s15. His authority was challenged and the written delegation was not produced. It must follow that he has failed to establish that he was, indeed, duly authorised to institute the proceedings. That being so, the third applicant is not properly before court and is not entitled to any relief that may be granted. I shall make the appropriate order in this regard, including an order as to costs, at the end of this judgment.

[D] THE MERITS

[36] Three major issues arise for decision on the merits. The first is the validity of the agreement between the first and eighth respondents. The second is whether the first and second applicants have established an entitlement to the relief claimed in paragraph 2.3 of the Notice of Motion, namely an order directing the eighth respondent to remove the words ‘Taxi Violence Unit’ from its vehicles. The third issue is whether the first and second applicants have established an entitlement to any or all of the relief claimed alternative to paragraph 2.1 of the Notice of Motion, namely orders directing, in the main, the eighth respondent to comply with the provisions of the Private Security Industry Regulation Act and its code of conduct. I shall deal with these issues in the order in which I have set them out above.

(a) The Validity of the Contract

[37] I have been urged by Mr Quinn to find that the contract between the first respondent and the eighth respondent is a nullity because it is contrary to public policy, is contra bonos mores and is in conflict with the national interest. Flowing from this, the argument proceeds, the eighth respondent should be interdicted from rendering services to the first respondent in terms of the agreement.

[38] It is necessary, before dealing with this argument, to set out the allegations made by the parties in connection with the agreement. In the founding affidavit, reference is made to the agreement to make the point that taxi routes are not capable of ownership and thus are incapable of ‘lawful protection’, and that the imprecise language and poor quality of the drafting of the agreement appeared, in the view of the deponent, to give the eighth respondent’s personnel licence to ‘re-arrange ranking facilities’ at the King William’s Town taxi rank. In response to this, the deponent to the answering affidavit stated that he was aware of the fact that routes are incapable of ownership but that this ‘cannot deprive the members of the various associations, including members of the public at large (i.e. passengers) of the right to be protected by the services of the eighth respondent’ and that the agreement is a standard one that was drafted six years ago by the eighth respondent’s attorneys in KwaZulu-Natal. In the first and second applicant’s reply, the following is stated, which concludes the averments made concerning the agreement:

‘As to the submission that the eighth respondent is entitled to render the services mentioned in the letter, it is submitted that this Honourable Court can terminate such entitlement if the rendering of such services is held to be contrary to public policy and against the national interest. At the very least the eighth respondent must render services in a lawful manner, must act in accordance with its code of conduct and must not hamper the authorities in the execution of their duties.’

[39] Mr Van Der Linde has argued that the first and second applicants’ case does not get off the ground because the invalidity of the agreement was not raised in the founding affidavit and was first raised in reply.10 I agree with him. The attack upon the validity of the agreement must fail on this account.

[40] Even if I am wrong on that score, however, 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: it may be ill-advised for the first respondent to engage the services of the eighth respondent and it may be reckless of the eighth respondent to venture into the lion’s den that is the taxi industry in the Eastern Cape, but that is a far cry from visiting invalidity on the contractual relationship between these two parties. The real issue, to my mind, is whether in performing in terms of the agreement, the eighth respondent’s employees have acted in a lawful manner. That is the focus of the alternative relief.

[41] In their heads of argument, Mr Quinn and Mr Boswell submitted that clause 15 of the agreement ‘obliges’ members of the eighth respondent to commit unlawful acts. I do not accept that submission because clause 7.1 provides that ‘Mr Julie and the members of his staff shall obey all lawful instructions by members of the client, in execution of the services and duties listed in paragraph 2’. Clause 7.2 provides that they ‘shall not be under any obligation to carry out an instruction or order which is unlawful, wrongful or in contravention of any laws of the Republic of South Africa …’. Whatever clause 15 means, it cannot, in the light of clause 7.1 and clause 7.2 be taken to authorise unlawful conduct. At best for the applicants, clause 15 is void for vagueness but that is not their case and whether they, who are not parties to the agreement, are able to have clauses of it struck down is an issue on which it is not necessary for me to express a view.

[42] 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.

(b) The Removal of the Words ‘Taxi Violence Unit’ from Vehicles

[43] The founding affidavit contains a limited number of references to the issue of the eighth respondent’s vehicles bearing the words ‘Taxi Violence Unit’. The first reference is simply to the effect that the ‘guards [ie the eighth respondent’s employees] are transported in vehicles on which are painted the words “Taxi Violence Unit” which are equipped with high frequency radios and spotlights’ and that these vehicles are ‘similar to vehicles used by the South African Police Services’. Later it is stated that the eighth respondent’s employees ‘are dressed in uniforms which are not dissimilar to those employed by special units of the police. Moreover the eighth respondent’s employees are seen by the public in vehicles which appear to be official vehicles since the words “Taxi Violence Unit” are painted on the vehicles’.

[44] Later still, the deponent to the founding affidavit stated:

‘The markings which have been placed on the vehicles used by the employees of the eighth respondent, as well as the uniforms worn by these employees, bear a close resemblance to the markings and the uniforms used by certain units of the South African Police Services. This has resulted in members of the public, and more specifically persons within the taxi industry, mistaking the employees of the eighth respondent for members of the South African Police Services. This is clearly evidenced by the extract from the memorandum sought to be handed to Director Swart at Stutterheim … .As a direct result of this confusion in the public mind, members of rival taxi associations believe that the South African Police Services are partisan and give preference to taxis affiliated to the first to seventh respondents. This does incalculable damage to the ability of the South African Police Services to exact compliance with applicable laws.’

[45] In the final reference to this issue in the founding affidavit, the deponent to the founding affidavit stated that the eighth respondent had ‘clearly interfered with the rights of the South African Police Services as provided in the Constitution and the Police Service Act’ in that they had, inter alia, ‘placed markings on their vehicles, and wear uniforms and their deployment is such that they impersonate police officers’.

[46] It is apparent from the papers that the interests that the applicants wish to protect are the interests of the SAPS. It is not a party to these proceedings and, in my view, it would be to push the bounds of the already broad rules of standing, whether under the Constitution or an appropriately developed common law, to hold that two local government bodies have standing to protect the interests of the SAPS without any evidence to show why the SAPS cannot litigate on its own behalf to protect its own interests.

[47] Even if I had held that the applicants had the necessary standing, I would have held against them on this aspect of the relief claimed by them: their case goes no further than that the use of the term ‘Taxi Violence Unit’ with, I presume, its implied para-military connotations, may cause some people to confuse the vehicles of the eighth respondent for police vehicles. That does not establish that the employees of the eighth respondent are intentionally passing themselves off as policemen in contravention of s68 of the South African Police Service Act.

[48] The relief claimed by the first and second applicants in terms of paragraph 2.2 of the Notice of Motion falls into two categories: first, those prayers that cannot be granted as a matter of law; and secondly, those that are dependant on the facts.

(i) Relief that Cannot be Granted as a Matter of Law

[49] Certain 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. It is one of the fundamentals of the rule of law, which is a foundation stone of our Constitution,11 that pronouncements made in the exercise of public power -- whether of a legislative, executive, administrative or, in this case, judicial nature -- must be ‘stated in a clear and accessible manner’.12

[50] More specifically, in Cargo Laden and Lately Laden on Board the MV Thalassini Avgi v MV Dimitris13 Botha JA stated that orders should not be granted in such wide terms that rendered them vague and uncertain because there ‘is no way in which the parties can know how the order is to be applied, and it opens the door to future disputes which could be extremely awkward to resolve’. In Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd and others14 Stegmann J held that ‘[a]n interdict in terms which leaves the person restrained uncertain as to what he may or may not do, may in some cases secure an unjustifiable advantage for the applicant; and in others, such as the present case, it fails to resolve the dispute between the parties and results in further litigation’.

[51] For these reasons, I find myself unable to grant the following prayers:

(a) prayer 2.2.1, the order directing the eighth respondent to ‘strictly comply with the provisions of the Private Security Industry Regulation Act No. 56 of 2001 and the code of conduct promulgated thereunder’ even if, as s1 of the code states, its purpose is to ‘provide binding rules that all security service providers … must obey’;

(b) prayer 2.2.1.3, the order directing the eighth respondent to ‘at all times act in a manner which does not threaten or harm the public or national interest’. I would add that, apart from being vague and unsuited to forming the core obligation of an order, it would be simplistic in the extreme to assume that because an infringement of the code is established, it follows that the person responsible for the infringement has also acted contrary to the public or national interest;

(c) prayer 2.2.1.4, the 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’;

(d) prayer 2.2.1.5, the order directing the eighth respondent to ‘act in a manner that does not threaten or which poses an unreasonable risk to the public order or safety; and

(e) prayer 2.2.1.7, the order directing the eighth respondent ‘not to make any person available or use or permit the use of any firearm, ammunition, weapon or equipment if this exposes the first respondent or any other person to any unlawful harm, or the reasonable risk of unlawful harm, of which the eighth respondent is aware or should reasonably be aware’.

[52] The first and second applicants are not, as a matter of law, entitled to the relief claimed in prayer 2.2.1.2, namely an order directing the eighth respondent to ‘not enter upon any crime scene unless authorised to do so by the member in charge of investigation of the South African Police Service’. Section 13(11)(a) of the South African Police Service Act provides that a member ‘may, for purposes of investigating any offence or alleged offence, cordon off the scene of such offence or alleged offence and any adjacent area which is reasonable in the circumstances to cordon off in order to conduct an effective investigation at the scene of the offence or alleged offence’ and s13(11)(b) provides that such a member ‘may, where it is reasonable in the circumstances in order to conduct such investigation, prevent any person from entering or leaving an area so cordoned off’.

[53] It is apparent from a reading of the section in context and against the backdrop of the fundamental right to freedom of movement15 and the founding constitutional value of freedom,16 as well as from the use of the word ‘may’ that prefaces the power vested in the member of the SAPS in both subsections, that he or she has a discretion in both instances – in deciding whether to cordon off a crime scene for the purposes stated, and to prevent persons from either entering or, if they are present, to prevent them from leaving, again for the purposes stated.17

[54] What this means for present purposes is that there is no general prohibition from entering a crime scene, and no blanket prohibition can validly be made by anyone in this regard: to purport to do so would be to fetter the discretion of individual investigating officers who are required to make an individualised decision on the spot and in the circumstances of each case. To put it differently, everyone, in the exercise of their fundamental right to freedom of movement, has the right to enter a crime scene unless an investigating officer, on reasonable grounds exercised for a proper and authorised purpose, decides otherwise in his or her discretion.18 That being so, it is simply not competent as a matter of law to make the order sought in prayer 2.2.1.2.

[55] Prayer 2.2.2 of the Notice of Motion seeks an order ‘interdicting and restraining the eighth respondent from bringing any firearms into any taxi ranks in the towns of King William’s Town, Ginsberg, Bisho, Dimbaza, Stutterheim, Alice, Peddie or Middledrift’. It is argued that the taxi rank in King William’s Town has been declared to be a ‘gun free zone’ but no similar basis is relied upon in respect of the order sought as it relates to the other towns mentioned therein.

[56] In respect of some of these towns, affidavits have been filed by their municipal managers in which they state that the eighth respondent has not informed the various municipalities that it intends to provide protection services within its area of jurisdiction, and that no permission has been granted to, or will be granted to, the eighth respondent to enter the taxi ranks in the various towns. I am not asked to make an order to enforce this ban so I need say little about it, save that it appears to be of doubtful legality. In the absence of any reference in the papers or in argument to a lawful basis upon which the various municipalities may lawfully prohibit citizens from carrying firearms within the precincts of taxi ranks, I cannot grant the order sought in respect of any of Ginsberg, Bisho, Dimbaza, Stutterheim, Alice, Peddie and Middledrift. I deal below with whether I can grant the order sought in respect of King William’s Town.

[57] The first and second applicants rely, for the relief in respect of the King William’s Town taxi rank, on a non-statutory domestic rule of some sort. The nature of this domestic rule was discussed by Sandi J in Buffalo City Municipality v Border Alliance Taxi Association and others.19 He held that the rules in question ‘do nothing more than stipulate the place of ranking at the applicant’s ranks. The application of the rules is limited as to place and objects. They only apply to the ranks and the taxis which have paid fees and tariffs fixed by the Council in terms of section 187(1)(b) of the Municipal Ordinance 20 of 1974’.20 He held further, however, that the ‘rules in question do not have the force of law and do not attract any penalty for non-compliance’.21

[58] 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.22 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.

(ii) Relief that is Dependant on the Facts

[59] All that remains is to determine whether the first and second applicants are entitled to the relief claimed in paragraphs 2.2.1.1, 2.2.1.6 and 2.2.3 of the Notice of Motion.

[60] The relief claimed in paragraphs 2.2.1.1 and 2.2.3 involves similar conduct: the first prayer seeks to prevent the eighth respondent from interfering with, resisting, obstructing, hindering or delaying members or employees of organs of state in the lawful performance of their functions, and the second prayer seeks to direct the eighth respondent to ‘cease interfering with the lawful execution of the duties of members of the first applicant and the South African Police Services’. The relief claimed in paragraph 2.2.1.6 is aimed at preventing the eighth respondent from inciting, encouraging or helping persons to use force unlawfully or to commit any unlawful act.

[61] In order to determine whether the first and second applicant are entitled to the relief claimed, it is not necessary to go beyond the allegations made in their founding affidavit. I shall summarise those allegations.

[62] On 16 February 2004, employees of the eighth respondent entered the King William’s Town taxi rank, ‘paraded about brandishing submachine guns, rifles and handguns while wearing uniforms that are suitable for combat which were festooned with bandoliers of cartridges’ and began to re-arrange ranking facilities until they were told to leave and not return by Director Swart. They left. (There is an allegation made in reply that they did return on the following day, but that takes the case of the applicants no further.)

[63] On the same day at Middledrift, the employees of the eighth respondent ‘interfered with ranking facilities’ there and were ‘warned not to return to the Middledrift taxi rank’. On the following day, they escorted taxis from King William’s Town to Middledrift where they and the taxis they were escorting were attacked. Members of the SAPS seized some of the eighth respondent’s weapons.

[64] On 26 February 2004, employees of the eighth respondent escorted taxis from King William’s Town to Queenstown, via Stutterheim. They were attacked outside Stutterheim. The employees opened fire on their attackers. Their firearms have been seized and some of them have been charged with public violence, attempted murder and malicious injury to property.

[65] Thereafter, employees of the eighth respondent began to escort taxis from King William’s Town to Peddie and from Peddie to the Fish River. It would appear that they came under attack on a number of occasions while doing this because of 13 complaints of attempted murder and malicious injury to property, they were complainants in nine. There is no evidence as to who the complainants are in the remaining four cases and there is certainly no suggestion that the employees of the eighth respondent are suspects in those cases. The deponent to the founding affidavit claims that the involvement of the eighth respondent in violence is confirmed in a letter written by Mr Julie to the National Commissioner of the SAPS and various other interested parties. This is not correct. The letter claims that the eighth respondent and its clients have been victims of violence directed at them, a fact that is, in fact, consistent with the allegations made in the founding affidavit.

[66] Finally, the deponent to the founding affidavit recounts an incident that occurred on 26 March 2004 between King William’s Town and Peddie when Commissioner Moyake and Superintendent Seymour of the SAPS came across a group of the eighth respondent’s employees on the side of the road. This is what then happened, in the deponent’s own words:

’32.1 On approaching the eight respondent’s employees they took cover and made ready to use their weapons

32.2 They were heavily armed with bullet belts slung over their shoulders.

32.3 They were instructed to withdraw from the area which they did.’

[67] There is not a suggestion in the events that I have summarised of an unlawful interference with, resistance to, obstruction of, hindering or delaying of the performance of functions of any organ of state, including any functionary of the first applicant or the SAPS. There is, like wise, no case made that the employees of the eighth respondent have incited, encouraged or helped anyone to unlawfully use force or commit some other unlawful act. (There is an allegation that on one occasion, two taxis being escorted by the eighth respondent conveyed persons for reward in contravention of the terms of their permits. There is no suggestion in the applicants’ papers, however, that this was part of a pattern, suggestive of ongoing complicity in unlawful conduct and justifying the grant of an interdict.)

[68] In short, therefore, I am of the view that the facts upon which the applicants rely do not make out a case for the relief sought in paragraphs 2.2.1.1, 2.2.1.6 and 2.2.3 of the Notice of Motion.

[E] THE ORDER

[69] As a result of the foregoing, and for the reasons stated above:

(a) the application of the first and second applicants is dismissed with costs, such costs to include the costs of two counsel;

(a) the application brought in the name of the South African Police Service is dismissed and Assistant Commissioner BAY Hoosain is ordered to pay the eighth respondent’s costs occasioned by its challenge to his authority to bring the application.

_____

C. PLASKET

JUDGE OF THE HIGH COURT

1 SECLD 7 November 1997 (case no. 2656/97) unreported.

2 See Nelson Mandela Metropolitan Municipality and others v Greyvenouw CC and others 2004 (2) SA 81 (SE), para. 39.

3 Section 83 of the Act provides that municipalities enjoy the powers and functions assigned to them by s156 of the Constitution. This section, in turn, provides that municipalities have executive authority over, and the power to administer the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5 as well as any other matter that may be assigned to municipalities by national or provincial legislation. Included in the relevant parts of the Schedules are such matters as control over local amenities, municipal roads, public places and traffic and parking.

4 Constitution, s7(2).

5 Constitution, s11.

6 Constitution, s12(1)(c).

7 1993 (4) SA 190 (T), 191I-J.

8 See Port Elizabeth Municipality v Prut NO and another 1996 (4) SA 318 (E), 324I-326B; Ngxuza and others v Permanent Secretary, Department of Welfare, Eastern Cape and another 2001 (2) SA 609 (E), 625E-G; Nomala v Permanent Secretary, Department of Welfare and another 2001 (8) BCLR 844 (E), 853G-854A.

9 See by way of example s2(1) of the Private Security Industry Regulation Act which provides: ‘A juristic person to be known as the Private Security Industry Regulatory Authority is hereby established. See for a further example, s3(1) of the Independent Communications Authority of South Africa Act 13 of 2000. It states: ‘There is hereby established a juristic person to be known as the Independent Communications Authority of South Africa.’

10 Director of Hospital Services v Mistry 1979 (1) SA 626 (A), 635H-636B.

11 Pharmaceutical Manufacturers Association of South Africa and others: Ex parte President of the Republic of South Africa and others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC), para 40.

12 Dawood and another v Minister of Home Affairs and others; Shalabi and another v Minister of Home Affairs and others; Thomas and another v Minister of Home Affairs and others [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC), para 47. See too Mathews ‘The Rule of Law – A Reassessment’ in Kahn (ed) Fiat Iustitia: Essays in Memory of Oliver Deneys Schreiner Cape Town, Juta and Co: 1983, 294.

13 1989 (3) SA 821 (A), 830G-H.

14 1990 (2) SA 718 (T), 724H-I.

15 Constitution, s21(1).

16 Constitution, s1(a).

17 See by way of analogy, Duncan v Minister of Law and Order 1986 (2) SA 805 (A), 818G-H, in which Van Heerden JA stated of the exercise of the similarly structured power to arrest contained in s40(1) of the Criminal Procedure Act 51 of 1977: ‘If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, ie. he may arrest the suspect. In other words, he then has a discretion as to whether or not to exercise that power.’

18 What I have said above is not meant to be definitive of the way in which the discretion must be exercised. It must, of course, comply with the right of everyone to administrative action – for that is what it is – that is lawful, reasonable and procedurally fair, as required by s33 of the Constitution and the provisions of the Promotion of Administrative Justice Act 3 of 2000.

19 ECD undated judgment (case no. 871/03) unreported.

20 At para18.

21 At para 20.

22 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.