Avbob Funeral Services Limited v Honourable Minister of Safety & Security (in his Nominal Capacity as Head of the South African Police Services) (1273/06) [2006] ZAECHC 118 (1 September 2006)

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REPORTABLE

IN THE HIGH COURT OF SOUTH

AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 1273/06

In the matter between:

AVBOB FUNERAL SERVICES LIMITED Applicant

And

THE HONOURABLE MINISTER OF SAFETY & SECURITY

(IN

HIS NOMINAL CAPACITY AS HEAD OF THE SOUTH

AFRICAN POLICE SERVICES) First Respondent

MALETSWAI METROPOLITAN MUNICIPALITY Second Respondent

Date Heard: 31 August 2006

Date Delivered: 1 September 2006

Summary: Interdict – conversion of minibus taxi as a hearse/ passenger vehicle – s 42 of Road Traffic Regulations – whether special certificate of roadworthiness required

JUDGMENT

CHETTY, J

[1] As significant proposition of the general public is totally dependent on the minibus taxi industry for their transportation needs. The versatility of the minibus has resulted in its adaptation for divers purposes, in this application its use as a hearse which in common parlance denotes a vehicle for conveying the coffin at a funeral. The Concise Oxford English dictionary (11th edition) provides the following history:-

“The modern of the word hearse is far removed from that of its roots. It derives ultimately from a word in an extinct language of southern Italy, signifying a wolf’s teeth. This word was absorbed into Latin as hirpex, denoting, with reference to the implement’s teeth, a large rake. This entered Old French in the form hence, meaning ‘harrow’. In English a hearse was originally a triangle frame similar in shape to an ancient harrow, designed to hold candles. From this it became an elaborate framework or canopy constructed over the coffin of an important person prior to their funeral. By the middle of the 17th century the world referred to a carriage built to carry a coffin, from which evolved the modern hearse, or funeral vehicle.”

[2] The applicant inter alia conducts the business of a funeral undertaker and utilises a fleet of motor vehicles which it alleges have been “modified and licenced to be used as hearses. The factual background to the application is within dispute. It amounts to this. On 6th October 2005 two minibuses which had been modified to convey cadavers and passengers were routinely stopped by traffic officers Spofana (Spofana) an employee of the second respondent and Ntombeko Mayake (Moyake) a traffic officer in the employ of the Eastern Cape Provincial Traffic Department. The minibuses bore the registration letters and numbers PHL 739 GP and PHL 741 GP. Spofana and Moyake recognised the vehicles and remembered having stopped the vehicles during July 2005 when the same drivers were issued with notices to discontinue the use of the vehicles as hearses pending compliance with the statutory requirements pertaining to the operation of the vehicles as hearses.

[3] On that occasion the drivers were however permitted to continue with the passengers and cadavers in order not to delay the funeral. On the latter occasion however the drivers were reminded of the earlier warning but merely proffered the excuse that they were complying with their employers’ instructions. Inspection of the vehicles revealed the presence of a licence and roadworthy certificate disc on the windscreen which described the vehicle as a minibus/combi. A further notice to discontinue use of the vehicle was issued, the licence and roadworthy disc removed and the vehicles’ driven to the Aliwal North Police Station where it remained until released into the applicant’s custody on 29 November 2005. Since then further like vehicles belonging to the applicants have been issued with similar notices to that adverted to earlier and it is this impasse that has led to the present application.

[4] The relief sought by the applicants in their notice of motion is for an order:-

“1. That the First Respondent and all his employees, alternatively the Second Respondent and its employees, further alternatively both the Respondents and all their employees, be interdicted and restrained from confiscating and/or impounding and/or prohibiting in any way the Applicant for utilising in its normal course of business Applicant’s motor vehicles, designed for carrying bodies of deceased persons.

2. That the First Respondent, alternatively the Second Respondent, further alternatively the Respondents jointly and severally, be ordered to pay the costs of this Application.

Further and alternatively relief.”

It is predicated upon the supposition that a licence and roadworthy certificate disc issued by the relevant traffic department authorised the use of such modified minibuses as hearses without further ado and that there was therefore no necessity to have the modified minibuses specifically registered as hearses. As will be apparent from the aforegoing, the respondents take a contrary view.

[5] The legislative framework which finds application is the National Road Traffic Act 93 of 1996 (the Act) and the National Road Traffic Regulation 2000 (the regulation). S 42 of the Act provides:-

“Certificate of Roadworthiness required in respect of motor vehicle

(1) No person shall operate a motor vehicle which is not a roadworthy condition on a public road.

(2) No person shall operate a motor vehicle on a public road unless the requirements in respect of a certificate of roadworthiness contemplated in subsection (4) in relation to such motor vehicle are complied with, and except in accordance with the conditions of such certification of roadworthiness.

(3) No person shall operate a motor vehicle on a public road unless the requirements in respect of a roadworthy certificate contemplated in subsection (4) in relation to such motor vehicle are complied with, and except in accordance with the conditions of such roadworthy certificate.

(4) Subject to this Chapter –

(a) the classes of motor vehicles requiring certification of roadworthiness and the classes of motor vehicles requiring roadworthy certificates;

(b) the period of validity of certification of roadworthiness and roadworthy certificates;

I the examination of motor vehicles;

(d) the certification of roadworthiness and issue of roadworthy certificates; and

(e) any other aspect regarding certification of roadworthiness and roadworthy certificates which the Minister may deem necessary or expedient,

shall be as prescribed.

(5) Any document issued by a competent authority in a prescribed territory and serving a similar purpose to that of certification of roadworthiness or a roadworthy certificate shall, in accordance with the conditions thereof but subject to this Act, be deemed to be certification of roadworthiness or a roadworthy certificate for the purpose of subsection (2) and (3), as the case may be.

S 42A then provides that the roadworthy certificate is to be displayed on the motor vehicle.

[6] Regulation 142 (1) provides the classes of motor vehicles which require a certificate of roadworthiness and specifically designated a minibus as one such class of vehicle requiring a certificate of roadworthiness. Sub-regulation 2 then specifically excludes a hearse as a class of vehicle requiring a certificate of roadworthiness. The exclusion of a hearse as a class of motor vehicle requiring a certificate of roadworthiness is not accidental. Schedule 2 of the regulations distinguishes a hearse from a minibus/combi.

[7] It is apparent from the aforegoing that no special certificate of roadworthiness is required in respect of a hearse. All that is required is a certificate of roadworthiness which, it is common cause, is displayed on each of the applicant’s fleet of modified minibuses. The attitude adopted by the traffic authorities, in particular, Spofana, that “the minibus vehicles are not in roadworthy condition in that they have coffin boxes mounted in the passengers compartments of the minibus vehicles designated for the carrying of passengers” is, having regard to the legislative framework to which I have alluded, clearly wrong. Based on that erroneous belief the further contention that “. . . I am bound by law to confiscate and/or impound and/or prohibit any and all motor vehicles coming to my attention that in my opinion are not roadworthy and/or not being used in accordance with the registration of the said vehicle from being operated on a public road, whether same may belong to the Applicant or not” is untenable. Counsel was invited to refer to any such regulation, which Mr Louw quite properly admitted he was unable to do.

[8] Mr Louw submitted however that the relief sought by the applicant was misconceived in that it ought properly to have sought a declarator. Whilst I am in agreement that the relief as formulated is unduly wide, the only course open to the applicant was to seek an interdict for, on the second respondent’s own admission it continues and will continue to confiscate the applicant’s modified minibuses by reason of their belief that the aforesaid vehicles are not in a roadworthy condition. There is no alternative remedy available to the applicant and I am satisfied that as against the second respondent it is entitled to relief, though not in the terms formulated. Mr Louw submitted however that no case had been made out that any employee of the second respondent had performed any of the acts complained of. There is no merit in the submission. What emerges clearly from the papers is that Spofana’s involvement was active and not peripheral. I am however unable to find that as against the first respondent the applicant is entitled to any relief whatsoever. Whilst it is no doubt correct that the applicant’s vehicles were kept at the Aliwal North Police Station and the drivers there detained on 7 October 2005 it is common cause that the detention was precipitated by the laying of a criminal charge by Spofana and Moyake. Detective Inspector Serue (Serue) received a docket to investigate various charges relating to the vehicles. Ultimately the charges were withdrawn and the vehicles returned to the applicant. There is no suggestion in the papers of the first respondent’s further involvement in the matter. It ought not to have been joined in these proceedings.

[9] I have in the course of this judgment reproduced the relief sought by the applicant and commented that it appeared unduly wide. Mr Van Onselen was constrained during argument to agree and sought an amendment to the relief sought which he reformulated as:-

“That the first respondent and all his employees, alternatively the second respondent and its employees, further alternatively both the respondents and all their employees be interdicted and restrained from confiscating and/or impounding and/or prohibiting in any way the applicant for utilising in its normal course of business applicant’s motor vehicles described as minibuses which have been modified to carry a coffin/corpse for reasons that the vehicle is not roadworthy because it is not registered as a hearse and contains such modification to carry a coffin.”

Advocate Sandi on behalf of the first respondent raised no objection to the amendment sought. Advocate Louw submitted that as the relief initially sought differed so substantially from that now sought that the application be refused. There is in essence no fundamental difference. The reformulated relief, whilst somewhat inelegantly framed, serves to narrow the relief sought.

[10] The following orders will issue:

The application against the first respondent is dismissed with costs.

The second respondent and its employees are interdicted and

restrained from confiscating and/or impounding and/or prohibiting in any way the applicant for utilising in its normal course of business applicant’s motor vehicles described as minibuses which have been modified to carry a coffin/corpse for reasons that the vehicle is not roadworthy because it is not registered as a hearse and contains such modification to carry a coffin.

That the second respondent pay the costs of this application.

D. CHETTY

JUDGE

OF THE HIGH COURT

Obo the Applicant: Adv Van Onselen

(instructed by Neville Borman & Botha : Miss Carinus – Correspondent Attorneys)

Obo the 1st Respondent: Adv Sandi (instructed by Mlonyeni & Lesele Inc)

Obo the 2nd Respondent: Adv Lowe (instructed by Wheeldon Rushmere & Cole : Mr R Laing)